author: Santaniello, J.

text:
    Bernard J. Daily et al. v. New Britain Machine Company
    (12661)
    Healey, Shea, Dannehy, Santaniello and Vasington, Js.

      Argued December 12, 1985
    decision released July 22, 1986

      Joseph A. Mengacci, for the appellants (plaintiffs).

      Robert L. Wyld, with whom were John A. Cvarch and Alan E. Lieberman, for the appellee (defendant).
   Santaniello, J.

This is an appeal from a decision of the trial court granting the defendant’s motion for summary judgment in a products liability action. The plaintiffs claim that the trial court erred: (1) in granting the defendant’s motion for summary judgment when there existed genuine issues of material fact; (2) by failing to recognize the plaintiffs’ right to assert a common law cause of action; (3) in refusing to permit the plaintiffs to amend their substitute complaint and reply to special defenses to allege false misrepresentation and fraudulent concealment claims against the defendant; and (4) in not declaring the products liability statute of repose unconstitutional as violative of article first, §§10 and 20, of the Connecticut constitution, and the equal protection clause of the fourteenth amendment to the United States constitution. We find no error.

The pleadings, affidavits, documents and other information before the trial court on the motion for summary judgment revealed the following facts. The principal plaintiff, Bernard J. Daily, was an employee of Harkness Industries (Harkness) located in Cheshire. In May, 1963, the defendant, New Britain Machine Company, leased a Model 75 injection molding machine to Harkness with an option to purchase. On May 22, 1964, Harkness exercised its option and purchased the machine. The machine was warranted to be free from defects in material and workmanship for a maximum period of one year. Harkness never parted with physical possession of the machine thereafter, and never purchased a service contract for it. The defendant serviced the molding machine five times in the seventeen years between the delivery to Harkness in May, 1963, and the date of injury to Daily on April 28, 1980. Each of these service calls was at the sole initiation, invitation and expense of Harkness. On August 5,1977, an employee of the defendant made a courtesy call to Harkness during which he prepared a safety check list. No services were performed on the machine, nor was any fee charged for the visit. On April 28, 1980, the plaintiff was severely injured when the Harkness molding machine closed upon his hand, causing permanent impairment and the need for numerous surgical procedures. At all times since the accident, the plaintiff was entitled to and has been receiving benefits under Connecticut’s Workers’ Compensation Act.

The plaintiffs instituted suit on March 22,1982, and filed a substitute complaint on November 23,1982. The defendant filed an answer and special defenses to the original complaint on December 15,1982. Thereafter, on February 23,1983, the defendant filed a motion for summary judgment alleging that the plaintiffs’ claims were barred by General Statutes § 52-577a, the Connecticut products liability statute of limitations insofar as the defendant had parted with possession and control of the molding machine more than ten years before the plaintiffs had filed this action. On March 10, 1983, the plaintiffs objected to the motion because the pleadings were not closed. Thereafter, the defendant filed a revised answer containing special defenses on June 6,1983. A reply was filed to the special defenses on June 24,1983, and, at this point, the pleadings were closed. On July 7,1983, the plaintiffs filed a motion in opposition to summary judgment claiming additional discovery was required to ascertain facts essential to justify opposition to the summary judgment motion. On July 11, 1983, the trial court ordered the plaintiffs to file a counteraffidavit by August 8, 1983, and then set the motion down for hearing on the short calendar of August 15, 1983. The plaintiffs filed a request to amend their substitute complaint and reply on August 11, 1983. No action was taken on the plaintiffs’ request prior to the hearing on the motion for summary judgment which was conducted as scheduled on August 15,1983, before the court, James T. Healey, J. Summary judgment was granted for the defendant on August 30,1983, after the court determined that there were no material issues of fact in dispute and that, as a matter of law, the limited contacts the defendant had had with the molding machine did not constitute control of the machine for the purposes of § 52-577a.

I

Summary Judgment

The plaintiffs’ first claim is that the court erred in granting the defendant’s motion for summary judgment since there existed genuine issues of material fact.

The court concluded that the claims set forth in the substitute complaint did not raise a genuine issue of fact because the defendant had parted with possession and control of the molding machine more than ten years before the filing date of the complaint and, therefore, were time-barred by General Statutes § 52-577a. The court carefully analyzed the meaning of the words “possession and control” and determined that it was uncontroverted that Harkness had been in physical possession and control of the machine since May, 1963.6 The trial court found there were only minimal contacts between the defendant and the molding machine, that the affidavits and supporting documents submitted by the plaintiffs were conclusory and further that it was undisputed that during the ten year period preceding the institution of this suit there were only two contacts made by the defendant’s representatives, one service call requested by Harkness on August 30,1972 followed by the safety check on August 5,1977. Harkness leased the machine in May of 1963 and later obtained title without relinquishing physical possession at any time. Each of the service calls was requested by Harkness, and in each instance, the defendant was responsive to each request and an employee of the defendant went to Harkness to perform work on the machine. In addition to the service calls, there was one courtesy call made on August 5, 1977. The defendant’s employee prepared a safety checklist but performed no services and did not charge for the safety check. There was an express warranty given by the defendant to Harkness for a one year period only and was limited to defective material and workmanship. There was no service contract. Over the seventeen year period during which the defendant serviced the machine, Harkness was free to obtain service from others. The affidavits also show that the defendant had no power to influence what parts would be run on the machine, what molds would be employed, what hours the machine would be run, what maintenance would be performed, or who would service or operate the machine.

“ ‘A trial court may appropriately render summary judgment when the documents submitted demonstrate that there is no genuine issue of material fact remaining between the parties and that the moving party is entitled to judgment as a matter of law. Practice Book § 384; Yanow v. Teal Industries, Inc., 178 Conn. 262, 268, 422 A.2d 311 (1979); United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 377-78, 260 A.2d 596 (1969).’ Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11, 459 A.2d 115 (1983). See Herman v. Endriss, 187 Conn. 374, 446 A.2d 9 (1982). Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue. Bartha v. Waterbury House Wrecking Co., supra, 11-12; Farrell v. Farrell, 182 Conn. 34, 38, 438 A.2d 415 (1980); Rusco Industries, Inc. v. Hartford Housing Authority, 168 Conn. 1, 5, 357 A.2d 484 (1975). It is not enough", however, for the opposing party merely to assert the existence of such a disputed issue. ‘Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § 380.’ Bartha v. Waterbury House Wrecking Co., supra, 12. ‘The movant has the burden of showing the non-existence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist.’ Kasowitz v. Mutual Construction Co., 154 Conn. 607, 613, 228 A.2d 149 (1967), quoting Boyce v. Merchants Fire Ins. Co., 204 F. Sup. 311, 314 (D. Conn. 1962); Farrell v. Farrell, supra, 39; Plouffe v. New York, N.H. & H. R. Co., 160 Conn. 482, 490, 280 A.2d 359 (1971); Hartmann v. Smith, 158 Conn. 613, 614, 259 A.2d 645 (1969).” Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984).

The plaintiffs’ characterization of the last service call of August 30, 1972, and the courtesy safety check of August 5,1977, as placing the defendant in either possession or control of the molding machine was fanciful at best. The trial court, in explicating the definition of “control,” was correct in stating that to interpret the facts of this case as placing control in the defendant “would stretch the English language to the breaking point.” “It is not enough that one opposing a motion for a summary judgment claims there is a genuine issue of material fact; some evidence showing the existence of such an issue must be presented in the counter affidavit.” Hartmann v. Smith, supra. The plaintiffs failed to submit adequate counteraffidavits and other documentary proof to support their claims as required by Practice Book § 380. Thus, because the facts as set out above are not disputed, the court was justified in concluding that the defendant was entitled to judgment as a matter of law.

II

Exclusivity and Motion to Amend

A

The plaintiffs’ next claim that the court erred in failing to recognize the common law claims of liability asserted in the complaint. They also argue that General Statutes § 52-577a acts to bar only their statutory rights and not those provided by the common law, and further, that the products liability act, General Statutes §§ 52-572m through 52-572r is not an exclusive remedy.

Our review of the substitute complaint dated November 23, 1982, discloses that the plaintiffs alleged only violations of statutory enactments. Paragraph seventeen of the complaint alleges: “The defendant is liable and legally responsible to the Plaintiff for the Plaintiff s injuries, losses and damages caused by the closing of the machine and the severe injury to his hand by virtue of Connecticut General Statutes [$$] 52-572m through 52-572r . . . .” (Emphasis added.) This paragraph clearly alleges only statutory liability. Paragraphs eighteen and nineteen* ***** of the complaint similarly specifically limit the plaintiffs’ claims to statutory violations. By choice, the plaintiffs limited their complaint to statutory claims. To attempt to read into this complaint common law claims is to stretch the imagination. The court cannot read into a complaint claims other than those specifically set forth.

