text:
    James Hicks v. Department of Administrative Services

      Sean FitzMaurice, in support of the petition.

      Michael J. Belzer, assistant attorney general, in opposition.
    Decided July 11, 1990
   The plaintiffs petition for certification for appeal from the Appellate Court, 21 Conn. App. 464, is denied.


source: Caselaw Access Project

license: Public Domain

text:
    State of Connecticut v. Ariel Hernandez

      Robert M. Casóle, in support of the petition.

      Leon F. Dalbec, Jr., deputy assistant state’s attorney, in opposition.
    Decided July 11, 1990
   The defendant’s petitions for certification for appeal from the Appellate Court, 21 Conn. App. 235, is granted, and a consolidated appeal (P.B. § 4004) will be docketed, limited to the following issues:
“Is the defendant entitled, upon request, to have the jury instructed that an information is not evidence of guilt?
“Is the defendant entitled, upon request, to have the jury instructed that the arguments of counsel are not evidence?
“Is the defendant entitled to have the trial court marshal the evidence to present the evidence of the defense as well as the evidence of the prosecution?”


text:
    Maureen Schacter v. Ralph Schacter

      Howard A. Jacobs and Mark R. Soboslai, in support of the petition.

      Arthur E. Balbirer, in opposition.
    Decided July 24, 1990
   The defendant’s petition for certification for appeal from the Appellate Court is dismissed.


text:
    State of Connecticut v. Thomas Graham

      Linda J. Morkan and Leny K. Wallen-Friedman, in support of the petition.

      Richard F. Jacobson, assistant state’s attorney, in opposition.
    Decided July 24, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 21 Conn. App. 688, is denied.


text:
    Herbert C. Hallas et al. v. Town of Windsor et al.

      Jon L. Schoenhorn, in support of the petition.

      Susan J. Barnes, Francis H. Morrison III, and Judith A. Blank, in opposition.
    Decided June 21, 1990
   The plaintiffs’ petition for certification for appeal from the Appellate Court is granted, limited to the following issue:

“Did the Appellate Court properly dismiss the plaintiffs’ appeal from the dismissal by the trial court of the third count of the complaint, claiming damages for violation of state and federal constitutional and statutory rights, on the ground of mootness?”


text:
    First Interstate Mortgage Company v. Neil H. Ellis et al.

      Bourke G. Spellacy, in support of the petition.

      H. David Leventhal, in opposition.
    Decided September 18, 1990
   The plaintiffs petition for certification for appeal from the Appellate Court is dismissed.


text:
    Bonnie L. Signore v. Kevin A. Signore

      Wesley W. Horton, in support of the petition.

      Thomas Shanley, in opposition.
    Decided September 18, 1990
   The defendant’s petition for certification for appeal from the Appellate Court is granted, limited to the following issue:'

“Did the motions filed by the defendant concerning the judgments of July 3,1989, and November 17,1989, result in extending the time to appeal pursuant to Practice Book § 4009?”


text:
    State of Connecticut v. Edward T. Lynch

      Wesley W. Horton and Alan M. Dershowitz, pro hac vice, in support of the petition.

      Susan C. Marks, assistant state’s attorney, in opposition.
    Decided September 18, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 21 Conn. App. 386, is denied.


text:
    State of Connecticut v. Marie G. Mazzetta

      Laura Weisfeld, assistant public defender, in support of the petition.

      LeonF. Dalbec, Jr., deputy assistant state’s attorney, in opposition.
    Decided September 18, 1990

   The defendant’s petition for certification for appeal from the Appellate Court, 21 Conn. App. 431, is denied.


text:
    State of Connecticut v. Rachel McNeil

      Carolyn K. Longstreth, assistant state’s attorney, in support of the petition.

      Temmy Ann Pieszak, assistant public defender, in opposition.
    Decided September 18, 1990
   The state of Connecticut’s petition for certification for appeal from the Appellate Court, 21 Conn. App. 519, is denied.


text:
    State of Connecticut v. Rachel McNeil

      Temmy Ann Pieszak, assistant public defender, in support of the petition.

      Carolyn K. Longstreth, assistant state’s attorney, in opposition.
    Decided September 18, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 21 Conn. App. 519, is denied.


text:
    State of Connecticut v. Paul S. Sherbacow

      F. Mac Buckley, in support of the petition.

      Susann E. Gill, assistant state’s attorney, in opposition.
    Decided September 18, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 21 Conn. App. 474, is denied.


text:
    State of Connecticut v. Walter Torres

      Temmy Ann Pieszak, assistant public defender, in support of the petition.

      Carolyn K. Longstreth, assistant state’s attorney, in opposition.
    Decided September 18, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 21 Conn. App. 568, is denied.


text:
    State of Connecticut v. Richard A. Whitfield

      Louis S. Avitabile, in support of the petition.

      Julia DiCocco Dewey, assistant state’s attorney, in opposition.
    Decided September 18, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 21 Conn. App. 622, is denied.


text:
    Carol C. Johnson v. Sewer Authority of the Town of Branford

      Carol C. Johnson, pro se, in support of the petition.
    Decided September 18, 1990
   The plaintiff’s petition for certification for appeal from the Appellate Court, 21 Conn. App. 814, is denied.


text:
    State of Connecticut v. David Johnson State of Connecticut v. Diane McIntosh

      Timothy J. Sugrue, assistant state’s attorney, in support of the petition.

      Louis S. Avitabile, special public defender, in opposition.
    Decided September 18, 1990
   The state of Connecticut’s petition for certification for appeal from the Appellate Court, 22 Conn. App. 40, is granted, limited to the following issues:

“1. Should this court’s holding in State v. Kimbro, 197 Conn. 219, be reconsidered?
“2. Did the Appellate Court correctly conclude that the probable cause established by the search warrant affidavit for April 2,1987, was stale by April 7,1987?”


text:
    State of Connecticut v. David Johnson State of Connecticut v. Diane McIntosh

      Louis S. Avitabile, special public defender, in support of the cross petition.

      Timothy J. Sugrue, assistant state’s attorney, in opposition.
    Decided September 18, 1990
   The defendant’s cross petition for certification for appeal from the Appellate Court, 22 Conn. App. 40, is granted, limited to the following issue:

“Did the Appellate Court correctly conclude that the search warrant affidavit established probable cause on April 2, 1987?”


text:
    State of Connecticut v. Timothy Barton

      Susan C. Marks, assistant state’s attorney, in support of the petition.

      Walter H. Scanlon, in opposition.
    Decided September 18, 1990
   The state of Connecticut’s amended petition for certification for appeal from the Appellate Court, 22 Conn. App. 62, is granted, limited to the following issues:

“1. Should this court’s holding in State v. Kimbro, 197 Conn. 219, be reconsidered?
“2. Did the Appellate Court correctly determine that the affidavit failed to support a finding of probable cause?”


text:
    Northern Homes Distributors, Inc., et al. v. Elaine B. Grosch

      Michael A. D'Amico, in support of the petition.
    Decided September 18, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 22 Conn. App. 93, is granted, limited to the following issues:

“1. Should the Appellate Court have affirmed the dismissal of the defendant’s counterclaims against the plaintiff Northern Homes Distributors, Inc., on the ground that the same claims were raised in a prior pending action brought by the defendant against the other plaintiffs involved in the transaction from which this litigation arose?
“2. Should the Appellate Court have affirmed the dismissal of the counterclaim against the plaintiff Donald Ghent as the ‘alter ego or instrumentality’ of the plaintiff Northern Homes Distributors, Inc., which was not raised in the prior pending action?”


text:
    State of Connecticut v. David Brown

      Judith A. Busch, in support of the petition.

      Geoffrey E. Marion, assistant state’s attorney, in opposition.
    Decided September 18, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 22 Conn. App. 108, is dismissed.


text:
    Expressway Associates II v. Friendly Ice Cream Corporation of Connecticut

      William H. Champlin III, in support of the petition.

      Stephen Sakonchick II and James T. Shearin, in opposition.
    Decided September 18, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 22 Conn. App. 124, is granted, limited to the following issue:

“Was the Appellate Court correct in including further proceedings with respect to damages in the remand when the plaintiff failed to prove damages at trial and conceded that it was entitled only to nominal damages?”


text:
    Morton J. Downey, Sr. v. Retirement Board of the City of Waterbury et al.

      Louise Allen Brown, assistant corporation counsel, in support of the petition.

