text:
    RAYMOND SANTOPIETRO, JR., ET AL. v. CITY OF NEW HAVEN ET AL.
    (15355)
    Callahan, Borden, Berdon, Katz and Palmer, Js.

      Argued May 1
    officially released August 27, 1996

      Robert A. Solomon, with whom, on the brief, was Katerina Rohner, for the appellants (plaintiffs).

      Christopher M. Vossler, with whom, on the brief, was Linda Gray MacDonald, for the appellees (defendants).
   BORDEN, J.

This appeal arises out of injuries incurred by a spectator at a softball game. The issues are whether: (1) the plaintiffs’ failure to file a motion to set aside the verdict limits the scope of our appellate review to plain error; (2) the trial court improperly directed a verdict in favor of the defendant umpires; and (3) the trial court improperly granted a motion in limine to preclude evidence of bystander emotional distress. We affirm the judgment of the trial court.

Certain facts are not in dispute. On October 16,1988, the plaintiffs attended a softball game played at East Shore Park in New Haven by teams belonging to an organized league. The defendants David Brennan and Bruce Shepard served as the umpires for that game. The defendant Mark Piombino was a participant in the game.

The plaintiff Raymond Santopietro, Jr., observed the softball game from a position behind the backstop and was not on the field of play. The plaintiff Raymond Santopietro, Sr., was approximately ten to fifteen feet from his son watching another game being played on an adjacent field.

In the sixth inning, Piombino came to bat in the game that Santopietro, Jr., was watching and hit a fly ball. In frustration, he intentionally flung his bat toward the backstop. Somehow the bat passed through the backstop and struck Santopietro, Jr., in the head. As a result, Santopietro, Jr., suffered a fractured skull and other serious injuries.

Both Santopietro, Jr., and Santopietro, Sr., appeal from the judgment of the trial court, Hon. John C. Flanagan, state trial referee, in favor of the defendants rendered following the court’s granting of a motion in limine precluding the claim of Santopietro, Sr., for bystander emotional distress, and following a directed verdict in favor of Brennan and Shepard on Santopietro, Jr.’s claim of negligence. Thereafter, the jury rendered a verdict in favor of Santopietro, Jr., against Piombino. The plaintiffs did not file a postverdict motion, either to set aside the directed verdict in favor of Brennan and Shepard, or in any way raising again the ruling of the court on the motion in limine regarding the claim of Santopietro, Sr., for bystander emotional distress. The trial court rendered judgment for Brennan and Shepard, and for Santopietro, Jr., against Piombino. This appeal followed.

Santopietro, Jr., claims that the trial court improperly directed a verdict for Brennan and Shepard on his claim against them. Santopietro, Sr., claims that the trial court improperly ruled against his claim for bystander emotional distress. We affirm the judgment of the trial court in both respects.

I

Before addressing the merits of the plaintiffs’ claims on appeal, we consider our scope of review regarding those claims. Because the plaintiffs did not file a motion to set the verdict aside, our scope of review would, under our prevailing precedent of Pietrorazio v. Santopietro, 185 Conn. 510, 515-16, 441 A.2d 163 (1981), be limited to determining whether the trial court’s actions constituted “plain error” requiring reversal of the judgment. The plaintiffs argue, however, that we should overrule Pietrorazio, and review their claims unburdened by the plain error doctrine. We agree.

We are mindful of the doctrine of stare decisis, especially when it involves the interpretation of a statute, as Pietrorazio does. “Stare decisis gives stability and continuity to our case law. This court, however, has recognized many times that there are exceptions to the rule of stare decisis. ... A court, when once convinced that it is in error, is not compelled to follow precedent. . . .If, however, stare decisis is to continue to serve the cause of stability and certainty in the law — a condition indispensable to any well-ordered system of jurisprudence — a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it. . . . This is especially true when the precedent involved concerns the interpretation or construction of a statute. . . . Herald Publishing Co. v. Bill, 142 Conn. 53, 62, 111 A.2d 4 (1955); see Kluttz v. Howard, 228 Conn. 401, 406, 636 A.2d 816 (1994); White v. Burns, 213 Conn. 307, 335-36, 567 A.2d 1195 (1990).” (Internal quotation marks omitted.) General Electric Employees Federal Credit Union v. Zakrzewski, 235 Conn. 741, 744, 670 A.2d 274 (1996). We conclude that this is a case in which cogent reasons and inescapable logic require that Pietrorazio be overruled.

Pietrorazio was a medical malpractice action in which the jury returned a verdict for the defendant physicians. The plaintiff patient appealed, claiming that: (1) the verdict was against the weight of the evidence; and (2) several evidentiary rulings of the trial court were erroneous. Pietrorazio v. Santopietro, supra, 185 Conn. 511. The plaintiff had not, however, filed a motion to set aside the verdict in accordance with Practice Book § 320 and General Statutes § 52-228b. Id., 512. We held that “[o]ur conclusion that a motion to set aside a verdict is essential for a full review of claims of error in civil jury cases seeking money damages limits our consideration of the issues raised ... to ascertaining whether there has been ‘plain error.’ Practice Book § [4185].” Id., 515. Pursuant to that “limited study” of those rulings, we affirmed the trial court’s judgment. Id., 517.

Central to our conclusion in Pietrorazio was our interpretation of § 52-228b. See footnote 6. We recognized that, prior to the enactment of that statute in 1965, it had been thought that a motion to set aside a verdict was essential to obtain appellate review of a claim of evidentiary insufficiency to support a verdict. Id., 513. We also recognized that commentators had opined that such a motion was not necessary to obtain appellate review of other trial court rulings, because in their view it would be redundant to require such a motion in those contexts. Id., 514.

We concluded, however, that the “enactment in 1965 of General Statutes § 52-228b, which declares that ‘[n]o verdict in any civil action involving a claim for money damages shall be set aside except on written motion by a party to the cause . . .’is applicable to this case and is controlling.” Id. We stated that “[t]he evident purpose of the statute is to provide an opportunity for the trial court to pass upon claims of error which may become the subject of an appeal.” Id. We declared that “[t]he statute was designed to afford the trial court a full opportunity to redress any errors which may have occurred at trial before the appellate process is begun.” Id., 515.

We also noted several policy reasons for requiring a motion to set aside the verdict as a prerequisite for full appellate review of rulings other than those involving the sufficiency of the evidence to support the verdict. These were, in general, that: (1) the trial court’s opinion on such a motion may dissuade a party from pursuing an unmeritorious appeal; (2) the trial court’s perceptions of the trial may be helpful to the appellate court in evaluating the effect of the trial court’s ruling on the verdict; and (3) even when a claim of error has been fully preserved at trial, its articulation during trial will not be as clear and thorough as when it is presented in a posttrial motion. Id., 514-15.

From the statutory language, the previously described understanding of the purpose of the statute, and these policy considerations, we concluded that the statute must be read to circumscribe our scope of appellate review of claims of trial court error that had not been made the subject of a motion to set aside a verdict. Id., 515. We also noted, however, that pursuant to Practice Book § 4185, we could nonetheless address such claims under the plain error doctrine. Id., 515-16.

We subsequently reiterated our reliance on the statutory language and supporting policy considerations as the continued justification for the Pietrorazio rule. In Soporoso v. Aetna Life & Casualty Co., 221 Conn. 356, 362-63, 603 A.2d 1160 (1992), we noted “the breadth of the first sentence of the statute, which provides that ‘[n]o verdict in any civil action . . . may be set aside except on written motion . . . .’ (Emphasis added.) There is no ambiguity in that language to justify a distinction between motions to set aside for insufficient evidence and those based on rulings during the course of the trial. In applying a statute this court is bound by its terms and cannot read into its plain language exceptions that the legislature has not created.” We also noted four policy considerations for the rule: (1) it permits the trial court to reconsider its rulings in the less hectic atmosphere of posttrial proceedings, and to grant a new trial if required, without the necessity of an appeal; (2) it gives the court an opportunity to explain its rulings more clearly than is possible during trial; (3) it gives the parties an opportunity to present their arguments more persuasively and clearly than is ordinarily possible during trial; and (4) it may induce settlement of the litigation by forcing the parties to reevaluate their positions in light of the verdict. Id., 363.

We now conclude that our statutory analysis was flawed. We conclude that the text of the statute neither compels nor suggests a conclusion that the statute circumscribes in any way our scope of appellate review. Moreover, contrary to our earlier statements, the text of the statute suggests that its purpose is to ensure the fairness of postverdict trial court procedures, and not to affect the scope of appellate review of trial court rulings. Furthermore, we conclude that the Pietrorazio rule imposes costs on both the trial and appellate processes that are unacceptable, which we did not take into account when Pietrorazio was decided. Finally, although we agree, for all of the policy reasons previously noted, that it is highly desirable, both from a trial court and appellate court perspective, that parties continue to file motions to set aside jury verdicts, we conclude that there is nothing in the statute or those laudable policies that makes such motions essential to full appellate review of trial court rulings.

We first note that the initial appellate determination of whether to review a claimed improper ruling of the trial court in a plenary fashion or under the plain error doctrine is more than a matter of phraseology. Determining whether a trial court has committed plain error that requires reversal is quite different from determining whether a trial court has made a ruling that is legally incorrect and that is sufficiently harmful to require reversal of the judgment. Where claims of trial court impropriety have been properly preserved and, therefore, are entitled to plenary review, we determine whether the ruling of the trial court is legally correct and, if it is not, whether the error was likely to have affected the verdict. See, e.g., Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 572, 657 A.2d 212 (1995) (appellant must show that improper ruling “ ‘would likely affect the result’ ”).

