source: Caselaw Access Project

author: KATZ, J.

license: Public Domain

text:
    THOMPSON AND PECK, INC. v. DIVISION DRYWALL, INC., ET AL.
    (SC 15561)
    Callahan, C. J., and Borden, Berdon, Norcott and Katz, Js.
    Argued April 25
    officially released June 10, 1997

      Todd R. Bainer, for the appellant (plaintiff).

      Thomas H. Connell, with whom, on the brief, was Michael C. Ryan, for the appellees (defendant Century-New Haven Limited Partnership et al.).
   Opinion

KATZ, J.

The sole issue in this appeal is whether unpaid insurance premiums owed by a subcontractor are “materials” or “services” under the mechanic’s lien statute, General Statutes § 49-33. We conclude that because such premiums have not enhanced the property in some physical manner, laid the groundwork for the physical enhancement of the property, or played an essential part in the scheme of physical improvement of the property, they are not lienable under § 49-33.

The following facts are undisputed. The plaintiff insurance company, Thompson & Peck, Inc., from September 24, 1989 through August 21, 1990, provided workers’ compensation insurance and general employer’s liability insurance to the named defendant Division Drywall, Inc. (insured), and Connecticut Drywall, Inc., as named insureds, on an “open account” basis for all work they performed in various states. On or about June 22, 1989, the insured entered into a subcontract with Konover Construction Corporation and Seguí Associates and Company, Inc., a “construction joint venture,” to perform certain drywall installations at a project in New Haven known as Century Tower, which is owned by the defendant Century-New Haven Limited Partnership (owner). Claiming that it was owed insurance premiums, the plaintiff filed a mechanic’s lien against Century Tower in the amount of $67,218. By agreement, the owner, as principal, and the defendant Aetna Casualty and Surety Company (surety), as surety, substituted a bond for the lien in the amount of $81,000. The plaintiff thereafter filed the present action for breach of contract against the insured in the first count and for recovery under the lien against the owner and the surety in the second count.

Pursuant to Practice Book § 378 et seq., the owner and the surety filed a motion for summary judgment as to count two of the complaint, claiming that the mechanic’s lien foreclosure action failed as a matter of law because the underlying lien was not based on “materials” or “services” that the legislature intended to be secured by a mechanic’s lien. The trial court agreed, as a matter of law, that unpaid insurance premiums could not be secured by a mechanic’s lien on a plot of land and, therefore, rendered summary judgment for the owner and the surety on count two of the complaint. This appeal followed.

We conclude that the legislature did not intend to extend the benefits of the mechanic’s lien statute to an insurance agent attempting to collect unpaid premiums from an insured subcontractor. Specifically, we conclude that the trial court properly rendered summary judgment on the second count of the plaintiffs complaint because the legislature did not intend to include within § 49-33 those persons or businesses whose services have not enhanced the property in some physical manner, laid the groundwork for the physical enhancement of the property, or whose work was not an essential part in the scheme of physical improvement.

“The standards governing our review of a trial court’s decision to grant a motion for summary judgment are well established. Practice Book § 384 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . Id., 745. The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Practice Book § 381. . . . Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105, 639 A.2d 507 (1994).” (Internal quotation marks omitted.) Doty v. Mucci, 238 Conn. 800, 805-806, 679 A.2d 945 (1996).

In the present case, there is no dispute that the plaintiff is an insurance agency and that the mechanic’s lien represents unpaid insurance premiums due and owing from the insured. The plaintiff nevertheless contends that the question of whether insurance coverage constitutes materials or services rendered in the construction of the building in issue is a question of fact. We disagree. The interpretation of the language of § 49-33 is an issue of law. See generally Camputaro v. Stuart Hardwood Corp., 180 Conn. 545, 429 A.2d 796 (1980). In the absence of any issue of fact, we are left to decide whether the trial court properly concluded that the mechanic’s lien failed as a matter of law because “unpaid insurance premiums cannot be secured by a mechanic’s lien” because “under the mechanic’s lien statute ‘materials’ and ‘services’ do not include insurance premiums.”