      Linda Selby Tableman, in opposition.
    Decided September 18, 1990
   The defendants’ petition for certification for appeal from the Appellate Court, 22 Conn. App. 172, is denied.


text:
    Zbigniew S. Rozbicki v. Helen Huybrechts

      John P. Febbroriello, in support of the petition.

      Wesley W. Horton and Karen Murdoch, law student intern, in opposition.
    Decided September 18, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 22 Conn. App. 131, is granted, limited to the following issue:

“Does the plaintiff’s absence from voir dire in a civil trial require a new trial absent a showing of prejudice?”


text:
    State of Connecticut v. Richard Plaskonka

      Richard Plaskonka, pro se, and Timothy H. Everett, in support of the petition.

      Leah Hawley, assistant state’s attorney, in opposition.
    Decided September 18, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 22 Conn. App. 207, is denied.


text:
    State of Connecticut v. Kevin Livingston

      Martin Zeldis, assistant public defender, in support of the petition.

      Frederick W. Fawcett, assistant state’s attorney, in opposition.
    Decided September 18, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 22 Conn. App. 216, is denied.


text:
    People’s Bank v. Marjorie Perkins

      Marjorie Perkins, pro se, in support of the petition.
    Decided September 18, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 22 Conn. App. 260, is denied.


text:
    Michael Pilato v. Jatinder N. Kapur et al.

      Melvin J. Silverman, in support of the petition.

      Anthony E. Ahern, in opposition.
    Decided September 18, 1990
   The plaintiff’s petition for certification for appeal from the Appellate Court, 22 Conn. App. 282, is granted, limited to the following issues:

“1. In a case referred to an attorney trial referee, is the decision whether to award interest as an element of damages within the province of the attorney trial referee or the trial court?
“2. Should the Appellate Court have remanded the case with direction that the determination of whether interest should be allowed be made by the attorney trial referee who had heard the case and had refused to award interest upon a ground later determined to be erroneous?
“3. Should the Appellate Court have complied with General Statutes § 51-183c in remanding the case?”


text:
    State of Connecticut v. Henry Montgomery, Jr.

      Otto P. Witt, special public defender, in support of the petition.
    Decided September 18, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 22 Conn. App. 340, is denied.


text:
    Anna E. Chapin, Town Clerk of New Milford v. Freedom of Information Commission et al.

      Victor R. Perpetua, commission counsel, in support of the petition.

      Christopher G. Winans, in opposition.
    Decided September 18, 1990
   The defendant Freedom of Information Commission’s petition for certification for appeal from the Appellate Court, 22 Conn. App. 316, is denied.


text:
    State of Connecticut v. Roger Brunori

      Paul Ferencek, deputy assistant state’s attorney, in support of the petition.
    Decided September 18, 1990
   The state of Connecticut’s petition for certification for appeal from the Appellate Court, 22 Conn. App. 431, is denied.


text:
    State of Connecticut v. Eugene Russell

      William M. Bloss, special public defender, in support of the petition.

      Timothy J. Sugrue, assistant state’s attorney, in opposition.
    Decided September 18, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 22 Conn. App. 440, is granted, limited to the following issue:

“Did the Appellate Court properly determine that a fenced-off section of a building otherwise open to the public constitutes a ‘building’ for purposes of Connecticut General Statutes § 53a-103?”


text:
    Joseph Pokorny v. Getta’s Garage et al.

      Thomas A. Mulligan, in support of the petition.

      Lawrence J. Merly and Nicholas E. Wool, in opposition.
    Decided September 18, 1990
   The defendants’ petition for certification for appeal from the Appellate Court, 22 Conn. App. 539, is granted, limited to the following issue:

“Is an employer obligated to pay a workers’ compensation claimant the amount of his medical bills that have been paid by a health insurance carrier who has not claimed a lien pursuant to General Statutes § 38-174n?”


text:
    Mary Lou Sciola v. Robert Shernow

      Wesley W. Horton and Robert M. Shields, in support of the petition.

      William F. Gallagher, in opposition.
    Decided September 18, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 22 Conn. App. 351, is denied.


text:
    Monte Jeffrey Sachs v. Deborah Joy Sachs

      Thomas F. Gudsnuk and Ralph C. Crozier, in support of the petition.

      James R. Greenfield, in opposition.
    Decided September 18, 1990
   The plaintiff’s petition for certification for appeal from the Appellate Court, 22 Conn. App. 410, is denied.


text:
    State of Connecticut v. Michael Crowley

      Craig A. Raabe, special public defender, in support of the petition.

      RitaM. Shair, deputy assistant state’s attorney, in opposition.
    Decided September 18, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 22 Conn. App. 557, is denied.


text:
    Richard T. Smith v. Victor Liburdi, Warden

      Martin Zeldis, assistant public defender, in support of the petition.

      Susann E. Gill, assistant state’s attorney, in opposition.
    Decided September 18, 1990
   The petitioner Richard T. Smith’s petition for certification for appeal from the Appellate Court, 22 Conn. App. 562, is denied.


text:
    Town of Farmington v. Kevin V. Dowling

      Victor J. Dowling, in support of the petition.

      Charles L. Howard and Gregory T. DAuria, in opposition.
    Decided September 18, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 22 Conn. App. 564, is denied.


text:
    State of Connecticut v. Willie Johnson

      Jeremiah Donovan, in support of the petition.

      MitchellS. Brody, assistant state’s attorney, in opposition.
    Decided September 18, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 22 Conn. App. 477, is denied.


text:
    Betty H. Gray et al. v. Coastal States Holding Company et al.

      Louis Ciccarello, in support of the petition.

      Michael W. Lyons, in opposition.
    Decided September 18, 1990
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 22 Conn. App. 497, is denied.


text:
    Waine A. Hughes v. National Car Rental Systems, Inc.

      Stewart M. Casper, in support of the petition.

      J. Kevin Golger, in opposition.
    Decided September 18, 1990
   The plaintiff’s petition for certification for appeal from the Appellate Court, 22 Conn. App. 586, is denied.


text:
    Lori Marino et al. v. Zoning Board of Appeals of the Town of Watertown

      Robert P. Hanahan, in support of the petition.

      Franklin G. Pilicy, in opposition.
    Decided September 18, 1990
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 22 Conn. App. 606, is denied.


text:
    State of Connecticut v. Sam Barnes

      Mary Miller Haselkamp, deputy assistant public defender, in support of the petition.

      Leon F. Dalbec, Jr., in opposition.
    Decided September 18, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 22 Conn. App. 805, is denied.


text:
    State of Connecticut v. Lawrence Buell

      D. Kirt Westfall, in support of the petition.

      Susan C. Marks, assistant state’s attorney, in opposition.
    Decided September 18, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 22 Conn. App. 809, is denied.


text:
    Steven R. Dolbow v. Sandra W. Dolbow

      Anthony A. Piazza, in support of the petition.

      Philip M. French, in opposition.
    Decided September 18, 1990
   The plaintiff’s petition for certification for appeal from the Appellate Court, 22 Conn. App. 810, is denied.


text:
    State of Connecticut v. Gaetano Marino

      Edward J. Peters, Jr., in support of the petition.

      MitchellS. Brody, assistant state’s attorney, in opposition.
    Decided September 18, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 392, is denied.


text:
    Richard Pazera v. Debra C. Pazera

      Robert S. Kolesnik, in support of the petition.

      Jeffrey D. Ginzberg, in opposition.
    Decided October 4, 1990
   The plaintiff’s petition for certification for appeal from the Appellate Court is granted, limited to the following issues:

“1. Did the order of the trial court to sell the marital home constitute an arguable violation of a constitutional or statutory right of the plaintiff within the meaning of State v. Curdo, 191 Conn. 27?
“2. If not, should Curdo be expanded to recognize this order as a final judgment for purpose of appeal?”


text:
    In re Jesus C.

      Mitchell S. Brody, assistant state’s attorney, in support of the petition.

      Temmy Ann Pieszak, assistant public defender, in opposition.
    Decided October 4, 1990
   The state of Connecticut’s petition for certification for appeal from the Appellate Court, 21 Conn. App. 645, is dismissed.


text:
    Richard J. Bonelli v. Sandra A. Bonelli

      M. Jane Christensen, in support of the petition.

      Kathleen A. Murrett, in opposition.
    Decided October 4, 1990
   The plaintiff’s petition for certification for appeal from the Appellate Court, 22 Conn. App. 248, is denied.


text:
    Katrinka C. Greger v. Gerald J. Greger

      William J. Eddy, in support of the petition.

