author: Per Curiam.

text:
    Civil Service Commission of the City of Waterbury et al. v. Edward Pekrul et al. Civil Service Commission of the City of Waterbury et al. v. Board of Police Commissioners of the City of Waterbury
    (14368)
    Peters, C. J., Shea, Callahan, Covello and Berdon, Js.
    Argued December 6, 1991
    decision released January 21, 1992

      Dennis M. Buckley, corporation counsel, with whom was George C. Tzepos, assistant corporation counsel, for the appellants (defendants).

      JohnM. Gesmonde, with whom was Susan Nobleman, for the appellees (plaintiffs).
   Per Curiam.

This appeal concerns consolidated actions for mandamus and quo warranto challenging the promotion of certain police officers to the position of detective in the Waterbury police department. The plaintiffs, the civil service commission of the city of Waterbury and Edmund Jayaraj, individually and as administrator of the civil service commission and director of personnel of the city of Waterbury, brought these actions to compel the defendants to abide by the results of a civil service examination process designating the candidates most qualified for the position of police detective and to oust those whom the superintendent of the Waterbury police department and the board of police commissioners had appointed in their place. The trial court rendered judgments in favor of the plaintiffs, from which the defendants appealed to the Appellate Court. We transferred their appeal to this court pursuant to Practice Book § 4023.

Our examination of the record on this appeal, and the briefs and arguments of the parties, persuades us that the judgments of the trial court should be affirmed. The central issue is whether the Waterbury charter and ordinances conferred upon the plaintiff civil service commission, rather than upon the defendant superintendent and commissioners, the authority to certify those individuals who were most qualified for appointment to the position of police detective. This issue, in all of its procedural and substantive ramifications, was properly resolved in two thoughtful and comprehensive memoranda of decision filed by the trial court, Barnett, J., Civil Service Commission v. Pekrul, 41 Conn. Sup. 302, 571 A.2d 715 (1989), and Pellegrino, J., Civil Service Commission v. Pekrul, 42 Conn. Sup. 107, 601 A.2d 1044 (1991). Because these memoranda of decision fully state and meet the arguments raised in the present appeal, we adopt the trial court’s well reasoned decisions as a statement of the facts and the applicable law. It would serve no useful purpose for us to repeat the discussion therein contained.

The judgments are affirmed.

       In the quo warranto action, the defendants are five police officers, Edward Pekrul, Joseph Pesce, Edward Stephens, James Clary and Phillip Rinaldi, whom the Waterbury superintendent of police and the board of police commissioners appointed as detectives. In the mandamus action, the defendant is the board of police commissioners of the city of Waterbury.

       Acting in response to a request by the superintendent of police of the city of Waterbury, the civil service commission set a competitive examination to determine an eligibility list to fill five vacancies for the position of police detective. On the basis of that examination, the director of personnel, Edmund Jayaraj, certified five candidates with the highest examination scores. The board of police commissioners appointed as detective one police officer, Joseph Pesce, who was among those certified, and four officers who were not so included.


source: Caselaw Access Project

author: Shea, J.

license: Public Domain

text:
    Roy J. Falby et al. v. Richard Zarembski et al.
    (14295)
    Shea, Glass, Covello, Borden and Berdon, Js.

      Argued October 29, 1991
    decision released January 21, 1992

      Michael T. Ryan, with whom was Richard P. Colbert, for the appellant-appellee (defendant Home Improvement and Remodeling Company, Inc.).

      Howard B. Naylor, for the appellees-appellants (plaintiffs).
   Shea, J.

The principal issues in this appeal and cross appeal are whether sufficient evidence was presented to establish that the defendant Home Improvement and Remodeling Company, Inc., was strictly liable under General Statutes § 22-357 as a “keeper” of the dog that attacked the named plaintiff and whether the trial court improperly denied the plaintiffs’ motion to amend their complaint prior to trial. The named plaintiff, Roy Falby, and his wife and coplaintiff, Barbara Falby, commenced this action against the defendants, Richard Zarembski, Home Improvement and Remodeling Company, Inc. (Home Improvement), Thadeus J. Plonowski and William and John Cree to recover damages for the injuries Roy Falby sustained when he was attacked by a dog owned by Zarembski and for Barbara Falby’s loss of her husband’s consortium. The plaintiffs withdrew their action against the Crees and obtained a default against Zarembski before the commencement of the trial. At trial, the plaintiffs also withdrew their action against Plonowski. The jury returned a verdict in favor of both plaintiffs against the only remaining defendant, Home Improvement, on the theory that it was liable as a “keeper” of the dog under § 22-357. The court rendered judgment on the jury’s verdict with respect to Roy Falby’s claim, but set aside the verdict with respect to Barbara Falby’s claim. Thereafter, Home Improvement filed this appeal in the Appellate Court, and the plaintiffs cross appealed. We transferred the case to this court pursuant to Practice Book § 4023. We reverse the judgment and remand the case for a new trial.

The jury reasonably could have found the following facts. On November 1, 1985, Roy Falby, a postal carrier, was delivering mail to the Stamford home of the Crees when he was attacked and seriously injured by a pit bull terrier that was on the premises. At the time, the Crees were having some remodeling work performed on their house by Home Improvement. Zarembski, an employee of Home Improvement, owned the pit bull and had brought it to the work site with him, as he had done on numerous other occasions.

Before he was hired by Home Improvement, Zarembski had received permission from Plonowski, its president, to bring the dog with him to the various sites where he would be working. Zarembski frequently did so, usually allowing the dog to run loose at the sites. Neither Plonowski nor any other Home Improvement employee ever voiced an objection to or imposed any conditions on the dog’s presence. In fact, Plonowski and others sometimes petted the dog while it was at the job sites.

Zarembski had also received permission from the supervisor at the Cree work site to bring the dog with him to that particular job. The dog was at the Cree site almost every day that work was being performed there. On those occasions, it was not tied up or leashed. Plonowski knew of the dog’s presence there.

In this appeal, Home Improvement claims that: (1) it is entitled to judgment as a matter of law because § 22-357 imposes alternative liability on the owner or keeper of a dog and the plaintiffs had already obtained a default against Zarembski, the owner; (2) it is entitled to judgment as a matter of law because insufficient evidence was presented for the jury to have found that it was a “keeper” of the dog, within the meaning of § 22-357; and (3) it is entitled to a new trial because the trial court improperly instructed the jury on the definition of “keeper” under § 22-357. We agree with the second of these claims with respect to the complaint as submitted to the jury and, therefore, find it unnecessary to address the others.

In their cross appeal, the Falbys claim that they are entitled to a new trial because the trial court improperly: (1) denied their motion to amend the complaint prior to trial; (2) set aside the jury’s verdict in favor of Barbara Falby on her loss of consortium claim under § 22-357; and (3) allowed the introduction of immaterial and prejudicial testimony regarding their sons. We agree with the first claim and grant the requested relief. We need not address the second claim because we have concluded that Home Improvement is entitled to judgment on the § 22-357 claim and, thus, that issue will not arise upon the trial of the negligence claim raised by the proposed amendment. See Part I, infra. Finally, we address the third issue because it is likely to arise at retrial.

I

General Statutes § 22-357 imposes strict liability on the owner or keeper of any dog that does damage to the body or property of any person. A “keeper” is defined as “any person, other than the owner, harboring or having in his possession any dog.” General Statutes § 22-327. To harbor a dog is to afford lodging, shelter or refuge to it. Malone v. Steinberg, 138 Conn. 718, 722, 89 A.2d 213 (1952); Webster’s Third New International Dictionary. “[Possession cannot be fairly construed as anything short of the exercise of dominion and control [over the dog] . . . .” Hancock v. Finch, 126 Conn. 121, 123, 9 A.2d 811 (1939). Applying these definitional principles to the facts of this case, we conclude that there was insufficient evidence to establish that Home Improvement was a “keeper” under § 22-357.