The process of statutory interpretation involves a reasoned search for the intention of the legislature. Under our rules of statutory construction, we are guided by the words of the statute itself, the legislative history and circumstances surrounding its enactment, the legislative policy the statute was designed to implement, and its relationship to existing legislation and common-law principles governing the same subject matter. State v. Ledbetter, 240 Conn. 317, 327-28, 692 A.2d 713 (1997).

“The guidelines for interpreting mechanic’s lien legislation are [equally] well established. Although the mechanic’s lien statute creates a statutory right in derogation of the common law; Camputaro v. Stuart Hardwood Corporation, [supra, 180 Conn. 550]; Gruss v. Miskinis, 130 Conn. 367, 370, 34 A.2d 600 (1943); its provisions should be liberally construed in order to implement its remedial purpose of furnishing security for one who provides services or materials. H & S Torrington Associates v. Lutz Engineering Co., 185 Conn. 549, 553, 441 A.2d 171 (1981); Henry F. Raab Connecticut, Inc. v. J. W. Fisher Co., 183 Conn. 108, 115, 438 A.2d 834 (1981). Our interpretation, however, may not depart from reasonable compliance with the specific terms of the statute under the guise of a liberal construction. Camputaro v. Stuart Hardwood Corporation, supra, 551; Stone v. Rosenfield, 141 Conn. 188, 191, 104 A.2d 545 (1954). Finally, the provisions of our statute differ sufficiently from the mechanic’s lien legislation of other states so that precedents elsewhere are of limited utility in the interpretation of our [statute]. Camputaro v. Stuart Hardwood Corporation, supra [551]; New Haven Orphan Asylum v. Haggerty Co., 108 Conn. 232, 236, 142 A. 847 (1928).” (Internal quotation marks omitted.) Nickel Mine Brook Associates v. Joseph E. Sakal, P.C., 217 Conn. 361, 364-65, 585 A.2d 1210 (1991).

Pursuant to § 49-33, the persons entitled to claim a mechanic’s hen are those who have provided “services” or “materials” in connection with “the construction, raising, removal or repairs of any building or any of its appurtenances or in the improvement of any lot or in the site development or subdivision of any plot of land . . . .’’To date we have declined to address expressly the claim that § 49-33 includes only those services and materials that physically enhance the property or that lay the groundwork for physical enhancement. See Nickel Mine Brook Associates v. Joseph E. Sakal, P. C., supra, 217 Conn. 370 (because legal services are not included within § 49-33, court need not decide whether physical enhancement test is required). Nevertheless, our cases reflect a distinction between services and materials that have directly shaped the liened property and those that have not. Id., 368.

Prior to the statute’s amendment by the legislature in 1974, our cases construing “the language of [§ 49-33] . . . required, as a condition of lienability, that the work done be incorporated in or utilized in the building (or the appurtenance) to be constructed, raised, removed or repaired. . . . Our other cases . . . consistently . . . insisted that mechanic’s lien work be wrought into the liened property in some fashion. Thus the installation of fixtures that do not become part of the realty; Hartlin v. Cody, 144 Conn. 499, 506, 134 A.2d 245 (1957); or of electrical work that is not permanently attached to the realty; Stone v. Rosenfield, [supra, 141 Conn. 192]; Abbadessa v. Puglisi, 101 Conn. 1, 124 A. 838 (1924); the removal of pipe from one building that is not incorporated into the building that is its replacement; Hillhouse v. Duca, 101 Conn. 92, 101, 125 A. 367 (1924); and the furnishing of materials or equipment that is not shown to have gone into the construction or repair of a building; Lewin & Sons, Inc. v. Herman, 143 Conn. 146, 150, 120 A.2d 423 (1956); Chapin v. Persse & Brooks Paper Works, 30 Conn. 461, 473 (1862); Rose v. Persse & Brooks Paper Works, 29 Conn. 256, 267-68 (1860); [were] all unlienable. Batch v. Chaffee, 73 Conn. 318, 321, 47 A. 327 (1900), did hold lienable as an appurtenance the construction of an artesian well not physically connected to the house which it was to serve, but Batch v. Chaffee, supra, 320, describes the category of appurtenance as one of detached structures . . . and its holding, thus limited, is therefore consistent with the structural constraints that our other cases . . . uniformly imposed.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Camputaro v. Stuart Hardwood Corp., supra, 180 Conn. 552-53.