      Anthony P. Bergin, in opposition.
    Decided October 4, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 22 Conn. App. 596, is denied.


text:
    Katrinka C. Greger v. Gerald J. Greger

      Anthony P. Bergin, in support of the cross petition.
    Decided October 4, 1990
   The plaintiff’s cross petition for certification for appeal from the Appellate Court, 22 Conn. App. 596, is denied.


text:
    Paine Webber Jackson and Curtis, Inc. v. Geoffrey J. Winters

      John Haven Chapman, in support of the petition.

      Jan A. Marcus, in opposition.
    Decided October 4, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 22 Conn. App. 640, is denied.


text:
    State of Connecticut v. John Santiago
   The defendant’s petition for certification for appeal from the Appellate Court, 22 Conn. App. 683, is granted, limited to the following issue:

“May the defendant belatedly raise the constitutionality of General Statutes § 53a-167b? Is the statute constitutional?”

Denise Berza, special public defender, in support of the petition.

Jack W. Fischer, deputy assistant state’s attorney, in opposition.

Decided October 4, 1990


text:
    Takis Argentinis v. Paul L. Gould et al. Paul L. Gould v. P. A. Argentinis et al.

      Eugene E. Cederbaum, in support of the petition.

      Daniel B. Glass, in opposition.
    Decided October 4, 1990
   Paul L. Gould and Paul L. Gould et al.’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 9, is granted, limited to the following issues:

“1. Did the Appellate Court correctly enter judgment affirming the trial court’s decision that the plaintiff in the matter captioned Takis Argentinis v. Paul L. Gould et al. was entitled to compensatory damages in his suit for breach of construction contract and that the defendants in the matter captioned Paul L. Gould v. P.A. Argentinis et al. were also entitled to judgment in the foreclosure action?
“2. Was the Appellate Court correct in finding justification for its judgment in Edens v. Kole Construction Co., 188 Conn. 489?”


text:
    William H. Cashman v. Sullivan and Donegan, P.C.

      William H. Cashman, pro se, in support of the petition.
    Decided October 4, 1990
   The plaintiff’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 24, is denied.


text:
    John M. Phillips v. Warden, State Prison

      Timothy H. Everett and Giovanna M. Tiberii, certified legal intern, in support of the petition.

      James A. Kitten, assistant state’s attorney, in opposition.
    Decided October 4, 1990
   The petitioner John M. Phillips’ petition for certification for appeal from the Appellate Court, 23 Conn. App. 63, is granted, limited to the following issues:

“1. Was the petitioner’s constitutional right to the undivided loyalty of counsel violated where his attorney, Bernard L. Avcollie, still practicing law after his own conviction in a highly publicized case in the same courthouse, was unable to pursue certain courses of action, such as probing individual voir dire to protect his client against juror bias, because Avcollie put his own interest in staying on the case ahead of his professional judgment that most members of the jury panel knew of his conviction and his ‘nagging feeling that [his] reputation was going to hurt this man [the petitioner]?’
“2. Was the trial court’s violation of its constitutional duty to inquire into defense counsel’s possible conflict of interest harmless beyond a reasonable doubt in light of the petitioner’s failure to prove an actual conflict of interest by a preponderance of the evidence?”


text:
    State of Connecticut v. Frank McClain

      Jack W. Fischer, deputy assistant state’s attorney, in support of the petition.

      Joseph M. Shortall, chief public defender, in opposition.
    Decided October 4, 1990
   The state of Connecticut’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 83, is denied.


text:
    Coelm v. Frank Imperato

      Frank B. Velardi, Jr., in support of the petition.

      Joshua A. Winnick, in opposition.
    Decided October 4, 1990
   The defendent’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 146, is denied.


text:
    James M. Murphy’s Appeal from Probate

      Franklin Melzer, in support of the petition.
    Decided October 11, 1990
   James M. Murphy’s petition for certification for appeal from the Appellate Court, 22 Conn. App. 490, is denied.


text:
    State of Connecticut v. John Safford

      Elizabeth M. Inkster, assistant public defender, in support of the petition.

      Paul J. Ferencek, deputy assistant state’s attorney, in opposition.
    Decided October 11, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 22 Conn. App. 531, is denied.


text:
    State of Connecticut v. David Jackson

      Beth A. Merkin, assistant public defender, in support of the petition.

      Mary H. Lesser, assistant state’s attorney, in opposition.
    Decided October 11, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 151, is denied.


text:
    Zelia S. Rego v. Connecticut Insurance Placement Facility

      Stephen E. Goldman and Linda Morkan, in support of the petition.

      Joseph A. Mengaeci, in opposition.
    Decided October 23, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 22 Conn. App. 428, is granted, limited to the following issues:

“1. Was the Appellate Court correct in determining that an insurer’s special defense of material misrepresentation must be proven by clear and convincing evidence?
“2. Was the Appellate Court correct in determining that the trial court’s limiting instruction to the jury to consider only misrepresentations ‘related to the cause and origin of the fire’ as proof of the special defense, thereby excluding certain evidence, was not likely to have misled the jury?”


text:
    City of Bridgeport v. Allan C. Debek, Administrator (Estate of Anthony Debek), et al.

      Willard R. Carter, in support of the petition.

      Matthew J. Forstadt, Samuel D. Chester and Robert A. Randich, in opposition.
    Decided October 23, 1990
   The defendant Barbara J. B. Zanesky’s petition for certification for appeal from the Appellate Court, 22 Conn. App. 517, is dismissed.


text:
    State of Connecticut v. Willie Brown

      Louis S. Avitabile, special public defender, in support of the petition.

      Leon F. Dalbec, Jr., deputy assistant state’s attorney, in opposition.
    Decided October 23, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 22 Conn. App. 521, is denied.


text:
    Theodore E. Griffin v. Claude L. Parker

      Louis S. Avitabile, in support of the petition.

      Joseph Procopio, in opposition.
    Decided October 23, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 22 Conn. App. 610, is granted, limited to the following issues:

"1. Whether the Appellate Court was correct in concluding that since the defendant did not appeal the criminal judgment, a reviewing court was precluded from considering the entire proceedings of the criminal trial in deciding that the conviction in the criminal case was on both theories of intentional and reckless assault?
“2. Whether the Appellate Court was correct in concluding that the issue of intentional assault was necessarily determined in the prior criminal action?
“3. Whether the Appellate Court was correct in concluding that the doctrines of mutuality and privity should not be applied to preclude collateral estoppel in those instances in which a criminal case is followed by a civil case against a defendant convicted in the prior criminal action?”


text:
    Robert B. Kuchinski, Conservator (Estate of Robert P. Kuchinski) v. J. William Burns, Commissioner of Transportation, et al.

      Joseph Biraglia, in support of the petition.

      Paul E. Pollock, in opposition.
    Decided October 23, 1990
   The plaintiffs petition for certification for appeal from the Appellate Court, 23 Conn. App. 198, is denied.


text:
    State of Connecticut v. Susan Nelson

      James A. Killen, assistant state’s attorney, in support of the petition.

      Timothy H. Everett and Gary M. Case, certified legal intern, in opposition.
    Decided October 23, 1990
   The state of Connecticut’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 215, is denied.


text:
    James Caserta v. Zoning Board of Appeals of the City of Milford et al.

      Bruce L. Levin, in support of the petition.

      Benson A. Snaider, in opposition.
    Decided October 23, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 232, is granted, limited to the following issue:

“Was the Appellate Court correct in holding that the zoning board of appeals lacked jurisdiction and that it was unnecessary to decide the board’s scope of review?”


text:
    State of Connecticut v. Lonnie Black

      Suzanne Zitser, assistant public defender, and G. Douglas Nash, public defender, in support of the petition.

      Susann E. Gill, assistant state’s attorney, in opposition.
    Decided October 23, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 241, is denied.


text:
    Jeri L. Billington v. Randall J. Billington

      Gerald L. Garlick, in support of the petition.

      Randall J. Billington, pro se, in opposition.
    Decided November 2, 1990
   The plaintiff’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 45, is granted, limited to the following issues:

“1. To prevail on a motion to open a judgment based on fraud, must the movant in a marital case establish diligence in attempting to discover the fraud?
“2. Is there a difference in marital cases between a fraud on the court and a fraud on the adverse party?
“3. Was the Appellate Court correct in deciding that the trial court should not have opened the judgment?”


text:
    Oak Leaf Marina, Inc., et al. v. Peter M. Ertel

      Peter M. Ertel, pro se, in support of the petition.
    Decided November 2, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 91, is denied.


text:
    Home Insurance Company v. Aetna Life and Casualty Company

      William F. Gallagher, in support of the petition.