Furthermore, the products liability statute provides an exclusive remedy and the plaintiffs cannot bring a common law cause of action for a claim within the scope of the statute. General Statutes § 52-272n (a) states: “A product liability claim . . . may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability and warranty for harm caused by a product.” (Emphasis added.) If the legislature intended to allow a party to plead common law theories, it would not have used the mandatory language “shall be in lieu of.” In construing a statute, the intent of the legislature is to be found not in what it meant to say, but in what it did say. Gomeau v. Forrest, 176 Conn. 523, 526, 409 A.2d 1006 (1979); Sillman v. Sillman, 168 Conn. 144, 148, 358 A.2d 150 (1975); Schwab v. Zoning Board of Appeals, 154 Conn. 479, 482, 226 A.2d 506 (1967). In reference to this statute, the term “may” imports discretion; Ridgeway v. Ridgeway, 180 Conn. 533, 540, 429 A.2d 801 (1980); but the term “shall” refers to a mandatory requirement. Hossan v. Hudiakoff, 178 Conn. 381, 383,423 A.2d 108 (1979). It seems clear then that the plaintiffs must select the statutory remedy, as it was intended by the legislature to be exclusive. See Collucci v. Sears, Roebuck & Co., 585 F. Sup. 529, 532 (D. Conn. 1984); cf. McIlwain v. Moser Farms Dairy, Inc., 40 Conn. Sup. 230, 232-33, 488 A.2d 102 (1985); see generally Yules, “An Analysis of Connecticut’s New Product Liability Law,” 56 Conn. B. J. 269, 270 (1982).

B

The plaintiffs further claim that the court erred in refusing to grant their request to amend the substitute complaint and reply to the defendant’s special defenses. They claim that they were given a short period of time within which to conclude discovery and that, as a result of information obtained while they were taking a deposition, they wished to file a substitute complaint giving rise to a new claim of fraudulent concealment and intentional misrepresentation. The trial court knew of the proposed amendments and made mention of the proposed new claims in its memorandum of decision. The plaintiffs acknowledge that the court has wide discretion in deciding whether to grant motions to amend but assert that in the present case, such discretion was abused.

On February 25,1983, the defendant filed a motion for summary judgment. At the plaintiffs’ request the motion lay dormant until July 7,1983, when they filed a motion for denial of summary judgment claiming that they needed additional time to pursue discovery in order to present facts essential to justify opposition to the motion for summary judgment. At a hearing conducted on July 11,1983, the court, O’Brim, J., ordered that the matter proceed and established a timetable for further motions. The court ordered the plaintiff to file a counteraffidavit by August 8,1983, and assigned the motion for summary judgment for final hearing on the merits on August 15,1983. The court further ordered that the parties were to advise the court of any problems with discovery by August 8,1983. On August 10, 1983, the plaintiffs filed a request for leave to amend the substitute complaint in order to add three common law claims. In view of the untimely filing, the court proceeded to hear oral arguments on the motion for summary judgment as scheduled on August 30,1983.

The plaintiffs claim that the court erred in refusing to grant the plaintiffs’ request for leave to amend the substitute complaint. Amendments are allowed under Practice Book § 176 by three methods: (a) by order of the court; (b) by written consent of the adverse party; or (c) by filing a request to amend which would automatically be granted if no objection is filed within fifteen days. This rule provides that if an opposing party has an objection and appropriately and timely files such objection, then the matter should be placed upon the next short calendar list. The section further states that “[t]he court may restrain such amendments so far as may be necessary to compel the parties to join issue in a reasonable time for trial.”

The court in this case recognized that there already had been substantial delay from February 25,1983, to July 11,1983, and, as a result, took control of the proceedings, set down firm dates for anticipated motions and established a deadline of August 8,1983, for pleadings and motions in anticipation of a court hearing on the summary judgment motion which was scheduled for August 15,1983. The plaintiffs’ request to amend was thus untimely under the circumstances and would have only contributed to further delay. The court has wide latitude in docket control and is responsible for the efficient and orderly movement of cases. Once the court had established a firm timetable for events to occur, the parties were bound by these dates. If the plaintiffs had additional motions they wished to file, they should have acted within the deadline.

The trial court also acted within its discretion in conducting the hearing on the summary judgment motion. At the time, there was no other motion before it and if it had waited another fifteen days, the delay would have violated Judge O’Brien’s explicit and firm orders of July 11, 1983. Further, the record is devoid of any objection to the proceedings held on August 15,1983. There was neither a claim of prejudice nor a request for continuance. The court therefore acted within its discretionary powers in proceeding at that time with the hearing.

The court made reference to the motion to amend in its decision: “The court is aware that there [are] pending proposed amendments to the complaint and to the reply to a special defense to which objection has been made and no action has as yet been taken. Assuming that the amendments are allowed despite the objections, a fair reading of them reveals only allegations of silence and failure to take affirmative action, which is a far cry from intentional misrepresentation and fraudulent concealment. The excerpt from the deposition of one of the defendant’s employees to which the plaintiff refers in support of its position, taken in the light most favorable to the plaintiff, as it must be for the purposes of this motion, shows only knowledge, silence and lack of affirmative action on the part of the defendant. Therefore, even if the amendments were allowed, they would make no difference in my view of the matter.” We agree with the trial court’s actions and interpretations.

Ill

Constitutional Claims

The plaintiffs finally claim that the Connecticut products liability statute of limitations is violative of article first, §§10 and 20, of the Connecticut constitution and the equal protection clause of the fourteenth amendment to the United States constitution. They allege that the statute creates two distinct classes of people, employees who are restricted to a ten year limitation of repose, and all others who can claim damages at any time provided they can prove that the harm occurred during the useful safe life of the product. They further claim that the limitation placed on the employees prematurely aborts their right to redress before an actual claim accrues. By this statute, it is claimed that employees are denied equal protection of the laws under the United States and Connecticut constitutions and their constitutionally protected right to have open access to the Connecticut courts under article first, § 10, of the Connecticut constitution.

A

We turn first to the claim that General Statutes § 52-577a (a) denies employees equal protection of the laws. The plaintiffs argue that to deny employees the right to institute actions after ten years from the date of the relinquishment of possession and control of the product by manufacturers while allowing others the right to institute claims during the “useful safe life” of the product is invidious discrimination. The first class of persons consists of those individuals who are injured by products older than ten years and who are entitled to workers’ compensation as a result of their injury. The second class of persons created by Connecticut’s product liability statute of repose is composed of individuals injured by defective products who are not entitled to workers’ compensation. The rights of the first class are extinguished ten years from the date that the manufacturer or party defendant last parted with possession or control of the product while those in the second class are able to establish that the injury occurred during the “useful safe life” of the product. Claiming that the distinction between the two classifications is discriminatory, the plaintiffs state that the classification has no rational basis in a legitimate state objective and thus is violative of article first, § 20 of the Connecticut constitution and the equal protection clause of the fourteenth amendment to the United States constitution.

“The equal protection provisions of the federal and state constitutions have the same meaning and limitations.” Keogh v. Bridgeport, 187 Conn. 53, 66, 444 A.2d 225 (1982). The relevant inquiry is whether the classification and disparate treatment inherent in the statute of repose legislation bears a rational relationship to a legitimate state end and is based on reasons related to the accomplishment of that goal. McDonald v. Board of Election Commissioners, 394 U.S. 802, 808-809, 89 S. Ct. 1404, 22 L. Ed. 2d 739 (1969); Gentile v. Altermatt, 169 Conn. 267, 295, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S. Ct. 763, 46 L. Ed. 2d 631 (1976). “ ‘[T]he Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways. Barbier v. Connolly, 113 U.S. 27 [5 S. Ct. 357, 28 L. Ed. 923] (1885); Lindsley v. National Carbonic Gas Co., 220 U.S. 61 [31 S. Ct. 337, 55 L. Ed. 369] (1911); Railway Express Agency v. New York, 336 U.S. 106 [69 S. Ct. 463, 93 L. Ed. 533] (1949); McDonald v. Board of Election Commissioners, [supra]. The equal protection clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification “must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” Royster Guano Co. v. Virginia, 253 U.S. 412, 415 [40 S. Ct. 560, 64 L. Ed. 989] (1920).’ ” Gentile v. Altermatt, supra, 295-96, quoting Reed v. Reed, 404 U.S. 71, 75-76, 92 S. Ct. 251, 30 L. Ed. 2d 225 (1971).