In 1974, the legislature extended the reach of a mechanic’s lien, under § 49-33, to encompass claims for materials furnished or services rendered “in the improvement of any lot or in the site development or subdivision of any plot of land . . . Public Acts 1974, No. 74-310, § 1. A key purpose of the amendment was to eliminate the requirement that the work be incorporated or utilized in a building or appurtenance and to extend the coverage of § 49-33 to two distinct types of services: (1) services rendered in the improvement of any lot; and (2) services rendered in the site development or subdivision of any plot of land. “[T]he phrase ‘improvement of any lot’ was intended to include the same types of services embraced by the phrase ‘site development or subdivision of any plot of land.’ The only distinction intended by the legislature was between services benefiting particular lots and those benefiting the subdivision as a whole.” Nickel Mine Brook Associates v. Joseph E. Sakal, P.C., supra, 217 Conn. 367.

We have also decided that to be the subject of a mechanic’s lien, the materials for which a lien has been claimed must not merely have been furnished for, or delivered to the site of, the particular building or improvement, but must actually also have been used in its construction. Lewin & Sons, Inc. v. Herman, supra, 143 Conn. 150 (where some plumbing materials represented by mechanic’s lien were used elsewhere, plumber not entitled to full amount claimed by lien). The rationale for this rule is that it is equitable to grant a lien against property that has increased in value by virtue of the use of materials and, conversely, that it is not equitable to burden the property with a lien to secure the price of materials that never entered the construction. Similarly, we have construed the meaning of “services” to be confined to services that are of a mechanical nature or to those services related to the construction of a building or skilled workmen using tools, machinery and other equipment to improve the land. See Nickel Mine Brook Associates v. Joseph E. Sakal, P.C., supra, 217 Conn. 367.

The distinct difference between insurance providers and the types of services that we have indicated fall within the scope of § 49-33 is apparent. Id., 368. Historically, our cases construing the statute have required as a condition of lienability that the work done be incorporated in or utilized in the building to be constructed, raised, removed or repaired or in the improvement of any lot or subdivision. Moreover, the fact that the legislature consistently has referred to a “mechanic’s lien” is some evidence of whom the legislature intended to be benefitted by the lien. “A ‘mechanic’ [has been described] as a skilled worker who brings about a result by the use of tools, machines or equipment. See Random House Dictionary of the English Language (Unabridged Ed.)." Nickel Mine Brook Associates v. Joseph E. Sakal, P.C., supra, 217 Conn. 368.

With this background in mind, we conclude that, like legal services, § 49-33 does not extend to services not directly associated with the physical construction or improvement of the land. Our decision is bolstered by reference to statutes from other jurisdictions that, although sufficiently different such that the decisions of courts interpreting their terms are of limited significance, are nevertheless useful for comparison purposes. Unlike statutes in jurisdictions where insurance premiums are specifically defined as material furnished to a contractor; see, e.g., State ex rel. Mountain States Mutual Casualty Co. v. KNC, Inc., 106 N.M. 140, 141, 740 P.2d 690 (1987) (“ ‘worker’s compensation insurance furnished to ... subcontractor ... is hereby defined to be material’ ” [citation omitted]); § 49-33 does not contain express language permitting a lien upon premises the value or condition of which has not been benefited for items that have not improved the property. Although § 49-33 has been amended to extend the availability of a mechanic’s hen; see Public Acts 1974, No. 74-310, § 1; the statute has not been amended to include services and materials that have not enhanced the property in some physical manner, laid the groundwork for the physical enhancement of the property or that did not play an essential part in the scheme of physical improvement.