      Lois B. Tanzer and Edward W. Case, in opposition.
    Decided November 2, 1990
   The plaintiffs petition for certification for appeal from the Appellate Court is denied.


text:
    State of Connecticut v. Michael Reid

      Michael R. Sheldon and Giovanna M. Tiberii, in support of the petition.

      Frederick W. Fawcett, assistant state’s attorney, in opposition.
    Decided November 2, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 22 Conn. App. 321, is denied.


text:
    State of Connecticut v. Gloria Monar

      Charles W. Fleischmann, in support of the petition.

      Frederick W. Fawcett, assistant state’s attorney, in opposition.
    Decided November 2, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 22 Conn. App. 567, is denied.


text:
    Susana Cabrera v. Jose Cabrera

      Philip M. French, in support of the petition.
    Decided November 2, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 330, is denied.


text:
    State of Connecticut v. Roy Tyson

      Lauren Weisfeld, assistant public defender, in support of the petition.

      Susan C. Marks, assistant state’s attorney, in opposition.
    Decided November 2, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 28, is denied.


text:
    Patrick R. Gil v. Inland Wetlands and Watercourses Agency of the Town of Greenwich et al.

      Eugene F. McLaughlin, Jr., assistant town attorney, in support of the petition.

      Patrick R. Gil, pro se, in opposition.
    Decided November 2, 1990
   The named defendant’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 379, is granted, limited to the following issue:

“In considering whether the action of an inland wetlands agency denying a building permit amounts to an unconstitutional taking of the applicant’s property, what is the proper standard for determining a taking?”


text:
    Mary Ellen Guinan v. Direct Marketing Association, Inc., et al.

      Bruce R. Levin, in support of the petition.

      Robert P. Wenten, in opposition.
    Decided November 2, 1990
   The defendants’ petition for certification for appeal from the Appellate Court, 23 Conn. App. 805, is denied.


text:
    Frank X. Lo Sacco v. Sharon H. Purtill et al.

      Frank X. Lo Sacco, pro se, in support of the petition.

      Chester J. Bukowski, Jr., and Christopher R. Stone, in opposition.
    Decided November 15, 1990
   The plaintiff’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 809, is denied.


text:
    State of Connecticut v. Daryl Kinchen

      Jeffrey Hellman, in support of the petition.

      Richard F. Jacobson, assistant state’s attorney, in opposition.
    Decided November 15, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 809, is denied.


text:
    Marion Lees v. Middlesex Insurance Company

      Thomas J. Weihing and John T. Bochanis, in support of the petition.

      Daniel P. Scapellati, in opposition.
    Decided November 15, 1990
   The plaintiffs petition for certification for appeal from the Appellate Court, 23 Conn. App. 814, is granted, limited to the following issue:

“Was the Appellate Court correct in concluding that the plaintiff’s CUIPA and CUTPA claims are barred by the one year limit of Connecticut General Statutes § 38-98 for a suit on the policy?”


text:
    Jose Diaz v. Warden, State Prison

      Benjamin F. Cardinez, in support of the petition.

      James M. Ralls, deputy assistant state’s attorney, in opposition.
    Decided November 27, 1990
   The petitioner Jose Diaz’ petition for certification for appeal from the Appellate Court, 22 Conn. App. 804, is denied.


text:
    Jose Diaz v. Warden, State Prison

      Jose Diaz, pro se, in support of the petition.
    Decided November 27, 1990
   The petitioner Jose Diaz’ petition for certification for appeal from the Appellate Court, 22 Conn. App. 804, is denied.


text:
    State of Connecticut v. Leroy Kelly

      Kent Drager, assistant public defender, in support of the petition.

      Frederick W. Fawcett, assistant state’s attorney, in opposition.
    Decided November 27, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 160, is denied.


text:
    State of Connecticut v. Andrew Patterson

      A. Paul Spinella, in support of the petition.
    Decided November 27, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 431, is denied.


text:
    Pamela Barone Speed, Executrix (Estate of Mildred P. Barone) v. Anthony F. DeLibero et al.

      Arnold J. Bai and Garie J. Mulcahy, in support of the petition.

      Joan C. Harrington, in opposition.
    Decided November 27, 1990
   The defendants’ petition for certification for appeal from the Appellate Court, 23 Conn. App. 437, is denied.


text:
    In re Omondis E. et al.

      Andrew Chulick, in support of the petition.

      Michael O'Connor, assistant attorney general, in opposition.
    Decided November 27, 1990
   The respondent mother’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 815, is denied.


text:
    Sowin Associates v. Planning and Zoning Commission of the Town of South Windsor et al.

      Richard M. Rittenband, town attorney, in support of the petition.

      Thomas F. Parker, in opposition.
    Decided November 29, 1990
   The defendants’ petition for certification for appeal from the Appellate Court, 23 Conn. App. 370, is denied.


author: Borden, J.

text:
    Elizabeth Todd v. Brett Glines et al.
    (14086)
    Shea, Callahan, Glass, Covello and Borden, Js.
    Argued November 1, 1990
    decision released January 1, 1991

      Daniel D. Skuret, for the appellant-appellee (plaintiff).

      James E. O’Donnell, with whom, on the brief, was David J. McDonald, for the appellees-appellants (defendants).
   Borden, J.

In this personal injury action, the sole issue on the plaintiff’s appeal from the judgment of the trial court, after a jury trial, is whether the trial court improperly denied the plaintiffs motion to set aside the verdict and for a new trial based upon a claim of an inadequate verdict. On the cross appeal of the defendants, Brett Glines, Arthur Glines and Tnais Glines,the sole issue is whether the trial court properly ordered, pursuant to General Statutes (Rev. to 1987) § 52-225d (b) (3), an award of attorney’s fees to the plaintiff absent a specific request for such fees. Pursuant to Practice Book § 4023 we transferred these appeals to this court, and we affirm the judgment of the trial court.

The jury found for the plaintiff and awarded her damages of $26,015.72, which was apportioned as $6115.72 for past economic damages, $7300 for future economic damages, $5100 for past noneconomic damages, and $7500 for future noneconomic damages. The jury also determined, however, that the plaintiff was 15 percent negligent, and reduced the award by that percentage for a verdict of $22,113.36. The plaintiff thereafter moved to set aside the verdict and for an additur which the court denied, finding that the verdict was “within the realm of fair and reasonable damages.” The court, without hearing evidence on the issue, awarded attorney’s fees to the plaintiff in the amount of $2038.57 based upon one third of the gross past economic damages found by the jury. The court later reduced this amount to $1732.79 pursuant to the defendant’s request for a remittitur in order to reflect the reduction in the past economic damages by virtue of the 15 percent comparative negligence of the plaintiff. The appeal and cross appeal followed.

The jury could reasonably have found the following facts. On December 30, 1986, at approximately 6:50 p.m., the plaintiff was driving in a westerly direction and the defendant Brett Glines (Glines) was driving in an easterly direction on Route 42 in Beacon Falls. The weather was snowy, and the roads were slippery and unlit. As the plaintiff was proceeding down a hill, Glines was coming around a curve. The plaintiff, although seeing that Glines had begun to slide into her lane after applying his brakes, did not apply her brakes and the two cars collided, contacting on the plaintiff’s front left grille and fender areas and on Glines’ left front and door areas. As a result of the collision, the plaintiff suffered personal injuries.

There were two critical hotly disputed issues in the case, namely, the issues of liability for the accident and of the causal relationship between the accident and the plaintiff’s claimed injuries. With respect to liability, the plaintiff testified that Glines was traveling at a speed of thirty-five to forty miles per hour and that she was traveling at a speed of five miles per hour. Glines testified, however, that he was traveling at a speed of ten to fifteen miles per hour and that the plaintiff was traveling at a speed of at least twenty-five miles per hour. The plaintiff testified that Glines’ car struck hers three times, thereby spinning her car 360 degrees and pushing it onto the shoulder of the oncoming lane before she came to rest in her own lane of travel. Glines testified that his car contacted that of the plaintiff only once on the front portion of her car, that she was not spun around, and that in fact she continued to drive up the road a short distance before stopping. The state trooper who came to the scene testified, contrary to the plaintiff’s version, that from his examination of the scene and of the physical evidence it did not appear that the plaintiff’s car had crossed the roadway and spun around.

