author:
BORDEN, J.
      BERDON, J.,

text:
    ANNETTE BARRETTA v. OTIS ELEVATOR COMPANY ET AL.
    (SC 15516)
    Borden, Berdon, Norcott, Palmer and Peters, Js.

      Argued March 26
    officially released July 29, 1997

      Beverly S. Knapp, with whom was L. Douglas Shrader, for the appellant (named defendant).

      Bernadette M. Keyes, with whom was Thomas F. Keyes, Jr., for the appellee (substitute plaintiff).

       “Annette Barretta initially commenced this action to recover damages against Milford Jai Alai, Inc., and Otis Elevator Company. On May 8, 1993, Barretta died from causes unrelated to the injuries she suffered in the fall at issue. Thereafter, the action continued with her executor, Giacomo Barretta, as substitute plaintiff. On July 20, 1994, the action was withdrawn as against Milford Jai Alai, Inc.., and the case proceeded to trial on an amended complaint solely against Otis Elevator Company.” Barretta v. Otis Elevator Co., 41 Conn. App. 856, 857 n.1, 677 A.2d 979 (1996). Hereafter, we refer to Annette Barretta as the plaintiff and Otis Elevator Company as the defendant.

   Opinion

BORDEN, J.

The sole issue in this certified appeal is whether, under the facts of this case, the plaintiff, Annette Barretta, was entitled to a jury instruction on the doctrine of res ipsa loquitur in her negligence action against the named defendant, Otis Elevator Company. The trial court declined the plaintiffs request to charge on that doctrine, and the Appellate Court reversed, holding that the plaintiff was entitled to such a charge. Barretta v. Otis Elevator Co., 41 Conn. App. 856, 861, 677 A.2d 979 (1996). The defendant appeals from the judgment of the Appellate Court following our grant of certification. The defendant claims that the Appellate Court improperly concluded that the doctrine of res ipsa loquitur applies in this case. We agree. We conclude that the evidence was insufficient to support a charge on the doctrine of res ipsa loquitur and, accordingly, we reverse the judgment of the Appellate Court.

Whether the doctrine of res ipsa loquitur applies in a particular case is a question of law over which our review is plenary. Giles v. New Haven, 228 Conn. 441, 447, 636 A.2d 1335 (1994). In this regard, we note that a trial court should instruct the jury in accordance with a party’s request to charge if the proposed instructions are “ ‘reasonably supported by the evidence.’ ” Goodmaster v. Houser, 225 Conn. 637, 648, 625 A.2d 1366 (1993). We therefore review the evidence presented at trial in the light most favorable to supporting the plaintiffs proposed charge.

The jury could have reasonably found the following facts, as stated by the Appellate Court. “On the evening of August 24, 1990, Barretta and her husband went to Milford Jai Alai with another couple. During the evening, Barretta and the other woman went downstairs to purchase ice cream. To return to their seats on the upper level, they stepped onto the ascending escalator, with the other woman in the lead. The escalator came to a sudden stop and Barretta fell, sustaining injuries.” Barretta v. Otis Elevator Co., supra, 41 Conn. App. 857.

The plaintiff brought this action against the defendant claiming negligent maintenance of the escalator. After the close of evidence, “[t]he plaintiff requested a charge on the doctrine of res ipsa loquitur. The trial court declined to charge on the doctrine. Interrogatories were submitted to the jury, the first two of which inquired whether the plaintiff had proven that the escalator was defective and whether the defendant was negligent as alleged. . . . The jury answered that the escalator had not been proven defective and that the defendant had not been proven negligent, and, therefore, it returned a verdict for the defendant.” Id., 857-58. The trial court rendered judgment for the defendant based on the jury’s verdict.

On the plaintiffs appeal, the Appellate Court reversed the judgment of the trial court and ordered a new trial. The Appellate Court determined that the plaintiff was entitled to an instruction on the doctrine of res ipsa loquitur, based entirely on its conclusion that “[o]rdinarily, an escalator does not suddenly stop while people are riding on it unless someone has been negligent.” Id., 859. Because we conclude that in this case the plaintiffs own evidence precluded the inference that the escalator would not have stopped but for someone’s negligence, we conclude that an instruction on res ipsa loquitur was not warranted.

“The doctrine of res ipsa loquitur, literally ‘the thing speaks for itself,’ permits a jury to infer negligence when no direct evidence of negligence has been introduced. . . . ‘[T]he doctrine of res ipsa loquitur is a rule of common sense and not a rule of law which dispenses with proof of negligence. It is a convenient formula for saying that a plaintiff may, in some cases, sustain the burden of proving that the defendant was more probably negligent than not, by showing how the accident occurred, without offering any evidence to show why it occurred.’ Schurgast v. Schumann, 156 Conn. 471, 479, 242 A.2d 695 (1968). . . . ‘The result is simply that such proof, without proof of further facts tending to show negligence, satisfies the plaintiffs duty of producing evidence sufficient to permit the trier, whether court or jury, to draw an inference of negligence. Ruerat v. Stevens, 113 Conn. 333, 337, 155 A. 219 [1931], The doctrine permits, but does not compel, such an inference. Fogarty v. M. J. Beuchler & Son, Inc., 124 Conn. 325, 330, 199 A. 550 [1938], The doctrine has no evidential force, does not shift the burden of proof and does not give rise to a presumption. Ryan v. George L. Lilley Co., 121 Conn. 26, 30, 183 A. 2 [1936]. It is but a specific application of the general principle that negligence can be proved by circumstantial evidence.’ Lowman v. Housing Authority, 150 Conn. 665, 670, 192 A.2d 883 (1963); see generally W. Prosser & W.P. Keeton, Torts (5th Ed. 1984) § 349; F. Harper, F. James & O. Gray, Torts (1986) §§ 19.5 through 19.12.” (Citation omitted; emphasis added.) Malvicini v. Stratfield Motor Hotel, Inc., 206 Conn. 439, 441-43, 538 A.2d 690 (1988).

The doctrine of res ipsa loquitur applies only when two prerequisites are satisfied. First, the situation, condition or apparatus causing the injury must be such that in the ordinary course of events no injury would have occurred unless someone had been negligent. Second, at the time of the injury, both inspection and operation must have been in the control of the party charged with neglect. Giles v. New Haven, supra, 228 Conn. 446. When both of these prerequisites are satisfied, a fact finder properly may conclude that it is more likely than not that the injury in question was caused by the defendant’s negligence.

In this case, the plaintiffs claim founders on the first prerequisite. At trial, the only evidence presented by the plaintiff in support of her negligence claim, aside from general testimony as to the factual circumstances surrounding her fall, was the testimony of Michael Shanok, a registered professional engineer and an expert in “the general field of safety.” Shanok testified that the escalator had been designed and installed correctly, and that he had no evidence or reason to believe that the defendant had been negligent in inspecting or maintaining the escalator. Shanok then testified that “in all probability” the escalator in this case stopped for one of two reasons. First, the vibration caused by the normal operation of the escalator could have “jig'glefd]” a wire loose and then back into place. Second, the escalator could simply have been afflicted by a “gremlin,” a generic term for a minor malfunction that disrupts the operation of a mechanical system and that can be very difficult to trace. As the plaintiff conceded at oral argument, however, Shanok never testified that a “jigglefd]” wire or a “gremlin” either could, would or should have been discovered by the defendant in the course of a safety inspection or reasonable maintenance of the escalator. Indeed, Shanok never testified that negligence on the defendant’s part played any role in causing the escalator to stop.

We therefore are not persuaded that, in the ordinary course of events, this escalator would not have stopped but for negligent inspection or maintenance by the defendant. We do not dispute that the very purpose of the doctrine of res ipsa loquitur is to allow the fact finder, under appropriate circumstances, to find that a defendant has been negligent even in the absence of specific proof of negligence. See Malvicini v. Stratfield, Motor Hotel, Inc., supra, 206 Conn. 442. The doctrine is designed, however, to cover those situations in which the plaintiff, even if unable to prove specific acts of negligence, is able to produce evidence that the accident at issue is of a type that would not ordinarily have occurred without some, albeit unspecified, carelessness by the defendant. The doctrine of res ipsa loquitur does not extend to situations in which the plaintiffs own evidence provides no basis on which to conclude that the defendant has been negligent and, in fact, suggests as the only possible causes of the accident factual scenarios that do not arise from the defendant’s negligence.