We find further support for the conclusion that the insurance premiums owed by the insured are not hen-able as materials or services by a practical construction of the statute. “[G]eneral words and phrases may be restricted in meaning to adapt their meaning to the subject-matter in reference to which they are used.” Barber v. Morgan, 89 Conn. 583, 588, 94 A. 984 (1915). “In construing a statute, common sense must be used and courts must assume that a reasonable and rational result was intended.” Kron v. Thelen, 178 Conn. 189, 192, 423 A.2d 857 (1979). Interpreting § 49-33 to include insurance premiums could lead to the filing of mechanic’s hens by a wide range of parties who provide services to builders and developers, such as real estate agents who are instrumental in the purchase of land and advise as to its potential uses, or financial advisers such as bankers and accountants, giving them priority over any other encumbrance originating after the commencement of services or the furnishing of materials. See General Statutes § 49-33 (c); see also Nickel Mine Brook Associates v. Joseph E. Sakal, P.C., supra, 217 Conn. 371; Solomon v. Pace, 115 Conn. 702, 160 A. 428 (1932). “Although as a general matter our mechanic’s lien statute must be liberally construed; JI&S Torrington Associates v. Lutz Engineering Co., supra, [185 Conn.] 553; we refuse to adopt an interpretation of § 49-33 (a) that could lead to such a fundamental change in our mechanic’s lien statute absent clear evidence that the legislature intended such a far reaching result.” Nickel Mine Brook Associates v. Joseph E. Sakal, P.C., supra, 371.

Finally, we must acknowledge the realities of the manner in which the construction world operates. At the request of the owner of the property, general contractors typically require subcontractors to furnish mechanic’s lien waivers from all their material suppliers. These suppliers generally are the standard material-men who furnish actual materials such as lumber, electrical and plumbing fixtures, concrete, and the like. Were insurance agents to be included in the list of those from whom waivers are likely to be sought, the list, and indeed the possible candidates no longer limited by their direct contribution or essential link to the project, could be endless. Rather than serving to expedite matters and facilitate the payment process, the application of § 49-33 to the subcontractor’s insurance provider would have the opposite and deleterious effect.

The judgment of the trial court is affirmed as to the second count of the complaint.

In this opinion the other justices concurred.

       General Statutes § 49-33 provides: “Mechanic’s lien. Precedence. Rights of subcontractors, (a) If any person has a claim for more than ten dollars for materials furnished or services rendered in the construction, raising, removal or repairs of any building or any of its appurtenances or in the improvement of any lot or in the site development, or subdivision of any plot of land, and the claim is by virtue of an agreement with or by consent of the owner of the land upon which the building is being erected or has been erected or has been moved, or by consent of the owner of the lot being improved or by consent of the owner of the plot of land being improved or subdivided, or of some person having authority from or rightfully acting for the owner in procuring the labor or materials, the building, with the land on which it stands or the lot or in the event that the materials were furnished or services were rendered in the site development or subdivision of any plot of land, then the plot of land, is subject to the payment of the claim.
      “(b) The claim is a lien on the land, building and appurtenances or lot or in the event that the materials were furnished or services were rendered in the site development or subdivision of any plot of land, then on the plot of land and the claim takes precedence over any other encumbrance originating after the commencement of the services, or the furnishing of any such materials, subject to apportionment as provided in section 49-36.
      “(c) If any such liens exist in favor of two or more persons for materials furnished or services rendered in connection with the same construction, raising, removal or repairs of any building or any of its appurtenances, or in the improvement of any lot, or in the site development or subdivision of any plot of land, no one of those persons shall have any priority over another except as hereinafter provided.
      “(d) If any instrument constituting a valid encumbrance upon such land other than a mechanic’s lien is filed for record while the building is being constructed, raised, removed or repaired, or the lot is being improved, or the plot of land is being improved or subdivided, all such mechanic’s liens originating prior to the filing of that instrument for record take precedence over that encumbrance and no such mechanic’s lien shall have priority over any other such mechanic’s lien. That encumbrance and all such mechanic’s liens shall take precedence over any mechanic’s lien which originates for materials furnished or services rendered after the filing of that instrument for record, but no one of the mechanic’s liens originating after the filing of that instrument for record has precedence over another. If any lienor waives or releases his lien or claim of precedence to any such encumbrance, that lien shall be classed with and have no priority over liens originating subsequentto that encumbrance.
      “(e) A mechanic’s lien shall not attach to any such building or its appurtenances or to the land on which the same stands or to any lot or to any plot of land, in favor of any subcontractor to a greater extent in the whole than the amount which the owner has agreed to pay to any person through whom the subcontractor claims subject to the provisions of section 49-36.
      “(f) Any such subcontractor shall be subrogated to the rights of the person through whom the subcontractor claims, except that the subcontractor shall have a mechanic’s lien or right to claim a mechanic’s lien in the event of any default by that person subject to the provisions of sections 49-34, 49-35 and 49-36, provided the total of such lien or liens shall not attach to any building or its appurtenances, or to the land on which the same stands or to any lot or to any plot of land, to a greater amount in the whole than the amount by which the contract price between the owner and the person through whom the subcontractor claims exceeds the reasonable cost, either estimated or actual, as the case may be, of satisfactory completion of the contract plus any damages resulting from such default for which that person might be held liable to the owner and all bona fide payments, as defined in section 49-36, made by the owner before receiving notice of such lien or liens.
      “(g) In the case of the removal of any building, no such mechanic’s lien shall take precedence over any encumbrance upon the land to which such building has been removed which accrued before the building was removed upon the land.
      “(h) Any mechanic’s lien may be foreclosed in the same manner as a mortgage.”