In determining whether there has been plain error, however, our scope of review is much more circumscribed. “Plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 25, 664 A.2d 719 (1995). In any given case, therefore, rulings of the trial court that, if reviewed in a plenary fashion, would be judged to be legally incorrect and harmful enough to require reversal of the judgment could, if considered only under the plain error doctrine, be considered not to be so egregiously incorrect as to constitute plain error requiring reversal. In effect, then, confining an appellate claim to the plain error rubric means that, for reasons of policy, we are willing to take the appellate risk of sanctioning a legally flawed trial court judgment.

With this consideration in mind, we turn first to the language of § 52-228b, which provides: “No verdict in any civil action involving a claim for money damages may be set aside except on written motion by a party to the action, stating the reasons relied upon in its support, filed and heard after notice to the adverse party according to the rules of the court. No such verdict may be set aside solely on the ground that the damages are excessive unless the prevailing party has been given an opportunity to have the amount of the judgment decreased by so much thereof as the court deems excessive. No such verdict may be set aside solely on the ground that the damages are inadequate until the parties have first been given an opportunity to accept an addition to the verdict of such amount as the court deems reasonable.”

There is nothing in this language that suggests that it was meant to affect the scope of review of appellate claims. Rather, the focus of § 52-228b is on requirements of fundamental fairness in postverdict proceedings. The first sentence, which applies generally to the setting aside of a civil verdict for money damages, requires that there be a written motion, that its reasons be stated, and that it be heard only after notice to the adverse party. The second sentence, which applies to the more specific instance of a court’s setting aside such a verdict on the ground of an excessive damages award, requires that the prevailing party first be given the opportunity to accept an amount that the court deems not to be excessive. Similarly, the third sentence, which applies to the specific instance of a court’s setting aside such a verdict on the ground of inadequacy of the award, requires that the parties first be given the opportunity to accept an adequate award.

Thus, we discern from the language of § 52-228b that its purpose is to ensure that, before a trial court sets aside a civil verdict for damages, it abides by certain procedural requirements that afford fairness to the party who would be adversely affected by such a ruling. The purpose is to protect the litigants, not the trial court. Thus, although moving to set aside a verdict has the desirable effect of affording the trial court an opportunity to reconsider its earlier rulings, the focus of the statute is on the trial process. Contrary to our conclusion in Pietrorazio, the focus is not on the appellate process that may or may not follow.

Furthermore, the Pietrorazio rule imposes significant costs on the trial court process. If a litigant takes the rule seriously, as he must at his appellate peril in order to secure traditional appellate review of any particular challenge to a trial court ruling, he must raise that claim as a specific ground for setting aside the verdict. That necessarily means, therefore, that in addition to raising such a claim appropriately either before or during trial, he must do so again in the course of the proceedings on the motion to set aside the verdict, either in the motion itself, or at the least, in his brief or oral argument on the motion.

Often — indeed, probably nearly always — the motion to set aside must be briefed and argued before any transcripts of the trial have been prepared, because to order and to wait for such transcripts would be unduly expensive and cause undue delay. This necessarily means that the litigant filing the motion must often attempt to reconstruct, either from notes or memory, all of the rulings made before or during trial that he anticipates may be an ultimate ground of appeal, and marshal the factual and legal support for the challenge to all such rulings. It means also that the adverse litigant must frequently attempt to respond to these claims, likewise from notes or memory. Similarly, the trial court, in considering these claims, may be constrained to do so on the basis of its notes or memory. This is a heavy cost to impose on our trial process, one that we should not impose unless we are persuaded that its virtues make it necessary.

We are not so persuaded. Our rules already provide that we are not required to consider any claim that was not properly preserved in the trial court. See Practice Book § 4185. Therefore, litigants have ample inducement to present their claims to the trial court in such a way as to preserve them properly for appellate review. The claims that are barred by the Pietrorazio rule, however, are claims that were so presented and preserved once; their sole defect is that they were not presented a second time.

The rule also imposes an unacceptable cost on the appellate process. When the rule is enforced — that is, when we subject the claim in question solely to plain error adjudication — we are taking the risk, as we have noted previously, of affirming a legally flawed trial court judgment. Although that is a risk that we are willing to take to ensure that parties have properly preserved their claims of law in the trial court, we conclude that there is insufficient reason to take that risk when the claims before us have been properly preserved but simply have not been presented a second time.

Finally, our experience with the Pietrorazio rule suggests that its virtues have been overstated. The policy reasons advanced for it do not support the conclusion that presenting claims to the trial court a second time is “essential” for adequate appellate review of those claims. In Pietrorazio v. Santopietro, supra, 185 Conn. 517 n.5, after determining that the claims did not constitute plain error, we also determined in effect that they failed under plenary review, despite the appellant’s failure to have filed a motion to set aside the verdict. Thus, despite that failure, we found the record adequate to afford plenary review to the appellate claims.

We conclude, therefore, that Pietrorazio and its progeny should be overruled. We next consider the plaintiffs’ claims on their merits, affording them the plenary appellate review to which they are entitled.

II

The plaintiffs first challenge the trial court’s order directing a verdict in favor of Brennan and Shepard. The plaintiffs argue that the evidence that they produced, viewed in the light most favorable to them, would have permitted a jury reasonably to conclude that Brennan and Shepard had breached a cognizable duty to the plaintiffs, causing them injury.

“The standard of review of directed verdicts is well settled. A directed verdict is justified if on the evidence the jury could not reasonably and legally have reached any other conclusion. ... In reviewing the trial court’s action in directing a verdict . . . we must consider the evidence in the light most favorable to the plaintiff. . . . This court has repeatedly stated that directed verdicts are not favored.” (Citations omitted; internal quotations marks omitted.) Berry v. Loiseau, 223 Conn. 786, 819-20, 614 A.2d 414 (1992).

A review of the evidence in the light most favorable to the plaintiffs indicates that the jury might reasonably have found the following facts. During the course of the game that Santopietro, Jr., was watching when he was injured, there occurred several incidents of unruly behavior by players who were on the same team as Piombino. Some players used vulgar language in a loud and angry manner. Players taunted members of the other team in an attempt to intimidate them. Players threw their gloves and kicked the dirt, and one player kicked a garbage can, upsetting its contents and creating a loud noise. After his turn at bat resulted in an out, another player angrily threw a bat along the ground in the direction of the bats not in use. Another player threw his glove from the pitcher’s mound into the dugout. A player inside the dugout repeatedly banged a bat against the dugout, producing a loud noise. Furthermore, the jury could have inferred from the evidence presented that Brennan and Shepard were aware or reasonably should have been aware of these incidents.

After passing a written examination, Brennan and Shepard were both trained and approved to be softball umpires by the Amateur Softball Association (association), a national organization that regulates the conduct of organized amateur softball in the United States. Both Brennan and Shepard possessed years of experience and had umpired hundreds of games. Shepard had received an award honoring him for being the best umpire in New Haven. Brennan testified that, as an umpire, he possesses specialized knowledge about softball and softball rules that is greater than the average person’s knowledge. Both Brennan and Shepard were familiar with the association’s rules governing the conduct of umpires.

Brennan and Shepard testified that when they observed unsportsmanlike conduct, they would issue a warning and, if the warning was disregarded, they would eject the player from the game. Specifically, they testified that they would have taken such action if they had observed the disruptive behavior described by several witnesses, including taunting, loud swearing, kicking a garbage can, hitting the inside of the dugout with a bat, or throwing a glove from the pitcher’s mound into the dugout.

Brennan and Shepard further testified that when they give a warning, it usually has the effect of stopping the disruptive behavior and preventing future improper acts. They testified that any player who tosses a bat should be ejected immediately, and Brennan testified that if he had seen a player toss a bat as described by the witnesses, he would have ejected that player without warning. They testified that such disciplinary action is an effective means by which to control the actions of players.

Shepard testified that, as an umpire, he had the duty to maintain control of the game to prevent harm to spectators, and that warnings constitute the primary means by which to maintain that control. Moreover, Brennan testified that umpires have the authority to suspend the game if necessary to keep order or to prevent harm to spectators.

Brennan and Shepard also testified that the decision of whether to impose discipline in any given instance of unruly behavior is a discretionary matter for the umpire. Brennan testified that the rule against unsportsmanlike conduct gives the umpire authority “at his discretion, to disqualify any player who exhibits unsportsmanlike conduct in the judgment of the umpire.” He further testified that decisions whether to take disciplinary action in response to loud swearing, throwing a glove or kicking dirt “are umpire judgment or umpire discretion calls.” Shepard testified that the question of whether unruly behavior, such as using loud and abusive language, throwing a glove or kicking a garbage can, constitutes unsportsmanlike conduct will depend on the particular situation. Shepard further testified that the determination of whether unsportsmanlike conduct has occurred sometimes depends upon “the whole tenor of what is going on, the language, plus the gloves, plus whether it’s considered taunting or not.” Similarly, Brennan testified that “[tjhere are a lot of variables that go into” determining whether unsportsmanlike conduct has occurred. Brennan further testified concerning the subjective nature of the decision whether to discipline a player for unsportsmanlike conduct. Specifically, he stated that “the majority of the time you’ll find that umpires are former players, and umpires will use the term unsportsmanlike conduct as some type of action which, had I been a player, I wouldn’t like done to me, I wouldn’t let another group do it to another player.”

We note that this testimony confirms what is the common understanding of the umpire’s task. In the absence of exceptional circumstances, a softball umpire, when confronted with unruly behavior by a player that arguably constitutes unsportsmanlike conduct, faces a spectrum of discretionary options. At one end of the spectrum is taking no action; at the other end is ejection of the player or suspension of the game. In between are warnings and other appropriate disciplinary action. The umpire has discretion, within the spectrum, to respond to the offensive behavior in the manner that the umpire finds to be most appropriate in the given circumstances.