During the period 1971 to 1975 there was a growing number of complaints concerning the problems of product liability claims and manufacturers’ ability to obtain adequate insurance coverage. These complaints were nationwide and created a deep concern among state and national governments. As a result of these concerns a federal interagency task force was appointed to research the problem in depth and present recommendations. Involved in this nationwide study were federal agencies, consumers, manufacturers, insurers, and other interested parties. After a complete and thorough investigation considering the desires and needs of all segments involved, the task force made substantial recommendations for consideration by legislative bodies and affected interests. One of the recommendations of the task force was a system that would establish worker compensation as the sole source of recovery for a worker injured by a defective product in the course of employment or, in the alternative, the enactment of a statute of repose that would limit the responsibility of a manufacturer of workplace goods to ten years from the date of sale. U. S. Dept, of Commerce, Interagency Task Force on Product Liability: Final Report (1977), reprinted in 4A Frumer & Friedman, Products Liability (1984) Appendix G, App-1048 (1984). The Connecticut legislature considered various factors in arriving at its ultimate decision to enact a statute of limitations, such as, reduced overall insurance costs of industry, limitation of total insurer “pay-out” (no recovery for pain and suffering), reduced cost of adjustment expenses, savings in legal fees for both manufacturers and workers, prompt payment to workers, and the absence of the requirement that workers need prove fault or liability. Workers’ compensation as the sole recovery benefited workers by lowering transaction costs, by providing prompt payments, and by guaranteeing benefits even after a ten year period without the burden of proving fault as a basis for liability. On the other hand, nonemployees retained the right to sue and recover from the manufacturer provided: (1) they could prove the injury occurred during the “useful safe life” of the product and; (2) that there was fault as a basis for liability on the part of the manufacturer.

The classification made by the legislature in passing General Statutes § 52-577a is reasonable, not arbitrary, and rests upon a difference having a fair and substantial relation to the object of the legislation. The legislature had a legitimate problem before it which required examination, analysis and solution. The myriad problems associated with the growing crisis needed immediate attention. On the basis of the information available, the legislature assessed the relative merits of including a different statute of repose for workers eligible for workers’ compensation and concluded that the benefits of the workers’ compensation program justified a ten year limitation. This conclusion was bolstered by the fact that, at the time, many states were either considering or had already passed product liability tort reform laws incorporating a form of statute of limitations. See note, “The Constitutionality of Connecticut’s Product Liability Statute of Repose,” 6 U. Bridgeport L. Rev. 49 (1985). The Connecticut legislature was then under the belief that the actions of so many states, most of which adopted the recommendations of the federal task force, would have an eventual dramatic effect on the intended reduction of insurance costs. This belief was consistent with the facts and was reasonable. See Gentile v. Altermatt, supra, 294-98. A majority of jurisdictions has upheld the constitutionality of similar statutes of repose against attacks on equal protection grounds. See, e.g., Stutts v. Ford Motor Co., 574 F. Sup. 100, 104-105 (M.D. Tenn. 1983) (applying Tennessee law); Dague v. Piper Aircraft Corporation, 513 F. Sup. 19, 25 (N.D. Ind. 1980) (applying Indiana law); Purk v. Federal Press Co., 387 So. 2d 354, 357-58 (Fla. 1980); Costello v. Unarco Industries, Inc., 129 Ill. App. 3d 736, 473 N.E.2d 96, 101 (1984); Scalf v. Berkel, Inc., 448 N.E.2d 1201, 1203-1205 (Ind. App. 1983). Cf. Lankford v. Sullivan, Long & Hagerty, 416 So. 2d 996, 999 (Ala. 1982); Heath v. Sears, Roebuck & Co., 123 N.H. 512, 527, 464 A.2d 288 (1983); see generally McGovern, “The Variety, Policy and Constitutionality of Product Liability Statutes of Repose,” 30 Am. U.L. Rev. 579, 606-10 (1981); annot., 25 A.L.R.4th, Product-Caused Injury—Period for Action § 5.

The plaintiffs argue that the legislation lacked a rational basis because the crisis in the product liability area has since subsided. We disagree. This statute was passed as part of a program to cure a serious nationwide problem. As a result of this statute and others, stability and an orderly process have been restored to the field. To now take a regressive step such as obviating the statute would probably regenerate a similar type of crisis as that which previously existed. This could result in an unending series of legislative actions which would have a “yo-yo” effect requiring new legislation each time a crisis occurs and then subsides. To undo this remedial measure could lead to the prior state of affairs which caused the original crisis. The reasonableness of an action taken by the legislature must be evaluated in light of the facts existing “ ‘at the time the law was enacted . . . ” (Emphasis added.) United Illuminating Co. v. New Haven, 179 Conn. 627, 642, 427 A.2d 830 (1980), appeal dismissed, 449 U.S. 801, 101 S. Ct. 45, 66 L. Ed. 2d 5 (1980), quoting Rast v. Van Deman & Lewis Co., 240 U.S. 342, 357, 36 S. Ct. 370, 60 L. Ed. 679 (1916).

The plaintiffs also claim that the statute of limitations is irrational in view of the Model Product Liability Act’s inclusion of a statute of repose based on the “useful safe life” of the product. Under the Model Act, the consumer is allowed to bring an action seeking recovery for injuries sustained against a manufacturer providing he can prove that the product is within its “useful safe life,” regardless of the age of the product. To do so, however, he needs to satisfy two threshold requisites: (1) proof that the product is within the “useful safe life,” and (2) proof that the product was so defective as to cause injury and damage to the consumer. Under the workers’ compensation act, an employee need only file his claim to be entitled automatically to benefits under the workers’ compensation laws. The average consumer is protected for the useful safe life upon proof of certain essential factors whereas the employee is also protected for the period of his employment, albeit to a lesser monetary degree. This trade-off of responsibilities and benefits potentially available between the two classes of people is certainly reasonable and protective of the rights of individuals within both classes. The federal task force concluded that it would be reasonable to limit the responsibility of manufacturers of workplace goods to ten years. Task Force Report, supra, App-1048. We agree with the task force recommendation and conclude that the statute provides a “rational basis” for the action of the legislature in furthering a legitimate state goal.

B

The plaintiffs’ final claim is that the statute of limitations is unconstitutional because it bars a cause of action even before it accrues, and, as such, is violative of article first, § 10, of the Connecticut constitution which provides: “[a]ll courts shall be open, and every person, for any injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” The plaintiffs claim that § 52-577a is unconstitutional as applied to them because, if workers are injured on the job by equipment older than the statutory limitations, their causes of action could be absolutely foreclosed even before they might arise. They argue that under these circumstances, workers are limited to workers’ compensation benefits and are deprived of their state constitutional right to seek redress in the courts.

“Statutes of limitation are statutes of repose, and are such legislative enactments as prescribe the periods within which actions may be brought upon certain claims or within which certain rights may be enforced.” Black’s Law Dictionary (5th Ed. 1979), p. 835. The effect of the statute of repose is that, on occasion, a party’s cause of action will be barred even before the action began to accrue. There are two principal reasons generally given for the enactment of a statute of repose: (1) it reflects a policy of law, as declared by the legislature, that after a given length of time a manufacturer should be sheltered from liability and furthers “the public policy of allowing people, after the lapse of a reasonable time, to plan their affairs with a degree of certainty, free from the disruptive burden of protracted and unknown potential liability”; Johnson v. Star Machinery Co., 270 Or. 694, 701, 530 P.2d 53 (1974); and (2) to avoid the difficulty in proof and record keeping which suits involving older machines impose. Thornton v. Mono Manufacturing Co., 99 Ill. App. 3d 722, 725-26, 425 N.E.2d 522 (1981).

The purpose of the statute of repose contained in § 52-577a is, as noted above, to provide an orderly, equitable process by which the products liability crisis could be eased without unreasonably depriving individuals of their right of redress. The statute cuts off a product liability claim at a prescribed period of time after the product seller or manufacturer has parted with the product even though the repose period may expire before an individual has been injured and the cause of action has begun to accrue. “ ‘At times, it may bar the assertion of a just claim. Then its application causes hardship. The legislature has found [,however,] that such occasional hardship is outweighed by the advantage of outlawing stale claims.’ ” Kennedy v. Johns-Manville Sales Corporation, 135 Conn. 176, 179-80, 62 A.2d 771 (1948), quoting Schmidt v. Merchants Despatch Transportation Co., 270 N.Y. 287, 302, 200 N.E. 824 (1936). For example, some of the evidentiary problems that may arise in connection with trying cases involving older products include the fact that an older product is more likely to have undergone misuse or alteration since manufacture, the possibility that a jury may inappropriately apply a standard reflecting subsequent technological development when assessing liability, and the fact that witnesses and documents may be difficult to obtain. See Martin, “A Statute of Repose for Product Liability Claims,” 50 Fordham L. Rev. 745, 747-48 (1982).