We disagree, therefore, with the Appellate Court’s conclusion that the plaintiff satisfied the first prerequisite for a res ipsa loquitur instruction. We need not decide whether, in general, the Appellate Court’s statement that “[o]rdinarily, an escalator does not suddenly stop while people are riding on it unless someone has been negligent”; Barretta v. Otis Elevator Co., supra, 41 Conn. App. 859; is correct for purposes of the doctrine, because such a general statement of common experience does not survive specific proof to the contrary. In this case, the testimony of the plaintiffs expert, which was the only causation evidence presented at trial, specifically indicated that, in general, escalators such as the defendant’s may stop for reasons unrelated to anyone’s negligence, failed to establish any possibility that the plaintiffs injuries were caused by the defendant’s negligence, and specifically indicated that the escalator stopped for reasons completely divorced from any negligence on the defendant’s part. Thus, “[whatever a layperson may infer from ‘everyday experience’ has . . . been overcome by the more particularized and informed knowledge on [escalator] operation presented” at trial. Bell v. May Dept. Stores Co., 866 F.2d 452, 458 (D.C. Cir. 1989); cf. Malvicini v. Stratfield Motor Hotel, Inc., supra, 206 Conn. 444 (“as a matter of common experience, it can be said that a shower does not ordinarily turn suddenly hot in the absence of negligence” where no evidence contradicting this supposition is submitted). When, as in the present case, evidence on the question of causation is presented at trial, and all such evidence affirmatively indicates that the accident in question would, in fact, have happened in the absence of anyone’s negligence, an instruction on the doctrine of res ipsa loquitur is inappropriate. Cf. Giles v. New Haven, supra, 228 Conn. 443-44; W. Prosser & W. Keeton, supra, § 40, p. 261 (defendant entitled to directed verdict in res ipsa loquitur case “[i]f the defendant shows definitely that the occurrence . . . was of a kind which commonly occurs without negligence on the part of anyone, or that it could not have been avoided by the exercise of all reasonable care, [because on such a showing] the inference of negligence is no longer permissible”).

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the judgment of the trial court.

In this opinion NORCOTT, PALMER and PETERS, Js., concurred.

BERDON, J.,

dissenting. This case, in which an escalator came to a sudden stop causing a passenger to fall and sustain injuries, presents a classic example of the type of case to which the doctrine of res ipsa loquitur (“the thing speaks for itself’) has commonly been applied. Accidents involving elevators and escalators have consistently been identified as appropriate for application of the doctrine, because they are accidents for which direct evidence of negligence is frequently unavailable, but that, based upon common experience, would not ordinarily occur in the absence of negligence. See Barwick v. United States, 923 F.2d 885 (D.C. Cir. 1991); Colmenares Vivas v. Sun Alliance Ins. Co., 807 F.2d 1102 (1st Cir. 1986); Ebanks v. New York City Transit Authority, 70 N.Y.2d 621, 512 N.E.2d 297, 518 N.Y.S.2d 776 (1987); see also 19 Am. Jur. 3d Proof of Facts 43, § 21 (1993); 4 F. Harper, F. James & O. Gray, Torts (2d Ed. 1986) § 19.6, pp. 33-36 n.13.

Nevertheless, the majority finds application of the doctrine to be precluded in this case merely because an expert witness produced by the plaintiff testified that, although he was not permitted to inspect the escalator involved until nearly five years after the accident occurred, he found the escalator to have been installed properly and to be free of design defects, and that he did not know what caused the escalator to stop suddenly. Notwithstanding this testimony, the trial court should have instructed the juiy on the doctrine of res ipsa loquitur in accordance with the plaintiffs request to charge.

In Giles v. New Haven, 228 Conn. 441, 636 A.2d 1335 (1994), this court reviewed the circumstances that must exist in order to entitle a plaintiff to a jury instruction on the doctrine of res ipsa loquitur. Traditionally, application of the doctrine required that three conditions be satisfied: “(1) [t]he situation, condition, or apparatus causing the injury must be such that in the ordinary course of events no injury would result unless from a careless construction, inspection or user[;] (2) [b]oth inspection and user must have been at the time of the injury in the control of the party charged with neglect[;] [and] (3) [t]he injurious occurrence or condition must have happened irrespective of any voluntary action at the time by the party injured. ” (Internal quotation marks omitted.) Id., 446. In Giles, this court modified the parameters of the second and third conditions, but did not have the occasion to review the first condition because the parties agreed that it had been satisfied.

In Giles, we expanded the sécond and third prongs of the doctrine of res ipsa loquitur. With regard to the second prong, we recognized that exclusive control was not necessary as long as “the jury could reasonably find that the defendant’s control was sufficient to warrant an inference that the defendant was more likely responsible for the incident than someone else . . . .’’Id.,450. With regard to the third prong, we held that contributory negligence on the part of the plaintiff would not bar the application of the doctrine. Despite these modifications of the doctrine, which were intended to bring the doctrine of res ipsa loquitur into the twenty-first century, the majority narrowly construes the first prong in this case and, in doing so, ignores our precedent and its logical extension.

The majority concludes that the trial court’s refusal to instruct the jury on the doctrine of res ipsa loquitur was appropriate because, in its view, the first condition had not been satisfied due to the plaintiffs failure to produce evidence that the accident was of the sort that ordinarily would not occur in the absence of negligence. In order to satisfy the first condition, however, it is not necessary that any evidence whatsoever be produced to establish the latter proposition. Instead, the condition is intended to draw upon ordinary past experience. “Where common experience has demonstrated that no injury would ordinarily result from a situation, condition or apparatus unless there was careless construction, inspection or user . . . common sense permits an inference of negligence from proof of the injury and the physical agency inflicting it . . . Lowman v. Housing Authority, 150 Conn. 665, 670, 192 A.2d 883 (1963).

Whether application of the doctrine of res ipsa loquitur is appropriate under given circumstances is a question of law. Giles v. New Haven, supra, 228 Conn. 447. Yet, in making that decision, courts are not without guidance. Where the balance is a close one, this court’s decision in Motiejaitis v. Johnson, 117 Conn. 631, 169 A. 606 (1933), is instructive. In Motiejaitis, this court stated that, “[i]f, upon the evidence, reasonable [persons] might disagree as to whether or not the conditions upon which the application of the doctrine depends were present in the case, it must be submitted to the jury. ... If they find that the conditions do exist but no definite cause or causes of the accident are proven, it is for them to determine whether, in view of the circumstances of the accident including those involved in the application of the doctrine and all the relevant facts, it is more probable than not that the injury was due to the negligence of the defendant.” Id., 635; see also 2 Restatement (Second), Torts § 328D (1965) (while “[i]t is the function of the court to determine whether the inference may reasonably be drawn by the jury . . . [i]t is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may reasonably be reached”).

Where evidence is introduced to rebut the inference of negligence, application of the doctrine is not necessarily precluded. “When the defendant . . . offers evidence that the event was not due to his negligence, the inference which arises ... is not necessarily overthrown.” 2 Restatement (Second), supra, § 328D, comment (n). “The inference of negligence remains in the case and will sustain a finding of negligence, even though there be countervailing evidence, unless such adverse evidence so conclusively shows nonnegligence of the defendant that reasonable minds, acting fairly, could not find [the defendant] negligent.” Witort v. United States Rubber Co., 3 Conn. Cir. Ct. 690, 695-96 (1966). In other words, the evidence should be of such a character as to undermine the inference on which the doctrine of res ipsa loquitur is based. If the evidence is not of such a character, the case should go to the jury, with the benefit of the res ipsa loquitur instruction, for the jury to decide in light of the evidence whether to draw the inference. This result is consistent with Motiejaitis.

Indeed, this approach to conflicting evidence and inferences has been applied to situations in which the plaintiff introduced expert testimony. “[I]t is quite generally agreed that the introduction of some evidence which tends to show specific acts of negligence on the part of the defendant, but which does not purport to furnish a full and complete explanation of the occurrence, does not destroy the inferences which are consistent with the evidence, and so does not deprive the plaintiff of the benefit of res ipsa loquitur. ” W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 40, p. 260; see also Kranda v. Houser-Norborg Medical Corp., 419 N.E.2d 1024, 1042 (Ind. App. 1981); Mobil Chemical Co. v. Bell, 517 S.W.2d 245, 254-55 (Tex. 1974). Furthermore, “the plaintiff does not lose fthe doctrine’s] benefits by introducing some evidence of specific negligence which does not establish clearly and definitely the precise cause of the injury, or, as it is sometimes more concisely phrased, that the plaintiffs unsuccessful attempt to prove specific negligence will not deprive him of the inferences or presumptions otherwise available under res ipsa loquitur.” Annot., 33 A.L.R.2d 791, 795 (1954). In other words, only when the evidence makes the inference unreasonable is the inference logically precluded.

In the present case, the majority finds application of the doctrine to be inappropriate because the plaintiff produced no direct evidence of negligence, but produced some evidence tending to rebut the inference of negligence. Specifically, the majority claims that the plaintiff was not entitled to the instruction because the plaintiffs own expert, Michael Shanok, an engineer, testified on direct examination that his inspection revealed that the escalator had been installed properly and was free of design defects, and testified on cross-examination that the escalator had stopped because of a jiggled wire or a “gremlin” in the system. The majority concludes that, in light of that testimony, the inference of negligence could not survive. In my view, that conclusion is inappropriate in light of the evidence presented.