The trial court directed a verdict in favor of Brennan and Shepard reasoning, in part, that if a duty exists, expert testimony was required to establish a breach of that duty and that such a breach caused the harm to the plaintiffs. The trial court concluded further that the standard of care applicable to an umpire, whether that standard was breached, and whether that breach caused the plaintiffs’ injuries are not matters of common knowledge. We conclude that the plaintiffs were required to establish by expert testimony that the failure of Brennan and Shepard to act in the present case constituted a breach of duty, and that the plaintiffs’ evidence did not satisfy that burden.

“A breach of duty by the defendant and a causal connection between the defendant’s breach of duty and the resulting harm to the plaintiff are essential elements of a cause of action in negligence.” Catz v. Rubenstein, 201 Conn. 39, 44, 513 A.2d 98 (1986); see RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994) (“essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury”). A motion for a directed verdict is properly granted if the jury could not reasonably and legally have found that the plaintiff had proved each of these elements. “A directed verdict is justified if . . . the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party.” (Citations omitted.) Boehm v. Kish, 201 Conn. 385, 389, 517 A.2d 624 (1986).

“The existence of a duty is a question of law and [o]nly if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand. Petriello v. Kalman, 215 Conn. 377, 382-83, 576 A.2d 474 (1990). If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant.” (Internal quotation marks omitted.) RK Constructors, Inc. v. Fusco Corp., supra, 231 Conn. 384-85.

If the determination of the standard of care requires knowledge that is beyond the experience of an ordinary fact finder, expert testimony will be required. Jaffe v. State Dept. of Health, 135 Conn. 339, 349, 64 A.2d 330 (1949); Sickmund v. Connecticut Co., 122 Conn. 375, 379, 189 A. 876 (1937); Slimak v. Foster, 106 Conn. 366, 368, 138 A. 153 (1927); Matyas v. Minck, 37 Conn. App. 321, 326, 655 A.2d 1155 (1995); see State v. McClary, 207 Conn. 233, 245, 541 A.2d 96 (1988) (expert testimony required in criminal case because nature and cause of victim’s injuries “manifestly beyond the ken of the average trier of fact, be it judge or jury”).

We note that the plaintiffs’ claims in the present case are akin to allegations of professional negligence or malpractice, which we have previously defined as “the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services.” (Internal quotation marks omitted.) Davis v. Margolis, 215 Conn. 408, 415, 576 A.2d 489 (1990). As Brennan testified, he possesses specialized knowledge as an umpire that is greater than the average person’s knowledge. An umpire obtains, through formal training and experience, a familiarity with the rules of the sport, a technical expertise in their application, and an understanding of the likely consequences of officiating decisions. As a result, the umpire possesses knowledge of the standard of care to which an umpire reasonably may be held, and of what constitutes a violation of that standard, that is beyond the experience and ken of the ordinary fact finder. Moreover, the fact finder’s lack of expertise is exacerbated by the highly discretionary nature of the umpire’s task. Thus, the fact finder must determine not just whether in hindsight the umpire erred, but also whether the umpire’s error constituted an abuse of his broad discretion. In such cases in which the fact finder’s decision requires specialized knowledge, expert testimony is necessary “to assist lay people, such as members of the jury and the presiding judge, to understand the applicable standard of care and to evaluate the defendant’s actions in light of that standard.” Id., 416; see, e.g., Barrett v. Danbury Hospital, 232 Conn. 242, 252, 654 A.2d 748 (1995) (medical malpractice); Davis v. Margolis, supra, 416 (legal malpractice); Matyas v. Minck, supra, 37 Conn. App. 327 (negligence of engineer).

In the present case, the plaintiffs do not articulate clearly the umpire’s duty upon which they base their claim. The plaintiffs principally rely upon the testimony of Shepard that an umpire’s duty is “to maintain control on the field so it does not spill over to spectators.” Thus, the plaintiffs appear to postulate a duty owed by the umpires to maintain control of the game in such a way as to prevent harm to others. On appeal, Brennan and Shepard do not concede that such a duty exists, but argue that even if we were to assume its existence, the plaintiffs failed to define the duty. Our research indicates that no other jurisdiction has explicitly considered whether to impose or how to define such a legal duty.

Therefore, for the purposes of this appeal, we assume, without deciding, that umpires such as Brennan and Shepard have a duty, essentially as postulated by the plaintiffs, to exercise reasonable judgment as umpires in order to maintain control of a game so as to prevent an unreasonable risk of injury to others. The breach of this duty, however, must be proved, in the absence of exceptional circumstances, by expert testimony establishing that the allegedly negligent action or failure to act by the umpire constituted an abuse of the umpire’s discretion to evaluate the particular circumstances and to take only such disciplinary action as the umpire deems appropriate. Moreover, the expert testimony must establish an abuse of that discretion sufficient to permit a jury to infer that the umpire’s action or failure to act constituted such a loss of control of the game as to give rise to an unreasonable risk of injury to the plaintiff.

In fact, in the present case, the plaintiffs concede that expert testimony was required to establish whether the applicable standard of care was breached by Brennan and Shepard. The plaintiffs argue that, through the testimony of Brennan and Shepard, they presented sufficient positive evidence of an expert nature from which the jury could have reasonably concluded that Brennan and Shepard were negligent.

We have previously held that the plaintiff in a medical malpractice action may prove the proper standard of care and its breach through the testimony of the defendant. Console v. Nickou, 156 Conn. 268, 273-74, 240 A.2d 895 (1968); Snyder v. Pantaleo, 143 Conn. 290, 294-95, 122 A.2d 21 (1956). Similarly, in the present case, the record reveals that the testimony of Brennan and Shepard constituted expert testimony through which the plaintiffs might have established negligence. Moreover, Brennan and Shepard, as expert witnesses, were not required specifically to have expressed an opinion that they breached the standard of care in order for the plaintiffs to prevail. Console v. Nickou, supra, 273-75; Snyder v. Pantaleo, supra, 294-95. Rather, the plaintiffs need only have produced sufficient expert testimony to permit the jury reasonably to infer, on the basis of its findings of fact, that Brennan and Shepard breached the standard of care.

For example, in Console v. Nickou, supra, 156 Conn. 273, the defendant physician testified that the applicable standard of care would be breached if a physician left a needle in a patient’s body after surgery. Although the physician did not testily that he breached the standard of care, we concluded that his testimony, when applied to the facts of the case, was sufficient to permit the jury reasonably to conclude that the standard of care had been breached. Id., 273-75; see also Snyder v. Pantaleo, supra, 143 Conn. 294-95 (although plaintiff patient presented no expert opinion that defendant physician was negligent, jury could have found that facts established breach of duty on basis of physician’s testimony concerning proper standard of care).

We conclude, in the present case, that the plaintiffs failed to produce sufficient evidence that Brennan and Shepard had breached the applicable standard of care. Brennan and Shepard testified that unsportsmanlike conduct is prohibited and that it is appropriate for an umpire to take action to prevent or stop such conduct. They further testified that the umpire possesses the authority to warn players, eject them or suspend the game if necessary to deter unsportsmanlike conduct or to maintain control of a game. Moreover, when questioned about specific incidents that allegedly had occurred during the game at which Santopietro, Jr., was injured, Brennan and Shepard testified that if they had seen the incidents described by the witnesses, they would have taken some disciplinary action. They also testified, however, that the umpire possesses discretion in the application of the rule prohibiting unsportsmanlike conduct and that the decision whether to take some action against a player is made according to the judgment of the umpire based on the specific circumstances. Neither Brennan nor Shepard testified that, in the specific circumstances of that game, a reasonable umpire would have been required to take action in response to those incidents, or that it would have been unreasonable for an umpire not to have taken such action. In other words, their testimony that, in the exercise of their discretion, they would have taken action does not establish that a failure to act constituted a breach of the standard of care.

The plaintiffs did present evidence that, arguably, would support the conclusion that Brennan and Shepard improperly failed to act in response to two incidents. First, witnesses testified that a player tossed a bat toward other bats after an unsuccessful plate appearance. Brennan and Shepard testified that the local rule required them to eject immediately any player who throws a bat. Brennan further testified that the incident described by the witnesses would “merit an ejection.” If we were to interpret this testimony to constitute an expert opinion that a reasonable umpire must have ejected the player in those circumstances, then this evidence would support the conclusion that Brennan and Shepard improperly failed to act with respect to that particular incident. Second, a witness testified that some players taunted members of the other team. Shepard testified that an umpire should take immediate action in response to taunting. Brennan and Shepard do not dispute the plaintiffs’ evidence that they did not take any disciplinary action during the game.

The testimony of Brennan and Shepard concerning these two incidents supports a possible conclusion that they failed to exercise their discretion in a reasonable manner on two occasions during the game. The plaintiffs do not contend, however, that these two incidents suffice to establish that Brennan and Shepard breached a duty, which we assume exists, to maintain control of the game in order to prevent unreasonable risk of harm to others. The plaintiffs do not argue, and we do not assume, that Brennan and Shepard possess a duty to make every discretionary call that arises during the course of the game error free. Umpire liability, if it were to exist, must be predicated on facts sufficient to support the conclusion that their unreasonable actions or failure to act led to such a loss of control of the game as to imperil unreasonably the safety of others. We conclude, as a matter of law, that these two incidents of arguably negligent behavior are not sufficient to support such a conclusion.

We conclude, therefore, that the plaintiffs have failed to prove by expert testimony that Brennan and Shepard breached a duty of care to prevent an unreasonable risk of the injuries suffered by Santopietro, Jr. Because the jury could not have reasonably and legally concluded that the plaintiffs had established the elements of a negligence cause of action, a directed verdict was properly granted.

Ill

As a result of our conclusion that the plaintiffs did not establish negligence on the part of Brennan and Shepard, we do not reach the claim of Santopietro, Sr., that the trial court improperly precluded his claim for bystander emotional distress. We note, however, that we recently decided in Clohessy v. Bachelor, 237 Conn. 31, 675 A.2d 852 (1996), that a cause of action for bystander emotional distress may arise under certain circumstances.