       The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).
      While the plaintiffs motion for default against the insured was granted by the trial court as to count one of the complaint, no final judgment appears to have been rendered on that count. The plaintiff has appealed from an appealable final judgment, however, because the judgment on count two disposed of all of the plaintiffs claims against the owner and the surety. See Practice Book § 4002B.

       In Marehetti v. Sleeper, 100 Conn. 339, 342, 123 A. 845 (1924), this court held that an architect’s plans and specifications constituted lienable services rendered in the construction of a building. We noted, however, that “there can be no lien until some actual or theoretical increment of value has attached itself to the land by the commencement of the building . . . .” Id.

       The court in State ex rel. Mountain States Mutual Casualty Co. v. KNC, Inc., supra, 106 N.M. 141-42, held that premiums for subcontractors’ workmen’s compensation insurance constituted “material” furnished to subcontractors within contemplation of the Mechanic’s Lien Act based upon the language of N.M. Stat. Aim. § 48-2-17 (Michie 1978 and Sup. 1985), which provides “[ujnpaid premiums or charges for the furnishing of workmen’s compensation insurance furnished to any contractor or subcontractor, who is required by the terms of his contract or by law to obtain and cany such insurance, shall be and is hereby defined to be material furnished to the contractor or subcontractor for use in the performance of the contract, and the person, firm or corporation so furnishing the same shall have the same rights and remedies against any performance bond given in connection with such contract as if the workmen’s compensation insurance so furnished were physical property, and as though a lien had been filed against the improved premises, but shall have no lien against the improved premises.”


author: NORCOTT, J.

text:
    THE METROPOLITAN DISTRICT v. TOWN OF BURLINGTON
    (SC 15439)
    Berdon, Norcott, Katz, Palmer and McDonald, Js.
    Argued January 23
    officially released June 17, 1997

      Wesley W. Horton, with whom were Kimberly A. Knox, Charles W. Bauer and, on the brief, David A. Robles, legal intern, for the appellant (defendant).

      Bourke G. Spellacy, with whom were Christopher R. Stone and, on the brief, Ian J. Platt, for the appellee (plaintiff).
   Opinion

NORCOTT, J.

The principal issue in this appeal is whether, under General Statutes § 12-76 (a), a municipal tax assessor is required to value water supply land for property tax purposes as improved farmland with a continuing farming use, or whether the statute permits water supply land to be valued based upon the highest and best use of the property. The plaintiff, the Metropolitan District, brought an action in the trial court challenging the refusal by the board of tax review (board) to reduce the valuation by the defendant, the town of Burlington, of 2431.7 acres of water supply land owned by the plaintiff. The trial court sustained the plaintiffs challenge to the board’s decision and reduced the assessment of the property from $9,806,860 to $5,471,325. The defendant appealed from the judgment to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