On the issue of the causal relationship between the plaintiff’s physical injuries and the accident, the medical testimony presented was also in sharp conflict. In particular, the parties contested the issue of whether the plaintiffs claim of injury to her right hip was a result of the accident in question, a result of a second accident in which the plaintiff was involved in September, 1987, or a result of the aging process. The plaintiff claimed that her hip was injured in the accident in question and, through her medical expert, that she suffered a 20 percent permanent partial disability. The defendants’ medical expert testified that the plaintiff’s hip pain was due to arthritis as a natural part of the aging process. Furthermore, on cross-examination of the plaintiff, the defendants brought out that according to the medical records the plaintiff did not complain about hip pain until after the date of the second accident, although she had been receiving treatment from an orthopedic doctor and a physical therapist for injuries to her neck and left scapula derived from the accident in issue. The plaintiff testified, however, that the subsequent accident merely aggravated the previous injury to her hip that was caused by the accident with Glines. The defendants, in addition to raising the issue of the second accident, also brought out on cross-examination that the plaintiff had fallen down a flight of stairs in November, 1987, sustaining a fracture of her right ankle.

On appeal, the plaintiff claims that the trial court improperly denied her motion to set aside the jury’s verdict and for a new trial because the verdict was inadequate. We disagree.

“ ‘The trial court’s refusal to set aside the verdict is entitled to great weight and every reasonable presumption should be given in favor of its correctness. . . .’ ” Kubeck v. Foremost Foods Co., 179 Conn. 486, 487, 427 A.2d 391 (1980), quoting Katsetos v. Nolan, 170 Conn. 637, 656, 368 A.2d 172 (1976). “ ‘ “The ultimate test which must be applied to the verdict by the trial court is whether the jury’s award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, prejudice, mistake or corruption.” . . .’” (Citations omitted.) Kubeck v. Foremost Foods Co., supra, quoting Thomas v. Katz, 171 Conn. 412, 416, 370 A.2d 978 (1976).

In this case, conflicting evidence was presented regarding the causal connection between the plaintiffs injuries and the accident in question. The plaintiffs testimony that her car was struck three times by that of Glines and spun around 360 degrees was refuted by the testimony of the state trooper, Glines, and other witnesses. Additionally, the testimony of the medical experts was sharply conflicting. The plaintiffs physician believed that her hip injury stemmed from the accident, while the defendants’ expert disagreed, stating that the plaintiff’s hip pain was the result of “a touch of arthritis in her weight-bearing joints.” There was also evidence that the plaintiff had been involved in an automobile accident subsequent to the one in issue, and that she had also fallen down a flight of stairs and broken her ankle. In formulating its verdict, the jury could have concluded from this evidence that these later accidents were factors contributing to the plaintiff’s disability that were not related to whatever injury the plaintiff sustained from her December, 1986 accident with Glines. Furthermore, the plaintiff’s version of liability was disputed by other testimony and by the physical evidence. This could have undermined her credibility in the jury’s eyes, and that diminished credibility may well have carried over to the plaintiff’s testimony about the extent of her injuries.

“The resolution of these issues [of conflicting evidence] is properly within the province of the jury who determine[s] the credibility of the witnesses and the weight to be accorded their testimony . . . and it is [its] function to determine the damages suffered by the plaintiff.” (Citations omitted.) Kubeck v. Foremost Foods Co., supra, 487. In formulating its verdict on liability and in determining damages, the jury was entitled to take into account the discrepancies in the testimony concerning the accident and the cause of the plaintiffs hip injury. Merely because the plaintiff asserts that she should have been awarded a larger sum for past and future noneconomic damages does not justify setting aside the verdict. The fact that the jury’s award was lower than the plaintiff expected may merely reflect the jury’s evaluation of the credibility of the witnesses and the evidence presented. Id. Furthermore, “ ‘ “[t]he fact that both the court and the jury concurred in their determination is a persuasive argument for sustaining the action of the court on the motion [to set aside the verdict].” ’ ” Id., 487-88; see also Pisel v. Stamford Hospital, 180 Conn. 314, 343, 430 A.2d 1 (1980).

Clearly, this was a case where the issues of causation and liability were far from clear. In light of the conflicting evidence presented to the jury and the jury’s award that provided past and future economic damages as well as past and future noneconomic damages, we do not conclude that this is a case where “ ‘ “ ‘the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles, or as to justify the suspicion that they or some of them were influenced by prejudice, corruption or partiality.’ ” ’ ” A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 207, 579 A.2d 69 (1990), quoting Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 555, 562 A.2d 1100 (1989). “ ‘Assessment of damages is peculiarly within the province of the jury . . Fox v. Mason, 189 Conn. 484, 489, 456 A.2d 1196 (1983); and, due to the contested circumstances surrounding this case, “we are unable to conclude that the verdict falls outside ‘the necessarily flexible limits of fair and reasonable compensation . . . . ’ ” Id., quoting Vandersluis v. Weil, 176 Conn. 353, 358, 407 A.2d 982 (1978).

We next address the merits of the defendants’ cross appeal. The defendants claim that, absent a demand for them in the pleadings, the trial court improperly-awarded the plaintiff attorney’s fees based on a percentage of the award of past economic damages pursuant to General Statutes (Rev. to 1987) § 52-225d (b) (3). We are unpersuaded.

At its roots, the defendants’ argument is that § 52-225d (b) (3) does not obviate a need for specifically requesting an award of attorney’s fees in the party’s pleadings. A review of the language and purpose of the statute, together with reference to general and specific requirements of pleading, however, dispel this claim.

Section 52-225d (b) (3) provides in relevant part that “[t]he court shall also enter judgment in a lump sum for any litigation expenses for that portion of the attorney’s fees related to past economic damages as determined by the court.” (Emphasis added.) We conclude that the legislature intended this statute to provide an award of fees even in the absence of a specific demand for them in the pleadings, because the statute is mandatory and, therefore, no valid purpose would be served by hinging its application to a pleading requirement.

The statute provides that the court shall award attorney’s fees based upon the amount of past economic damages. The legislature’s use of the word “shall” generally evidences an intent that the statute be interpreted as mandatory. LeConche v. Elligers, 215 Conn. 701, 710, 579 A.2d 1 (1990); Farricielli v. Personnel Appeal Board, 186 Conn. 198, 203, 440 A.2d 286 (1982). “The test for determining whether the use of the word ‘shall’ is mandatory or directory is ‘whether the prescribed mode of action is of the essence of the thing to be accomplished.’ Vartuli v. Sotire, 192 Conn. 353, 360, 472 A.2d 336 (1984). That test must be applied with reference to the purpose of the statute.” LeConche v. Elligers, supra.

The purpose of that part of § 52-225d (b) (3) at issue here is to increase the plaintiff’s net damage award by shifting to the defendants a portion of the plaintiff’s litigation costs, namely, that part of the plaintiff’s attorney’s fees attributable to the award for past economic damages. The prescribed mode of action, the awarding of the fees, is necessarily the “essence” of the provision. Furthermore, in the very next sentence of § 52-225d (b) (3) the legislature made the method of payment of such fees—in a lump sum, periodic installments, or a combination thereof—subject to “the discretion of the claimant . . . .” (Emphasis added.) Thus, the difference in legislative language strongly suggests that although the method of payment of attorney’s fees is discretionary with the claimant, the award of such fees by the court is mandatory.

We turn then to the issue of whether there is, nonetheless, a pleading requirement that the plaintiff have requested such fees in her complaint in order for the court to have awarded them. The defendants’ claim, although not expressly set forth in their brief, is rooted in two bases, namely, general case law holding that such a request be specifically pleaded and a specific Practice Book provision requiring that a claimant set forth the number of the statute pursuant to which he is making a claim.

It is generally true, as the defendants argue, that the allegations of the complaint provide the measure of recovery, and that the judgment cannot exceed the claims pleaded, including the prayer for relief. Brill v. Ulrey, 159 Conn. 371, 374, 269 A.2d 262 (1970). These requirements, however, are based on the principle “that a pleading must provide adequate notice of the facts claimed and the issues to be tried.” Tedeseo v. Stamford, 215 Conn. 450, 459, 576 A.2d 1273 (1990). The fundamental purpose of these pleading requirements is to prevent surprise of the defendant. Id. The purpose of these general pleading requirements is consistent with the notion that the purpose of specific pleading requirements, such as Practice Book § 109A (a), is to promote “the identification, narrowing and resolution of issues before the court.” Rowe v. Godou, 12 Conn. App. 538, 544, 532 A.2d 978 (1987), rev’d, 209 Conn. 273, 550 A.2d 1073 (1988).