The judgment is affirmed.

In this opinion the other justices concurred.

       Santopietro, Sr., died during the pendency of this action. Accordingly, Sandra Diane Santopietro, acting as executrix of his estate, was substituted as a party plaintiff for Santopietro, Sr. We refer to Santopietro, Sr., however, as the plaintiff.

       The plaintiffs appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       The original defendants were: the city of New Haven, which owns East Shore Park; Robert Sheeley, the director of the department of parks, recreation and trees for the city of New Haven; Edward Candella, the assistant superintendent of parks for the city of New Haven; John Hiller, a foreman in the department of parks, recreation and trees for the city of New Haven; Caccone’s Sunday Morning League; Brennan; Shepard; and Piombino.
      The trial court, O’Keefe, J., granted a motion for summary judgment on behalf of the city of New Haven, Sheeley, Candella and Hiller. The plaintiffs do not appeal from the summary judgment rendered in favor of those defendants. The plaintiffs withdrew their complaint against Caccone’s Sunday Morning League prior to the commencement of the trial. The action was tried solely against Brennan, Shepard and Piombino.

       The judgment against Piombino is not involved in this appeal.

       Practice Book § 320 provides: “Motions in arrest of judgment, whether for extrinsic causes or causes apparent on the record, motions to set aside a verdict and motions for new trials, unless brought by petition served on the adverse party or parties, must be filed with the clerk within five days after the day the verdict is accepted or judgment rendered; provided that for good cause the court may extend this time. The clerk shall notify the trial judge of such filing. Such motions shall state the specific grounds upon which counsel relies.”

       General Statutes § 52-228b provides: “No verdictin any civil action involving a claim for money damages may be set aside except on written motion by a party to the action, stating the reasons relied upon in its support, filed and heard after notice to the adverse party according to the rules of the court. No such verdict may be set aside solely on the ground that the damages are excessive unless the prevailing party has been given an opportunity to have the amount of the judgment decreased by so much thereof as the court deems excessive. No such verdict may be set aside solely on the ground that the damages are inadequate until the parties have first been given an opportunity to accept an addition to the verdict of such amount as the court deems reasonable.”

       Practice Book § 4185 provides in relevant part: “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”

       In a footnote in that opinion, however, we stated: “It must not be inferred from the fact that we have based our opinion on ‘plain error’ that explicitly addressing all the plaintiff’s claims would produce a different result; in fact, our review indicates the outcome would be the same.” Pietrorazio v. Santopietro, supra, 185 Conn. 517 n.5. Thus, we also afforded the plaintiffs appellate claims plenary review, despite the fact that no motion to set the verdict aside had been filed.
      Subsequent to Pietrorazio, we applied its holding beyond the context of a jury award of damages. Thus, in Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 249-50, 520 A.2d 1008 (1987), we held that, in order for an appellant to obtain full review of a trial court’s ruling directing a verdict, he must have filed a motion to set aside the verdict, and that the failure to do so limited our review to a consideration of plain error. See also Saporoso v. Aetna Life & Casualty Co., 221 Conn. 356, 361-63, 603 A.2d 1160 (1992); Dunham v. Dunham, 204 Conn. 303, 310-11, 528 A.2d 1123 (1987). Moreover, in Dunham v. Dunham, 217 Conn. 24, 28-29, 584 A.2d 445 (1991), we applied the rationale of Pietrorazio to a judgment of contempt of court rendered after a hearing to the trial court, without any jury verdict.

       We need not decide in this case whether that understanding, namely, that a motion to set a verdict aside is essential to full appellate review of a claim of insufficiency of the evidence to support a civil verdict, is correct.

       Indeed, the question of the appellate scope of review of trial court rulings, although of keen interest to appellate court judges and rule makers, is ordinarily unlikely to be on any legislative agenda. We should be cautious, therefore, about discerning legislative intent to address such a subject in the absence of a clear indication of such intent. Compare, e.g., General Statutes § 4-183 (j) (limiting scope of trial court review of administrative rulings). Similarly, we should be cautious about drawing any inference of legislative approval from the legislature’s failure to amend the statute subsequent to our decision in Pietrorazio.

      Neither the language of § 52-228b, which we discuss in the text of this opinion, nor its legislative history, which we discuss in this footnote, dispels that sense of caution. The legislative history of § 52-228b is sparse, and contains no reference to the preservation of appellate claims or the scope of appellate review. See 11 S. Proc., Pt. 7, 1965 Sess., p. 2589, remarks of Senator Charles T. Alfano (“Our present statute provides that before a court can set aside a verdict of a jury, if he feels that the verdict is excessive, he can order a [remittitur]. This is just the reverse: it also permits a judge to order an [additur].”); 11 H.R. Proc., Pt. 8, 1965 Sess., p. 4143, remarks of Representative Gerard S. Spiegel (“[tjhis, sir, is a good bill just [conforming] the verdict and the setting aside of verdicts bills to the same prevailing law”).

       Although we stated in Pietrorazio v. Santopietro, supra, 185 Conn. 515, that the appellant’s claims would nonetheless be considered under the plain error doctrine, we have never explained why, if the language of the statute is so plain and unequivocal; see Saporoso v. Aetna Life & Casualty Co., supra, 221 Conn. 362; it nonetheless permits an implied exception for plain error adjudication. Indeed, our plain error appellate rule by its terms does not apply to the typical claim that, under Pietrorazio, would be denied plenary appellate review. Practice Book § 4185 provides in part that “[t]he court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .” (Emphasis added.) Claims barred from plenary review under Pietrorazio typically were brought to the trial court’s attention, at least during the trial, albeit not a second time, pursuant to a motion to set aside the verdict.

       A motion to set aside must be filed within five days of the verdict; Practice Book § 320; and some trial courts have rejected as untimely any issue not specifically raised in the motion and filed within the five day limit. See W. Moller & W. Horton, 1 Connecticut Practice Series: Practice Book Annotated — Superior Court Civil Rules (3d Ed. 1989) § 320, p. 231, comment (1996 Sup.). Thus, some courts do not permit a movant to file a general motion within the five day period and later to present specific claims in a brief or at oral argument on the motion.

       We have referred to the policy reasons underlying the preservation requirement on several occasions. The policy serves, in general, to eliminate the possibility that “(1) claims of error would be predicated on matters never called to the attention of the trial court and upon which it necessarily could have made no ruling in the true sense of the word; and (2) the appellee . . . would be lured into a course of conduct at the trial which it might have altered if it had any inkling that the accused would, in the event of a conviction, claim that such a course of conduct involved rulings which were erroneous and prejudicial to him.” (Internal quotation marks omitted.) State v. Kurvin, 186 Conn. 555, 564, 442 A.2d 1327 (1982); State v. Brice, 186 Conn. 449, 457-58, 442 A.2d 906 (1982); State v. Johnson, 166 Conn. 439, 445, 352 A.2d 294 (1974); State v. Taylor, 153 Conn. 72, 86-87, 214 A.2d 362 (1965), cert. denied, 384 U.S. 921, 86 S. Ct. 1372, 16 L. Ed. 2d 442 (1966); see Skrzypiec v. Noonan, 228 Conn. 1, 13, 633 A.2d 716 (1993) (purpose of rule is “to alert the trial court to claims of error while there is still an opportunity for correction”).

       We have previously recognized that a motion to set aside the verdict is superfluous when the plaintiff challenges not a jury verdict, but a postverdict judgment rendered by a trial court that has fully considered the appellate issues afler a hearing, arguments and the submission of briefs. Fleming v. Garnett, 231 Conn. 77, 87-88 n.9, 646 A.2d 1308 (1994) (providing plenary review to claim concerning statutory collateral source reduction despite failure to raise claim in motion to set aside verdict). We fail to discern a distinction between a postverdict judgment and a directed verdict, which also generally has been the subject of a hearing, arguments and briefs. See Saporoso v. Aetna Life & Casualty Co., supra, 221 Conn. 373-74 (Berdon, J., concurring) (where plaintiff challenges directed verdict “[i]t makes little sense to require a motion to set aside the verdict and require the same argument all over again”).
      In the present case, moreover, the redundancy of a motion to set aside the verdict that the trial court directed, and the absence of any compelling reason for the plaintiffs to have presented their claims once again to the court, are apparent. After the presentation of the motion for directed verdict, and after a recess, the trial court stated: “I’ve given this matter very serious consideration. As a matter of fact, I’ve been thinking about it as the trial progressed, I gave it a good deal of consideration last evening and this morning, and I’ve made copious notes concerning the evidence, I’ve reviewed my notes with respect to the testimony of every witness and every documentary type evidence that was offered in this case, and I have reached the conclusion that I have no choice but to direct a verdict in favor of [Brennan and Shepard].”

       The plaintiffs also rely upon the answer by Brennan and Shepard to the complaint in which they admitted that their “duties at the game at which [Santopietro, Jr.] was injured included preventing disruptive and dangerous behavior, such as throwing of baseball bats.” (Emphasis added.) We are not bound, however, by this pleading admission or their testimony concerning their duty to maintain control of the game for two reasons. First, the determination of whether a duty exists to support tort liability is a question of law to be decided by the court. RK Constructors, Inc. v. Fusco Corp., supra, 231 Conn. 384-85. Second, umpires cannot, as amatter of law, possibly bear such a duty, taken literally, as this concession suggests, namely, to
        prevent altogetherüie occurrence of disruptive and dangerous behavior. The umpires’ duty, if it exists, cannot exceed the requirement to take reasonable measures to deter the occurrence of such behavior.