We cannot accept the plaintiffs’ claim that the product liability statute of repose, General Statutes § 52-577a, acts to deny them their right to redress for injuries in violation of article first, § 10 of the Connecticut constitution. The concerns raised by the plaintiffs that the statute of repose may outlaw a claim even before it accrues has been addressed by this court in Vilcinskas v. Sears, Roebuck & Co., 144 Conn. 170, 174-75, 127 A.2d 814 (1956), where we stated: “There is no reason, constitutional or otherwise, which prevents the legislature from enacting a statute, such as § 8324 [now § 52-584], which starts the limitation on actions for negligence running from the date of ‘the act or omission complained of,’ even though at that date no person has sustained damage and therefore no cause of action has come into existence. Indeed, such a provision accords with the purposes of statutes of limitation. One purpose is to prevent the unexpected enforcement of stale claims concerning which the persons interested have been thrown off their guard by want of prosecution. Anderson v. Bridgeport, 134 Conn. 260, 266, 56 A.2d 650 [1947].” Again, one of the purposes of a statute of limitations is to protect a defendant from finding himself in a situation where, because of the lapse of time, he is unable to gather facts, evidence, and witnesses necessary to afford him a fair defense. For these reasons, the time for bringing an action starts at the time of the occurrence of the alleged negligence and not at the time when the person was injured. “It is consonant with the purpose of protecting defendants against stale claims that the legislature should enact a statute, such as § [52-584 or 52-577a], which may on occasion bar an action even before the cause of action accrues.” Vilcinskas v. Sears, Roebuck & Co., supra, 175.

The plaintiffs further argue that the "open court” provision of Connecticut’s constitution restricted the power of the legislature to abolish a cause of action recognized at common law. This same claim was raised in Gentile v. Altermatt, 169 Conn. 267, 286, 363 A.2d 11 (1975), where we held that "article first, § 10, recognized all existing rights and removed from the power of the legislature the authority to abolish those rights in their entirety . . . [but] the legislature retains the power to provide reasonable alternatives to the enforcement of such rights. Where such reasonable alternatives are created, the legislature may then restrict or abolish the incorporated common-law or statutory rights.” See also Kluger v. White, 281 So. 2d 1, 4-5 (Fla. 1973); 16B C.J.S. 509-10, Constitutional Law § 710; Ruben & Williams, "The Constitutionality of Basic Protection,” 1 Conn. L. Rev. 44, 46 n.13 (1968), and cases cited therein. The claimed injuries suffered as a result of an alleged defective product, like injuries suffered in an automobile accident, could be linked to the preconstitutional common law action of trespass on the case and, as such, could be considered a constitutionally incorporated common law right. It is clear then that the framers of the state constitution intended that our courts be available for redress for the type of injury involved here. Reviewing the aggregate benefits associated with the workers’ compensation laws, however, we conclude that the legislature provided a "reasonable alternative” to workers having product liability claims and that, as a result, did not enact legislation violative of article first, § 10, of the Connecticut constitution. In lieu of their right to seek access to the courts, injured workers may receive immediate payments through the workers’ compensation alternative and, most importantly, fault does not become an issue. It should also be noted that the workers’ compensation benefits were increased at the time of the enactment of § 52-577a to provide additional compensation to workers, which indicates that the legislature deliberately enhanced this alternative to offset any disadvantage the statute of repose created.

There is no error.

In this opinion the other justices concurred.

       Bernard Daily, the father of Bernard J. Daily, was also a party plaintiff in this action.

       The dates of the service calls were August 19,1963, January 3, 1964, December 7, 1967, July 11, 1968, and August 30, 1972.

       On July 14, 1983, Joseph W. Doherty, deputy chief clerk, notified all counsel of record that the hearing on the motion for summary judgment would be heard on August 15, 1983.

       On August 5,1983, the plaintiffs filed a memorandum of law opposing the defendant’s motion for summary judgment and on August 8,1983, they filed the affidavit of the plaintiff Bernard J. Daily.

       “[General Statutes] Sec. 52-577a. limitation op action based on product liability CLAIM, (a) No product liability claim as defined in section 52-572m shall be brought but within three years from the date when the injury, death or property damage is first sustained or discovered or in the exercise of reasonable care should have been discovered except that, subject to subsections (c) and (d), no such action may be brought against any party nor may any party be impleaded pursuant to subsection (b) later than ten years from the date that the party last parted with possession or control of the product. ...”
      6 The trial court in its memorandum of decision on the motion for summary judgment wrote: “For the purpose of this motion I must assume that the various allegations by the plaintiff as to negligence or other breaches of duty by the defendant are factually correct. There remains, however, the legal consequences which would flow therefrom.
      “The limitation provision upon which the defendant relies is Connecticut General Statutes Section 52-577a which provides in part:
      ‘(a) No product liability claim as defined in section 52-572m . . . may be brought against any party . . . later than ten years from the date that the party last parted with possession or control of the product.’
      “Clearly the key words are ‘possession or control,’ for it is uncontroverted that the machine came into physical possession of Harkness approximately seventeen years prior to the accident, ownership vested in Harkness approximately sixteen years prior, and the only contacts that the defendant had with the machine within the ten years prior to the accident were the servicing of August 30, 1972 and the courtesy call of August 5, 1977. As the terms are not defined in the statute, they are to be accorded their ordinary meaning.
      “ ‘Possession’ is defined in Webster’s Third New International Dictionary as: ‘the act or condition of having in or taking into one’s control or having at one’s disposal . . . actual physical control or occupancy of property by one who holds for himself and not as servant of another without regard to his ownership and who has legal rights to assert interests in the property against all others having no better right than himself.’ “Black’s Law Dictionary, Fifth Edition, gives this definition: ‘The detention and control, or the manual or ideal custody, of anything which may be the subject of property, for one’s use and enjoyment .... That condition of facts under which one can exercise his power over a corporeal thing at his pleasure to the exclusion of all other persons.’
      “ ‘Control’ is defined in Webster’s as: ‘power or authority to guide or manage: directing or restraining domination.’
      “Black’s states the following: ‘Power or authority to manage, direct, superintend, restrict, regulate, govern, administer or oversee . . . power or right to order or direct . . . exercise restraining or directing influence over.’
      “To the same effect is Ballentine’s Law Dictionary, Third Edition: ‘To check, restrain, govern, have under command and authority .... A position of authority in direction and management.’
      “To characterize the service call of August 30,1972, or the courtesy safety check of August 5, 1977, as placing the defendant in either possession or control of the machine would stretch the English language to the breaking point. If the Legislature meant that isolated servicing done at the direction of the purchaser were to toll the statute of repose, it could readily have said so. Instead it used words which in common parlance are not understood to have such meaning. The meaning to be given words is clearly a matter of law and is exclusively within the function of the trier of law and not the trier of fact.”

       “[Practice Book] Sec. 380. —proceedings upon motion
      “A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like. The motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion and the supporting materials, unless the court otherwise directs. The adverse party prior to the day the case is set down for short calendar shall file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already a part of the file, shall be filed and served as are pleadings.”

       Paragraph 18 of the substitute complaint, dated November 23, 1982, provides:
      “Further the defendant is liable and legally responsible to the plaintiff for the plaintiffs injuries, losses and damages caused by the closing of the machine and the severe injury to his hand by virtue of Connecticut General Statutes /§§7 52-S72m through 52-572r in that defendant expressly and impliedly warranted upon the lease and sale of said machine as set forth in paragraph 4 hereof and for the continued useful life of the product, the merchantability and fitness of said machine for the purpose for which it was intended and breached its warranties . . . .” (Emphasis added.)

       Paragraph 19 of the substitute complaint, dated November 23,1982 provides:
      “Further the defendant is liable and legally responsible to the plaintiff for the plaintiff’s injuries, losses and damages caused by the closing of the machine and the severe injury to his hand by virtue of Connecticut General Statutes 7§§7 S2-572m through 52-572r because the machine reached the plaintiff as a user without substantial change in the condition in which it was sold and because the machine was in a defective condition, as to its design and manufacturing, unreasonably dangerous to the plaintiff as user and continued to be so defective throughout the useful life of the product . . . .” (Emphasis added.)

       “[Practice Book] Sec. 176. —amendment by consent, order of COURT, OR FAILURE TO OBJECT
      “Except as provided in Sec. 182, a party may amend his pleadings or other parts of the record or proceedings at any time subsequent to that stated in the preceding section in the following manner:
      “(a) By order of court; or “(b) By written consent of the adverse party; or “(c) By filing a request for leave to file such amendment, with the amendment appended, after service upon each party as provided by Sec. 120, and with proof of service endorsed thereon. If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party. If an opposing party shall have objection to any part of such request or the amendment appended thereto, such objection in writing, specifying the particular paragraph or paragraphs to which there is objection and the reasons therefor, shall, after service upon each party as provided by Sec. 120 and with proof of service endorsed thereon, be filed with the clerk within the time specified above and placed upon the next short calendar list.
      “The court may restrain such amendments so far as may be necessary to compel the parties to join issue in a reasonable time for trial. If the amendment occasions delay in the trial or inconvenience to the other party, the court may award costs in its discretion in his favor. For the purposes of this rule, a substituted pleading shall be considered an amendment.”