Viewed in the light most favorable to sustaining the jury’s verdict; Kiss v. Kahm, 132 Conn. 593, 594, 46 A.2d 337 (1946); the evidence presented at trial established that Home Improvement, through its president, Plonowski, had knowledge that Zarembski was in the habit of bringing the pit bull terrier with him to various work sites, that it acquiesced in the presence of the dog at these sites and that it could have prohibited Zarembski from bringing the dog with him to work if it had so desired. Although such facts may implicate Home Improvement in some way in the attack of the dog on Roy Falby, they do not indicate that it harbored or had possession of the dog and thus do not justify the imposition of strict liability under § 22-357. There was no evidence that Home Improvement fed, watered, housed or otherwise cared for the dog. There was no evidence that it exercised any form of control over the actions of the dog. Contrary to the plaintiffs’ claim, control over the premises where the dog inflicted the injuries or over Zarembski, by virtue of the employment relationship, did not convert Home Improvement into a keeper of Zarembski’s dog while it was present at the work site. Accordingly, we reverse the judgment holding Home Improvement strictly liable as a “keeper” under § 22-357.

II

We now consider the claims raised by the plaintiffs in their cross appeal involving, first, the amendment of their complaint prior to trial and, second, the admission of certain evidence regarding their sons.

A

The second count of the plaintiffs’ original complaint, filed on June 6,1986, contained, inter alia, the following allegations: “5. The defendant Home Improvement and Remodeling Co. Inc. was a keeper of the ferocious Pit Bull dog and is liable for the attack on Roy Falby and his injuries pursuant to Connecticut General Statutes Section 22-357. 6. The plaintiff Roy Falby’s injuries and losses were caused by the negligence or recklessness of the defendant Home Improvement and Remodeling Co. Inc. in that: a) it kept or permitted the ferocious Pit Bull dog to be kept on the premises; b) it knew or reasonably could know that the Pit Bull dog had vicious propensities; c) it failed to maintain control over or to restrain the Pit Bull dog or cause the dog to be controlled or restrained.” On November 6, 1990, during jury selection, the plaintiffs made an oral motion to amend their complaint by separating the second count against Home Improvement into two counts alleging statutory liability under § 22-357 in one and common law negligence in the other.* *** Home Improvement objected to the proposed amendment. The trial court denied the motion, stating that the proposed amendment would have added an entirely new cause of action against Home Improvement and that the request was untimely because it was made on the eve of trial.

The plaintiffs maintain that the trial court improperly denied their motion for leave to amend the complaint. They contend that the amendment would not have introduced a new cause of action and would not have unduly delayed the trial. Home Improvement argues that the plaintiffs’ claims are not reviewable, except under the plain error doctrine, because the plaintiffs failed to move to set aside the verdict. On the merits, Home Improvement maintains that the trial court was correct in denying the request for the reasons stated in the record. We agree with the plaintiffs that the court should have permitted the amendment.

As a preliminary matter we address Home Improvement’s contention that this court should afford only plain error review of the plaintiffs’ claim because of their failure to make a motion to set aside the verdict. General Statutes § 52-228b provides in pertinent part: “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.” We have repeatedly stated that strict compliance with § 52-228b is a prerequisite to plenary review of claims of error on appeal and that a party’s failure to comply with this provision limits this court’s consideration of such claims to ascertaining whether plain error has been committed by the trial court. See, e.g., Small v. South Norwalk Savings Bank, 205 Conn. 751, 758-59, 535 A.2d 1292 (1988); Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 249-50, 520 A.2d 1008 (1987); Pietrorazio v. Santopietro, 185 Conn. 510, 512-15, 441 A.2d 163 (1981). Invariably, the cases in which we have applied this rule to limit the scope of review to plain error have involved claims that sought, as a remedy, the setting aside of a verdict. Pedersen v. Vahidy, 209 Conn. 510, 552 A.2d 419 (1989); Williamson v. Commissioner of Transportation, 209 Conn. 310, 551 A.2d 704 (1988); Small v. South Norwalk Savings Bank, supra; Dunham v. Dunham, 204 Conn. 303, 528 A.2d 1123 (1987); Atlantic Richfield Co. v. Canaan Oil Co., supra; Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 520 A.2d 208 (1987); Kolich v. Shugrue, 198 Conn. 322, 502 A.2d 918 (1986); Pietrorazio v. Santopietro, supra. Because such a remedy was sought, those cases fell within the prohibition of § 52-228b against setting aside a verdict without an antecedent motion having been filed. In making the claim that the trial court should have allowed their proposed amendment to the complaint, however, the plaintiffs have not sought to have the verdict rendered set aside; they have sought a new trial rather than a directed judgment in the event that Home Improvement is successful in its appeal. See Practice Book § 4013 (a) (1) (C). Consequently, their claim does not fall within the purview of § 52-228b and our review of it need not be limited to ascertaining whether plain error was committed.

Not only does the text of § 52-228b support our conclusion that the plaintiffs were not required to make a motion to set aside the verdict in order to obtain plenary appellate review of the claims underlying their request for a new trial, but fairness and common sense dictate this result as well. The trial court rendered judgment in accordance with the jury’s verdict in favor of Roy Falby on the theory of “keeper” "liability under § 22-357 and awarded him damages in the amount of $117,500. No verdict was ever reached on the common law negligence claim because, when the trial court denied the plaintiffs’ motion to amend their complaint and read the existing complaint as alleging only statutory liability, it prevented that issue from being submitted to the jury. Given this scenario, it would be unjust, indeed, to require the plaintiffs to attack the favorable verdict obtained on the statutory claim in order to protect their right to challenge the disallowance of their negligence claim should they later find themselves defending against an appeal by their adversary. Nothing in § 52-228b or our case law mandates such a perilous choice. Accordingly, we afford plenary review to the issues raised by the plaintiffs.

We begin our analysis by noting that separate causes of action must be pleaded in separate counts of a complaint. Practice Book § 138. A complaint that fails to comply with § 138 may be corrected, however, by amendment. General Statutes § 52-130 provides: “Parties may amend any defect, mistake or informality in the pleadings or other parts of the record or proceedings. . . . Any court may restrain the amendment or alteration of pleadings, so far as may be necessary to compel the parties to join issue in a reasonable time for trial.” The rules of practice contain similar provisions. Practice Book §§ 175 and 176. Whether to allow an amendment is a matter left to the sound discretion of the trial court. This court will not disturb a trial court’s ruling on a proposed amendment unless there has been a clear abuse of that discretion. Lawson v. Godfried, 181 Conn. 214, 216-17, 435 A.2d 15 (1980). “But unless there is some sound reason for denying permission to amend in order to remedy mispleading, [a request to do so] should be granted.” Clayton v. Clayton, 115 Conn. 683, 686, 163 A. 458 (1932).

Applying these principles to the case before us, we conclude that the trial court abused its discretion when it denied the plaintiffs' motion to amend their complaint because there was no sound reason for denying such permission. The language of the original complaint unmistakably set forth both common law negligence and statutory causes of action against Home Improvement, albeit in a single count. By interpreting that language as pleading only a statutory claim, the trial court, in charging the jury, chose to ignore a negligence claim that, although improperly merged with the statutory claim in one count, had clearly been pleaded. The proposed amendment would have made the complaint conform to § 138, so that the jury could have rendered separate verdicts on each cause of action. Moreover, the allowance of the proposed amendment would not have unduly delayed the trial or resulted in an injustice to Home Improvement. Defending against the negligence claim would have been substantially similar to defending against the statutory claim, making it unlikely that a continuance would have been necessary for the purpose of allowing Home Improvement to conduct further factual investigation. More importantly, Home Improvement could hardly claim that it was unfairly surprised by a negligence claim of which it had no notice when, four years earlier, it had indicated its awareness that a negligence claim had been asserted against it by pleading the special defense of contributory negligence, a defense against a common law negligence claim but not against a strict liability claim under § 22-357. Woolf v. Chalker, 31 Conn. 121, 127 (1862). It appears then that Home Improvement knew that the plaintiffs had pleaded negligence, had prepared a defense against that theory of liability and would not have been prejudiced in any way by the proposed amendment, which simply would have placed that theory in a separate count, as required by the rules of pleading.