       See Bain v. Gillispie, 357 N.W.2d 47, 49 (Iowa App. 1984) (holding that no tort exists for “referee malpractice” where sports merchandisers sued basketball referee for negligent officiating that resulted in harm to their business interests); cf. LeNoble v. Fort Lauderdale, 663 So. 2d 1351, 1352 (Fla. App. 1995) (in negligence action by fast pitch softball pitcher struck by batted ball, summary judgment improper because evidence that umpires were responsible for enforcing rules and ensuring that distance from pitching rubber to home plate complied with association’s rules, and that umpire was informed that pitching rubber was improperly placed, gave rise to issues of fact to be resolved before legal question of duty could be determined).
      In one sports law treatise, the authors assert that such a duty does exist. “Sports officials have a duty to see that the rules for participant and spectator safety are obeyed. To the extent that the duty is not performed, they and their employers may be negligent. See, e.g., Carabba v. Anacortes School District No. 103, 72 Wash. 2d 939, 435 P.2d 936 (1967) (liability may be imposed upon school district for referee’s negligence in failing to detect an illegal wrestling hold that left a high school athlete permanently paralyzed). . . .An official’s responsibility goes much further than enforcement of rules. Officials control the competition, and in this capacity are saddled with a general duty of care.” G. Schubert, R. Smith & J. Trentadue, Sports Law (1986) § 7.5.

       We note that Brennan and Shepard had been formally trained and were paid to officiate the game at which Santopietro, Jr., was injured. Although this information does not affect the resolution of the present case, we acknowledge that it may be relevant if, in the future, we are required to decide whether such a duty exists. The existence or extent of a duty might be affected by whether the umpire is a paid professional or an unpaid volunteer without formal training.

       As the plaintiffs’ appeal papers indicate, and as the plaintiffs acknowledged at oral argument, Santopietro, Sr., does not pursue on appeal his claim against Piombino for bystander emotional distress. See footnote 4.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ALBERT MOLNAR v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT
    (15449)
    Callahan, C. J., and Berdon, Norcott, McDonald and Peters, Js.
    Argued October 2
    officially released November 12, 1996

      William J. Ward, for the appellant (plaintiff).

      Thomas P. Clifford III, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Charles A. Overend, assistant attorney general, for the appellee (defendant).
   PER CURIAM.

The two issues presented by this appeal are whether the trial court properly determined that: (1) workers’ compensation benefits do not qualify as “wages” within the meaning of General Statutes § 31-222 (b) (l) and therefore could not be used to determine the base period of a benefit year under General Statutes § 31-230; and (2) so interpreted, § 31-230 does not violate the equal protection clause of the fourteenth amendment to the United States constitution. We affirm the judgment of the trial court.

The plaintiff, Albert Molnar, was a part-time employee of Domino’s Pizza in May, 1988, when he severely injured his leg in the course of his employment. He thereafter collected temporary total benefits from his employer’s workers’ compensation carrier until June, 1994, when he was declared eligible to return to work. The plaintiff subsequently applied for unemployment compensation benefits effective July 10,1994, and was found ineligible by an unemployment compensation examiner due to his lack of wages during the base period applicable to those individuals receiving workers’ compensation benefits. See General Statutes § 31-230. The plaintiff unsuccessfully appealed that decision within the agency, first to an appeals referee and later to the employment security board of review (board). He subsequently appealed to the Superior Court, which affirmed the board’s decision.

The trial court concluded that the board did not act arbitrarily in affirming the referee’s determination that workers’ compensation benefits received by an employee during a period of incapacity do not qualify as wages within the meaning of § 31-222 (b) (1).

The plaintiff also raised an equal protection claim to the trial court, arguing that no rational basis exists for the legislature's determination that only the recipient of workers’ compensation benefits whose “last most recently worked calendar quarter is no more than twelve calendar quarters prior to the date” of the individual’s initiating claim could subsequently receive unemployment compensation benefits once he or she was declared eligible to return to work. See General Statutes § 31-230. Finding that there was a rational basis for the twelve quarter cutoff, the trial court rejected that claim. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

Our examination of the record and the briefs and arguments of the parties on appeal persuades us that the judgment of the trial court should be affirmed. The central issues relating to the proper interpretation of the relevant statutes and the constitutionality of the classification contained in § 31-230 were properly resolved in the trial court’s thoughtful and comprehensive memorandum of decision. Molnar v. Administrator, Unemployment Compensation Act, 44 Conn. Sup. 285, 685 A.2d 1157 (1996). It would serve no useful purpose for us to repeat the discussion contained therein. Cf. Val-Pak of Central Connecticut North, Inc. v. Commissioner of Revenue Services, 235 Conn. 737, 740, 669 A.2d 1211 (1996); Greater Bridgeport Transit District v. State Board of Labor Relations, 232 Conn. 57, 64, 653 A.2d 151 (1995).

The judgment is affirmed.

       General Statutes § 31-222 (b) (1), which defines the wages to be used in determining unemployment compensation, provides: “ ‘Total wages’ means all remuneration for employment and dismissal payments, including the cash value of all remuneration paid in any medium other than cash except the cash value of any remuneration paid for agricultural labor or domestic service in any medium other than cash.”

       General Statutes § 31-230 provides in relevant part: “The base period of a benefit, year shall be the first four of the five most recently completed calendar quarters prior to such benefit year . . . except that for any individual who is eligible to receive or is receiving workers’ compensation . . . the base period shall be the first four of the five most recently worked quarters prior to such benefit year, provided . . . the last most recently worked calendar quarter is no more than twelve calendar quarters prior to the date such individual makes his initiating claim.”


author: CALLAHAN, C. J.

text:
    STATE OF CONNECTICUT v. RICHARD RODRIGUEZ
    (15339)
    Callahan, C. J., and Borden, Berdon, Katz and McDonald, Js.

      Argued September 26
    officially released November 12, 1996

      Carolyn K. Longstreth, assistant state’s attorney, with whom were David P. Gold, supervisory assistant state’s attorney, and, on the brief, Michael Dearington, state’s attorney, for the appellant (state).

      KentDrager, assistant public defender, for the appellee (defendant).
   CALLAHAN, C. J.

The defendant, Richard Rodriguez, was charged in a ten count information with crimes committed during the December 2, 1991 robbery of an elderly couple in their Hamden home. The defendant was convicted of all ten counts and sentenced to a total effective sentence of forty years. He subsequently appealed from the judgment of conviction to this court, and we transferred the case to the Appellate Court pursuant to General Statutes § 51-199 (c). In the Appellate Court, he raised eight claims. The Appellate Court found that the trial court’s denial of the defendant’s motion to suppress certain evidence was improper and ordered a new trial. State v. Rodriguez, 39 Conn. App. 579, 665 A.2d 1357 (1995). We granted the state’s petition for certification to consider whether the Appellate Court properly determined that the defendant’s suppression motion should have been granted by the trial court and, if so, whether the Appellate Court properly ordered a new trial rather than remanding the case for further findings relative to the doctrine of inevitable discovery. State v. Rodriguez, 235 Conn. 939, 668 A.2d 377 (1996). We reverse the judgment of the Appellate Court.

The following facts are relevant to the determination of the issues presented in this case. On December 2, 1991, at approximately 5:45 p.m., the victims, Aimee and William Harris, heard a vehicle drive up the driveway to their home on Shepard Avenue in Hamden. Moments later, there was a knock at the door. Aimee Harris opened the door and two men forced their way into the house. Both men were wearing stocking masks and loose, baggy pants with elastic waistbands. One of the men grabbed Aimee Harris and forced her into a bathroom, where he tried unsuccessfully to remove her engagement ring, prompting her to remove the ring herself and hand it over. After also robbing Aimee Harris of cash and additional jewelry, that same man forced her into a dressing room and ordered her to he down. He then bound her hands and feet with her husband’s neckties. Meanwhile, the other man entered the living room, where William Harris, who was frail and quite ill, was lying on a couch. That second robber displayed a handgun and forced William Harris into the dressing room and bound him, also with neckties. That man then took William Harris’ wristwatch and his wallet, which contained several hundred dollars. In addition, a VCR and a Macy’s bag were stolen from the Harris home. After the two men had left, William Harris was able to cut his wife’s bonds with a pair of scissors that had been left in the dressing room. At 6:11 p.m., Aimee Harris dialed 911 and provided a general description of the perpetrators. At approximately 6:15 p.m., the Hamden police broadcast a report of an armed robbery at the Harris home involving two large Caucasian males wearing ski masks and baggy pants with elastic waistbands. The report also stated that one of the perpetrators had a mustache.

Shortly after the broadcast, Sergeant John Kennelly arrived at the victims’ home, where he observed a red automobile parked on the side of the road, twenty to twenty-five feet from the victims’ driveway. Upon approaching the vehicle, he noted that there was a woman in the driver’s seat accompanied by two men, one standing outside the vehicle and the other seated in the rear of the car. Kennelly noted that the man in the back seat was a Hispanic male with dark hair and a mustache. He recognized the man standing alongside the vehicle as Daniel Garrison, a personal acquaintance, and he asked Garrison what he was doing at that location. Garrison responded that they had stopped there because he and his girlfriend, the driver, had been having an argument and she had stopped the car. Kennelly advised Garrison to move along as there recently had been trouble in the area. Kennelly then proceeded to drive up the driveway to the victims’ home, where he interviewed the victims briefly. At that point, Kennelly learned from descriptions given by the victims that one of the perpetrators resembled Garrison and that the other had a mustache and had worn a brown leather coat.

Meanwhile, having learned of the radio report, Ham-den police officer Gary Komoroski, alert for possible suspects in the Harris robbery, was patrolling Shepard Avenue. At approximately 6:36 p.m., Komoroski observed several vehicles in front of him swerving as if to avoid an obstruction in the road. As he approached the point of the apparent obstruction, he observed a mustached Hispanic male wearing a brown leather jacket and jeans, standing in the roadway and waving his arms frantically in an attempt to flag down passing vehicles. The Hispanic male was later identified as the defendant. At that point, the defendant was approximately 2.4 miles from the victims’ home on Shepard Avenue and was walking southbound, away from the victims’ residence.