       Although the plaintiffs did not articulate their constitutional claims as fully or as clearly as required, the contested issues were raised sufficiently to warrant review on appeal. “[T]his court, in matters of significant public moment where the public interest would best be served by a dispersal of all constitutional clouds over the act in question, will exercise that discretion and decide all closely related issues.” Gentile v. Altermatt, 169 Conn. 267, 281, 363 A.2d 1 (1975); Heiberger v. Clark, 148 Conn. 177, 184, 169 A.2d 652 (1961); West v. Egan, 142 Conn. 437, 441, 115 A.2d 322 (1955); Ruppert v. Liquor Control Commission, 138 Conn. 669, 673, 88 A.2d 388 (1952).

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

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

       General Statutes (Rev. to 1949) § 8324, (now § 52-584) provides: “limitation OF ACTION FOR INJURY TO PERSON OR PROPERTY. No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physicia.n, surgeon, dentist, chiropodist, chiropractor, hospital or sanatorium, shall be brought but within one year from the date of the act or omission complained of, except that a counter-claim may be interposed in an action which has been brought within the year at any time before the pleadings in such action are finally closed.”


source: Caselaw Access Project

author: Arthur H. Healey, J.

license: Public Domain

text:
    State of Connecticut v. Kevin Dahlgren State of Connecticut v. James Oldread
    (11847)
    (11956)
    Peters, C. J., Healey, Shea, Dannehy and Santaniello, Js.
    Argued March 11
    decision released July 22, 1986

      G. Douglas Nash, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellants (defendant in each case).

      Eric I. B. Better, special assistant state’s attorney, with whom were JohnM. Massameno, assistant state’s attorney, and, on the brief, Eugene J. Callahan, state’s attorney, and David I. Cohen, assistant state’s attorney, for the appellee (state).
   Arthur H. Healey, J.

The defendants, Kevin Dahlgren and James Oldread, were jointly tried before a jury on various charges arising out of the abduction of an eighteen year old woman in Norwalk on November 14, 1981. Both defendants were found guilty of larceny in the third degree in violation of General Statutes § 53a-124 and larceny in the first degree in violation of General Statutes § 53a-119. The defendant Dahlgren was also found guilty of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), and the defendant Oldread was found guilty of the lesser included offense of kidnapping in the second degree in violation of General Statutes § 53a-94 (a). Both defendants were sentenced to the custody of the commissioner of correction for an effective term of twelve years. The defendants appeal the judgments of conviction.

The defendants raise two of the same issues on appeal: (1) whether the trial court’s instructions on kidnapping in the first degree effectively enlarged the crime charged in violation of their constitutional rights; and (2) whether the trial court’s ruling on certain questions to be put to prospective jurors prior to the jury voir dire violated the defendants’ statutory or constitutional rights. The defendant Dahlgren also raises as an issue on appeal whether the court’s instructions to the jury on intent to violate and abuse sexually, as an element of kidnapping in the first degree, effectively directed a verdict of guilty in violation of his constitutional rights. We find no error.

The jury could have reasonably found the following facts: On Friday night, November 13,1981, the victim D and her friend C arrived at the Oaks Tavern in Nor-walk in C’s two door 1977 Pontiac Trans Am. While there, C met the defendants and spoke with both of them. At closing time, around 2 a.m., D left the tavern and joined C at her car in the parking lot. C was talking to the defendants and a male friend, and D was then introduced to the defendants for the first time. After talking for a while, the defendants asked for a ride to their car which was allegedly parked on a nearby street. The five people got into the car and C drove to the nearby street but they were unable to find the defendants’ car. C then drove to the male friend’s house in Norwalk and dropped him off. When C remarked about their inability to find the defendants’ car, Dahlgren grabbed her around the neck. C then drove D to her home but D did not want the defendants near her home and suggested that C drive them to their car near the tavern. On their way back to the tavern, C stopped at a parking lot at Norwalk State Technical College. C got out of the car and proceeded to the nearby woods in order to relieve herself. Dahlgren, who had been in the back seat with D, got out of the car and began following C. He returned, however, to the car, got into the driver’s seat, and drove out of the parking lot. D was alone in the back seat of the two door car and Oldread was in the front passenger seat. Dahlgren was driving in an erratic manner and D attempted to stop the car by reaching for the key in the ignition and by trying to push the stick shift into park. Oldread, however, pushed her into the back seat. D then threatened him by holding a bottle over his head and he punched her in the face, causing a black eye and a bloody nose. C, who had seen the defendant drive her car out of the parking lot, walked to the street looking for a telephone when a police officer in a squad car stopped, and she reported that her car had been taken.

Dahlgren drove onto Interstate 95 heading for New York. D continued to struggle but was hit several times. When she asked why the defendants had taken her, Oldread replied that they wanted “to party” and one stated that it was “because of [her] body.” Oldread then took sixty dollars from D’s wallet. Sometime after the car had passed Stamford, D fell asleep in the back seat.

When D awoke, Oldread was now driving on a highway D did not recognize and Dahlgren was in the front passenger seat. Dahlgren climbed into the back seat, ordered D to remove her clothing, and sexually assaulted her twice. They stopped at least twice for gas before reaching Buffalo, New York, where they went to various places, including the homes of the defendants’ friends. At each location where they stopped, at least one of the defendants remained with D in order to prevent her escape. The defendants then drove D to the airport where they bought her an airplane ticket to New York City. After they had left D at the airport, the defendants drove the car over a curb and when they were unable to unjam the gears, they abandoned the car at a gas station. As soon as the defendants left her to board the plane, she located a police officer and reported that she had been kidnapped and that her friend’s car had been stolen. After arriving at LaGuardia Airport, where she was met by her father and a police officer, she was immediately taken to Nor-walk Hospital for examination and treatment.

I

Both the defendants claim that, because of the crime charged in the amended information and specified in the bill of particulars, the trial court’s instructions on kidnapping in the first and second degrees effectively enlarged the crime charged in violation of their constitutional rights. Under General Statutes § 53a-91 (2), abduct “means to restrain a person with intent to prevent his liberation by either (a) secreting or holding him in a place where he is not likely to be found, or (b) using or threatening to use physical force or intimidation.” By an amended motion for a bill of particulars, Dahlgren had asked, inter alia, for additional information concerning the nature of the abduction. The state complied and stated that the abduction was accomplished by “using physical force or intimidation” and the means of restraint was by “moving her from one place to another.” The defendants claim that their defense focused on the allegations charged in the amended bill of particulars and that if they had been charged with both alternative definitions of “abduct,” as that term is set out in General Statutes § 53a-91, they would have presented “a different and more extensive defense.” The amended information filed in each case and dated October 4,1982, stated that the defendant “did abduct one [D] by restraining her or by moving her from one place to another with intent to prevent her liberation by using physical force or intimidation, with intent to violate and abuse her sexually in violation of section 53a-92 (a) (2) (A) of the Connecticut General Statutes.” (Emphasis added.)

The trial court included both of the statutory alternative definitions of abduction and restraint in its original instructions to the jury on the elements of kidnapping in the first degree. At the conclusion of the jury instructions, the defendant Dahlgren, joined by the defendant Oldread, excepted to the court’s inclusion of the alternative definitions of restraint and abduction. After the defendant Dahlgren had finished stating his sixteen exceptions, which the defendant Oldread adopted, but before the jury returned to the courtroom, the trial court sought to clarify the defendants’ request to charge on restraint. Dahlgren’s counsel agreed that the manner of restraint alleged in the bill of particulars was that the victim had been moved from place to place. Before the jury had begun any deliberations, the trial court reinstructed them pursuant to the defendants’ exception that they were only to consider whether restraint had been accomplished by moving D from one place to another and that they were not to “seek out, through the evidence, any basis to find that she was concealed anywhere.” The court made it clear to the jury that the state had made an election, in response to a defense motion, that insofar as the abduction and restraint aspect of the kidnapping charge was concerned, the charge had been limited to “moving [the victim D] from one place to another” and not to “confining her . . . .” The defendants did not except to this revised instruction which apparently satisfied them. The revised instruction cured any error that may have resulted from the initial instructions on the definitions of restraint and abduction applicable to the facts of this case.