Shanok testified that “[i]n my opinion, it is far more probable that the escalator was not caused to stop by someone else, but the escalator stopped on its own for no outward reason . . . .’’He further testified that his inspection of the escalator, nearly five years after the accident occurred, revealed no malfunctioning parts or defects. He stated that his findings were “that the escalator appeared to have been installed properly” and that “[t]he design was correct.” Following his inspection, Shanok formed an opinion as to what might have caused the accident. He stated that there remained “only the safety interlock devices as a possible reasonable cause of an escalator stopping for no apparent reason.” Specifically, Shanok stated that “[i]t’s my opinion that in all probability either one of these interlock devices malfunctioned, or there was a loose wire attached to any one of the electrical devices in the control circuit that came loose from vibration.” When asked to identify the cause of the accident more specifically, Shanok answered that “[t]here is no way of knowing because after the . . . incident the wrong escalator was inspected [by the defendant or its agent] so that the evidence was gone.” When asked to explain his opinion as to a loose wire possibly having caused the accident, Shanok replied, “I have no idea if that happened. There is no way of knowing.”

On cross-examination, Shanok was questioned about his responses given during a deposition regarding the cause of the accident. Defense counsel asked Shanok if he remembered “giving this answer . . . when asked about what caused the escalator to stop: ‘There are a number of different things on an escalator that can stop it. And it could be any one of them. It would be conjecture to say that one or the other was at fault.’ Do you remember giving that answer?” Shanok replied, “[t]hat’s correct.” He also testified that he remembered stating during the deposition that apossible cause of the accident could have been a “gremlin” in the escalator system. Finally, when asked if he remembered being asked in the deposition about whether in his opinion the defendant had been negligent in its maintenance of the escalator, Shanok responded that he remembered that his reply to the question was that “[t]here is in terms of what caused this incident, it is unfound and untraceable.”

In my view, Shanok’s testimony is not of a character that should preclude application of the doctrine of res ipsa loquitur. The evidence is not such that, as a matter of law, it must be said that a reasonable person could not conclude, in light of the evidence, that an inference of negligence drawn from the circumstances of the accident has been foreclosed. First, the evidence did not demonstrate that a factor other than negligence caused the accident at issue here to occur. Second, the evidence produced was speculative and inconclusive, and is best summed up in Shanok’s own words: “There is no way of knowing.” The fact is that Shanok was not provided with an opportunity to examine the escalator until five years after the accident occurred. His testimony consisted of hypothetical commentary about what might have caused the accident. Shanok admitted that he did not know what caused the accident. He did not conclusively rule out negligence as the cause of the accident, but, rather, speculated that in all probability the accident was caused by either a loose wire or a “gremlin” in the escalator’s electrical system. Shanok did not testify that in the past accidents of the type at issue here have occurred in the absence of negligence. The plaintiff is not required to eliminate with certainty all other possible causes or inferences. “ ‘It is enough that the facts proved reasonably permit the conclusion that [the defendant’s] negligence is the more probable explanation.’ ” Giles v. New Haven, supra, 228 Conn. 448.

Furthermore, the possible causes that Shanok identified for the escalator’s sudden stop were not of a sort that ordinarily would occur even if all reasonable precautions had been taken. With respect to the possibility that a loose wire had caused the accident, Shanok explained that sometimes a wire within the electrical system could be jiggled loose, causing it temporarily to lose contact, and thereby cause the escalator to stop. The second possible cause that he identified was a “gremlin” in the system, that being something that goes wrong that is difficult to trace. Even if Shanok were correct, he did not testify that the defendant could not have prevented these conditions. The majority, however, with no basis in the evidence, speculates that this is the case.

I would hold that the plaintiff was entitled to a jury instruction on the doctrine of res ipsa loquitur and I would affirm the judgment of the Appellate Court that the plaintiff was entitled to a new trial.

Accordingly, I dissent.

       We granted the defendant’s petition for certification limited to the following issue: “Did the Appellate Court properly conclude that the judgment must be reversed because of the failure of the trial court to charge on the doctrine of res ipsa loquitur?” Barretta v. Otis Elevator Co., 239 Conn. 909, 682 A.2d 997 (1996).

       Until recently, our jurisprudence also required that “ ‘[t]he injurious occurrence or condition must have happened irrespective of any voluntary action at the time by the party injured.’ ” Malvicini v. Stratfield Motor Hotel, Inc., supra, 206 Conn. 443. In Giles v. New Haven, supra, 228 Conn. 455, however, we decided, in light of General Statutes § 52-572h, that the doctrine of res ipsa loquitur can still apply even when the plaintiff’s own negligence may also have contributed to the injury, and that, in such a case, the jury should be instructed in accordance with general comparative negligence principles.
      The plaintiff claims that the trial court improperly denied her request for an instruction on res ipsa loquitur based on that court’s belief that the doctrine is inapplicable when the evidence indicates that the plaintiff may have been contributorily negligent. We need not discuss the specific basis on which the trial court denied the plaintiffs request to charge, however, in light of our conclusion that the plaintiff otherwise failed to bring her claim within the doctrine.

       At oral argument, the defendant conceded that the second element, namely, that the defendant had exclusive control over the escalator, was satisfied in this case.

       Although the plaintiff specifically asked Shanok whether “a reasonable inspection” would have disclosed a problem with the escalator, the question was withdrawn after the defendant had objected.

       Shanok also testified that escalators are specifically designed to stop suddenly when certain safety features are activated. For example, a button and a key switch are located at the top and the bottom of every escalator so that the escalator may be stopped manually. There are also several devices that will stop an escalator when the escalator detects that something is wrong, such as if a step becomes jammed or if something pushes with sufficient force against the side of the escalator. Based on the facts in the record, however, Shanok ruled out those as causes of the stoppage in this case, and testified that it was “far more probable” that the escalator stopped because of a gremlin or a jiggled wire rather than because one of these safety devices had been activated. Moreover, the plaintiff does not claim that a stojjpage of the escalator caused by the activation of such a safety feature could serve as the basis of a res ipsa loquitur instruction in this case.

       In Bell v. May Dept. Stores Co., supra, 866 F.2d 453, the plaintiff brought an action for damages after she “was caught between two elevator doors as she attempted to enter an automatic elevator operated and maintained” by the defendant department store. The plaintiff introduced no direct evidence of negligence, but instead relied on the doctrine of res ipsa loquitur and the general concept, derived from everyday experience, that the elevator doors would not have closed on her in the absence of negligent maintenance by the defendant. Id., 454. The jury returned a verdict for the plaintiff. Id., 455. The Court of Appeals reversed, holding that an instruction on res ipsa loquitur had been inappropriate. Id., 458. As in the present case, the plaintiff in Bell “did not produce any evidence tending to show that the inspection and maintenance program employed by [the defendant] was either inadequate ... or improperly executed.” Id., 454. The defendant, on the other hand, had introduced uncontroverted testimony “identifying] a variety of factors” outside the control of the defendant, such as abuse by other patrons, which might have caused the elevator to malfunction. Id. Under these circumstances, the Court of Appeals concluded that the plaintiff had failed to bring her claim within (lie doctrine of res ipsa loquitur. Id., 458.

        In Barwick v. United States, 923 F.2d 885, 886 (D.C. Cir. 1991), the plaintiff brought an action against the defendant elevator manufacturer for its allegedly negligent maintenance after he was trapped for two hours in an elevator car that had “slopped between the third and fourth floors, jerked as if it were going up, and stopped again.” The plaintiffs expert essentially testified that there were two realistic explanations for 1he elevator stoppage. The first possibility was that there had been a moment ary sag in electrical power throughout the building, in which case it was undisputed at trial that the defendant could not be held responsible. Id., 887. This possibility was somewhat undermined, however, by the fact that none of the other elevators in the building malfunctioned at the same time. The second possibility was that two electrical contacts in the elevator’s control system had burned out. Id. The expert testified that even if the burnout explanation were correct, however, he could not determine whether this malfunction was caused by the defendant’s negligent maintenance or by causes outside the defendant’s control, because the defendant had failed to keep complete records of iis maintenance of the elevator in question. Id., 888. The District Court, instructed the jury on the doctrine of res ipsa loquitur, and the jury returned a verdict for the plaintiff. Id., 886. On the defendant’s appeal, the Court of Appeals affirmed the verdict. The Court of Appeals concluded that the doctrine of res ipsa loquitur applied because the testimony of the plaintiffs expert was such that, if believed, a reasonable jury could conclude that the elevator malfunction was probably caused by (he defendant’s negligent*. Id., 889.