After notifying the police dispatcher that he was leaving his vehicle to question the defendant, Komoroski approached the defendant and asked several questions to which the defendant gave responses that Komoroski considered suspicious. For example, when asked what he was doing, the defendant said, “just walking.” When asked where he was going, the defendant replied that he was walking from New Haven to Hartford. Komoroski then asked the defendant if he knew what town he was in and the defendant replied that he did not know. The defendant then told Komoroski that he had been in a car with a man and a woman and that they had started to fight and had let him out of the car. The defendant also stated that he did not know the names of the people with whom he had been in the vehicle.

Acting on the defendant’s implausible and evasive responses, as well as the fact that the defendant had a mustache and was found walking away from the crime scene within a time frame that could have placed him at his present location after having participated in the crimes, Komoroski radioed to Kennelly to tell him that he might have one of the perpetrators of the robbery with him. Kennelly responded that he would be there shortly. Komoroski then returned to the defendant and asked him his name. The defendant responded that his name was Anthony Rodriguez. Komoroski then conducted a patdown search for weapons but found none.

Komoroski subsequently began to issue the defendant a summons for the infraction of reckless use of a highway by a pedestrian in violation of General Statutes § 53-182. While filling out the summons, he asked the defendant for identification in order to confirm the defendant’s identity and to complete the summons. Without checking his pockets, the defendant responded that he did not have any identification. Komoroski then asked the defendant either to check his pockets for identification or to empty his pockets to see if he had any identification.

The defendant immediately and voluntarily emptied his pockets and extracted, among other things, a rubber glove and a tin foil packet containing baking soda. When asked by Komoroski about the purpose of these items, the defendant responded that he used them to freebase cocaine. Komoroski then arrested the defendant for possession of drug paraphernalia in violation of General Statutes § 21a-267 and placed the defendant in his police vehicle. Shortly thereafter, and approximately ten minutes after Komoroski had first seen the defendant, Kennelly arrived at the scene. After he arrived, Kennelly approached Komoroski’s vehicle and immediately recognized the defendant, who was seated in the rear of the police vehicle, as one of the passengers in the red vehicle that had been parked near the victims’ driveway.

Thereafter, the defendant, after he had orally waived his Miranda rights, voluntarily spoke with Kennelly concerning his activities earlier that evening. The defendant confirmed that he had been in the red car near the victims’ driveway. He stated that he had been there because he and the two others in the car had been using cocaine and had pulled over to the side of the road to do so. The defendant stated that he did not know the name of the other male in the car, but that the female’s name was either Carol or Chris, despite having previously told Komoroski that he did not know her name. A few minutes after his initial statement to Kennelly, the defendant further stated that at some point the female and the other male had left the vehicle and had walked up the victims’ driveway. He said that they later returned down the driveway carrying a Macy’s bag. After making this second statement, the defendant was transported to the victims’ home for a show-up in order to allow the victims to attempt to identify him.

Upon arriving at the victims’ home, the defendant stood on the front walkway illuminated by two lights. The victims observed the defendant from a window in their darkened house. This arrangement was made so that the defendant would be unable to see the victims. There was no evidence introduced at trial relevant to whether the victims, at the show-up, had been able to identify the defendant positively. The defendant was then escorted back to the police vehicle where, although he had not been informed of the number, age or gender of the victims, he twice stated that the “old man” and the “old woman” could not identify him.

The following day, while in the Meriden courthouse detention area awaiting his arraignment, the defendant was seen wearing a woman’s diamond ring on his finger. When a sheriff asked for the ring in order to inventory it, the defendant removed the ring from his finger, placed it in his mouth and appeared to swallow it. A warrant was thereafter issued for an X ray of the defendant in order to determine the location of the ring. After the warrant had been issued but before the defendant was taken to the hospital, he produced the ring from his pocket and turned it over to the police. The ring was later identified as belonging to Aimee Harris.

On the basis of that factual scenario, the Appellate Court concluded that Komoroski’s request that the defendant either check or empty his pockets was an unreasonable search in violation of the fourth and fourteenth amendments to the federal constitution, and that all the statements of the defendant and all physical evidence obtained after that search should have been excluded by the trial court. State v. Rodriguez, supra, 39 Conn. App. 589-91. The Appellate Court explicitly rejected the state’s claim that the chain of events leading to a determination of probable cause for the arrest of the defendant for the Harris robbery “was wholly independent of the purportedly illegal search and custodial arrest for possession of drug paraphernalia.” (Internal quotation marks omitted.) Id., 589.

We agree with the state’s argument that the facts supporting a finding of probable cause to believe that the defendant had committed the Harris robbery arose from grounds entirely independent of the allegedly illegal search of the defendant’s pockets. We therefore conclude that the trial court correctly denied the defendant’s motion to suppress. Consequently, we reverse the judgment of the Appellate Court, and remand the case for consideration of the defendant’s remaining claims.

We conclude from the record that there were two independent and simultaneous investigations occurring pertaining to the activities of the defendant on the night of the Harris robbery. We also conclude that the robbeiy investigation proceeded from beginning to end without being influenced by the alleged search of the defendant’s pockets. It is undisputed that when Komoroski saw the defendant obstructing the highway and engaging in “aggressive hitchhiking,” he had a reasonable and articulable suspicion to conduct a brief, investigatory detention of the defendant under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), in order to determine the reason for the defendant’s aberrant conduct and to issue him a summons for reckless use of a highway in violation of § 53-182.

Once Komoroski had lawfully detained the defendant in connection with his behavior on Shepard Avenue, several other factors arose that provided Komoroski with a reasonable and articulable suspicion regarding the defendant’s involvement in the robbery at the Harris home. That suspicion led Komoroski to contact Kennelly. Those factors included: (1) the fact that the defendant had a mustache, as did one of the perpetrators of the recent robbery; (2) the fact that the defendant was traveling away from the scene of the crime and on the same road on which the crime had occurred; (3) the fact that the short distance from the crime scene easily could have been traveled on foot in the time intervening since the crime; (4) the fact that the defendant claimed to be “just walking,” even though Komoroski had seen him aggressively attempting to flag down passing cars; (5) the fact that the defendant claimed to be walking from New Haven to Hartford even though traveling southbound on Shepard Avenue was an unlikely route, and even though a “walk” from New Haven to Hartford would be approximately forty-five miles; (6) the fact that the defendant claimed not to know where he was; and (7) the fact that the defendant claimed to have been traveling with a male and a female whose names he did not know and who had asked him to leave their car.

This information was known to Komoroski well before he asked the defendant to empty his pockets. At that point, considering all the factors together, rather than any one in isolation, Komoroski had sufficient information to form a reasonable and articulable suspicion that the defendant might have been involved in the Harris robbery. See State v. Aillon, 202 Conn. 385, 400, 521 A.2d 555 (1987) (defendant’s proximity in time and place to crime and his driving without headlights at night sufficient to form reasonable and articulable suspicion justifying investigatory detention); State v. Carter, 189 Conn. 611, 617,458 A.2d 369 (1983) (defendant’s proximity in time and place to crime and his general similarity to description of suspect sufficient to form reasonable and articulable suspicion necessary to justify investigatory detention).

Komoroski therefore had reason to detain the defendant until Kennelly arrived. State v. Carter, supra, 189 Conn. 618. “A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.” Adams v. Williams, 407 U.S. 143, 146, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972); see State v. Aillon, supra, 202 Conn. 400 (one function of Terry stop is to maintain status quo briefly pending further investigation). “The results of the initial stop may arouse further suspicion or may dispel the questions in the officer’s mind. If the latter is the case, the stop may go no further and the detained individual must be free to go. If, on the contrary, the officer’s suspicions are confirmed or ar e further aroused, the stop may be prolonged and the scope enlarged as required by the circumstances.” (Internal quotation marks omitted.) State v. Mitchell, 204 Conn. 187, 197, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987); State v. Carter, supra, 617; State v. Watson, 165 Conn. 577, 585, 345 A.2d 532 (1973), cert. denied, 416 U.S. 960, 94 S. Ct. 1977, 40 L. Ed. 2d (1974).

In an effort to confirm or to contradict his suspicions, Komoroski radioed Kennelly and asked Kennelly to come to his location in order to determine whether the defendant was involved in the Harris robbery. Kennelly responded that he would proceed promptly to Komoroski’s location. When Kennelly arrived, he immediately recognized the defendant as the passenger in the rear seat of the red vehicle that had been parked near the crime scene, and he also noted that the defendant was wearing a brown leather jacket and had a mustache. Kennelly read the defendant his Miranda rights and, after the defendant’s oral waiver, he proceeded to ask the defendant what he had been doing at the crime scene. The defendant responded that he had been using cocaine with the man and the woman in the car. He also said that sometime thereafter the man and the woman had left the vehicle and proceeded up the Harris driveway, returning later carrying a Macy’s bag.

At that point, there was probable cause for Kennelly to believe that the defendant had been one of the two perpetrators of the Harris robbery. Kennelly knew that one of the robbers matched the description of his acquaintance, Garrison, and that the other had a mustache and wore a brown leather jacket. The defendant had a mustache and wore a brown leather jacket and had been seen moments after the robbery near the Harris driveway in a car with Garrison. He was then seen again one half hour later walking on Shepard Avenue away from the crime scene and acting in a suspicious manner. He then proceeded to give Komoroski curious and evasive answers to routine questions. The defendant also contradicted his statement to Komoroski when he told Kennelly that he knew the name of the driver of the red vehicle. These facts, when considered together, were clearly “sufficient to justify the belief of a reasonable person”; State v. Penland, 174 Conn. 153, 155, 384 A.2d 356, cert. denied, 436 U.S. 906, 98 S. Ct. 2237, 56 L. Ed. 2d 404 (1978); that the defendant had participated in the Harris robbery along with Garrison.