The following facts are not in dispute. The plaintiff is a specially chartered municipal corporation providing water and sewer service to eight member towns and to customers in twelve additional communities throughout central Connecticut. The defendant valued the plaintiffs water supply land from October 1, 1988, through October 1, 1994, at $5761 per acre for a total assessed value of $9,806,860. Pursuant to General Statutes § 12-117a, the plaintiff filed an application in the Superior Court to appeal from the board’s denial of the plaintiffs request for a reduction of the assessment that had been levied against it. The complaint alleged that the board had failed to follow the statutory mandate set forth in § 12-76 (a) in making its assessment, and that the defendant had not notified the plaintiff of the tax increase in violation of General Statutes § 12-55 (a). In its answer, the defendant stated that it had not followed the mandate set forth in § 12-76 (a) because it had assessed the plaintiffs water supply land at 70 percent, rather than at 100 percent, of its fair market value for the years prior to an amendment to § 12-76 (a), which was to take effect in 1992, providing that such land was to be assessed at 70 percent of its fair market value.

The case was tried to the court on the following issues: (1) whether the defendant had properly valued the plaintiffs water supply land; (2) whether the plaintiff had received adequate notice of the increase in the assessment within the time period mandated by § 12-55 (a); and (3) in the event that the trial court decided to reduce the assessment, whether the defendant should be allowed to offset the reduction by the amount that the defendant could have collected from the plaintiff if it had taxed the plaintiffs property at 100 percent of its fair market value for the years 1988 through 1991. At trial, the appraisers for both the plaintiff and the defendant agreed that the plaintiffs water supply land was taxable under § 12-76 (a), and that the property was located in a residential zone, which permitted the following uses: single-family detached dwellings, farming, forestry and forestry reserve, fish and wildlife refuges, and watershed management and similar conservation uses. Each appraiser further claimed to have appraised the plaintiffs water supply land as if the property were “improved farm land” in accordance with § 12-76 (a).

The defendant’s appraiser, Arthur Oles, stated in his appraisal of the plaintiffs property that “[a]s defined, the highest and best use of the [plaintiffs] property as improved farmland is for single-family residential development. ... As improved farmland, the property is ideal for residential development, having been altered or developed from its natural state in order to enhance or promote its use for farming.” Based on an analysis of ten sales of residentially zoned land in north central Connecticut, Oles valued the plaintiffs property at $6000 per acre for a total amount of $14,590,200.

The plaintiff s appraiser, Edward F. Heberger, offered two different analyses of the value of the plaintiffs water supply land. Under the first scenario, Heberger valued the plaintiffs property at $2015 per acre, for a total amount of approximately $4,900,000, by comparing sales of property whose highest and best use was as a single-family residential development. Under the second scenario, Heberger analyzed comparable sales of property sold for continuing use as farmland. Because of a lack of comparable sales of improved farmland in the town of Burlington, Heberger compared sales of improved farmland, purchased for the puipose of continuing use as farmland, that was located primarily in flood plains along the Connecticut River. Under this analysis, he concluded that the value of the plaintiffs property was $1604 per acre for a total amount of approximately $3,900,000.

The trial court sustained the plaintiffs appeal from the board’s assessment and determined that the defendant had improperly construed § 12-76 (a) in valuing the plaintiffs water supply land. In its memorandum of decision, the court stated that “[ujnder normal circumstances, the real estate owned by the [plaintiff] would be valued at its fair market value. . . . However, in the present action, the legislature has seen fit to define the highest and best use of the subject property of the [plaintiff] to be ‘improved farmland.’ ” (Citation omitted.) The trial court noted that this court had defined the term“ ‘improved farmland’ ” in Metropolitan District v. Barkhamsted, 199 Conn. 294, 302, 507 A.2d 92 (1986), as “land that has been altered or developed from its natural state in order to enhance or promote its use for farming.” In light of this definition of improved farmland, the trial court determined that Oles, and Heberger in his first scenario, had misconstrued § 12-76 (a) by “using comparables related to the development of residential property.”

In other words, the trial court determined that § 12-76 (a) provided a departure from the general rule that property should be valued based on the property’s actual highest and best use by creating a statutory ceiling limiting the highest and best use of water supply land to improved farmland with a continuing farming use. On the basis of this determination, the court concluded that the proper assessment of the plaintiffs water supply land should have focused on an analysis of sales of other farmland properties. Using the higher priced comparable sales set forth in Heberger’s appraisal, the court assessed the plaintiffs property, based on its highest and best use as improved farmland with a continuing farming use, at $2250 per acre for a total amount of $5,471,325. In accordance with this assessment, the court ordered a reduction in the assessment of the plaintiffs land from $9,806,860 to $5,471,325.