       The plaintiffs reliance on Giles v. New Haven, supra, 228 Conn. 441, is misplaced. Giles involved a plaintiff who had been injured when the “compensation chain” of the elevator in which she had been riding “became hooked on a rail bracket located on the wall of the elevator shaft” causing the elevator to shudder and shake. Id., 444. In Giles, however, both parties stipulated that the accident in question would not have occurred if someone had not been negligent. Id., 447. The sole issue was whether the defendant had sufficient control over the elevator to warrant an instruction on the doctrine of res ipsa loquitur. Id. The issue in Giles was thus different from the issue before us in the present case.
      Furthermore, there was evidence in Giles, wholly lacking in the present case, from which the jury reasonably could have inferred that some degree of failure to maintain the chain caused the elevator to stop. “William Hendry, the defendant’s district maintenance supervisor, testified . . . that the elevators were routinely inspected, but that neither inspection nor testing of the compensation chain was part of that routine inspection. . . . Hendry testified that the normal sway of a compensation chain is approximately one to two inches, and in order for a chain to get hooked on a rail bracket it must sway at least eighteen inches. He further testified that for the chain to sway eighteen inches there must have been some misoperation of the elevator .... He had never before seen a compensation chain pulled free of an elevator cab in his thirty-seven years of employment by the defendant.” (Internal quotation marks omitted.) Id., 445.

        In Malvicini v. Stratfield Motor Hotel, Inc., 206 Conn. 439, 443-44, 538 A.2d 690 (1988), the defendants argued “that the weight of the evidence contradicting the plaintiffs claims rebuts this first condition and precludes the invocation of res ipsa loquitur.” This court, however, held that because “[the defendant’s] argument ... is actually an attack upon the plaintiffs version of the incident, and does not relate to whether, as a matter of common experience, it can be said that a shower does not ordinarily turn suddenly hot in the absence of negligence,” the first condition for the application of res ipsa loquitur had not been satisfied. Id., 444.


source: Caselaw Access Project

author: PER CURIAM. BERDON, J.,

license: Public Domain

text:
    ALAN E. SILVER v. STATEWIDE GRIEVANCE COMMITTEE
    (SC 15560)
    Borden, Berdon, Katz, Palmer and McDonald, Js.
    Argued May 28
    officially released July 29, 1997

      Maureen A. Horgan, assistant bar counsel, for the appellant (defendant).

      William F. Gallagher, with whom, on the brief, was Barbara L. Cox, for the appellee (plaintiff).

      Ralph G. Elliot, Wesley W. Horton, James A. Trow-bridge and Earl F. Dewey II filed a brief for the Connecticut Bar Association, Committee of Professional Ethics, as amicus curiae.
   Opinion

PER CURIAM.

This certified appeal concerns the relationship between General Statutes (Rev. to 1993) § 38a-369 (b), and rules 1.15 (b) and 1.6 (a) of the Rules of Professional Conduct governing the ethical obligations of attorneys. The defendant statewide grievance committee appealed upon our grant of certification from the judgment of the Appellate Court, which had concluded that the plaintiff attorney had no ethical duty under rules 1.15 (b) and 1.6 to notify his clients’ no-fault insurance carriers of certain personal injury settlement proceeds received by the plaintiff on behalf of two of his clients. Silver v. Statewide Grievance Committee, 42 Conn. App. 229, 238, 679 A.2d 392 (1996). The Appellate Court had reasoned that, pursuant to General Statutes (Rev. to 1993) § 38a-369 (b), which was in effect at the time of the plaintiffs conduct: (1) the no-fault insurers’ lien did not attach to the settlement proceeds until the proceeds had been disbursed by the plaintiff to his clients; (2) until that disbursement, the clients’ no-fault insurers did not have an “interest” in the proceeds within the meaning of rule 1.15 (b); and (3) the notification to the no-fault insurers urged by the defendant under rule 1.15 (b) was not “impliedly authorized” within the meaning of rule 1.6 (a). Id., 237-38.

Effective January 1, 1994, however, General Statutes (Rev. to 1993) § 38a-369 was repealed by Public Acts 1993, No. 93-297, as was our entire no-fault insurance statutory scheme. Thus, as the plaintiff aptly stated at oral argument, this case “is one of first and last impression.” Although the plaintiffs conduct predated that legislative repeal, “we conclude that the significance of this appeal has been undermined significantly by this legislation and, therefore, that the appeal should be dismissed because certification to appeal was improvidently granted.” Lumber Mutual Ins. Co. v. Holmes, 239 Conn. 798, 802, 687 A.2d 162 (1997).

The appeal is dismissed.

BERDON, J.,

with whom MCDONALD, J., joins, concurring. I write separately in this important case because the issue goes to the heart of the attorney-client relationship, and the unusual decision by the defendant, the statewide grievance committee, would turn attorneys into collection agents for creditors of their clients. The majority, however, merely issues a per curiam decision dismissing the appeal on the ground that certification was improvidently granted because the specific statute involved in this case, General Statutes (Rev. to 1993) § 38a-369 (b), was repealed along with the entire statutory scheme pertaining to no-fault insurance. Allowing the Appellate Court’s decision to stand vindicates Alan E. Silver, the plaintiff attorney in these two cases, with respect to the statute that existed at the time of the conduct, but the underlying basis for the defendant’s decision to reprimand the plaintiff for misconduct has broader implications and, therefore, requires our full review. It is difficult enough to practice law, without there being uncertainty with respect to an attorney’s obligations when claims are made by third parties, the compliance with which would interfere with the attorney’s duty of loyalty to his or her client. The bar is entitled to know the requirements of our Rules of Professional Conduct (rules) in advance so lawyers like the plaintiff, in fulfilling their duty of loyalty to their clients, will not be dragged through courts by an aggressive statewide grievance committee.

Furthermore, the plethora of litigation over the one issue in this case, in which the plaintiff has prevailed at every level of review, entitles not only the plaintiff, but the bar, to a clarification of our rules. In this case, the local grievance panel found no probable cause and, after the defendant reversed the local grievance panel and referred the matter to its reviewing committee, only two of the three panel members of the reviewing committee found grounds for a grievance in each case. Subsequently, the plaintiff appealed to the Superior Court, which reversed the defendant’s decisions, and the defendant appealed to the Appellate Court, which affirmed the Superior Court’s decision. Silver v. Statewide Grievance Committee, 42 Conn. App. 229, 238, 679 A.2d 392 (1996). The defendant then sought and received certification to appeal to this court. Silver v. Statewide Grievance Committee, 239 Conn. 948, 686 A.2d 125 (1996). We should now put this five year odyssey to rest by affirming the local grievance panel’s decision that there was no probable cause that the plaintiffs actions constituted attorney misconduct.

The facts recited by the Appellate Court are not in dispute in the two cases in which the defendant brought grievance proceedings against the plaintiff. “In the first case, the plaintiff represented Samuel Jones on a personal injury claim arising out of a motor vehicle accident. Safeco Insurance Company (Safeco) provided Jones with $5000 in basic reparations benefits in relation to the accident. Safeco advised the plaintiff that it expected to be reimbursed for the benefits from the proceeds of any recovery made by Jones. The plaintiff later settled Jones’ claims and received $85,000 in settlement proceeds on behalf of Jones.

“The plaintiff advised Jones that Jones had a legal responsibility to reimburse Safeco, but Jones insisted that the plaintiff distribute to him the full amount of the settlement proceeds. The plaintiff then distributed the full amount of the settlement proceeds to Jones without notifying Safeco of the settlement. Safeco learned of the settlement approximately two years after the plaintiff had disbursed the proceeds to Jones. Safeco then demanded reimbursement of the benefits. When the plaintiff asserted that he had no liability for the reimbursement, Safeco complained in writing to the defendant.

“On March 2, 1992, the local grievance panel for the New Haven judicial district (local panel) found that there was insufficient evidence to support a finding of probable cause that the plaintiff was guilty of misconduct and forwarded the file to the defendant with the recommendation that the complaint be dismissed. On June 18, 1992, the defendant reversed the local panel and referred the matter to a reviewing committee. On December 27, 1993, the reviewing committee issued a proposed decision recommending that the plaintiff be reprimanded for violating rule 1.15 (b) of the Rules of Professional Conduct. On January 20, 1994, the defendant adopted the proposed decision of the reviewing committee and reprimanded the plaintiff.

“In the second case, the plaintiff represented Marcy La Banca on a personal injury claim arising out of a motor vehicle accident. United Services Automobile Association Casualty Insurance Company (USAA) provided La Banca with $5000 in basic reparations benefits in relation to the accident. USAA notified the plaintiff that it was entitled to reimbursement of the benefits if La Banca’s case was settled. The plaintiff settled La Banca’s claim arising from the accident for $15,000. The plaintiff distributed the full amount of the settlement proceeds to La Banca without notifying USAA. After USAA learned of the settlement, it demanded reimbursement. The plaintiff asserted that he was not hable for such a reimbursement. On January 28, 1993, USAA informed the defendant of the situation.