Despite the factors supporting a finding of probable cause, the defendant relies on the allegedly unconstitutional intervening search of his person to support his claim that all of the evidence obtained by the police after that alleged search should have been suppressed. We disagree.

It is clear from the record that the sequence of escalating evidence pointing to the defendant as one of the perpetrators of the Harris robbery proceeded independently of the allegedly unconstitutional search of the defendant’s pockets. Rather than simply waiting for Kennelly without taking any further action, which he clearly could have done within the bounds of well established law; Adams v. Williams, supra, 407 U.S. 146; State v. Aillon, supra, 202 Conn. 400; Komoroski, with good cause, opted to cite the defendant for reckless use of a highway by a pedestrian in violation of § 53-182. In order to fill out the summons for that offense, Komoroski asked the defendant his name and the defendant responded that his name was Anthony Rodriguez. Komoroski, understandably unwilling to rely on the honor system under the circumstances, asked the defendant for identification in order to verify the name he had given and to obtain his current address. Without checking his pockets, the defendant immediately responded that he did not have any identification on his person. Komoroski then asked the defendant to check or to empty his pockets to verify that he did not have any identification. The defendant did so, revealing the drug paraphernalia. Komoroski then placed the defendant under arrest for possession of drug paraphernalia and placed him in the back seat of his police vehicle. Kennelly arrived shortly thereafter.

The defendant in this case seeks a windfall from Komoroski’s decision to cite him for the highway infraction and, in turn, Komoroski’s asking him to empty his pockets to produce identification. The defendant’s position contravenes the exclusionary rule’s purpose of ensuring fairness and balancing the interests of the state and the defendant. “Fairness can be assured by placing the State and the accused in the same positions they would have been in had the impermissible conduct not taken place.” Nix v. Williams, 467 U.S. 431, 447, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984). “When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation.” Id., 443.

Because Komoroski already had a reasonable and articulable suspicion that the defendant had been involved in the Harris robbery, the defendant was legally being detained solely on the basis of that suspicion, pending Kennelly’s imminent arrival. State v. Mitchell, supra, 204 Conn. 197; State v. Carter, supra, 189 Conn. 617; State v. Watson, supra, 165 Conn. 585. Even if we assume, without deciding, that the defendant’s compliance with Komoroski’s request to empty his pockets resulted in an illegal search, Komoroski already possessed a reasonable and articulable suspicion that allowed him to detain the defendant briefly while gamering additional facts, before any pocket search took place. Once Kennelly arrived and spoke with the defendant, the police had probable cause to arrest the defendant for the Harris robbery. The intervening search cannot be used by the defendant as a reason for the suppression of evidence obtained independently through constitutional means. To hold otherwise would put the defendant in a far better position than he would have been in had the alleged illegality not taken place. The fourth amendment does not require that we do so. See Nix v. Williams, supra, 467 U.S. 443-47.

The judgment of the Appellate Court is reversed and the case is remanded to that court for consideration of the defendant’s remaining claims on appeal.

In this opinion the other justices concurred.

       The defendant was convicted of two counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), one count of conspiracy to commit robbery in the third degree in violation of General Statutes §§ 53a-48 (a) and 53a-136, one count of burglary in the third degree in violation of General Statutes § 53a-103, one count of conspiracy to commit burglary in the third degree in violation of General Statutes §§ 53a-48 (a) and 53a-103, two counts of kidnapping in the first degree in violation of General Statutes §§ 53a-92 (a) and 53a-8, two counts of larceny in the second degree in violation of General Statutes §§ 53a-123 (a) and 53a-8, and one count of larceny in the third degree in violation of General Statutes §§ 53a-124 (a) and 53a-8.

       General Statutes § 51-199 (c) provides: “The supreme court may transfer to itself a cause in the appellate court. Except for any matter brought pursuant to its original jurisdiction under section 2 of article sixteen of the amendments to the constitution, the supreme court may transfer a cause or class of causes from itself, including any cause or class of causes pending on July 1, 1983, to the appellate court. The court to which a cause is transferred has jurisdiction.”

       William Harris died three weeks after the robbery. The state does not claim that his death was related to the robbery.

       Komoroski thought this suspicious because he considered walking southbound on Shepard Avenue an unlikely route to travel if one was going from New Haven to Hartford.

       General Statutes § 53-182 provides: “Use of highways by pedestrians. Any pedestrian who uses any street or highway negligently or recklessly or fails to obey the signal of any traffic officer, pedestrian control, sign, signal, marking or device or recklessly disregards his own safety or the safety of any person by the manner of his use of any street or highway shall be deemed to have committed an infraction and be fined not less than thirty-five dollars nor more than fifty dollars.”

       Komoroski testified at the suppression hearing that he was unsure whether he had asked the defendant to check his pockets or to empty them.

       On remand from the Appellate Court for an articulation as to whether the defendant had emptied his pockets freely and voluntarily or under some form of police coercion, the trial court found that “there was no evidence presented which would support the claim that the defendant emptied his pockets as a result of coercion, express or implied. The defendant simply complied with the request to empty his pockets without any intervening action or statements by either the officer or the defendant. Nor was there any evidence that any of the circumstances surrounding the roadside confrontation gave rise to any coercion.”

       The defendant also produced an identification card from a needle exchange program bearing only the name “Dan.” See footnote 14.

       General Statutes § 21a-267 provides in relevant part: “Prohibited acts re drug paraphernalia, (a) No person shall use or possess with intent to use drug paraphernalia, as defined in subdivision (20) of section 21a-240, to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain or conceal, or to inject, ingest, inhale or otherwise introduce into the human body, any controlled substance as defined in subdivision (9) of section 21a-240. Any person who violates any provision of this subsection shall be guilty of a class C misdemeanor. . . .”

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The driver was subsequently identified as Carol Orsene. During its casein-chief the state called Orsene as a witness, and she testified that she had participated in the robbery with her friend Garrison and a man named Rodriguez.

       Defense counsel represented to the trial court that the victims had been unable to make a positive identification of the defendant.

       The record is unclear as to whether, at that point, the defendant was awaiting arraignment on the charges relating to the robbery or only the drag paraphernalia charge.

       The Appellate Court broadly concluded that the trial court improperly declined to suppress all items taken from the defendant on the evening of December 2, 1991, Aimee Harris’ ring, which the defendant wore to his arraignment, and all statements made by the defendant after he had emptied his pockets. State v. Rodriguez, supra, 39 Conn. App. 591. We note, however, that the state did not introduce at trial any of the defendant’s statements, although the defendant himself introduced his statement to Kennelly that he had been in the red car to use cocaine and that he had seen the other occupants of the car walk up the victims’ driveway. With regard to the evidence seized from the defendant on the night of the crime, we note that, on direct examination, the state elicited from Komoroski only the facts that the defendant’s pockets had contained, among other things, an identification card bearing the name “Dan” and an unknown telephone number, and that he had arrested the defendant for an unspecified offense. After the defendant himself had introduced the drug paraphernalia into evidence, Komorosld clarified on redirect that the unspecified offense to which he had referred on direct was possession of drug paraphernalia. Without deciding whether the trial court improperly admitted the state’s limited evidence with regard to the content of the defendant’s pockets, we conclude that any possible impropriety arising therefrom was harmless beyond a reasonable doubt, in light of its inconsequential connection with the crime and the strength of the other evidence of the defendant’s guilt. Therefore, the only piece of evidence with which we are concerned is the ring seized from the defendant the day of his arraignment.

       The Appellate Court considered and rejected the defendant’s claims that (1) there was insufficient evidence to support “all or at least some of his convictions”; State v. Rodriguez, supra, 39 Conn. App. 592-600; and (2) the trial court had made improper evidentiary rulings pertaining to statements made after the crime by William Harris, who was deceased at the time of trial. Id., 600-605. The Appellate Court has not yet considered the defendant’s claims pertaining to jury instructions, prosecutorial misconduct and improper sentencing.

       For the purposes °f this opinion, we assume, without deciding, that Komoroski’s request that the defendant empty his pockets was an unreasonable search in violation of the state and federal constitutions.

       We emphasize that the standard for determining whether reasonable suspicion or probable cause existed in a given scenario is an objective, rather than a subjective, one; Whren v. United States, 517 U.S. 806, 811-13, 116 S. Ct. 1769, 135 L. Ed 2d 89 (1996); State v. Dukes, 209 Conn. 98, 126, 547 A.2d 10 (1988); State v. Copeland, 205 Conn. 201, 213, 530 A.2d 603 (1987); and that the ultimate questions of reasonable suspicion to stop and probable cause are subject to de novo review on appeal. Ornelas v. United States, 517 U.S. 690, 696-99, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996). Therefore, we need only apply the facts found by the trial coxiri to determine if, objectively, there were sufficient facts to support, first, a reasonable and articulable suspicion and, second, probable cause. See Scott v. United States, 436 U.S. 128, 138, 98 S. Ct. 1717, 56 L. Ed. 2d 168 (1978) (“the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action”). Whether the facts found objectively do provide the requisit e support, can be determined without regard to an officer’s subjective state of mind and without resort to hypothesis about events that may or may not have occurred in the absence of another event. We therefore disagree with the Appellate Court that it was not within its power to make these determinations based on the record before it. See State v. Rodriguez, supra, 39 Conn. App. 589 (“we cannot speculate as to what might have happened had the initial arrest not taken place, including whether there might have been probable cause for a lawful arrest at some later time”).