Although it is not our habit to disturb a trial court’s determination of whether an amendment should be permitted, we have done so on rare occasions when allowing the ruling to stand would work an injustice to one of the parties. See, e.g., Wesson v. F. M. Heritage Co., 174 Conn. 236, 239-40, 386 A.2d 217 (1978); Tammaro v. Ledewitz, 157 Conn. 346, 348-51, 254 A.2d 458 (1968); Fisher v. Board of Zoning Appeals, 142 Conn. 275, 278,113 A.2d 587 (1955). For the reasons stated, we believe that this case presents one of those rare occasions. Consequently, we reverse the trial court’s denial of the plaintiffs’ request for leave to amend and remand the case for a new trial on the negligence claim.

B

We next consider the plaintiffs’ claim of evidentiary error, because it is likely to arise at retrial. State v. Rinaldi, 220 Conn. 345, 359-60, 599 A.2d 1 (1991). In their complaint the plaintiffs alleged that Roy Falby had suffered “fright and fear, shock and stress to his entire nervous system including acute mental and emotional trauma” as a result of being attacked by the pit bull terrier. At trial, Roy Falby testified that, after the attack, he required extensive psychotherapy with a clinical psychologist. He remained in the psychologist’s care for about one and one-half years, incurring over $5000 in expenses. Falby stated that, although he had sometimes discussed other subjects with the psychologist during the sessions, the treatment related principally to the dog attack.

On cross-examination, Home Improvement sought to challenge Falby’s assertion on direct examination, that virtually all of the time he had spent in psychotherapy was attributable to the dog attack, by eliciting the fact that, during the course of the psychotherapy sessions, Falby had also discussed his distress over the circumstances of his two sons. His son Eddie was serving a fifteen year sentence for murder at the time, and the case had attracted a great deal of media attention and public outrage. His son Allen was also in prison, following a robbery conviction, and had tested positive for the presence of the HIV virus. The plaintiffs objected to this line of questioning, arguing that it was immaterial and inflammatory. After an extended colloquoy with both parties, outside the presence of the jury, the trial court allowed this cross-examination, placing some limitations on precisely which details Home Improvement would be permitted to elicit about the crimes committed by the two sons. The plaintiffs took exception to the court’s ruling.

The plaintiffs maintain that the trial court improperly permitted cross-examination concerning Roy Falby’s discussions in his psychotherapy sessions about Eddie’s murder case and the negative publicity and public outrage provoked by it and about Allen’s HIV test result. Home Improvement argues that these subjects were all fairly raised on cross-examination to challenge Roy Falby’s testimony that virtually all of his psychotherapy expenses were attributable to the emotional distress he suffered after being attacked by the pit bull terrier. We agree with Home Improvement.

Roy Falby’s testimony injected into the case the issue of Home Improvement’s liability for the expenses he had incurred for psychotherapy and invited the challenged line of cross-examination. The trial court properly exercised its discretion when it ruled that such cross-examination was highly probative of Home Improvement’s contention that some of the costs of Falby’s psychotherapy were not fairly traceable to the dog attack and that its prejudicial effect did not outweigh its probative value. If Falby should offer similar testimony at retrial, it would be appropriate for the trial court to permit such limited cross-examination by Home Improvement for the purpose of disputing the claim that all of his psychotherapy expenses were attributable to the dog attack.

The judgment is reversed and the case is remanded for a new trial in accordance with this opinion.

In this opinion the other justices concurred.

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

       The court concluded that damages for loss of consortium were not available under General Statutes § 22-357.

       The Appellate Court adopted a similar view of “keeper” liability under General Statutes § 22-357 when it affirmed a summary judgment in favor of the defendant landlords whose tenant owned a dog that injured the plaintiff. Buturla v. St. Onge, 9 Conn. App. 495, 519 A.2d 1235, cert. denied, 203 Conn. 803, 522 A.2d 293 (1987). The court noted that the landlords’ mere acquiescence in the dog’s presence within the leased premises, unaccompanied by any evidence of caretaking of the dog or actual control over its actions, could not afford a basis for their strict liability as keepers under the statute. Id.

       The plaintiffs made identical allegations against the Crees in the fourth count of the complaint. On December 13,1988, they filed a request for leave to amend the complaint by separating the fourth count against the Crees into one count alleging statutory liability under General Statutes § 22-357 and another alleging common law negligence. Because no objection was filed to the request, the amendment was deemed to have been filed by consent of the Crees. Before trial, however, the plaintiffs withdrew their action against the Crees.

       The request sought to make the same amendment to the allegations against Home Improvement that had previously been made with respect to the allegations against the Crees.

       The plaintiffs also advance the claim that the trial court improperly denied their subsequent motion to amend the complaint to conform to the proof offered at trial. In light of our conclusion that the trial court should have granted the earlier motion to amend the complaint, we need not address this alternative claim.

       Practice Book § 4013 (a) (1) (C) provides: “At the time the appellant sends a copy of the endorsed appeal form to the chief clerk of the supreme court, the appellant shall also send the chief clerk an original and one copy of the following: (1) A preliminary statement of the issues intended for presentation on appeal. If any appellee wishes to . . . (C) claim that a new trial rather than a directed judgment should be ordered if the appellant is successful on the appeal, that appellee shall file a preliminary statement of issues within fourteen days from the filing of the appellant’s preliminary statement of the issues.”

       Practice Book § 138 provides: “Where separate and distinct causes of action, as distinguished from separate and distinct claims for relief founded on the same cause of action or transaction, are joined, the statement of the second shall be prefaced by the words Second Count, and so on for the others; and the several paragraphs of each count shall be numbered separately beginning in each count with the number one.”

       Practice Book § 175 provides: “The plaintiff may amend any defect, mistake or informality in the writ, complaint or petition and insert new counts in the complaint, which might have been originally inserted therein, without costs, during the first thirty days after the return day.”
      Practice Book § 176 provides: “Except as provided in Sec. 182, a party may amend his pleadings or other parts of the record or proceedings at any time subsequent to that stated in the preceding section in the following manner:
      “(a) By order of court; or
      “(b) By written consent of the adverse party; or
      “(c) By filing a request for leave to file such amendment, with the amendment appended, after service upon each party as provided by Sec. 120, and with proof of service endorsed thereon. If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party. If an opposing party shall have objection to any part of such request or the amendment appended thereto, such objection in writing specifying the particular paragraph or paragraphs to which there is objection and the reasons therefor, shall, after service upon each party as provided by Sec. 120 and with proof of service endorsed thereon, be filed with the clerk within the time specified above and placed upon the next short calendar list.
      “The court may restrain such amendments so far as may be necessary to compel the parties to join issue in a reasonable time for trial. If the amendment occasions delay in the trial or inconvenience to the other party, the court may award costs in its discretion in his favor. For the purposes of this rule, a substituted pleading shall be considered an amendment.”

       On September 19, 1986, Home Improvement filed the following special defense: “If the plaintiff suffered the damages and injuries in the manner and to the extent as alleged in the complaint, which is herein expressly denied, then the same were proximately caused by his own carelessness and negligence in that he knew, or in the exercise of reasonable care, should have known that the dog was on the premises, and approached the premises from a direction and in a manner which he knew, or in the exercise of reasonable care should have known, would frighten, alarm and incite the dog.”

       The court stated: “So, to summarize, then, I am prohibiting questions concerning Edward and prison which concern the identity, age, or sex of the victim; and, secondly, any question concerning conviction, appeal, and bond.”


author: Berdon, J.

text:
    Elizabeth Hansen v. Robert Gordon et al.
    (14237)
    Peters, C. J., Shea, Callahan, Covello and Berdon, Js.
    Argued November 6, 1991
    decision released January 28, 1992

      David A. Kelly, with whom was Jeremy Booty, for the appellants (defendants).

      Jason M. Dodge, for the appellee (plaintiff).
   Berdon, J.

This appeal, arising under the Workers’ Compensation Act, General Statutes § 31-275 et seq., raises the following two issues: (1) whether hepatitis type B virus (HBV) is an occupational disease for a dental hygienist within the meaning of the act when the disease arises out of and in the course of her employment; and, if so, (2) whether a dental hygienist who has suffered no physical impairment or symptoms of the disease can be found to have sustained partial incapacity within the meaning of the act as a result of being a carrier of the disease.