“On May 4, 1993, the local panel again found that there was insufficient evidence to support a finding of probable cause and recommended that the complaint be dismissed. On August 19, 1993, however, the defendant reversed the local panel and referred the matter to a reviewing committee. On July 6, 1994, the reviewing committee incorporated by reference its proposed decision in the [case involving Jones] and again recommended that the plaintiff be reprimanded. On August 18, 1994, the defendant adopted the proposed decision of the reviewing committee and reprimanded the plaintiff.

“The plaintiff appealed both of the defendant’s decisions to the trial court, which ‘held that Safeco [and USAA] did not have “interests]” under rule 1.15 (b) which entitled [them] to notice from [the plaintiff] of his receipt of the settlement proceeds’ and ‘that Safeco [and USAA were] not “entitled to receive” reimbursement of its no-fault payments from the settlement proceeds in [the plaintiff’s] hands. Ergo, [the plaintiff] was not obligated, under the rule, to pay any portion of the settlement proceeds to Safeco [and USAA].’ ” Silver v. Statewide Grievance Committee, supra, 42 Conn. App. 231-33.

Like the Superior Court and the Appellate Court in this case, I conclude that the plaintiff neither had a duty to notify Safeco or USAA of the receipt of the settlement proceeds nor a duty to withhold and safeguard an amount equal to the no-fault benefits. Although the issue we certified was whether the Appellate Court properly concluded that the plaintiff did not owe an ethical duty under mies 1.15 (b) and 1.6 of the Rules of Professional Conduct to notify Safeco and USAA of the receipt of settlement proceeds on behalf of two of his clients, I will first discuss whether Safeco and USAA had liens on the settlement proceeds that came into the hands of the plaintiff because the issues are obviously intertwined.

I

I first note that the defendant concedes, by the focus of its argument, that Safeco and USAA did not have statutory or common-law liens on the settlement proceeds while they were in the hands of the plaintiff. In arguing that Safeco and USAA had equitable hens on the settlement proceeds belonging to the plaintiffs clients, once they were placed into the hands of the plaintiff as the attorney for the insureds, the defendant relies upon rule 1.15 (b). The rule provides that “[u]pon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property. ’ ’ Rules of Professional Conduct 1.15 (b). This rule creates a duty on the part of lawyers to a third party if the third party has an “interest” in the funds or other property of the client that comes into his or her hands. This requires that the word “interest” be defined.

I start with the recognition that “nothing in the Rules should be deemed to augment any substantive legal duty of lawyers . . . .” Rules of Professional Conduct, Scope, p. 5; see also Mozzochi v. Beck, 204 Conn. 490, 501 n.8, 529 A.2d 171 (1987). In other words, with respect to this case, the rules themselves cannot create a lien not recognized in law. This is underscored by the comments accompanying rule 1.15, where it is indicated that “[t]hird parties, such as a client’s creditors, may have just claims against funds or other property in a lawyer’s custody. A lawyer may have a duty under applicable law to protect such third-party claims against wrongful interference by the client, and accordingly may refuse to surrender the property to the client. However, a lawyer should not unilaterally assume to arbitrate a dispute between the client and the third party.” (Emphasis added.) Rules of Professional Conduct 1.15 (b), comment, p. 30.1. In this case there was no duty under the applicable law.

An interest as used in the rules means more than an unsecured claim with respect to a third party. An interest in the fund or property requires that the third party have a matured legal or equitable lien. See 1 G. Hazard & W. Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct (2d Ed. 1996) § 1.15:302, p. 460 (“[t]he Comment to [r]ule 1.15 uses the phrases ‘just claims’ and ‘duty under applicable law’ to suggest that the third party must have a matured legal or equitable claim in order to qualify for special protection [under the rule]” [emphasis added]); see also Alaska Bar Association Ethics Committee, Opinion No. 3 (1992) (“[i]n order to trigger an obligation on the part of the attorney to pay a creditor’s claim, in contravention of a client’s instructions, the creditor’s claims must be a valid assignment on its face or statutory lien which has been brought to the attorney’s attention”); Colorado Bar Association Ethics Committee, Formal Opinion Nos. 94 and 95 (1994) (“[w]here the third party does not hold an interest as a result of a statutory lien or a contract or a court order, the property should be promptly distributed to the client”); Connecticut Bar Association Committee on Professional Ethics, Informal Opinion No. 20 (1995) (“[t]he mere assertion of a third parly claim to property is insufficient to create a duty to deliver property to that third party”).

Indeed, the attorney’s ethical duty is made abundantly clear in an illustrative case presented by Professors Hazard and Hodes in their treatise on the Model Rules of Professional Conduct. The following hypothetical, pertaining to the handling of funds when a client and a third party have competing claims, parallels the facts in the present case. “Lawyer L has been representing Client C in two matters simultaneously: As plaintiff in a tort action and in negotiations with a creditor who claims that the client owes him $5,000 on a supply contract.

“Settlement is reached in the tort action, and L deposits the settlement draft for $125,000 in his trust account. C jubilantly demands his share of the proceeds (over $90,000) and states that he intends to move to another jurisdiction. He admits that he owes his creditor the disputed $5,000, but says he will not pay unless the creditor follows him to his new domicile and sues.” 1 G. Hazard & W. Hodes, supra, § 1.15:303, p. 460.

Hazard and Hodes conclude in their hypothetical case: “L must disburse C’s entire settlement share immediately without withholding the $5,000 which he knows the creditor ‘is entitled to receive.’ Furthermore, L may not reveal to the creditor either the fact of settlement or C’s plan to abscond.

“While the creditor may be morally ‘entitled to receive’ the money, C’s position is legally sound: ‘Absconding’ under these circumstances is neither a crime or a fraud. If the creditor fears such an occurrence, it is up to him to take legal action to prevent it, such as by garnishing L’s account. A court may or may not grant such relief, but certainly L cannot sua sponte perform such a service against the interests of his own client.” (Emphasis added.) Id., p. 461.

If there was, for example, a valid assignment by the client of an interest in the settlement proceeds, then that, of course, would be binding on the lawyer and it would be unethical for the lawyer to ignore it once it has been brought to his or her attention. See, e.g., Bonanza Motors, Inc. v. Webb, 104 Idaho 234, 657 P.2d 1102 (1983); Berkowitz v. Haigood, 256 N.J. Super. 342, 606 A.2d 1157 (1992); Leon v. Martinez, 84 N.Y.2d 83, 638 N.E.2d 511, 614 N.Y.S.2d 972 (1994). But that is not the situation in this case.

On appeal, the defendant claims for the first time that Safeco and USAA had “equitable liens” in the settlement proceeds. This, however, defies the clear intent of the legislature who has, by the adoption of § 38a-369 (b), established the public policy of our state with respect to when a lien attaches. See Local 1303 & Local 1378 v. Freedom of Information Commission, 191 Conn. 173, 179, 463 A.2d 613 (1983) (“primarily, it is for the legislature, which is the arbiter of public policy, to determine what [public policy] shall be” [internal quotation marks omitted]).

In this case the liens did not attach, or mature, until the settlement proceeds were placed into the hands of the clients. General Statutes (Rev. to 1993) § 38a-369 (b), pertaining to no-fault insurance benefits, provides in pertinent part: “Whenever a person who receives basic reparations benefits for an injury recovers damages, either by judgment or settlement, from the owner, registrant, operator or occupant of a private passenger motor vehicle with respect to which security has been provided under sections 38a-19 and 38a-363 to 38a-388, inclusive, or from a person or organization legally responsible for his acts or omissions, the insurer is entitled to reimbursement from the claimant to the extent that said basic reparations benefits have been paid, minus an amount which represents the insurer’s contribution toward attorney’s fees for the collection of basic reparations benefits. . . . The insurer shall have a lien on the claimant’s recovery for the amount to which he is entitled for such reimbursement; provided no such lien shall attach until such time as the proceeds of such recovery are in the possession and control of such claimant.” (Emphasis added.)

Indeed, to impose liens while the settlement proceeds were in the hands of the plaintiff would be contrary to the clear intent of the legislature. Prior to its amendment in 1981, § 38a-369 (b), then § 38-325 (b), the statute merely provided that the no-fault insurer “shall have a lien on the claimant’s recovery . . . General Statutes (Rev. to 1981) § 38-325 (b). In 1981, the Appellate Session of the Superior Court held that “[d] espite the language entitling the insurer to reimbursement from the claimant, the statute clearly states that a lien is to be imposed on the claimant’s recovery. Nowhere is it specified that the recovery must be in the possession of the claimant.....[W]e hold that the lien created by § 38-325 (b), was imposed on the proceeds of the claimant’s recovery while it was in the possession and control of her attorney.” (Citations omitted; internal quotation marks omitted.) Unigard Ins. Co. v. Tremont, 37 Conn. Sup. 596, 598-99, 430 A.2d 30 (1981).