In examining the principles of law supporting general pleading requirements, the Appellate Session of the Superior Court held that a party must specifically allege a request for attorney’s fees in order to be awarded such fees as part of an award of damages. See Bushnell Plaza Development Corporation v. Fazzano, 38 Conn. Sup. 683, 688, 460 A.2d 1311 (1983); Santini v. Kocher, 38 Conn. Sup. 506, 508, 452 A.2d 318 (1982). Assuming, without deciding, that these two Appellate Session cases accurately reflect the current state of our pleading requirements; but see, e.g., LeConche v. Elligers, supra, 716 (pleadings to be read broadly and realistically, not narrowly and technically); we are persuaded that, in light of the purpose behind § 52-225d (b) (3), they do not apply to this case.

In addition to such general pleading requirements, Practice Book § 109A (a) more specifically sets forth a pleading requirement for parties asserting a claim pursuant to a statute. Section 109A (a) provides that “[w]hen any claim made in a complaint ... is grounded on a statute, the statute shall be specifically identified by its number.” Although, as we have said, “shall” is often mandatory; LeConche v. Elligers, supra; this court, in Rowe v. Godou, supra, 209 Conn. 275, agreed with the reasoning and result reached by the Appellate Court in Rowe v. Godou, supra, 12 Conn. App. 542, that “the requirement of Practice Book § 109A is directory, rather than mandatory.” As with general pleading requirements, the purpose underlying § 109 A (a) is to “promot[e] the often expressed judicial policy of full, informative, comprehensive and open disclosure of legal claims, which promotes the identification, narrowing and resolution of issues before the court.” Id., 543-44.

Although the plaintiff did not request attorney’s fees in her pleadings, she did make a general claim for “money damages” in her prayer for relief. Under the facts of this case and the particular nature of this award of fees, this form of pleading is not fatal to such an award. The attorney’s fees at issue here are derived solely from the portion of the award attributable to past economic damages, and their purpose is to increase the plaintiff’s net recovery of those damages. Thus, the fees may fairly be regarded, for purposes of the prayer for relief, as inextricably intertwined with those damages.

Moreover, this is not a case in which the specification of the particular fees awarded would have aided the identification, narrowing and resolution of issues. Rather, the trial court was mandated by § 52-225d (b) (3) to award the attorney’s fees in question based upon the past economic damages awarded by the jury. Furthermore, the defendants cannot fairly be regarded as having been disadvantaged or surprised by the plaintiff’s failure to request such fees because they were automatically triggered by a verdict for the plaintiff. Thus, they were a factor that the defendants could not have affected, whether or not the plaintiff’s complaint specifically claimed them. We conclude, therefore, that the award of fees was proper in this case despite the absence of a specific request for them in the plaintiffs pleadings.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1987) § 52-225d (b) (3) provided: “The court shall enter judgment in a lump sum for all past economic damages and past noneconomic damages. The court shall also enter judgment in a lump sum for all future economic damages and future noneconomic damages up to an aggregate of two hundred thousand dollars. The court shall also enter judgment in a lump sum for any litigation expenses for that portion of the attorney’s fees related to past economic damages as determined by the court. Payment of that portion of the attorney’s fees related to all remaining past noneconomic damages shall, at the discretion of the claimant, be payable in a lump sum or in periodic instalment payments as provided in subsection (d) of this section or in any combination thereof.”
      This section of the General Statutes was amended in 1987 to exclude the provision for an award of attorney’s fees based upon a percentage of past economic damages. Public Acts 1987, No. 87-227, § 2.

       The defendants also claimed on appeal that the trial court improperly awarded the attorney’s fees pursuant to General Statutes (Rev. to 1987) § 52-225d (b) (3) because: (1) the section should not have been construed to authorize such an award; (2) the section is unconstitutionally vague; (3) the award of attorney’s fees by the court violated the defendants’ right to trial by jury; and (4) the award was arbitrary and capricious because it was made without factual findings. Since these claims were not raised in the trial court, we decline to consider them on appeal. Farrell v. St. Vincent’s Hospital, 203 Conn. 554, 567-68, 525 A.2d 954 (1987); see also Practice Book § 4185.

       Practice Book § 109A (a) provides: “When any claim made in a complaint, cross complaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number.


author: Callahan, J.

text:
    Rebecca Preston et al. v. Anthony J. Keith et al.
    (13919)
    Shea, Callahan, Glass, Hull and Borden, Js.
    Argued November 2, 1990
    decision released January 1, 1991

      William J. Melley III, for the appellants (defendants).

      Terence S. Hawkins, for the appellees (plaintiffs).
   Callahan, J.

The issue presented in this appeal is whether the trial court properly instructed the jury on the doctrine of mitigation of damages. The named plaintiff, Rebecca Preston, brought this action to recover for personal injuries arising from an automobile accident allegedly caused by the negligence of the named defendant, Anthony J. Keith. Finding that the plaintiff was 50 percent contributorily negligent, the jury returned a verdict for her in the amount of $5593.50. The plaintiff thereafter filed a motion for additur and a motion to set aside the verdict and for a new trial. The trial court denied both of these motions.

The plaintiff appealed to the Appellate Court, claiming that: (1) the trial court should not have given the jury an instruction on the issue of mitigation of damages because the evidence did not support such an instruction; and (2) if the evidence did support giving such an instruction, the instruction given by the trial court on that issue was defective. The Appellate Court rejected the plaintiffs first claim of error, but set aside the judgment as to the amount of damages and ordered a new trial on that issue because it concluded that the trial court’s charge on mitigation of damages was improper in two respects: (1) the court gave only a general charge on the plaintiff’s duty to mitigate damages that did not instruct the jury that the plaintiff’s failure to mitigate must be found to have been the proximate cause of a specific portion of her injuries or of the aggravation of her injuries; and (2) the court did not instruct the jury that the defendant bears the burden of proof on the issue of mitigation of damages. Preston v. Keith, 20 Conn. App. 656, 570 A.2d 214 (1990).

We granted the defendant’s petition for certification to appeal, limited to the following two-part question: “In a negligence action in which the evidence raises an issue about the plaintiff’s conduct with respect to the duty to mitigate damages: (1) What instructions should the jury receive about the relationship between mitigation of damages and proximate cause? (2) What is the appropriate allocation of the burden of proof on the issue of mitigation of damages?” Preston v. Keith, 214 Conn. 807, 573 A.2d 320 (1990). We reverse the decision of the Appellate Court on the first part of the question, and affirm its decision on the second part.

The following facts are relevant to this certified appeal. The plaintiff was working as a bus driver on May 15,1985, when the accident that gave rise to this action occurred. On that date, the plaintiff reinjured her lower back, which she had sprained previously in an unrelated accident, when the school bus that she was driving was involved in a collision with the defendant’s car. The plaintiffs physical therapy program for her back injury included exercises recommended by her therapist. The Appellate Court found that the record “reflects that the jury had before it abundant evidence from which it could have concluded that the plaintiff did not fully follow her therapist’s directions.” Preston v. Keith, supra, 20 Conn. App. 659. The trial court instructed the jury on the issue of mitigation of damages, but its charge did not discuss the relationship between proximate cause and mitigation of damages, nor did it state which party bears the burden of proof on this issue.

I

We have long adhered to the rule that “one who has been injured by the negligence of another must use reasonable care to promote recovery and prevent any aggravation or increase of the injuries.” Morro v. Brockett, 109 Conn. 87, 92, 145 A. 659 (1929); Sette v. Dakis, 133 Conn. 55, 60, 48 A.2d 271 (1946); Lange v. Hoyt, 114 Conn. 590, 595, 159 A. 575 (1932). It is also settled law that when, as in this case, there “are facts in evidence which indicate that a plaintiff may have failed to promote [her] recovery and do what a reasonably prudent person would be expected to do under the same circumstances, the court, when requested to do so, is obliged to charge on the duty to mitigate damages.” Jancura v.Szwed, 176 Conn. 285, 288, 407 A.2d 961 (1978).