During deliberations, the jury submitted a question to the trial court which requested guidance on when the intent for kidnapping in the first degree must occur and inquired about the liability of another who was present but who had not prevented the sexual abuse from occurring. In order to respond to the question, the trial court reinstructed the jury on the elements of kidnapping in the first degree and, in doing so, the court read, as in its original instructions, the alternative statutory definitions of “abduct” and “restraint” several times. Later in these instructions, however, the trial court specifically reminded the jury that, although abduction may be accomplished in “two manners,” for the purposes of this case, “you recall we’re limiting it to one [of the statutory alternatives].” The trial court, in discussing the element of lack of consent, remarked that if the defendant had accomplished restraint of the victim by moving her from place to place by physical force or intimidation, then proof of actual lack of consent would have become unnecessary. The trial court correctly brought to the jury’s attention the only two statutory definitions applicable to this case. The defendant Dahlgren’s counsel excepted to the court’s reinstruction to the jury in response to the question. At that time, the defendant, however, with reference to this claim, merely “renew[ed] all the other exceptions [he] had previously made where they might be appropriate to this charge.” No specific objection was raised at that time to the court’s recitation of the full statutory definitions of “abduct” and “restraint.”

While we agree with the defendants that the court’s initial instruction to the jury may have improperly enlarged the charge by including the uncharged statutory alternatives of restraint and abduction, we must look to the entire instruction and the circumstances surrounding the claimed error. See State v. Jones, 193 Conn. 70, 90, 475 A.2d 1087 (1984); State v. Vasquez, 182 Conn. 242, 246, 438 A.2d 424 (1980). The jury was correctly reinstructed prior to any deliberations and the revised instruction explicitly and repeatedly warned the jury not to consider any uncharged alternative definitions.

The trial court’s subsequent reinstruction to the jury in response to a question included one of the uncharged alternatives. The exception taken to the charge was not sufficient to alert the trial court to any alleged error while there was still time to correct it without ordering a retrial. See State v. Jones, supra, 88. The state claims that the defendants waived any error in the reinstruction. The defendants claim that the issue is nonetheless reviewable in the alternative under the second exceptional circumstance of State v. Evans, 165 Conn. 61, 69-71, 327 A.2d 576 (1973). Although the final exception by the defendants was inadequate to alert the trial court to any error, we only extend Evans review to a claimed enlargement in the charge, where it occurs, if it is accompanied by prejudice or lack of proper notice, in which instance it would involve a defendant’s fundamental constitutional rights. State v. Franko, 199 Conn. 481, 493, 508 A.2d 22 (1986). Unless, therefore, the record adequately supports a claim that there is lack of proper notice or prejudice, then it is not reasonably possible that the jury has been misled.

Our disposition of this issue under the circumstances of this case also requires us to determine whether, in light of the charge as a whole, “it is reasonably possible that the jury were misled. State v. Mason, 186 Conn. 574, 585-86, 442 A.2d 1335 (1982).” State v. Jones, supra, 90.

The defendants conceded at oral argument that there was sufficient evidence presented at trial to justify a verdict on either of the alternative definitions of abduct and that the restraint portion of the charge had been corrected by the trial court. While this does not justify an instruction on an uncharged statutory alternative, it is an indication that the defendants were not unduly hampered in their defense of the charges against them or that the jury was instructed to consider a crime for which no evidence was even presented. Cf. State v. Rose, 169 Conn. 683, 687, 363 A.2d 1077 (1975). An examination of the record discloses that the defendants do not challenge the evidence that was adduced that touched on the uncharged statutory alternative and, particularly, endeavored to benefit from it to show that D was never held against her will. The prejudice, if any, is minimal. Moreover, we have been given no reasonable explanation as to what either or both defendants would have done differently in conducting the trial but for the alleged erroneous instruction. We recognize that the issue is “not whether the verdict is supported by the evidence; rather, it is whether the jury were misled by the charge.” Id., 689.

The defendants cite State v. Belton, 190 Conn. 496, 461 A.2d 973 (1983), in support of their claim that these jury instructions constitute reversible error. State v. Belton is inapposite and does not support this claim. In Belton, a burglary case, the trial court repeatedly used the uncharged statutory alternative method of committing the crime. After the Belton jury had deliberated for two hours, it requested a restatement of the definitions of burglary in the first and second degrees, and the trial court’s instructions “again repeatedly employed” the uncharged statutory alternative language, so the reinstruction was not curative. State v. Belton, supra, 503. In this case, however, upon reinstruction, the trial court did give a curative instruction, at the suggestion of the defendants and to which the defendants did not except. This instruction, limiting the jury to only one of the statutory alternatives, was adequate to inform the jury which one of the statutory alternatives it was to consider on the kidnapping counts. There was no “distinct intimation to the jury that they were at liberty to find [the defendants guilty under the concealment alternative].” State v. Rose, supra, 688. We should also note that the logical distinction that existed in the statutory alternatives under General Statutes § 53a-101 (a) in Belton, i.e., where a person “enters or remains in a building . . .’’is not as apparent in this case. (Emphasis added.) This is so because the “concealment” prong of General Statutes § 53a-91 (2) (a) is not so distinct from the other prong of “using or threatening to use physical force or intimidation,” of General Statutes § 53a-91 (2) (b) because, except in a small number of cases, it is difficult to conceptualize how a kidnapper could conceal a victim without “using or threatening to use physical force or intimidation.” In addition, as already pointed out, we cannot conclude that the defendants were prejudiced, especially given the curative instruction limiting the jury’s consideration of the kidnapping count. State v. Franko, supra. “We reiterate our disapproval of a trial court’s reading of an entire statute when the defendant has been formally charged under only one section of that statute. State v. Carter, 189 Conn. 631, 645, 458 A.2d 379 (1983). Nevertheless, we conclude that the error of which the defendant complains is tantamount to a variance between the pleadings and the proof. In the absence of an [adequate] exception, when sufficient evidence on the uncharged [statutory alternative] has been presented to justify its submission to the jury, such a variance does not rise to the level of a constitutional violation unless the record establishes a lack of proper notice or prejudice to the defendant. Since the defendant suffered neither lack of notice nor prejudice in preparing his defense, he cannot prevail on this claim of error.” State v. Franko, supra.

II

The defendants’ second claim of error is that the trial court’s ruling that certain questions of law could not be asked of prospective jurors on voir dire violated their statutory; General Statutes § 54-82f; and state andfederal constitutional rights. Prior to the commencement of the voir dire of individual jurors, the trial court informed counsel for both parties that it would follow State v. Anthony, 172 Conn. 172, 176, 374 A.2d 156 (1976), and that it would not permit any “question on law.” Counsel for the defendant Dahlgren was permitted by the court to “make a record” of his prospective voir dire questions in order to determine if the court's ruling precluded them. Counsel for Dahlgren stated that he had intended to ask each juror three questions* ****** on “certain recognized principles of law” and whether the juror “understand^] the meaning of those terms and their application to my client in this case.” The prospective questions on principles of law involved the presumption of innocence, proof beyond a reasonable doubt and the state’s burden of proof in a criminal case. Counsel for the defendant Dahlgren stated that the questions would enable him to elicit from prospective jurors whether they could “abide” by the legal principles and if they responded that they could not, it “would go straight to the core of whether or not that individual’s qualified to act as a juror in a criminal case.” The trial court responded that no questions would be allowed “on the presumption of innocence, the burden of proof . . . any other subject bearing on the law, and that’s it.” Dahlgren’s counsel then asked the court, in light of its ruling, whether it would permit a “continuing exception” and the request was denied. On several occasions, Dahlgren’s counsel’s attempts to question a prospective juror on a legal principle were immediately rebuffed by the trial court.

“The purpose of the voir dire examination is twofold. ‘First, it provides information upon which the presiding judge may decide which of the prospective jurors, if any, he should excuse for cause. Secondly, it informs counsel as to matters which may influence them in the exercise of their right to peremptory challenges.’ Duffy v. Carroll, [137 Conn. 51, 56, 75 A.2d 33 (1950)].” State v. Anthony, supra, 174-75; see State v. Haskins, 188 Conn. 432, 446, 450 A.2d 828 (1982). “ ‘The right to a voir dire examination of each prospective juror in a criminal action is provided by § 54-82f of the General Statutes. [The court has the duty to analyze individual questioning under this section and limit examination to questions relating to (1) juror’s qualifications, (2) interest, if any, in the subject matter of the action, and (3) relations with the parties thereto.] This right was established as a constitutional one in 1972 by inclusion in article IV of the amendments to the state constitution of the provision that “[t]he right to question each juror individually by counsel shall be inviolate.” State v. Haskins, [supra, 446]; State v. Anthony, [supra, 174].’ State v. Hill, 196 Conn. 667, 671, 495 A.2d 699 (1985).” State v. Rogers, 197 Conn. 314, 317-18, 497 A.2d 387 (1985); State v. Burns, 173 Conn. 317, 321, 377 A.2d 1082 (1977).