Shortly after the Tremont decision was announced by the court, the General Assembly adopted Public Acts 1981, No. 81-386, § 2, which amended § 38-325 (b) by adding the following language to the already existing Hen provision of the statute at the end of subsection (b): “provided no such lien shall attach until such time as the proceeds of such recovery are in the possession and control of such claimant.” The plain language of the amendment clearly reversed the law promulgated in Tremont that the Hen attached while in the hands of the attorney. Furthermore, the legislative history clearly indicates that the General Assembly amended the statute in answer to the Tremont decision. Representative Richard Tulisano commented as foUows: “This [biU] addresses a court decision which somehow indicated that once it was paid over to anybody to pay for the claimant, the Hen already attached and there might in fact be Hability on a person who would be only a funnel and an intermediary and this is designed to correct any possible problems in that area.” 24 H.R. Proc., Pt. 24, 1981 Sess., p. 7862. Indeed, in Shelby Mutual Ins. Co. v. Della Ghelfa, 200 Conn. 630, 640, 513 A.2d 52 (1986), this court noted that “[t]here is legislative history to the effect that the legislature, in amending the statute, was reacting to the Superior Court decision [in Tremont], which held that under the pre-1981 version, an insurer may enforce the statutory lien against the insured’s attorney.” This court concluded, however, that the amendment showed an “intent to modify rather than clarify the original version of the statute,” and, therefore, the court held that the amendment did not apply retroactively so as to apply to the settlement proceeds in the possession of the insured’s attorney before the 1981 amendment to the statute. Id., 641. In Shelby Mutual Ins. Co., after concluding that the amendment was not retroactive, the court held that the statutory lien was enforceable against the insured’s attorney. Id., 641. Shelby Mutual Ins. Co., however, acknowledges that the law has substantially changed since 1981 because of the amendment to the statute.

The defendant’s argument in this case that Safeco and USAA had equitable liens on the settlement proceeds does not alter the outcome. First, the defendant cites to no authority under Connecticut law to support an equitable lien other than the rules, which cannot be the basis for substantive law. Second, an equitable lien cannot exist in contradiction to the statutory requirement that “no such lien shall attach until such time as the proceeds of such recovery are in the possession and control of such claimant.” Public Acts 1981, No. 81-386, § 2; see Columbia Federal Savings Bank v. International Site Consultants, Inc., 40 Conn. App. 64, 69, 669 A.2d 594, cert. denied, 236 Conn. 910, 671 A.2d 824 (1996) (holding that equitable lien was subject to statutory time limitations provided by General Statutes § 49-92c, with respect to purchaser’s liens, and stating that “[cjommon sense dictates that the legislature intended to subject the common law equitable lien to the statutory lien provisions”); see also 51 Am. Jur. 2d 193, Liens § 65 (1970) (“The method of enforcing a statutory lien is usually prescribed by the enactment by which it is conferred, and it is generally held that where this is the case, the enforcement of the lien must be proceeded with in accordance with the provision of the statute. . . . Also, where a statute creates a specific hen and creates a specific remedy for its enforcement, a court of equity has no jurisdiction to enforce it, in the absence of some special ground of equitable interposition rendering the remedy available at law unavailable or inadequate.”).

The defendant, by disciplining the plaintiff, was attempting, for the benefit of Safeco, USAA, and other insurance companies in a similar position, to wield the grievance process in order to accomplish what could not be accomplished through law or equity. If the defendant was successful in this litigation, then this case would be precedent for the ironic proposition that attorneys would have an ethical duty to enforce a lien that could not be judicially enforced pursuant to statute until the proceeds were in the hands of the client. I cannot agree that this is our law.

It is clear from the foregoing that Safeco and USAA had no liens or other legally cognizable interests in the settlement proceeds while they were in the hands of the plaintiff, the attorney for the insureds. Notwithstanding the strong statement of the public policy of the state to the contrary, the defendant is unable to point to any source that would give Safeco and USAA an interest in the settlement proceeds while they were in the plaintiffs hands.

II

Without some cognizable interest in the settlement proceeds, the defendant is unable to invent an interest in the proceeds that would give rise to a duty on the part of the plaintiff to notify Safeco and USAA that he or his clients were in receipt of the proceeds, absent agreement by the client. Such a construction would conflict with a lawyer’s duty of loyalty to his client. Rule 1.6 (a) of the Rules of Professional Conduct, with respect to confidentiality of information, provides that “[a] lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation” and for several specific reasons stated in the rule that are not relevant here. “A fundamental principle in the client-lawyer relationship is that the lawyer maintain confidentiality of information relating to the representation. . . . The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law.” Rules of Professional Conduct 1.6, comment, p. 12.1. “The principle of confidentiality binds the lawyer at all times, and generally prevents voluntary disclosures except when made with the consent of the client or in furtherance of the legal representation, in which case client consent may fairly be inferred.” 1 G. Hazard & W. Hodes, supra, § 1.6:108, p. 168. In the present case, the plaintiff had a duty to his clients — a duty of confidentiality — and that duty cannot be subverted by claims that had not yet matured into liens.

Accordingly, for the reasons set forth above, I would affirm the judgment of the Appellate Court.

       General Statutes (Rev. to 1993) § 38a-369 (b) provides: “Whenever a person who receives basic reparations benefits for an injury recovers damages, either by judgment or settlement, from the owner, registrant, operator or occupant of a private passenger motor vehicle with respect to which security has been provided under sections 38a-19 and 38a-363 to 38a-388, inclusive, or from a person or organization legally responsible for his acts or omissions, the insurer is entitled to reimbursement from the claimant to the extent that said basic reparations benefits have been paid, minus an amount which represents the insurer’s contribution toward attorney’s fees for the collection of basic reparations benefits. Such amount shall be computed by multiplying the total amount of such reasonable attorney’s fees and costs, by a fraction, the numerator of which shall be the amount of basic reparations benefits received by the claimant and the denominator shall be the amount of damages recovered by the claimant, less court costs. In no event shall such amount exceed one-third the amount of the basic reparations benefits to be reimbursed to the insurer. The insurer shall have a lien on the claimant’s recovery for the amount to which he is entitled for such reimbursement; provided no such lien shall attach until such time as the proceeds of such recovery are in the possession and control of such claimant”

       Rule 1.15 (b) of the Rules of Professional Conduct provides: “Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.”
      Rule 1.6 of the Rules of Professional Conduct provides: “Confidentiality of Information
      “(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (a), (b), (c), and (d).
      “(b) A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm.
      “(c) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary to:
      “(1) Prevent the client from committing a criminal act that the lawyer believes is likely to result in substantial injury to the financial interest or property of another;
      “(2) Rectify the consequence of a client’s criminal or fraudulent act in the commission of which the lawyer’s services had been used.
      “(d) A lawyer may reveal such information to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.”

       We granted the defendant’s petition for certification to appeal, limited to the following issue: “Did the Appellate Court properly conclude, under the circumstances of this case, that the plaintiff had no ethical duly under rules 1.15 (b) and 1.6 of the Rules of Professional Conduct, to notify his client’s no-fault carrier of the settlement proceeds?” Silver v. Statewide Grievance Committee, 239 Conn. 948, 686 A.2d 125 (1996).

       There is no dispute in this case with respect to the standard of review and the burden of proof. “[I]n reviewing a decision of the statewide grievance committee to issue a reprimand, neither the trial court nor this court takes on the function of a fact finder. Rather, our role is limited to reviewing the record to determine if the facts as found are supported by the evidence contained within the record and whether the conclusions that follow are legally and logically correct. . . . Additionally, in a grievance proceeding, the standard of proof applicable in determining whether an attorney has violated the [Rules] of Professional [Conduct] is clear and convincing evidence. . . . The burden is on the statewide grievance committee to establish the occurrence of an ethics violation by clear and convincing proof.” (Citations omitted; internal quotation marks omitted.) Lewis v. Statewide Grievance Committee, 235 Conn. 693, 698, 669 A.2d 1202 (1996).

       A common-law lien is usually a possessory lien. 51 Am. Jur. 2d 157, Liens § 20 (1970).

       “A lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation, except to the extent that the client’s instructions or special circumstances limit that authority.’’ (Emphasis added.) Rules of Professional Conduct 1.6, comment, p. 12.1. Indeed, that exact situation exists in the present case because one of the plaintiffs two clients involved in this matter, Jones, insisted that the plaintiff distribute to him the full amount of the settlement proceeds, even after the plaintiff advised Jones that he had a legal responsibility to reimburse Safeco.


author: BERDON, J.

text:
    EDWARD B. GOMEAU v. WINIFRED M. GOMEAU
    (SC 15613)
    Berdon, Norcott, Katz, Palmer and Peters, Js.
    Argued June 3
    officially released July 29, 1997

      Terry Donovan, for the appellant (plaintiff).