. The plaintiff, Elizabeth Hansen (claimant), was employed by Robert Gordon, a dentist. The compensation review division affirmed an award of benefits from the workers’ compensation commissioner to the claimant. Gordon and his liability insurer under the Workers’ Compensation Act, St. Paul Insurance Company (collectively, employer), took this appeal to the Appellate Court. We transferred the appeal to this court pursuant to Practice Book § 4023. We conclude that, under the facts in this case, HBV is compensable as an occupational disease under the Workers’ Compensation Act, and that the claimant sustained a partial incapacity as a result of being a carrier of the disease. Accordingly, we affirm the decision of the compensation review division.

The employer, on appeal, concedes that the facts the commissioner found must stand. “[T]he power and duty of determining the facts rests on the commissioner, the trier of facts. . . . The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Citations omitted.) Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18, 411 A.2d 924 (1979).

We thus decide the issues in this case on the basis of the following facts found and conclusions drawn by the commissioner. The claimant had been employed by Gordon as a dental hygienist since 1980. In 1984, the claimant, her coworkers and Gordon began to wear masks and gloves due to their increased awareness of infection from communicable diseases. In 1984 and 1985, the claimant and Gordon received precautionary vaccinations against hepatitis. During March, 1986, the claimant’s husband was diagnosed as having HBV. As a result of this diagnosis, the claimant was tested and diagnosed as being a carrier of HBV. On March 13, 1986, the claimant ceased employment as a dental hygienist when she and Gordon agreed that her condition posed a threat to patients.

Hepatitis is an inflammation of the liver and is usually manifested by jaundice. HBV is a contagious disease that is widespread in the community and is most commonly acquired through bodily secretions, such as blood, serum, semen and saliva. It can be transmitted through blood transfusions, sexual intercourse, or other direct contact with a contagious person in which bodily secretions are involved. Dental hygienists and other health care providers, whose work may subject them to contact with blood and other secretions, are at particular risk for contracting the disease. The commissioner determined that “[bjased on all the evidence presented it is more likely than not that Claimant’s infection with hepatitis arose out of and in the course of her employment.”

In viewing the issues raised in this case, we are mindful of the remedial purposes of the Workers’ Compensation Act and “ ‘that it should be broadly construed to accomplish its humanitarian purpose.’ ” Ash v. New Milford, 207 Conn. 665, 672, 541 A.2d 1233 (1988), quoting Adzima v.UAC/Norden Division, supra, 117. Nevertheless, we also recognize that the legislature did not intend to impose upon the employer liability for diseases contracted outside the work place, or to transform the Workers’ Compensation Act into a general health and benefit insurance program that would compensate an employee for all contagious diseases.

I

A disease is compensable as an “injury”; General Statutes § 31-275 (8); (1) if it arises out of and in the course of the employment; General Statutes § 31-275 (12); and (2) if it is an occupational disease that is “peculiar to the occupation in which the employee was engaged” and “due to causes in excess of the ordinary hazards of employment as such.” General Statutes § 31-275 (11).

The employer does not dispute the commissioner’s conclusion that “it is more likely than not that Claimant’s infection with hepatitis arose out of and in the course of her employment.” The first requirement has therefore been met. In Fair v. People’s Savings Bank, 207 Conn. 535, 539-41, 542 A.2d 1118 (1988), we quoted with approval the following: “ ‘[I]n determining whether a particular injury arose out of and in the course of employment, the . . . Commissioner must necessarily draw an inference from what he has found to be the basic facts. The propriety of that inference, of course, is vital to the validity of the order subsequently entered. But the scope of judicial review of that inference is sharply limited by the . . . statutory provisions. If supported by the evidence and not inconsistent with the law, the . . . Commissioner’s inference that an injury did or did not arise out of and in the course of employment is conclusive.’ . . . Cardillo v. Liberty Mutual Co., 330 U.S. 469, 477-78, 67 S. Ct. 801, 91 L. Ed. 1028 (1947).”

The employer claims on appeal, however, that the claimant has not satisfied her burden of proving that HBV falls within the definition of an occupational disease. The employer argues that for the disease to be classified as “occupational” under the Workers’ Compensation Act, it must be one where “the risk of acquiring the ailment arises only during employment.” At oral argument, the employer further embellished this argument by claiming that contagious diseases present in the community at large must be excluded from coverage under the Workers’ Compensation Act. These exclusions are much too broad and find no support in our prior cases.

Shortly after the Workers’ Compensation Act was amended to its present pertinent language, we had occasion to interpret the definition of “occupational disease” as being “a disease which is a natural incident of a particular occupation, and must attach to that occupation a hazard that distinguishes it from the usual run of occupations and is in excess of that attending employment in general.” Glodenis v. American Brass Co., 118 Conn. 29, 40-41, 170 A. 146 (1934). In making this determination, we analyzed the statutory language requiring the disease to be “peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such.” General Statutes § 31-275 (11). We concluded that this “does not require that a disease, to be within the definition, should be one which arises solely out of the particular kind of employment in which the employee is engaged, nor that it should be due to causes in excess of the ordinary hazards of that particular kind of employment. Otherwise the definition would exclude most diseases .... The phrase‘peculiar to the occupation’ is not here used in the sense that the disease must be one which originates exclusively from the particular kind of employment in which the employee is engaged, but rather in the sense that the conditions of that employment must result in a hazard which distinguishes it in character from the general run of occupations; see Oxford Dictionary; Funk & Wagnalls Dictionary; and the phrase ‘employment as such’ means employment in general.” Glodenis v. American Brass Co., supra, 40.

We have never held that a disease must be of the type that can be contracted solely in the work place, either in a general sense or from the claimant’s particular type of employment. “When we referred ... to disease as being a ‘natural’ incident of the employment, we used that word in the sense that we have used it in defining proximate causation . . . it imports not a forward look to determine what risks should have been foreseen, but a tracing back from the results to the circumstances out of which the disease sprang.” (Citations omitted.) LeLenko v. Wilson H. Lee Co., 128 Conn. 499, 505, 24 A.2d 253 (1942). Therefore, the requirement that the disease be “peculiar to the occupation” and “in excess of the ordinary hazards of employment,” refers to those diseases in which there is a causal connection between the duties of the employment and the disease contracted by the employee. In other words, it need not be unique to the occupation of the employee or to the work place; it need merely be “so distinctively associated with the employee’s occupation that there is a direct causal connection between the duties of the employment and the disease contracted.” Russell v. Camden Community Hospital, 359 A.2d 607, 611-12 (Me. 1976); see also Hendrix v. Linn-Corriher Corporation, 317 N.C. 179, 345 S.E.2d 374 (1986) (textile worker who developed lung disease as a result of his many years of exposure to cotton dust could recover for an occupational disease under the Workers’ Compensation Act); Booker v. Duke Medical Center, 297 N.C. 458, 472-74, 256 S.E.2d 189 (1979) (lab technician contracted serum hepatitis through contact with tainted fluids in the laboratory; upon his death, his decedents were compensated under the occupational disease provision of the Workers’ Compensation Act).

We further note that since 1982, the workers’ compensation review division has construed the statutory definition of occupational diseases simply to refer to concepts of proximate causation. Cortes v. Allegheny Ludlum Steel Corporation, 1 Conn. Workers’ Comp. Rev. Op. 173, 181-82, 61 CRD-3-81 (1982). We afford great deference to the construction by the review division that is in charge of the enforcement of the compensation act. See Griggs v. Duke Power Co., 401 U.S. 424, 433, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971); Dugas v. Lumbermens Mutual Casualty Co., 217 Conn. 631, 643, 587 A.2d 415 (1991). Moreover, although the legislature recently amended § 31-275 of the Workers’ Compensation Act; Public Acts 1991, No. 91-339, § 1; it left intact the compensation review division’s construction of the definition of occupational diseases. “[T]he inference of legislative concurrence with the agency’s interpretation [is] to be drawn from legislative silence concerning that interpretation, especially where the legislature makes unrelated amendments in the same statute.” Connecticut Light & Power Co. v. Public Utilities Control Authority, 176 Conn. 191, 198, 405 A.2d 638 (1978).

In the present case, the facts found by the commissioner surely fulfill the requirements for an occupational disease. The commissioner found, on the basis of all the medical testimony, that dental hygienists are at a particular risk of contracting HBV because of their contact with blood and other secretions. Although HBV is contagious, and can be transmitted through means outside the work place, for dental hygienists it is a disease so distinctly associated with their profession that the necessary causal connection is present.