The court has wide discretion in conducting the voir dire; see, e.g., State v. Rogers, supra, 318; State v. Haskins, supra, 447; State v. Clark, 164 Conn. 224, 226, 319 A.2d 398 (1973); and the exercise of that discretion will not constitute reversible error unless it has clearly been abused or harmful prejudice appears to have resulted. State v. Hill, supra, 672; see Turner v. Murray, 476 U.S. 28, 106 S. Ct. 1683, 90 L. Ed. 2d 27 (1986); Rosales-Lopez v. United States, 451 U.S. 182, 101 S. Ct. 1629, 68 L. Ed. 2d 22 (1981).

We have repeatedly stated that a juror’s knowledge or ignorance concerning questions of law is not a proper subject of inquiry on voir dire. State v. Anthony, supra, 176; State v. Clark, supra; State v. Van Valkenburg, 160 Conn. 171, 173, 276 A.2d 888 (1970); Duffy v. Carroll, supra, 56; see also Wright v. State, 374 A.2d 824, 829 (Del. 1977); Twining v. State, 234 Md. 97, 100, 198 A.2d 291 (1964); Commonwealth v. Hamm, 325 Pa. Super. 401, 418, 473 A.2d 128 (1984); cf. People v. Zehr, 103 Ill. 2d 472, 477, 469 N.E.2d 1062 (1984).

The state, in its examination of thirteen of the twenty-five prospective jurors, including six of those accepted to serve, asked if the juror, regardless of his own “notion” of what the law is, would follow the court’s instructions on what law must be followed. Each of the thirteen jurors so questioned responded affirmatively. In addition, Oldread’s counsel asked thirteen prospective jurors a similarly phrased question which incorporated both the nature of the burden of proof in a criminal case, the presumed innocence of the defendant, and the defendant’s right not to incriminate himself.

The defendants cite State v. Higgs, 143 Conn. 138, 120 A.2d 152 (1956), State v. Hill, supra, and State v. Rogers, supra, to support their contention that the trial court’s ruling was reversible error. In Higgs, we held that a trial court’s rulings in a voir dire examination excluding all questions concerning race prejudice were an abuse of the court’s discretion. State v. Higgs, supra, 144. In Hill and Rogers, we held that the trial court’s refusal to allow defense counsel to question prospective jurors as to whether they would give more weight to the testimony of a police officer merely because of the officer’s status was an abuse of discretion. State v. Rogers, supra, 319; State v. Hill, supra, 672-73. Those cases are distinguishable from the present case. In Higgs, Hill, and Rogers, the defense counsels’ questions focused specifically on a prospective juror’s ability to judge the credibility of potential witnesses, such as a black defendant or a police officer. One of a juror’s most important functions is to analyze and judge the credibility of the witnesses at trial.

The questions the defendants sought to pose in this case would not have aided them in selecting an impartial jury. The jury is assumed to follow the law as instructed by the trial court. In this case, over one half of the prospective jurors were specifically asked whether they would follow the law as given to them by the court, and each juror responded affirmatively that he or she would do so. The trial court did not abuse its wide discretion in making its rulings and no harmful prejudice resulted to the defendants. See State v. Marra, 195 Conn. 421, 432, 489 A.2d 350 (1985); State v. Anthony, supra, 175. The defendants were each acquitted by the jury of three conspiracy counts and this is “perhaps some indication that impartial debate was undertaken, the jury deciding the case on the evidence as it was shown to do.” United States v. Barnes, 604 F.2d 121, 143 n.12 (2d Cir. 1979), cert. denied, 446 U.S. 907, 100 S. Ct. 1833, 64 L. Ed. 2d 260 (1980). We find no error on this claim.

Ill

The defendant Dahlgren alone raises a third and final issue. He claims that the trial court’s instruction to the jury on the element of intent in kidnapping in the first degree violated his state and federal constitutional rights to due process because it effectively directed a guilty verdict. The element in question, which distinguishes first and second degree kidnapping, is the intent to “violate or abuse [the victim] sexually.” General Statutes § 53a-92 (a) (2) (A). The defendant claims that the trial court’s instruction and its response to a jury question which included the phrase, “if you find that . . . the Defendants actually did inflict such sexual violation or abuse . . . there can be little question that it was intended,” (emphasis added) were erroneous.

The defendant states that the information restricted the allegations of kidnapping, including the intent to violate or abuse sexually, to the actions of the defendants in the parking lot at Norwalk State Technical College and did not include any sexual activity that may have occurred in New York. The intent, he claims, must be complete and proven from the incident that occurred in the parking lot.

The state claims that the defendant Dahlgren only objected to-the court’s general instruction on specific intent, applicable to all of the offenses, in which the court stated that a person is presumed to intend the natural consequences of his acts. The trial court, in response to the defendant’s objection and in order “to get away from Sandstrom [v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979)],” proposed to counsel that it would instruct the jury that one cannot presume intent from the natural consequences of one’s act. Counsel for the defendant stated that he was “satisfied with that language.” The court thereafter reinstructed the jury and included a thorough statement of the definition of intent, including the statement that “criminal intent, always keep in mind cannot be presumed. The criminal intent . . . cannot be presumed from the natural consequences of an act.” There was no exception by the defendant to the court’s reinstructions.

The jury then began deliberations and in the course of the deliberations submitted a question to the court which asked when the intent to violate or abuse her sexually had to have taken place—“when the car was taken from Norwalk Tech, or could it occur later?” The court recharged the jury that this intent “must [have been] in the actor’s mind at the outset” and then it repeated the statement that if the jury found that the defendants did inflict such violation or abuse, there could be little question that it was intended. The jury was then excused for the day.

It was on the following day that the defendant excepted to the court’s instruction, in response to the jury’s question, that if “sexual abuse occurred, then they should find that it was intended,” claiming that it raises a presumption. The state responds that the language cited by the defendant merely distinguishes act from intent and notes that the surrounding language is not only highly favorable to the defense but “entirely undercuts any claim of error.” Moreover, the state asserts that .the allegedly offensive language used by the court—if the jury found that there was sexual abuse, “there can be little question” that he intended it—is not “couched in the language of presumption, and it creates none.”

We agree with the state that the instruction at issue did not create a presumption and that the defendant’s claim is without merit. It is well established that the state is required to prove all the essential elements of the crimes charged beyond a reasonable doubt. In Re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). It is also well established, however, that individual instructions are not to be judged in artificial isolation from the overall charge. State v. Williams, 199 Conn. 30, 37, 505 A.2d 699 (1986); State v. Reddick, 197 Conn. 115, 132, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986); State v. Dolphin, 195 Conn. 444, 451, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985). “Although general instructions on the burden of proof and presumption of innocence do not alone dispel the possibility of an unconstitutional interpretation of the challenged language, such instructions may be considered in light of the entire charge to determine whether the jury could have [misjinterpreted the [language].” State v. Williams, supra, 38. The trial court repeatedly emphasized the state’s burden of proof on every element of the crime and stated that the jury could not presume intent from action but could infer it. The court’s instruction that the intent must have been present “at the outset,” and thus at the Norwalk parking lot, strongly attenuated the jury’s use, if any, of the later acts in New York to find intent. “The instructions, read in their entirety, did not direct or advise the jury how to decide the matter, and fairly presented the case to the jury in such a way that no injustice was done to the defendant.” State v. Storlazzi, 191 Conn. 453, 467, 464 A.2d 829 (1983).

In addition, we also note that in this joint trial, the same jury found Dahlgren’s codefendant guilty of the lesser included offense of kidnapping in the second degree; General Statutes § 53a-94; an offense which does not require the intent to abuse or violate sexually. This is a very strong indication that the jury did not apply a presumption against the defendants with respect to this element. We find no error on this claim.

There is no error.

In this opinion the other justices concurred.

       Both defendants were acquitted of the charges of conspiracy to commit kidnapping in the first degree, conspiracy to commit robbery in the second degree, and conspiracy to commit larceny in the first degree. General Statutes § 53a-48 (a).

       Both defendants had also been charged with two counts of sexual assault in the first degree and the defendant Dahlgren had been charged with attempted sexual assault in the first degree. The defendants’ motion to dismiss was granted without prejudice as to these counts, pursuant to Practice Book § 819, by the trial court, Landau, J.

       The defendant orally made the following exception to the court’s charge on kidnapping:
      “Your Honor defined restrain for the Jury and I noted at that time that that instruction was given that The Court gave alternative means, both for the definition of restraint and the definition of abduction as is provided in the Statute. However, I had requested in the bill of particulars that the State make more particular the information, and the only definition part of the Statute that the State was alleging and unfortunately did not get into the amended information that The Court had, dated October 4th, 1982, was that the abduction and restraint occurred by moving her from one place to another. And that secreting or concealing, which was part of the Court’s charge is in fact not within the scope of the pleadings here, not within the scope of the bill of particulars, and I would ask that The Court really inform the Jury that they can only consider moving from one place to another, that if they consider secreting or concealing, that is outside the scope of the information. In fairness to The Court, your Honor did ask whether he had the most recent information, and we did indicate that you did. And again, it did not become apparent to me until, as you were going through the charge and you instructed in the alternative on the Statute, that, in fact, that language was missing from the amended information.”