      Peter M. Sipples, with whom, on the brief, were Patricia C. Farrell and Susan P. Geenty, for the appellee (defendant).
   Opinion

BERDON, J.

The dispositive issue in this appeal is whether, in this action for the dissolution of a marriage, the trial court abused its discretion by refusing to permit the plaintiff to testify in rebuttal concerning certain financial transactions and assets about which counsel for the defendant had cross-examined the plaintiff during the plaintiffs case-in-chief. We conclude that the trial court abused its discretion in refusing to allow the rebuttal evidence and, therefore, we reverse the judgment of the trial court with respect to the financial orders and the division of assets.

The following facts are relevant to this appeal. The plaintiff, Edward B. Gomeau, who was fifty-four years old at the time of the trial court’s decision, is employed as the finance director for the town of Stratford, and earns a gross weekly income of $1435. The defendant, Winifred M. Gomeau, who was sixty years old at the time of the decision, is employed as a registered nurse, but is unable to work more than thirty hours a week because she suffers from arthritis, trigger finger and fascitis of the heel. She earns a gross weekly income of $647 for this part-time employment.

In 1995, the plaintiff brought an action for the dissolution of his marriage to the defendant. The issues before the trial court included alimony and the equitable division of the parties’ assets. After a two day trial, the trial court issued a memorandum of decision, finding that there were no minor children of the marriage and that the marriage was irretrievably broken down. The trial court also ordered alimony and division of the marital property as follows: (1) the marital home was to be sold, the defendant was to receive the proceeds from the sale, and the plaintiff would be liable for 50 percent of the capital gains tax on the sale; (2) the plaintiff was to pay the defendant $300 per week as periodic alimony; (3) the defendant was to receive $800 monthly from the plaintiffs $1686 monthly pension benefit from his prior employment with the town of Weston; (4) the defendant was to receive 60 percent of the plaintiffs pension benefits due under the town of Stratford pension plan; (5) the plaintiff was to pay for all of his individual debts and the parties’ joint debts amounting to approximately $23,200; (6) the plaintiff was to maintain a life insurance policy in the amount of $300,000 naming the defendant as the sole beneficiary, irrevocable until her death; and (7) the plaintiff was to pay the defendant’s attorney’s fees in the amount of $4000.

During the course of cross-examination of the plaintiff in the plaintiffs case-in-chief, the defendant attacked his credibility by asking him a series of questions with respect to certain financial transactions and assets. Specifically, the defendant inquired into: (1) a deposit of $3489 into the checking account of the plaintiffs mother in June, 1995; (2) the receipt and deposit of $10,000 into the plaintiffs personal checking account; (3) the cashing of a life insurance policy in the amount of $8000; and (4) the existence of certain savings bonds that the plaintiff allegedly had omitted from his financial affidavit. The plaintiff was unable to answer these questions, repeatedly stating that he would have to review the records in order to respond adequately. Subsequently, the plaintiff rested his case with the provision that he be able to produce documentation to respond to the questions asked on cross-examination.

During the evening between the first and second days of trial, the plaintiff reviewed the relevant records and came to court the second day prepared to offer explanations. When the plaintiff sought to offer his testimony and certain supporting documents in his rebuttal case, the trial court refused to allow the testimony, repeatedly sustaining objections by the defendant that the evidence went beyond the scope of rebuttal testimony. The trial court also declined to grant the plaintiffs request to make an offer of proof. Following the trial, the court denied the plaintiffs written motion for reconsideration, which asked the court to reconsider its refusal to permit an offer of proof and also included the proposed offer of proof.

On appeal, the plaintiff argues that the trial court: (1) abused its discretion in making the financial orders; (2) improperly assigned to the defendant 60 percent of the plaintiffs pension from the town of Stratford because it had not vested at the time of judgment; (3) abused its discretion in ordering that the plaintiff report and pay taxes on 50 percent of the gain from the sale of the marital property, even though he would receive no proceeds from the sale; (4) abused its discretion in ordering the plaintiff to maintain a life insurance policy in the amount of $300,000 with the defendant as the sole and irrevocable beneficiary; (5) incorrectly found that there was a ten year, rather than a six year, difference in age between the parties, which finding affected the court’s financial orders; and (6) abused its discretion in refusing to allow the plaintiff to testify in rebuttal regarding certain financial transactions and assets about which he had been questioned during cross-examination. Because it is dispositive of the appeal, we reach only the plaintiffs sixth claim. We reverse the judgment of the trial court with respect to the financial orders and the division of assets and remand the case for further proceedings.

The plaintiff argues that the trial court improperly refused to allow him to testify in rebuttal in order to explain certain financial transactions and assets about which he had been questioned during cross-examination. In response, the defendant asserts that the trial court did not abuse its discretion because the testimony was beyond the scope of proper rebuttal testimony. We agree with the plaintiff.

It is well settled that the admission of rebuttal evidence lies within the sound discretion of the trial court. Shaham v. Capparelli, 219 Conn. 133, 134, 591 A.2d 1269 (1991); State v. Simino, 200 Conn. 113, 123, 509 A.2d 1039 (1986). “Ideally, rebuttal evidence is that which refutes the evidence [already] presented . . . rather than that which merely bolsters one’s case.” (Internal quotation marks omitted.) State v. Wood, 208 Conn. 125, 139, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988). This court has “recognized that rehabilitation of the credibility of a witness who has been subject to impeachment is an appropriate purpose for rebuttal testimony.” Shaham v. Capparelli, supra, 138 (Shea, J., dissenting); see Smirnoff v. McNerney, 112 Conn. 421, 423, 152 A. 399 (1930); Smith v. Hall, 69 Conn. 651, 665, 38 A. 386 (1897). “The issue on appeal is not whether any one of us, sitting as the trial court, would have permitted the disputed testimony to be introduced. The question is rather whether the trial court . . . abused its discretion in not allowing the rebuttal testimony . . . .” Shaham v. Capparelli, supra, 134; see Hall v. Burns, 213 Conn. 446, 451, 569 A.2d 10 (1990).

Although we recognize that the trial court is vested with considerable discretion in controlling the mode and order of interrogating witnesses, we conclude that the court abused its discretion in refusing to allow the plaintiff to present rebuttal evidence concerning the financial transactions and assets in question. It is true that, ideally, the plaintiff should have sought to explain the transactions and assets during redirect examination by his attorney. He did not, however, have in his possession the documentation necessary to refresh his recollection. The plaintiff repeatedly stated that he would need to review the documentation in order to respond to defense counsel’s questions. Our reading of the record reflects that defense counsel acquiesced in this proposed procedure. Furthermore, the plaintiff rested his case with the provision that he would search his records at home that evening in order to present the documentation to the court.

Nevertheless, the next day the trial court refused to allow the plaintiff to explain the transactions and assets at issue. The trial court also refused to allow an offer of proof. The documentation offered by the plaintiff, which the trial court had before it as part of the plaintiffs proposed offer of proof following the trial, would have been offered to explain the validity of each of the transactions and, if accurate, to reflect that he was not concealing assets.

Furthermore, the record as a whole demonstrates that the plaintiff was prejudiced by the trial court’s refusal to admit the rebuttal evidence. During cross-examination of the plaintiff, for example, defense counsel confronted him with the fact that, although his mother’s annual income was $10,920, the sum of $16,724 nevertheless had been deposited into an account she held jointly with the plaintiff — thus strongly suggesting that the plaintiff was concealing assets in his mother’s account. Before the plaintiff had the opportunity to review his records that evening, he was unable to provide an explanation for this deposit.

We conclude that the trial court improperly excluded the rebuttal evidence offered by the plaintiff. Because the effect of the exclusion of this evidence was to prevent the plaintiff from providing an explanation for the transactions and assets used to impeach his credibility, the rebuttal evidence should have been admitted. Without such evidence, the plaintiffs credibility before the trial court was severely undermined. Moreover, the plaintiffs proposed rebuttal evidence neither would have been cumulative in nature; see Verrastro v. Middlesex Ins. Co., 207 Conn. 179, 187-88, 540 A.2d 693 (1988); nor would it have taken an undue amount of time in light of the fact that the trial lasted only two days and the plaintiff was prepared to testify and offer his documentary proof in rebuttal on the second day. See State v. Greene, 209 Conn. 458, 478, 551 A.2d 1231 (1988).

The judgment of the trial court is reversed in part and the case is remanded for further proceedings with respect to the financial orders and the division of assets.

In this opinion the other justices concurred.