       The defendant emphasizes that, although he had a mustache, he was also wearing blue jeans rather than loose, baggy pants with an elastic waistband, and that he is a Hispanic male of average size rather than a large Caucasian male. We first point out that the type of pants worn by the perpetrators easily could have been removed, and that it is not unlikely that two men who had planned ahead enough to wear stocking masks may also have had the foresight to wear such pants. See State v. Kyles, 221 Conn. 643, 663, 607 A.2d 355 (1992) (“account must be taken of the possibility that by . . . efforts of concealment some aspects of the description may no longer be applicable” [internal quotation marks omitted]). Moreover, the ethnic identification in this case was made inherently less reliable by the fact that the perpetrators wore stocking masks. “The police . . . are not required to confirm every description of the perpetrator that is broadcast over the radio. ‘What must be taken into account [when determining the existence of a reasonable and articulable suspicion] is the strength of those points of comparison which do match up and whether the nature of the descriptive factors which do not match is such that an error as to them is not improbable . . . 3 W. LaFave, [Search and Seizure (2d Ed. 1987) § 9.3 (d), pp. 465-66].” Id.

       “The process [of determining probable cause] does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same — and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.” United States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981).


author: MCDONALD, J.

text:
    STATEWIDE GRIEVANCE COMMITTEE v. GERARD B. PATTON ET AL.
    (15445)
    Callahan, C. J., and Borden, Palmer, McDonald and Peters, Js.
    Argued September 27
    officially released November 12, 1996

      John R. Williams, for the appellant (named defendant).

      Maureen A. Horgan, assistant bar counsel, for the appellee (plaintiff).

      James O. Gaston and Sid M. Miller filed a brief for the Connecticut Bar Association as amicus curiae.
   MCDONALD, J.

The plaintiff, the statewide grievance committee, brought this action seeking an injunction to restrain the defendant Gerard Patton from the unauthorized practice of law in violation of General Statutes § 51-88. The trial court granted the plaintiffs request for injunctive relief and rendered judgment ordering the defendant to restrain from engaging in further acts constituting the practice of law. The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

On appeal, the defendant claims that the trial court improperly granted the plaintiffs request for injunctive relief because: (1) his conduct did not constitute the practice of law; and (2) § 51-88 is void for vagueness and is overly broad in that it infringes on conduct protected by the first amendment to the United States constitution. We affirm the judgment of the trial court.

The facts found by the trial court are not disputed. The defendant has not been admitted as a member of the bar of the state of Connecticut. In January, 1992, the defendant began doing business in Milford as Doc-U-Prep of New England. The defendant placed the following advertisement in a newspaper, The Milford Citizen: “ANNOUNCING DOC-U-PREP OF NEW ENGLAND, The Non Lawyer Legal Document Center, HELPING PEOPLE WHO CAN’T AFFORD THE HIGH COST OF ROUTINE LEGAL DOCUMENT PREPARATION, We Will Do Your Wills $45.00, Corporation $250.00, Divorce (uncontested) $125.00, Living Trust $499.00, Bankruptcy (chapter 7) $279.00, Name Change $99.00 and many more documents, all at low cost. . . . Affiliated with Clarke & Patton, Inc., Jerry Patton, President. ...” The defendant placed a similar advertisement in a second newspaper, the Bridgeport Post.

In conducting his business, the defendant gave his customers a form on which to indicate the type of service they requested. The form stated: “DOC-U-PREP of NEW ENGLAND INC. prepares legal documents for non-lawyers to file in their own uncontested legal actions.” The defendant required his customers to sign both the form and a disclaimer, after which he presented his customers with a questionnaire pertaining to the type of service requested. The defendant sent the customers’ completed questionnaires to Doc-U-Prep of New England in Taunton, Massachusetts. Pursuant to a franchise agreement, Doc-U-Prep of New England completed the legal documents with the information contained in those questionnaires. Doc-U-Prep of New England then returned the completed legal documents to the defendant, who delivered them to his customers. For these services, the customers paid the defendant a fee.

Here, “the decisive question is whether the acts performed were such as are ‘commonly understood to be the practice of law.’ ” State Bar Assn. v. Connecticut Bank & Trust Co., 145 Conn. 222, 236, 140 A.2d 863 (1958), quoting Grievance Committee v. Payne, 128 Conn. 325, 330, 22 A.2d 623 (1941). “Attempts to define the practice of law have not been particularly successful. The reason for this is the broad field covered. The more practical approach is to consider each state of facts and determine whether it falls within the fanintendment of the term.” Grievance Committee v. Payne, supra, 329.

As to the state of facts, this court has consistently held that the preparation of legal documents is commonly understood to be the practice of law. Grievance Committee v. Dacey, 154 Conn. 129, 140-44, 229 A.2d 339 (1966), appeal dismissed, 386 U.S. 683, 87 S. Ct. 1325, 18 L. Ed. 2d 404 (1967); State Bar Assn. v. Connecticut Bank & Trust Co., supra, 145 Conn. 222; Grievance Committee v. Payne, supra, 128 Conn. 325; see also Monroe v. Horwitch, 820 F. Sup. 682 (D. Conn. 1993), aff'd, 19 F.3d 9 (2d Cir. 1994). “The practice of law consists in no small part of work performed outside of any court and having no immediate relation to proceedings in court. It embraces the giving of legal advice on a variety of subjects and the preparation of legal instruments covering an extensive field. Although such transactions have no direct connection with court proceedings, they are always subject to subsequent involvement in litigation. They require in many aspects a high degree of legal skill and great capacity for adaptation to difficult and complex situations.” (Emphasis added.) State Bar Assn. v. Connecticut Bank & Trust Co., supra, 234-35.

The defendant is not trained in the law as an attorney. The preparation of legal documents involves “difficult or doubtful legal questions . . . which, to safeguard the public, reasonably demand the application of a trained legal mind.” (Internal quotation marks omitted.) Baron v. Los Angeles, 2 Cal. 3d 535, 543, 469 P.2d 353, 86 Cal. Rptr. 673 (1970). “It is of importance to the welfare of the public that these manifold customary functions [of practicing law] be performed by persons possessed of adequate learning and skill and of sound moral character, acting at all times under the heavy trust obligation to clients which rests upon all attorneys.” State Bar Assn. v. Connecticut Bank & Trust Co., supra, 145 Conn. 235. We hold that the defendant’s preparation of legal documents, therefore, violated § 51-88, which prohibits the practice of law by one not admitted as an attorney.

Finally, we conclude that the defendant’s challenges to the constitutionality of § 51-88, either on its face or as applied, have no merit. The defendant’s activities are commonly understood to be the practice of law, and he advertised in bold print that he prepared “legal documents.” Section 51-88 is not void for vagueness or overly broad so as to infringe on the first amendment rights of the defendant. See Grievance Committee v. Dacey, supra, 154 Conn. 144-49; see also Monroe v. Horwitch, supra, 820 F. Sup. 686-87. While “[a]n activity on the ‘outerboundaries’ of the ‘practice of law’ might be impermissibly vague . . . [the] ‘[preparation’ of legal documents falls squarely within the boundaries.” Monroe v. Horwitch, supra, 686.

The judgment is affirmed.

In this opinion the other justices concurred.

       The plaintiff named in its petition additional defendants who are not involved in this appeal. Throughout this opinion we will refer to Gerard Patton as the defendant.

       General Statutes § 51-88 provides in relevant part: “Practice of law by persons not attorneys, (a) A person who has not been admitted as an attorney under the provisions of section 51-80 shall not: (1) Practice law or appear as an attomey-at-law for another, in any court of record in this state, (2) make it a business to practice law, or appear as an attorney-at-law for another in any such court, (3) make it a business to solicit employment for an attorney-at-law, (4) hold himself out to the public as being entitled to practice law, (5) assume to be an attorney-at-law, (6) assume, use or advertise the title of lawyer, attorney and counselor-at-law, attomey-at-law, counselor-at-law, attorney, counselor, attorney and counselor, or an equivalent term, in such manner as to convey the impression that he is a legal practitioner of law, or (7) advertise that he, either alone or with others, owns, conducts or maintains a law office, or office or place of business of any kind for the practice of law.”


text:
    STATEWIDE GRIEVANCE COMMITTEE v. RONEY L. HARRIS
    (15447)
    Callahan, C. J., and Borden, Palmer, McDonald and Peters, Js.
    Argued September 27
    officially released November 12, 1996

      Roney L. Harris, pro se, the appellant (defendant).

      Maureen A. Horgan, assistant bar counsel, for the appellee (plaintiff).
   PER CURIAM.

The plaintiff, the statewide grievance committee, brought this action seeking an injunction to restrain the defendant, Roney L. Harris, from the unauthorized practice of law. The trial court granted the plaintiffs motion for summary judgment and rendered judgment thereon in favor of the plaintiff, holding that the defendant had violated General Statutes § 51-88 by performing acts commonly understood to be the practice of law. It was undisputed that the defendant, who is not an attorney, ran an advertisement in the Hartford Courant, titled “Uncontested Pro se Divorce,” in which he represented that “Paralegals prepare all papers for your signing and step you through the self-help divorce.” The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

The defendant renews on appeal the challenges that he raised below to the trial court’s jurisdiction over his person and to the merits of the judgment rendered by the trial court. The trial court, Hon. Frances Allen, state trial referee, considered and rejected the defendant’s jurisdictional and constitutional challenges, and the trial court, Norko, J., considered and denied his motion to open the judgment and motion to vacate the judgment against him. Upon a careful review of the record and the briefs and arguments of the parties on appeal, we conclude that the judgment of the trial court should be sustained. See Statewide Grievance Committee v. Patton, 239 Conn. 251, 683 A.2d 1359 (1996).

The judgment is affirmed.

       The defendant, filed a brief which rendered us no assistance and did not discuss the issues at oral argument.