       The trial court reinstructed the jury on kidnapping as follows:
      “The State is limiting itself in the Statute concerning kidnapping with the manner in which the kidnapping occurred, in that, it is their claim that the restraint, that is, you must find, remember kidnapping is an abduction and restraint and for purposes of kidnapping in the first. And in the Statute I read to you, I read it to you in the alternative. I said restrain means to restrict a person’s movements intentionally and unlawfully, in such a manner as to interfere substantially with his liberty by moving her from one place to another, or, by confining her either in a place where the restriction commences, or in a place which she has been moved without consent. The State has made an election in the—during the course of the pendency of the case, in response to a motion by the Defendants. That the manner in which this restraint was accomplished is solely, and the only one you’re to consider, is by moving her from one place to another, so don’t rely nor would the defense have defended on the basis of confining her either in a place where the restriction commenced or in a place to which she had been removed without consent.
      “So that you’re only going to consider, has the State proven, beyond a reasonable doubt, and put forward evidence for you to find to that extent that the victim, [D], was restrained in a manner from moving her from place to place. You have to just consider that evidence, and you won’t have to seek out, through the evidence, any basis to find that she was concealed anywhere. And you will use that definition in restraint wherever it comes into play, on the kidnapping first, kidnapping second, and the unlawful restraints.
      * * *
      “But I’m going to remove from your consideration the concealment, because, as I view the evidence, and my charge is tailored to the view of the evidence, whether it’s acceptable or not is immaterial. The charge is devoted toward trying to give you a full picture of your function in respect to what has been produced.
      “If there is flight at all, it occurred at the time at the Buffalo Airport, at which time [D] separated from the Defendants. So, there is no way of concealing her. So, remove that consideration from your minds, and they didn’t have her to conceal her, and the fact that she was in the car throughout the course of travel from Norwalk to Buffalo, you will consider all those circumstances for whatever weight you feel they’re entitled to. But any concealment, limitation of movement, restriction that occurred throughout that course of time, would not be the basis of a finding of concealment, in respect to a flight inference. That if you define from flight that there’s guilty knowledge, no. It would mean that after they got to Buffalo, had they retained custody of her and hid her in some way, that would be concealing a victim.”

       The jury submitted the following question to the trial court during its deliberations: “Explain kidnapping in the first degree, especially intent to violate and abuse her sexually, when does intent have to take place. Did intent have to occur when the car was taken from Norwalk Tech, or could it occur later?
      “If one is guilty of the—of sexual abuse and the other did not prevent the act, is he equally guilty of sexual abuse?”

       Although the defendant Oldread’s counsel was not present for the exceptions, counsel for the defendant Dahlgren noted for the record that he shared his objections.

       General Statutes § 54-82f states: “In any criminal action tried before a jury, either party shall have the right to examine, personally or by his counsel, each juror outside the presence of other prospective jurors as to his qualifications to sit as a juror in the action, or as to his interest, if any, in the subject matter of the action, or as to his relations with the parties thereto. If the judge before whom the examination is held is of the opinion from the examination that any juror would be unable to render a fair and impartial verdict, the juror shall be excused by the judge from any further service upon the panel, or in the action, as the judge determines. The right of such examination shall not be abridged by requiring questions to be put to any juror in writing and submitted in advance of the commencement of said action.”

       Defense counsel for the defendant Dahlgren set forth for the record the three questions that he intended to ask prospective jurors:
      “Mr. Meehan: I intend to ask each Juror whether, as to certain recognized principles of law, they understand the meaning of those terms and their application to my client in this case.
      “The first being the presumption of innocence, and I intend to ask each prospective Juror whether they recognize that my client seated here today is—with this presumption of innocence, and that is, he is not guilty at this point in time, and unless and until the State produces sufficient evidence to prove all the elements of the crime that he would continue in their eyes to appear not guilty and I would like to ask the question addressed to each prospective Juror on that ground.
      “In addition, on the question of proof beyond a reasonable doubt, I would like to address the—each prospective Juror whether or not they understand what the meaning of the term ‘Proof beyond a reasonable doubt’ is that— and the allocation of the burden of proof between the Defendant and the State. Now, principally, also, whether they understand that although the Defendant has indicated he may call witnesses and may, in fact, during the course of the trial put witnesses on the stand, that the State still retains the burden of proof beyond a reasonable doubt.
      “I would like to ask each individual Juror also whether they understand that in a criminal case of this matter the State must prove each and every element of the crime and if they prove most but not all the elements of the crime beyond a reasonable doubt then does the Juror understand that the verdict should properly be, in that regard, not guilty.”

       The state claims that the defendant Dahlgren’s challenge to the voir dire “must stand or fall upon the record of the voir dire as it actually developed” and cannot be evaluated merely on the exception lodged to the court’s ruling on the prospective questions. The state also claims that the defendant Oldread has “waived the claim altogether” because only Dahlgren objected and excepted to the court’s initial disapproval of the questions of law and because Oldread did not attempt to join in his codefendant’s objection. Oldread’s counsel inquired of the trial court as to whether a question on the defendant’s right to remain silent fell into the “area of limitation.”
      It is argued that the objection and exception to the trial court’s “peremptory ruling” is sufficient to preserve the matter on appeal; in addition, the defendant asked for a continuing objection. Several times when Dahlgren’s counsel attempted to ask any of the three questions at issue to a prospective juror, the trial court immediately interjected that the question would not be allowed and that an exception was granted. We do not agree with the state under the circumstances of this case that this claim may only be reviewed upon the record of the voir dire as it “actually developed” because the defendant has adequately set forth the nature of his objection and exception both before and during the voir dire. We will review the claim as to the defendant Oldread as the record is unclear as to whether his counsel’s question on the defendant’s right to remain silent was separate and distinct from Dahlgren’s counsel’s questions or a mere addition to the overall inquiry. In any case, “the failure by [the defendant Oldread] fully to chailenge the [ruling of the trial court] at trial would not be dispositive, since his codefendant adequately alerted the trial court to the possibility of error in a timely fashion. See State v. Jones, 193 Conn. 70, 88, 475 A.2d 1087 (1984).” State v. Pelletier, 196 Conn. 32, 34, 490 A.2d 515 (1985).

       A noteworthy exception to this is the voir dire examination of a prospective juror, No. 202, who was originally from Norway. When asked by the defendant Oldread’s counsel if the fact that the defendant did not testify would “carry any weight . . . with regard to guilt or innocence” the prospective juror replied, “No. I would be surprised if he didn’t take the stand.” After further questions by Oldread’s counsel and by the state, the defendant Dahlgren’s counsel was allowed to reexamine the juror on his knowledge of various legal principles, including the presumption of innocence of the defendant and the state’s burden of proof. He was then accepted as a juror by the defendants and by the state.

       The assistant state’s attorney asked several prospective jurors the following questions: “Q. Okay. Now, many people have ideas of what the law is?
      “A. Ah hum.
      “Q. And, or sometimes even what the law should be. They don’t like what the law is and they think it should be something else. If His Honor instructed you, which he will do, on what the law really is and it differed with your notions of what you thought the law was, or what you thought the law should be, and it was different, would you be able to put your own assumptions that you came into here with aside and follow his Honor’s instructions?”

       The counsel for the defendant Oldread asked several of the jurors the following representative question: “In a criminal proceeding, as you’re probably aware, the Defendant does not—is not required to testify to prove his own innocence. It’s the burden of the State to—or the obligation of the State to prove his guilt. Not the obligation of the Defendant to prove his innocence, and therefore, as part of that right of protection he does not have to take the stand or testify on his own behalf. The Defendant, in a proceeding should [he] elect not to testify, would that have any effect on your rendering a fair and impartial verdict?”

       The trial court gave the following additional instruction:
      “Now, in respect to intent, the criminal intent, always keep in mind cannot be presumed. The criminal intent cannot be presumed, and it cannot be presumed from the natural consequences of an act.
      “However, criminal intent, which is the burden of the State to prove beyond a reasonable doubt, the State has that affirmative burden to satisfy you by the evidence in this case, of existence of the criminal intent in the minds of the Defendants, always retains that burden.
      “However, although you cannot presume criminal intent from the natural consequences of the acts you find that have occurred, you may draw inferences from facts that you find proven, and you can find the intent necessary as it existed in the mind of the actors who committed the acts that you find proven. So you can draw an inference, although you cannot presume intent. You can find intent by inferring from facts you find proven.
      “But you cannot presume merely because an act is committed and therefore the natural consequences of that act is presumed to have been intended by the actor.”