The employer’s reliance on Madeo v. I. Dibner & Brother, Inc., 121 Conn. 664, 186 A. 616 (1936), is misplaced. In Madeo, there was no evidence of any causal connection between the employee’s work as a seamstress and the disease of tuberculosis for which she sought compensation. We pointed out in Madeo that an occupational disease “does not include a disease which results from the peculiar conditions surrounding the employment of the claimant in a kind of work which would not from its nature be more likely to cause it than would other kinds of employment carried on under the same conditions.” Id., 667. This distinction is put in sharper focus when compared with Russell v. Camden Community Hospital, supra, in which the Supreme Judicial Court of Maine affirmed the award of workers’ compensation benefits to a nurse’s aide whose infection with tuberculosis was more probably than not a result of her work with an infected patient. The court stated that the occupational disease law “does not require frequent or typical exposure [to the disease] but only that there be a direct causal connection between the occupation and the disease. It is sufficient that she show that her contracting the disease, no matter how rare, or unusual, was occasioned by conditions characteristic of and peculiar to her job.” Id., 612. In the present case, all the expert testimony revealed that dental professionals are at an increased risk of contracting HBV because of their exposure to bodily secretions on a daily basis, as well as their use of sharp instruments that can puncture their skin, thereby allowing HBV an entree into their bodies.

Lastly, the employer looks, for support for his argument, to General Statutes § 5-142 (b), which provides state employees with benefits for communicable diseases contracted “while in the employ of the state and during the performance of such employee’s duties.” The employer argues that if communicable diseases were covered as occupational diseases pursuant to the Workers’ Compensation Act, then § 5-142 (b) would be superfluous. The simple answer to its argument is that the legislature obviously wanted to ease the burden of proof that is required by a state employee under the Workers’ Compensation Act, thereby affording state employees an enhanced benefit pursuant to § 5-142 (b). See Lucarelli v. State, 16 Conn. App. 65, 68, 546 A.2d 940 (1988).

Accordingly, because the claimant has proven that HBV arose out of and in the course of her employment, and that HBV is an occupational disease for a dental hygienist, she has sustained her burden of proving that the disease is compensable under the Workers’ Compensation Act.

II

The employer’s second claim is that the claimant is not entitled to compensation because she does not have a “partial incapacity.” The employer argues that because the claimant concurred with Gordon that she should not continue her employment as a dental hygienist, and because she suffers no symptoms of the disease, she has not sustained a partial incapacity. We disagree with the employer.

General Statutes § 31-308 (a) provides in pertinent part that “[i]f any injury for which compensation is provided under the provisions of this chapter results in partial incapacity, there shall be paid to the injured employee a weekly compensation equal to sixty-six and two-thirds per cent of the difference between the wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury and the amount he is able to earn after such injury . . . .”

Section 31-308 (a) makes clear that if the injury results in some incapacity leaving the claimant able to perform some employment, but unable fully to perform his or her customary work, the claimant is entitled to benefits under its provisions. We have held that a partial incapacity means a partial inability to work “as distinguished from the loss or loss of use of a member of the body,” which results in an impairment affecting the use or function of the body. Panico v. Sperry Engineering Co., 113 Conn. 707, 710, 156 A. 802 (1931).

We first note that the incapacity must result from a causal connection between the injury and the employment; Santini v. Levin, 110 Conn. 248, 252, 147 A. 680 (1929); and that the right to benefits does not arise merely because of factors that are extrinsic to the physical status of the employee. Clark v. Henry & Wright Mfg. Co., 136 Conn. 514, 517-18, 72 A.2d 489 (1950).

In making our determination as to whether the claimant is entitled to compensation under the Workers’ Compensation Act for partial incapacity, we again stress that the commissioner is the trier of the facts. The conclusions drawn by him or her from those facts must stand unless successfully challenged upon one of the grounds enumerated in Adzima v. UAC/Norden Division, supra.

With respect to this issue, the commissioner found that the claimant is a carrier of the disease but suffers no physical impairment. She has not worked as a hygienist since March, 1986, when she and Gordon agreed “that her condition posed a threat to patients.” The commissioner concluded that the “[claimant has not been and is not employable as a dental hygienist and has suffered a diminution of her earning capacity.” Not only is this latter conclusion supported by the testimony of the employer’s expert, but it is also supported by Gordon himself. It was Gordon who concluded that because the claimant was a carrier of HBV, she should not continue to work as a dental hygienist because if she did, patients would be placed at risk of contracting the disease. The findings and conclusion of the commissioner support an award of compensation for partial incapacity under the Workers’ Compensation Act. It is irrelevant that the claimant agreed to cease employment to protect patients and that she suffers no symptoms of the disease. As the compensation review division concluded, “the disease itself is an impairment in capacity [because] it disabled claimant from employment as a dental hygienist and therefore caused her to lose earnings.”

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

In this opinion the other justices concurred.

       General Statutes § 31-275 (8) provides: “ ‘Personal injury’, or ‘injury’, as the same is used in this chapter, shall be construed to include, in addition to accidental injury which may be definitely located as to the time when and the place where the accident occurred, an injury to an employee which is causally connected with his employment and is the direct result of repetitive trauma or repetitive acts incident to such employment, and occupational disease as herein defined.”
      General Statutes § 31-275 (12) provides in pertinent part: “ ‘Arising out of and in the course of his employment’ means ... an occupational disease of such employee originating while he has been engaged in the line of his duty in the business or affairs of the employer upon the employer’s premises . . . .”
      General Statutes § 31-275 (11) provides: “ ‘Occupational disease’ includes any disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such and includes any disease due to or attributable to exposure to or contact with any radioactive material by an employee in the course of Ms employment.”
      Section 31-275 was amended by Public Acts 1991, No. 91-339, §§ 1 and 55. That amendment does not affect the appeal here.

       In Grady v. St. Mary’s Hospital, 179 Conn. 662, 668 n.8, 427 A.2d 842 (1980), we set forth the evolution of occupational disease under the compensation act as follows: “In Linnane v. Aetna Brewing Co., 91 Conn. 158, 162, 99 A. 507 (1916), this court held that occupational diseases were not compensable under the workmen’s compensation statute. There we said that ‘ “personal injury” within the meaning of the Act involves both an accident and a bodily injury, as distinguished from a disease.’ By the time Hines v. Norwalk Lock Co., 100 Conn. 533, 124 A. 17 (1924), was decided, however, the legislature had amended the act to include in the definition of injury any disease which is due to causes peculiar to the occupation and which is not of a contagious, communicable or mental nature. The following year, the court broadened the definition of personal injuries compensable under the act on its own initiative by including contagious diseases. De la Pena v. Jackson Stone Co., 103 Conn. 93, 130 A. 89 (1925). But the legislative response was to tighten the definition of a compensable personal injury ‘to include only accidental injury which may be definitely located as to the time when and the place where the accident occurred, and occupational disease as herein defined.’ Public Acts 1927, c. 307 § 7. (Emphasis added.) In Madeo v. I. Dibner & Brother, Inc., 121 Conn. 664, 666-67, 186 A. 616 (1936), this court recognized that ‘[t]he purpose of the amendment was to limit the scope of the act as it applied to diseases and to include in it only certain types which occupied a definite relationship to the occupation of the employee.’ The only substantive change in the definition since then has been the addition of the second category of compensable personal injury which is immaterial to this case because the plaintiff does not claim it.”

       Avrum H. Blitzer, the claimant’s treating physician, Klaus Nuki, a professor at the University of Connecticut dental school, and Richard Slater, the employer’s expert, a physician specializing in internal medicine and gastroenterology, all testified that dental professionals are at an increased risk to contract HBV because they are exposed to blood and serum on a daily basis as well as to sharp instruments, which can puncture the skin of dental professionals. This is further supported by the Occupational Safety and Health Administration’s guidelines, which list dentists and other dental workers at risk for contracting HBV because their work may involve “exposure to blood or other potentially infectious materials.” Compliance Assistance Guideline for the February 27, 1990, OSHA Instruction CPL 2-2.44B Enforcement Procedures for Occupational Exposure to Hepatitis B Virus and Human Immunodeficiency Virus, p. 3.