       For example, the following exchanges took place between defense counsel and the plaintiff:
      “Q. Well, sir, where would you have gotten $1300 from? You testified that since August of 1995, the only source of monies to you is your job and now the $8000 from the life insurance policy.
      “A. I’d have to go back and look at the deposits, I just don’t recall that. . . .
      “Q. Would you like to take the time to add up the deposits for the last year and see what they total? In fact, Mr. Gomeau, I did add up those figures. And it came to $16,724. Do you have any explanation as to how that could have happened?
      “A. No, I don’t. I’d have to go back and look at those deposits.”

       The record reflects the following colloquy between plaintiffs counsel and the trial court:
      “[Plaintiffs Counsel]: Excuse me, Your Honor. Your Honor, at the present time, other than the Saybrook Convalescent Home I don’t have any further witnesses.
      “The Court: You rest?
      “[Plaintiffs Counsel]: Subject to bringing in a person from the Saybrook Convalescent Home tomorrow.

        “The Court: All the evidence in connection with his claimed liability, in other words, what he claims to be a liability.
      “[Plaintiffs Counsel]: Yes, Your Honor.
      “The Court: In other words, that he owes the convalescent home whatever the sum is.
      “[Plaintiffs Counsel]: May I confer for one minute?
      “The Court: Sure.
      “[Plaintiffs Counsel]: Your Honor, the only other thing we would ask is there might be a chance that my client can find some answers looking overnight in his paperwork to a couple of the questions that [defense counsel] raised. And if he could find the paperwork—
      “The Court: Well, if he can find the paperwork, he can give it to her. And he’s going to produce the bonds.
      “[Plaintiffs Counsel]: Yes.
      “The Court: Other than that, you rest?
      “[Plaintiff’s Counsel]: Yes, Your Honor.
      “The Court: Plaintiff rests.”

       Specifically, the plaintiffs proposed offer of proof, without the attachments, provides in relevant part:
      “Had he been allowed to testily at trial on the second day of trial, as a continuation of his first day’s testimony on redirect examination, the plaintiff would have testified to the following:
      “1. That on the evening after the first day of trial, the plaintiff was able to examine his banking records and other records with respect to his joint checking account with his mother, in an attempt to explain why, in 1995, deposits of approximately $16,000 were made into said account, when his mother’s social security checks totaled only $11,000; and to explain, specifically, a $3489 deposit into said account in June, 1995.

        “A memorandum previously written by the plaintiff . . . and rediscovered by the plaintiff on said evening reminded him that in 1995, he had used his mother’s checking account for purposes of a testimonial party given by his coworkers and him on the occasion of the retirement of a coworker, Dorothy Brown. The plaintiff was in charge of the finances for the testimonial. Since he was not allowed to use any checking account of the town of Stratford, for which he worked, for purposes of the testimonial, he offered the use of his mother’s checking account as a means of depositing testimonial contributions and paying for the costs of the testimonial. Said memorandum was sent by him to his coworkers on July 3, 1995, reporting that $3784 had been received, and $3784 had been spent for purposes of the testimonial. Attached to the memorandum was a sheet delineating all of the testimonial expenditures . . . . He also found a list of all the contributors to the testimonial and the amounts of cash and check which each contributed, and the deposit slip and transaction receipt for these deposits into this account .... Finally, he found the cancelled checks with which the testimonial expenses were paid, namely, a $2156 check to the country club where the testimonial dinner took place, $1350 to pay for the testimonial gift (a computer), which was charged on the plaintiffs bankcard; and $77.41 and $35.77 to reimburse two other coworkers for items purchased for the testimonial ....
      “The plaintiff also found handwritten notes from the parties’ son, Ed, to his father, asking his father to deposit checks for him .... This reminded the plaintiff that he had allowed Ed, Jr., to use the plaintiffs mother’s joint checking account with the plaintiff in order to deposit monies earned by Ed, Jr., while he was home from graduate school in Boston and working in the Old Saybrook vicinity in the winter and spring of 1995. The plaintiff found six cancelled checks with which he had withdrawn monies of his son’s to give to his son or to pay bills on behalf of his son ....
      “In addition to oral testimony explaining the above, the plaintiff would have offered to introduce the items marked as Schedules A through F into evidence as full exhibits.
      “2. That on the evening after the first day of trial, the plaintiff was able to examine his records concerning a $10,000 loan taken out by him from tire Stratford Municipal Federal Credit Union in 1995, in an attempt to explain that the loan proceeds from a loan taken out in April, 1995, were the same $10,000 as were deposited into his personal checking account [in] September, 1995; and to show the term of the loan and the precise manner in which the proceeds of the loan were spent.
      “The plaintiff found a document from the Stratford Municipal Federal Credit Union showing that the $10,000 check was not received by him until July 17, 1995 . . . not in April, 1995, as the defendant’s attorney had indicated. When able to closely examine the cheeking account statement showed him by the defendant’s attorney on cross-examination, he saw that the $10,000 was deposited on September 15, 1995, not in October, 1995, as the defendant’s attorney had indicated .... He found a copy of his loan document, showing that the loan was a five year loan .... He found a cancelled check made out on September 15, 1995, to Catholic University, for the tuition of the daughter of 1he parties, in the amount of $5611 . . . and a check made out on September 10, 1995, to the Tax Collector — Town of Old Saybrook, for real property taxes on the marital home, in the amount of $1698.82 .... He also found a cancelled check for $1575, with which he paid the three months rent required as a deposit for the apartment he moved to in November 1, 1995, belonging to Marc Evans and Chris Taylor ....
      “In addition to giving oral testimony to this effect, the plaintiff would have introduced into evidence the items marked as Schedules G through K as full exhibits.
      “3. That on the evening after the first day of trial, the plaintiff was able t.o look for any family bonds in his possession, in an attempt, to explain why his financial affidavit indicated that he had no bonds. Of the bonds which he possesses, none are in his name alone, many are in his children’s sole names; two are his children’s bonds, but. are in their names in conjunction with the defendant’s, and total fifty dollars . . . twenty-seven are his mother’s bonds, purchased by her in the 1960s, bearing her name in conjunction with the plaintiffs, and totalling only $675 . . . and two are in the name of Winifred Gomeau, the defendant, or Edward Gomeau, the plaintiff, total-ling $75 ....
      “4. That, on the evening of the first, day of trial, the plaintiff was able to examine his records with respect to his income tax filing status, in an attempt, to show that he does claim one exemption, namely, himself. He found that he does claim one exemption, and for that reason, federal withholding of $328.25 per week is deducted from his gross weekly earnings ....
      “5. That on the evening of the first day of trial, the plaintiff was able to examine his records in an attempt, to show how he spent the $8000 he received in 1996 when he cashed in his whole life insurance policy. He found a cancelled check for $4463.87, with which he paid one current mortgage payment, and two delinquent mortgage payments for the marital home in April, 1996; he also found the receipt for said payment .... He found a cancelled check in the amount of $1748.30, with which he paid the delinquent real property tax on the marital home, and the bill and receipt therefor . . . .”

       The plaintiff appealed from the judgment of the trial court t.o the Appellate Court, and we transferred the appeal to this court pursuant 1 o Practice Book § 4023 and General Statutes § 51-199 (e).

       For example, the following colloquy took place:
      “[Defense Counsel]: When we appeared in court in the spring of 1995, did you put on your financial affidavit that you had that $10,000?
      “[The Plaintiff]: I don’t recall at the time.
      “[Defense Counsel]: In fact, you didn’t, did you?
      “[The Plaintiff]: I may not have listed it, no. Either the liability or asset. I don’t remember.
      “[Defense Counsel]: Would you be willing to provide to me tomorrow morning your bank statements from March of 1995 through August of 1995? The subpoenaed records begin in August of 1995.
      “[The Plaintiff]: What’s the month again?
      “The Court: March through August of 1995.
      “[The Plaintiff]: I don’t think I opened that account at that point. I have to check and see when I opened that account. I think I still had the joint account into the summer, I think, which my wife has all those checks at home and those statements.
      “[Defense Counsel]: Now, when you put the $10,000 into the bank account in September, what did you use those monies for?
      “[The Plaintiff]: I think I paid a tuition payment for my daughter Selina for about $5600 or $5800.1 also paid some taxes to the town of Old Saybrook.
      “[Defense Counsel]: You think you paid a tuition payment.
      “[The Plaintiff]: I know I paid it. I just don’t recall the exact time and the exact amount. But that’s what was paid out of that, yes.
      “[Defense Counsel]: Is it possible you paid the tuition payment prior to depositing the $10,000?
      “[The Plaintiff]: I don’t think so, no.
      “[Defense Counsel]: Do you have a receipt for the tuition payment or a canceled check?
      “[The Plaintiff]: A canceled check, yes.
      “[Defense Counsel]: And you could produce that tomoiTow morning?

      “[The Plaintiff]: Yes.” (Emphasis added.)

       See footnote 3 of this opinion.