In Morro v. Brockett, supra, this court discussed the relationship between mitigation of damages and proximate cause. “The burden is on the plaintiff to establish that the injuries for which he seeks damages were the proximate result of the negligence of the defendant, but when a prima facie case had been made out, as in this instance, it becomes incumbent upon the defendant if he seeks to exonerate himself from responsibility for a portion of the consequences to show that some of these had their proximate cause in the failure of the plaintiff to act in good faith in an attempt to promote recovery and avoid aggravation of the initial injury.” Id., 93-94. Morro established that the theoretical foundation for the plaintiffs duty to mitigate damages is that the defendant’s negligence is not the proximate, or legal, cause of any damages that could have been avoided had the plaintiff taken reasonable steps to promote recovery and avoid aggravating the original injury. Morro did not address, however, whether a jury must be instructed specifically on the relationship between mitigation of damages and proximate cause in a case where the evidence is sufficient to warrant a charge on mitigation, and it is to that question that we now turn.

“[T]he test of a court’s charge ‘is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.’ Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 240, 520 A.2d 1008 (1987); Borsoi v. Sparico, 141 Conn. 366, 371, 106 A.2d 170 (1954).” Holbrook v. Casazza, 204 Conn. 336, 351-52, 528 A.2d 774 (1987), cert. denied, 484 U.S. 1006, 108 S. Ct. 699, 98 L. Ed. 2d 651 (1988). “Jury instructions need ‘not be exhaustive, perfect or technically accurate,’ so long as they are ‘correct in law, adapted to the issues and sufficient for the guidance of the jury.’ Castaldo v. D’Eramo, 140 Conn. 88, 94, 98 A.2d 664 (1953) . . . .” State v. Mason, 186 Conn. 574, 585, 442 A.2d 1335 (1982). Applying these standards to the trial court’s instruction on mitigation of damages, we conclude that the court’s charge was proper.

Our conclusion is supported by those authorities that have recognized that instructing a jury on the relationship between mitigation of damages and proximate cause could promote needless confusion. See Beatty v. Davis, 224 Neb. 663, 669, 400 N.W.2d 850 (1987), citing J. Stein, Damages and Recovery: Personal Injury and Death Actions (1972) § 126, p. 220; see also 22 Am. Jur. 2d, Damages § 496. “The assertion that the negligence or other tort of the defendant is not the ‘proximate’ cause of the damages which could have been avoided can be accepted as theoretically valid since proximate cause really means that cause which is recognized by the law as the cause of the damages. Stated in such terms, the concept has the doubtful virtue of imprecision. If a jury is instructed, for example, that if the defendant’s negligent activity caused the plaintiff’s broken leg and caused some pain; but that much of the pain could have been avoided had the plaintiff consulted a doctor; and that the jury must compensate the plaintiff for that pain which, in natural and continuous sequence, unbroken by any efficient intervening cause, flowed from the act of the defendant; it is reasonable to assume that the jury is going to be confused. It is much more precise and clear to state that the plaintiff could have avoided some of the pain by going to a doctor and that, as a matter of policy, he cannot recover for the pain which could have been avoided.” J. Stein, supra, § 126, p. 220.

Our conclusion that a jury need not specifically be instructed on the relationship between proximate cause and mitigation of damages does not, as the plaintiff suggests, mean that we are overruling Morro v. Brockett, supra, or that we are discarding settled principles of the doctrine of mitigation. Nor do we hold that it would be error to instruct the jury on the relationship between proximate cause and mitigation of damages, where this instruction is stated in terms that would not confuse a reasonable juror. It is axiomatic that a charge on mitigation of damages must provide some indication to a jury that it should apply this doctrine only if a plaintiffs alleged failure to mitigate is found to have caused the aggravation of the injury. We conclude that the trial court’s instruction in this case that “y°u should reduce any award you might give her to such a sum as you think measures the amounts which her damages have been increased by her failure ... to mitigate damages” sufficiently conveyed this notion of causation.

II

A second reason relied upon by the Appellate Court in determining that the trial court’s charge was defective was that the charge did not include any discussion of the burden of proof on the issue of mitigation of damages. Preston v. Keith, supra, 20 Conn. App. 663. The Appellate Court concluded that in a negligence case the defendant bears the burden of proof, i.e., the burden of persuasion, on the issue of mitigation of damages and that the jury should have been so instructed. Id., 663-64. The defendant argues that a defendant in a negligence action bears the burden of production but not the burden of persuasion on mitigation. We affirm the decision of the Appellate Court on this issue.

As a general rule, the burden of proving damages lies with the plaintiff. Milgrim v. Deluca, 195 Conn. 191, 199, 487 A.2d 522 (1985); Miner v. McKay, 145 Conn. 622, 624, 145 A.2d 758 (1958). “Damages are an essential element of a plaintiff’s proof and must be proved with reasonable certainty.” Simone Corporation v. Connecticut Light & Power Co., 187 Conn. 487, 495, 446 A.2d 1071 (1982); Bianco v. Floatex, Inc., 145 Conn. 523, 525, 144 A.2d 310 (1958). The plaintiff must also prove that the defendant’s alleged negligence was the proximate cause of his or her damages. Coburn v. Lenox Homes, Inc., 186 Conn. 370, 372, 441 A.2d 620 (1982). These general principles, however, do not address the question of who bears the burden of proof on the issue of mitigation of damages in a negligence case.

Although this court has never addressed this precise question, a review of the relevant authorities reveals that “[t]he burden of proving that the injured party could have avoided some or all of his or her damages universally rests on the party accused of the tortious act.” 2 M. Minzer, Damages in Tort Actions (1989) § 16.11, p. 16-18; see, e.g., Jones v. Consolidated Rail Corporation, 800 F.2d 590, 593 (6th Cir. 1986) (applying federal law); Harris Construction Co. v. Powers, 262 Ark. 96, 105, 554 S.W.2d 332 (1977); Slater v. Chicago Transit Authority, 5 Ill. App. 2d 181, 185, 125 N.E.2d 289 (1955);Michaud v. Steckino, 390 A.2d 524, 531 (Me. 1978); Williams v. Masters, Mates & Pilots of America, Local No. 2, 384 Pa. 413, 422, 120 A.2d 896 (1956); F. Harper, F. James & O. Gray, Torts (2d Ed.) § 20.3, p. 127; C. McCormick, Handbook on the Law of Damages (1935) § 34, p. 130; J. Stein, supra, § 130, p. 226. The rule placing the burden of proof on the issue of mitigation of damages upon the defendant applies to actions for personal injuries or property-damage arising out of tortious activity and to actions for breach of contract. J. Stein, supra. The defendant is unable to cite any authority, and our research has revealed none, to support his claim that in a negligence action the defendant bears the burden of production, but not the burden of persuasion, on the issue of mitigation of damages.

The rationale for this rule is well established. A defendant claiming that the plaintiff has failed to mitigate damages “ ‘seeks to be benefited by a particular matter of fact, and he should, therefore, prove the matter alleged by him. The rule requires him to prove an affirmative fact, whereas the opposite rule would call upon the plaintiff to prove a negative, and therefore the proof should come from the defendant. He is the wrongdoer, and presumptions between him and the person wronged should be made in favor of the latter. For this reason, therefore, the onus must in all such cases be upon the defendant.’ ” 1 T. Sedgwick, Damages (9th Ed. 1912) § 227, p. 448.

To claim successfully that the plaintiff failed to mitigate damages, the defendant “must show that the injured party failed to take reasonable action to lessen the damages; that the damages were in fact enhanced by such failure; and that the damages which could have been avoided can be measured with reasonable certainty.” 2 M. Minzer, supra, § 16.10, p. 16-18.

The defendant argues that placing the burden of persuasion on the issue of mitigation upon the defendant in a negligence action will result in a “trial within a trial” by forcing the defendant to call expert witnesses in order to satisfy the burden of persuasion. Although it would certainly seem advisable for a defendant raising a claim that the plaintiff failed to mitigate damages to present his own witnesses on this issue; see 2 M. Minzer, supra, § 16.11, p. 16-20; we do not believe that a defendant could never satisfy his burden of persuasion solely through the cross-examination of the plaintiff and the plaintiffs witnesses. Furthermore, requiring the defendant to prove that a plaintiff has failed to mitigate damages places no greater a burden on the judicial system than does General Statutes § 52-114, which requires a defendant pleading contributory negligence to bear the burden of persuasion on this issue.

The judgment of the Appellate Court is reversed in part and affirmed in part, and the case is remanded to that court with direction to remand the case to the trial court with direction to set aside the judgment only as to the amount of damages awarded and to order a new trial limited to that issue.

In this opinion the other justices concurred.

       The plaintiff Richard Preston, the husband of the named plaintiff, brought a claim for loss of consortium. Although the jury found for him on this claim, he was not awarded any damages. An action was also brought against William J. Keith, Sr., the father of the named defendant, under the “family car doctrine.” For purposes of this opinion, we will refer to Rebecca Preston and Anthony J. Keith as the plaintiff and the defendant, respectively.