       General Statutes § 31-308 was amended by Public Acts 1991, No. 91-339, §§ 28 and 55. That amendment does not affect the appeal here.

       The epiployer’s expert testified: “If ... a number of cases were traced back to [the dentist] as having been spread, it might be that his license to practice would be restricted or limited. From a practical point of view in terms of whether I would recommend that someone who is a Hepatitis B [carrier] go into that field, I would not recommend that. I think it does put patients at some exposure even though with proper gloves and proper care you could work, and I think from my experience dealing with dentists, quite honestly, if the dentist were hiring someone and knew that that person was a Hepatitis B carrier, he would be less inclined to hire someone.”


text:
    Ronald Stuart v. Department of Correction
    (14331)
    Peters, C. J., Shea, Callahan, Covello and Berdon, Js.
    Argued November 6, 1991
    decision released January 28, 1992

      Michael J. Belzer, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Charles A. Overend, assistant attorney general, for the appellant (defendant).

      Mark W. Oberlatz, for the appellee (plaintiff).
   Berdon, J.

The issue in this appeal is whether an injured state employee is entitled to full salary benefits pursuant to General Statutes § 5-142 (a) solely on the basis of his membership in an enumerated group of state employees. The workers’ compensation commissioner determined that the plaintiff, Ronald Stuart (claimant), had suffered a compensable work related injury in his employment with the defendant, the department of correction (state); and thus, he was entitled to full salary benefits pursuant to § 5-142 (a) during his period of total incapacity. On appeal by the state, the compensation review division affirmed the commissioner’s finding and award. The state appealed to the Appellate Court, and we transferred the appeal to this court in accordance with Practice Book § 4023. We now reverse.

The facts were stipulated. On August 24, 1986, the claimant, a food service supervisor, injured his back while lifting a box of supplies in the performance of his food preparation duties at the state correctional institution in Niantic. As a result of his injuries, the claimant was totally disabled from September 4,1986, until April 24,1987. The claimant contended that during his period of total disability, he was entitled to his “full salary” pursuant to § 5-142 (a); the state, however, paid him weekly compensation equal to 66.66 percent of his average weekly earnings at the time of his injury, pursuant to General Statutes § 31-307 of the Workers’ Compensation Act. General Statutes § 31-275 et seq. The workers’ compensation commissioner for the second district, relying on the Appellate Court’s decision in Lucarelli v. State, 16 Conn. App. 65, 546 A.2d 940 (1988), concluded that the claimant was entitled to his full salary pursuant to § 5-142 (a).

The state’s principal argument is that, although the claimant is a member of an enumerated group of state employees whom the legislature intended to receive benefits under § 5-142 (a), he is not entitled to his full salary because he did not sustain his injury while in the performance of duties listed in § 5-142 (a). We agree with the state and, thus, reverse the decision of the compensation review division.

As a threshold matter, we note that there is no question that the claimant, as an employee of the department of correction, was a member of the class of employees whom the legislature intended to be eligible to receive benefits pursuant to § 5-142 (a). The sole issue presented in this appeal is whether the claimant received his work related injury under the circumstances that the legislature intended to be compensable under § 5-142 (a). In addressing this issue, we note that “[w]hen language used in a statute is clear and unambiguous, its meaning is not subject to modification or construction.” Cilley v. Lamphere, 206 Conn. 6, 9-10, 535 A.2d 1305 (1988).

Examining the language of § 5-142 (a), we find that it allows certain state employees, including employees at correctional institutions, to have the enhanced benefit of full salary if such employee “sustains any injury while making an arrest or in the actual performance of such . . . guard duties . . . or while attending or restraining an inmate ... or as a result of being assaulted in the performance of his duty . . . . ” (Emphasis added.) In § 5-142 (a), the legislature specifically listed those duties that the employee would have to be performing when he or she sustained the injury in order to have the injury compensable pursuant to that statute. “The use of specific words to define acts . . . [that are required by statute] connotes the legislative intent to exclude that which is not specifically stated.” State v. Kish, 186 Conn. 757, 765, 443 A.2d 1274 (1982). Thus, the unambiguous language of the statute requires that a claimant sustain his injury while in the “actual performance of” enumerated duties, such as guard duties, in order to qualify for benefits pursuant to § 5-142 (a).

In the present case, the claimant concedes that he suffered his back injury by lifting a box of supplies while in the performance of his food preparation duties and clearly not while in the performance of a duty listed in § 5-142 (a). The claimant argues that he is entitled to the benefits pursuant to the statute because his duties as a food service supervisor include “guard duties.” We are not persuaded by this argument. The claimant’s argument ignores the plain language in the statute requiring a state employee to be engaged “in the actual performance of” specified duties in order to qualify for enhanced benefits. That the claimant’s job description lists “guard duties” as a potential responsibility has no bearing on his eligibility to collect § 5-142 (a) benefits when he was not actually engaged in the performance of those duties at the time of his injury.

Furthermore, in General Statutes § 5-142a, which immediately follows § 5-142, the legislature clearly expressed its intent to provide benefits for any sheriff “while in performance of any duty for which he is compensated by the state.” Had the legislature intended to provide the state employees listed under § 5-142 (a) the enhanced benefits for an injury received while in the performance of any duty, it would have so stated in the statute, just as it did in § 5-142a. “Related statutory provisions, or statutes ‘in pari materia,’ often provide guidance in determining the meaning of a particular word [or phrase].” State v. Hill, 201 Conn. 505, 515, 523 A.2d 1252 (1986).

The reliance on Lucarelli v. State, supra, by the compensation review division and the claimant is misplaced. In Lucarelli, a correction officer was injured when the chair on which he was sitting collapsed while he was performing his guard duties. The Appellate Court held that the claimant was entitled to full salary benefits because, under § 5-142 (a), he had to show only that he was injured in the performance of his guard duties, and not that the duties being performed at the time of the injury were “hazardous” in nature. In the present case, there is no dispute that the claimant was injured while performing his food preparation duties, and not while performing guard duties.

The decision of the compensation review board is reversed and the case is remanded to the review division with direction to remand the case to the workers’ compensation commission with direction to award the claimant benefits consistent with this opinion.

In this opinion the other justices concurred.

       General Statutes § 5-142 provides in pertinent part: “(a) If any member ... of any correctional institution . . . sustains any injury while making an arrest or in the actual performance of such police duties or guard duties ... or while attending or restraining an inmate of any such institution or as a result of being assaulted in the performance of his duty, the state shall pay all necessary medical and hospital expenses resulting from such injury. If total incapacity results from such injury, such person shall be removed from the active payroll the first day of incapacity, exclusive of the day of injury, and placed on an inactive payroll. He shall continue to receive the full salary which he was receiving at the time of injury subject to all salary benefits of active employees, including annual increments, and all salary adjustments, including salary deductions, required in the case of active employees, for a period of two hundred sixty weeks from the date of the beginning of such incapacity. . . .” (Emphasis added.)
      It should be noted that the legislature has recently amended § 5-142 (a) by adding language that the injury sustained must be “a direct result of the special hazards inherent in such duties”; Public Acts 1991, No. 91-339, § 40; thereby layering a third requirement in order for a claimant to receive benefits pursuant to § 5-142 (a). Accordingly, to be eligible for benefits under § 5-142 (a), the state employee must (1) be a member of a specified group of state employees, (2) be engaged in the performance of a specified duty, and (3) the injury sustained must be as a result of “special hazards inherent in such duties.”

       General Statutes § 31-307 provides in pertinent part: “If any injury for which compensation is provided under the provisions of this chapter results in total incapacity to work, there shall be paid to the injured employee a weekly compensation equal to sixty-six and two-thirds per cent of his average weekly earnings at the time of the injury; but the compensation shall in no case be more than the maximum weekly benefit rate set forth in section 31-309 for the year in which the injury occurred. ... No employee entitled to compensation under this section shall receive less than twenty per cent of the maximum weekly compensation rate, as provided in section 31-309, provided such minimum payment shall not exceed eighty per cent of the employee’s average weekly wage, as determined under section 31-310; and such compensation shall not continue longer than the period of total incapacity. ...”
      Section 31-307 was amended by Public Acts 1991, No. 91-339, §§ 26 and 55. That amendment does not affect the appeal here.