       Because the plaintiff took only a general exception to the instructions on mitigation of damages and did not except specifically to the form of the instruction, the Appellate Court reviewed the plaintiff’s claim that the charge was defective under the “plain error” provisions of Practice Book § 4185. Preston v. Keith, 20 Conn. App. 656, 660-61, 570 A.2d 214 (1990).

       At one point during cross-examination, the plaintiff admitted that she did not follow fully her therapist’s recommended exercise regimen, while at another point she indicated that she could not recall specific occasions when she did not follow the exercise program.

       The trial court’s charge to the jury on the issue of mitigation of damages was as follows: “[The plaintiff] also has a duty to mitigate damages as best she can in order to promote her recovery and prevent any increase of injuries. She must act as a reasonable person would be expected to act. This means she must follow doctors’ advice and so on to get the best recovery she can. To the extent that she fails to do that, that means she fails to mitigate damages. If you find that in fact, she did, then you should reduce any award you might give her to such a sum as you think measures the amounts which her damages have been increased by her failure [of] her duty to mitigate damages and do her best to get better. Now, that’s if you find that there is any such activity on the part of the defendant.”
      Although the trial court did instruct the jury generally on the concept of proximate cause, the court did not discuss specifically how proximate cause is related to the issue of mitigation of damages.

       When discussing mitigation of damages, this court traditionally has referred to a plaintiffs duty to mitigate damages. See, e.g., Newington v. General Sanitation Service Co., 196 Conn. 81, 85-86, 491 A.2d 363 (1985); Jancura v. Szwed, 176 Conn. 285, 287-88, 407 A.2d 961 (1978). Some authorities prefer the term “doctrine of avoidable consequences” over the phrase “duty to mitigate” because a plaintiff’s failure to take reasonable actions to minimize damages does not create an affirmative right of action in anyone, but rather serves as a limitation on the amount of damages recoverable. See, e.g., 4 Restatement (Second), Torts § 918, comment (a); J. Stein, Damages and Recovery: Personal Injury and Death Actions (1972) § 126, pp. 219-20.

       The theoretical view that proximate cause is the basis for a plaintiff’s duty to mitigate damages is generally reflected in the earlier treatises on damages. Munn v. Southern Health Plan, Inc., 719 F. Sup. 525, 531-32 n.3 (N.D. Miss. 1989), citing W. Hale, Damages (2d Ed. Cooley 1912) p. 91; T. Sedgwick, Elements of the Law of Damages (3d Ed. 1909) p. 73. This view has been criticized by more recent commentators and was rejected by the drafters of the Second Restatement of Torts. 4 Restatement (Second), Torts § 918, comment (a) (in cases where the plaintiff fails to mitigate, the tortfeasor’s conduct is still the legal, or proximate, cause of the harm); J. Stein, Damages and Recovery: Personal Injury and Death Actions (1972) § 126, p. 220 (suggesting that the doctrine of avoidable consequences is based on the public policy that a plaintiff should not be able to recover for pain or injury which could have been avoided).
      Because we conclude that a charge on mitigation of damages does not have to include an instruction on the relationship between mitigation and proximate cause, we do not address whether the underlying theory of mitigation outlined in Morro v. Brockett, 109 Conn. 87, 93-94,145 A. 659 (1929), should be abandoned.

       In its preliminary charge to the jury, the trial court stated that the “[pjlaintiff has the burden of proof in the case. The defendant does not have to disprove the plaintiffs case. It’s up to the plaintiff to prove it.” The court added that “[o]nly if you find the defendant was negligent do you then consider the special defense. And that’s the one thing that the defendant has the burden of proving. Since the defendant claims the plaintiff was negligent, he has to prove that.” The trial court’s final charge to the jury included these same instructions concerning the burden of proof.
      The only special defense asserted by the defendant was his claim that the plaintiff was contributorily negligent in causing the accident. Therefore, it is reasonable to assume that either the jury was unsure as to who bore the burden of proof on the issue of mitigation or that it concluded that the plaintiff bore the burden of proof on this issue.

       A more precise phrase for the “burden of proof” is the “burden of persuasion” or the “risk of nonpersuasion.” G. Lilly, An Introduction to the Law of Evidence (1978) § 15, p. 41. The burden of persuasion must be distinguished from the burden of producing evidence. “[T]he plaintiff begins this process of proof by producing evidence to support each element. This burden of coming forward with the evidence needed to avoid an adverse resolution by the judge is called the burden of producing evidence (or ‘burden of production’). It is a responsibility distinct from the burden of persuasion—the ultimate burden of convincing the factfinder of the existence of the essential elements of a claim or defense. However, by meeting the immediate responsibility imposed by the burden of production, the plaintiff avoids a directed verdict. . . .” (Emphasis in original.) Id., p. 44.
      In a case such as the present one where the elements of a claim must be proved by a preponderance of the evidence, the allocation of the burden of proof determines which party prevails on an issue only in the relatively rare case where the factfinder concludes that the evidence on that issue is in equipoise. Id., p. 47.

       We have held that the defendant bears the burden of proving a plaintiffs failure to mitigate damages in an action for breach of contract. Newing
        ton v. General Sanitation Service Co., 196 Conn. 81, 86, 491 A.2d 363 (1985); Carter v. Bartek, 142 Conn. 448, 451-52, 114 A.2d 923 (1955); accord 5 A. Corbin, Contracts (1964) § 1039.
      In Wassell v. Hamblin, 196 Conn. 463, 467, 493 A.2d 870 (1985), the defendant pleaded as a special defense that some or all of the plaintiffs’ injuries were caused by their failure to wear seat belts. The defendant invoked this defense as a ground for mitigation of damages rather than as a defense to liability. Id.; see generally J. Stein, Damages and Recovery: Personal Injury and Death Actions (1972) § 127, pp. 220-23 (discussing the distinction between contributory negligence and failure to mitigate in cases involving the nonuse of seat belts). Although we concluded that there was insufficient evidence to warrant submitting the mitigation issue to the jury, we noted that, under the circumstances of the case, the defendant had the burden of proving what portion of the damages were proximately caused by the plaintiffs’ failure to wear seat belts. Wassell v. Hamblin, supra, 469-71. Because the defendant in the present case has not pleaded mitigation of damages as a special defense, Wassell does not control this case.
      In Amellin v. Leone, 114 Conn. 478, 481, 159 A. 293 (1932), we stated that the defendant bears the burden of establishing mitigation of damages in an action for alienation of affection. This statement, however, related to the defendant’s claim that the plaintiff and his wife were estranged at the time of the tortious act, as opposed to a claim that the plaintiff failed to mitigate his damages after the tortious act. Id., 479-80.

       Only in certain limited circumstances in cases involving breach of contract have courts placed the burden of proof on the issue of mitigation on the plaintiff. See, e.g., Nello L. Teer Co. v. Hollywood Golf Estates, Inc., 324 F.2d 669, 672 (5th Cir. 1963), cert. denied, 377 U.S. 909, 84 S. Ct. 1169, 12 L. Ed. 2d 178 (1964) (breach of contract after partial performance); see generally 25A C.J.S., Damages § 144 (e) n.1.50.

       General Statutes § 52-114 provides in pertinent part: “If contributory negligence is relied upon as a defense, it shall be affirmatively pleaded by the defendant or defendants, and the burden of proving such contributory negligence shall rest upon the defendant or defendants.”

       The Appellate Court ruled that the trial court’s failure to instruct the jury on which party bore the burden of proof on the issue of mitigation of damages was an independent basis for its conclusion that the charge was defective. Preston v. Keith, 20 Conn. App. 656, 663, 570 A.2d 214 (1990). This conclusion is consistent with our decision in Lane v. Smith, 71 Conn. 65, 71, 41 A. 18 (1898), where we held that a new trial was required because the trial court committed plain error when it failed to instruct the jury on which party bore the burden of proof on the amount of damages. The defendant’s suggestion that a new trial may not be required because there was no determination of the effect of the defect in the charge on the jury’s award is beyond the scope of our grant of certification and need not be reviewed. See Practice Book § 4138. We therefore conclude that a new trial on the amount of damages is still required in this case.
      Neither the petition nor the grant of certification included the question of whether limiting the remand to the issue of damages was proper. Therefore, we do not address that issue. See Fazio v. Brown, 209 Conn. 450, 454-58, 551 A.2d 1227 (1988).