       In addition to food preparation, the claimant’s duties include maintaining discipline and security, supervising inmates, quelling disturbances and assisting custodial forces in emergencies.

       General Statutes § 5-142a provides: “Any high sheriff, chief deputy sheriff, deputy sheriff or special deputy sheriff who suffers death, disability or injury, while in performance of any duty for which he is compensated by the state, shall, for the purposes of section 5-142 and chapter 568, be presumed to be an employee of the state and shall be compensated by the state in accordance with said section and chapter.” (Emphasis added.)

       See footnote 1, supra.


author: Covello, J. Berdon, J.,

text:
    Robert Munhall, Jr., et al. v. Inland Wetlands Commission of the Town of Lebanon et al. Robert Munhall, Jr., et al. v. Inland Wetlands Commission of the Town of Lebanon
    (14277)
    (14279)
    Shea, Callahan, Covello, Borden and Berdon, Js.

      Argued October 3, 1991
    decision released January 28, 1992

      George C. Hastings and Brian R. Smith, with whom was Jill K. Schultz, for the appellants (plaintiffs in both cases).

      Michael A. Zizka, for the appellees (defendant Kelley Property Development, Inc., in Docket No. 14277, and intervening defendants in Docket No. 14279).

      Juri E. Taalman, for the appellees (named defendant in each case).
   Covello, J.

These appeals raise two principal issues: (1) whether the individual members of an administrative agency can be aggrieved so as to entitle them to pursue a statutory appeal from an agency decision in which they cast dissenting votes; and (2) whether the individual members of an administrative agency have standing to pursue a declaratory judgment action against the agency with respect to an agency decision in which they cast dissenting votes. We conclude that such individual members are neither aggrieved so as to entitle them to appeal from an agency action nor do they have standing to sue the agency in circumstances where the gravamen of their complaint is dissatisfaction with the majority’s action. Accordingly, we affirm the judgments of the trial court that so held.

The procedural facts are not in dispute. The plaintiffs, Robert Munhall, Jr., Richard Schleicher and Russell T. Smith, are all members of the Lebanon inland wetlands commission. On July 2,1990, the commission took up the application of Kelley Property Development, Inc., for the extension of a previously granted wetland permit. The commission voted three to two to deny the application for an extension. The plaintiffs constituted the three member majority that voted to deny the extension.

On August 6, 1990, after the Lebanon town attorney had rendered an opinion that the reasons given for the July 2 decision were invalid, the commission again considered Kelley’s application for an extension as a “new” application. On this occasion, the commission voted four to three to grant the application for extension of the wetland permit. The plaintiffs constituted the three member minority that voted to deny the extension. On August 31, 1990, the plaintiffs filed an administrative appeal in the Superior Court, contesting the commission’s August 6 action, and alleging, as the reasons for their appeal, a host of procedural irregularities in connection with the commission’s August 6 vote.

On September 17, 1990, the commission voted four to three to rescind its earlier action of July 2,1990, in connection with the wetland permit. Again, the plaintiffs constituted the three member minority that voted not to rescind. On September 18, 1990, the plaintiffs began a declaratory judgment action against the commission and Kelley Property Development, Inc., alleging further procedural irregularities, and seeking a determination that the commission’s action of July 2, 1990, was “valid and effective” and that the commission’s later actions were “null and void.”

On January 31,1991, the trial court, Axelrod, J., concluded that the plaintiffs were not aggrieved persons within the meaning of General Statutes § 22a-43 ** and, therefore, granted the commission’s motion to dismiss the administrative appeal. On February 1, 1991, the trial court concluded that the plaintiffs lacked standing to pursue the declaratory judgment action and, therefore, granted the defendants’ motion to dismiss the declaratory judgment action. The plaintiffs appealed both judgments to the Appellate Court. We thereafter transferred the matter to ourselves pursuant to Practice Book § 4023.

I

It is fundamental that appellate jurisdiction in administrative appeals is created only by statute and can be acquired and exercised only in the manner prescribed by statute. Charles Holdings, Ltd. v. Planning & Zoning Board of Appeals, 208 Conn. 476, 479, 544 A.2d 633 (1988). Pleading and proof that the plaintiffs are aggrieved within the meaning of the statute is a prerequisite to the trial court’s jurisdiction over the subject matter of the appeal. Beckish v. Manafort, 175 Conn. 415, 419, 399 A.2d 1274 (1978). “The claims of aggrievement by these plaintiffs presented an issue of fact for the determination of the trial court. Hickey v. New London, 153 Conn. 35, 38, 213 A.2d 308 [1965]. The burden of proving that they were aggrieved was on these plaintiffs. London v. Planning & Zoning Commission, 149 Conn. 282, 284, 179 A.2d 614 [1962].” New Haven v. Public Utilities Commission, 165 Conn. 687, 700, 345 A.2d 563 (1974).

“The fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, ‘the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision.’ Nader v. Altermatt, 166 Conn. 43, 51, 347 A.2d 89 [1974].” Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 493, 400 A.2d 726 (1978).

The plaintiffs claim that as individual commission members they have a specific, personal and legal interest in seeing that the properly enacted decision of July 2,1990, is upheld and that the improperly enacted decision of August 6,1990, is reversed. The plaintiffs argue that since that interest has been specially and injuriously affected by the commission’s subsequent rulings, they are aggrieved and thus entitled to pursue their administrative appeal. We disagree.

In Tyler v. Board of Zoning Appeals, 145 Conn. 655, 145 A.2d 832 (1958), a zoning board of appeals granted the applicant’s request for a variance. The zoning commission, a different administrative body within the same town, and one of its individual members appealed to the Court of Common Pleas. We concluded that there was no authority “for a zoning commission to take an appeal where a ruling or order of its own is not in issue.” Id., 659. With respect to the individual zoning commission member, we concluded that “[t]he [commission member] . . . whose interest is merely that of a resident and taxpayer of the town concerned with the strict enforcement of the zoning regulations for the general welfare of the community, is not entitled to maintain an appeal as an aggrieved person . . . .’’Id., 662.

We have never concluded that individual commission members are aggrieved for the purpose of appealing the decisions of the very agency upon which they sit. Inherent in such a state of the law is the notion that the legislative function of any agency, by its very nature, involves the interaction of competing ideas that eventually resolve themselves in a decision that may not satisfy all of the agency’s members. This is the essence of the legislative process, a process that should not be compromised by ready access to a supplemental forum for those dissenting members who are disappointed in the outcome.

The plaintiffs are unable to cite any authority in support of their claim of aggrievement and our research indicates that none exists. On the contrary, there are holdings to the effect that members of an agency who are in the minority with respect to an agency decision are not aggrieved for the purposes of pursuing an appeal of that decision in court.

In Cohen v. Board of Selectmen, 376 A.2d 853 (Me. 1977), a majority of the selectmen of the town of Kennebunk granted the plaintiff’s application for a license to build a wharf in the tidewaters within the limits of the town. Two selectmen, who voted against the plaintiff’s application, appealed to the Superior Court. The trial court dismissed the appeal. While the trial court’s ruling was reversed on other grounds, the Maine Supreme Judicial Court determined that the dissenting members of the board of selectmen could not “be considered . . . aggrieved” and that the trial court “was correct in dismissing the appeal as to them.” Id., 856.

In McTaggart v. Public Service Commission, 168 Mont. 155, 541 P.2d 778 (1975), a dissenting member of the public service commission filed an action in court to vacate a rate order adopted by a majority of the commission. The Montana Supreme Court determined that the dissenting member had no standing to pursue such an action concluding that “[cjhaos would result if any dissenting member of a state board or agency had standing to appeal from any board or agency decision.” Id., 158.

In Ohio ex rel. Basista v. Melcher, 118 Ohio App. 37, 188 N.E.2d 293 (1963), a dissenting member of the board of zoning appeals appealed to the city council the majority’s decision to issue a building permit. The city council vacated the decision. The applicant appealed to court alleging, inter alia, that the dissenting member was not an aggrieved person within the meaning of the board’s regulations. While deciding unfavorably to the applicant on other grounds, the Ohio Court of Appeals determined: “The right of a member of a board exercising quasi-judicial powers to appeal the decision of the board rendered in the exercise of such power ... is nonexistent. If a member of the board attempts to exercise the right of appeal as an interested party or as a person aggrieved, then he should not be a trier of the facts in a case in which he is interested.” Id., 47.

The plaintiffs here are claiming an interest in the strict enforcement of the Lebanon inland wetlands and watercourses regulations as the basis for their aggrievement. We conclude that neither their interest as dissenting commission members nor their general interest as residents and taxpayers rises to the level of the personal interest required in order to fall within the meaning of a “person aggrieved.”

II

In their separate declaratory judgment action, the same plaintiffs sought a judgment declaring that “the valid and effective action of the Commission with respect to the . . . [defendant] Kelly Property Development, [Inc.’s application] for renewal” was the commission’s action of July 2,1990, denying the application and declaring “to be null and void the purported action of the Lebanon Inland Wetlands Commission of August 6, 1990 . . . and September 17, 1990.” The defendants moved to dismiss the action arguing, inter alia, that the court was without subject matter jurisdiction because the plaintiffs lacked standing to pursue a declaratory judgment action under these circumstances. The trial court agreed and granted the motion to dismiss.

“The court will not render a declaratory judgment upon the complaint of a person ‘unless he has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to his rights or other jural relations; or . . . unless there is an actual bona fide and substantial question or issues in dispute or substantial uncertainty of legal relations which requires settlement between the parties.’ Practice Book § [390].” Liebeskind v. Waterbury, 142 Conn. 155, 158, 112 A.2d 208 (1955).

The question of standing is essentially one of aggrievement. Beckish v. Manafort, 175 Conn. 415, 419, 399 A.2d 1274 (1978). “The concept of standing as presented here by the question of aggrievement is a practical and functional one designed to assure that only those with a genuine and legitimate interest can [pursue] an [action in court].” Hartford Kosher Caterers, Inc. v. Gazda, 165 Conn. 478, 484, 338 A.2d 497 (1973).

“Standing is the legal right to set the judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.” (Internal quotation marks omitted.) Unisys Corporation v. Department of Labor, 220 Conn. 689, 693, 600 A.2d 1019 (1991).

The controversy here is between the minority and majority members of the commission. As such it falls “within the political aspects of government [rather] than the judicial. The [commission] is seeking no relief. No contract or property rights of . . . the [commission] . . . and no contract, property or personal rights of any of [the commission] members as such will be affected by the decision; no justiciable right is involved.” Board of Education v. Board of Finance, 127 Conn. 345, 348, 16 A.2d 601 (1940).

“The plaintiffs have no standing to obtain the relief sought, since they have no interests adverse to those of the defendant^]. McGee v. Dunnigan, 138 Conn. 263, 266, 83 A.2d 491 [1951]; Borchard, Declaratory Judgments (2d Ed.) pp. 50, 76. Their status is that of residents and taxpayers of the [town of Lebanon]. There is nothing in the [allegations of the complaint] even to suggest how they will be affected, legally or equitably ... if [the permit is allowed to stand.]” Liebeskind v. Waterbury, 142 Conn. 155, 159, 112 A.2d 208 (1955). The plaintiffs’ quarrel here is not with the defendant commission but rather with their fellow commission members.

The plaintiffs argue, however, that as members of the commission, they are entrusted with the duty of protecting the wetlands and watercourses within the town of Lebanon and are charged with the duty of enforcing the Connecticut statutes and Lebanon municipal regulations as they concern the town’s wetlands and watercourses. They claim, therefore, to have suffered a direct injury if they are forced to let stand the extension of a permit that they believe to be invalid.

In Rommel v. Walsh, 127 Conn. 16, 15 A.2d 6 (1940), we considered the question of who was to represent the public’s interest in appeals from administrative agency action in the context of zoning matters. We stated: “[U]nder most, if not all, of our municipal charters, the function of protecting and advancing the public interest in establishing and maintaining a proper and adequate zoning system is entrusted to certain boards, which, in that respect, exercise a large discretion. While these boards ordinarily have no corporate existence as such but are merely agencies of the municipality, and while they have no direct interest in the litigation, it would be a logical conclusion that because of the function they perform . . . [the board] should represent the public interests entrusted to them in appeals taken from their decisions. ” (Emphasis added.) Rommel v. Walsh, supra, 21-22. Further, in Tyler v. Board of Zoning Appeals, 145 Conn. 655, 658, 145 A.2d 832 (1958), we observed: “[Tjhere is a public interest involved in many appeals which should be represented before the court. In most such situations, the board or officer having the responsibility of making the decision is entrusted with the duty of protecting that public interest. Maltbie, Conn. App. Proc., p. 311.”

General Statutes § 22a-44 provides: “If the inland wetlands agency or its duly authorized agent finds that any person is conducting or maintaining any activity, facility or condition which is in violation of sections 22a-36 to 22a-45, inclusive, or of the regulations of the inland wetlands agency, the agency or its duly authorized agent may issue a written order by certified mail, to such person conducting such activity or maintaining such facility or condition to cease immediately such activity or to correct such facility or condition.” (Emphasis added.)

The Lebanon inland wetlands regulations similarly provide in § 1.4: “The Lebanon Inland Wetlands Commission (regulating agency) shall enforce all provisions of the Inland Wetlands and Watercourse[s] Act . . . .” Section 12.3 states: “If the Agency or its duly authorized agent finds that any person is conducting or maintaining any activity, facility or condition which is in violation of the Act or these regulations, the Agency or its duly authorized agent may . . . [i]ssue a written order . . . [sjuspend or revoke a permit . . . [or] . . . [i]ssue a notice of violation . . . .” There is nothing in either the wetlands and watercourses statutes nor the Lebanon inland wetlands commission regulations that designates the individual members as agents or enforcement authorities of the commission or authorizes individual commission members to pursue an action in court on behalf of the public interest. We conclude that it is the commission itself and not its individual members that represents the public interest in such instances.

The judgment is affirmed.

In this opinion Shea, Callahan and Borden, Js., concurred.

Berdon, J.,

concurring. I concur in the result based solely on the manner by which the issues were framed and argued in this case.

       General Statutes § 22a-43 provides: “(a). . . [A]ny person aggrieved by any . . . decision or action made . . . by the . . . municipality . . . may appeal to the superior court ... in the judicial district where the land affected is located . . . .”
      Section 22a-43 was amended by Public Acts 1991, No. 91-136. That amendment does not affect the appeal here.

       The plaintiffs claimed that the original application for an extension was untimely and, therefore, in violation of the Lebanon inland wetlands regulations.
      The plaintiffs further alleged that, over their objection, debate on the question of whether to grant an extension was terminated, i.e., the question was called, by a four to three vote with one abstention. The plaintiffs claimed that, according to Robert’s Rules of Order, a two-thirds vote of the commission was required to call the‘question.
      The plaintiffs further alleged that the commission could not act upon any “new” application for extension or renewal because there was an outstanding decision of the commission denying such extension.

       In addition to the claims raised in their administrative appeal, the plaintiffs further claimed that: (1) according to Robert’s Rules of Order, the motion to reconsider the July 2 action was out of order since such a motion could be made only by a member of the majority voting on this issue at the July 2 meeting; (2) relevant environmental reports were not considered and neither Kelley Property Development, Inc., nor anyone else had appealed the commission’s decision of July 2,1990, denying the application for an extension of the permit; and (3) the commission lacked the authority to rescind an action it had taken after adjournment of the meeting at which the action was taken.

       See footnote 1, supra.

       Practice Book §§ 389 and 390 provide:
      “Sec. 389. scope
      “The court will, in cases not herein excepted, render declaratory judgments as to the existence or nonexistence (a) of any right, power, privilege or immunity; or (b) of any fact upon which the existence or nonexistence of such right, power, privilege or immunity does or may depend, whether such right, power, privilege or immunity now exists or will arise in the future.
      “Sec. 390. —CONDITIONS
      “The court will not render declaratory judgments upon the complaint of any person:
      “(a) unless he has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to his rights or other jural relations; or
      “(b) unless there is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties; or
      “(c) where the court shall be of the opinion that the parties should be
      left to seek redress by some other form of procedure; or “(d) unless all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof.” See also General Statutes § 52-29.