The trial court also rejected the plaintiffs claim that it had not received adequate notice of the increase in the assessment pursuant to § 12-55 (a). In addition, finding that “there [was] no evidence that the [defendant] ever took appropriate steps to change the assessment to tax the [plaintiff] at the 100 percent rate,” the court dismissed the defendant’s claim that it should receive as a setoff those amounts that it had not collected from the plaintiff by assessing the plaintiffs property at 70 percent, rather than at 100 percent, of the property’s value before the amendment to § 12-76 (a), which was to take effect in 1992.

On appeal, the defendant argues that the trial court improperly: (1) construed § 12-76 (a) when it assessed the plaintiffs water supply land as if it were improved farmland with a continuing farming use; (2) used comparable sales of flood plain lands to determine the value of the plaintiffs property for assessment purposes; and (3) refused to allow the defendant to increase its prior assessments of the plaintiffs water supply land for the years 1988 through 1991. We are unpersuaded by these claims and, accordingly, we affirm the judgment of the trial court.

I

The defendant first argues that the trial court improperly reduced the amount of the assessment of the plaintiffs water supply land. Specifically, the defendant contends that the court improperly construed § 12-76 (a) by valuing the plaintiffs water supply land based on its fair market value as improved farmland with a continuing farming use, rather than based on its fair market value of what would be the property’s highest and best use as a single-family residential development. We disagree.

Our resolution of the defendant’s claim requires an analysis of § 12-76 (a), in which “we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case .... In seeking to determine that meaning, ‘we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.’ ” United Illuminating Co. v. New Haven, 240 Conn. 422, 431, 692 A.2d 742 (1997). The defendant argues that § 12-76 (a) does not depart from the accepted determination of the fair market value of property based on its actual highest and best use. It is true that, under the general rule of property valuation, “ ‘fair [market] value, of necessity, regardless of the method of valuation, takes into account the highest and best value of the land.’ ” Carol Management Corp. v. Board of Tax Review, 228 Conn. 23, 34, 633 A.2d 1368 (1993). “ ‘The “highest and best use” concept, chiefly employed as a starting point in estimating the value of real estate by appraisers, has to do with the use that will most likely produce the highest market value, greatest financial return, or the most profit from the use of a particular piece of real estate.’ ” Id. On the basis our review of the plain language and legislative history of § 12-76 (a), however, we conclude that the legislature intended to depart from the general rule of property valuation when it enacted § 12-76 (a).

In looking to the plain language of § 12-76 (a), we are persuaded that the phrase “valued at what would be its fair market value were it improved farm land,” means that water supply land should be assessed as though it were improved farmland with a continuing farming use. In subsection (a) of § 12-76, the word “were” denotes the past subjunctive of the verb “to be.” A verb used in the subjunctive mood “represents an attitude toward or concern with a denoted act or state not as fact but as something entertained in thought as contingent or possible . . . .” (Emphasis added.) Webster’s Third New International Dictionary (1966). In other words, § 12-76 (a) mandates that water supply land should be valued at its fair market value as if or as though it were improved farmland with a continuing farming use. “ ‘[W]e presume that the legislature had a purpose for each sentence, clause or phrase in a legislative enactment, and that it did not intend to enact meaningless provisions.’ ” Commission on Human Rights & Opportunities v. Truelove & Maclean, Inc., 238 Conn. 337, 347, 680 A.2d 1261 (1996). Construing § 12-76 (a) to mean that water supply land should be valued as if the land were to be developed for single-family residences would render meaningless the phrase “were it improved farm land” in the context of the statute. Had the legislature intended such a construction, the statute would have provided that water supply land is to be valued based on its fair market value.

The genealogy of § 12-76 (a), which this court set forth in Metropolitan District v. Barkhamsted, supra, 199 Conn. 298, supports this conclusion. The circumstances surrounding the enactment of the statute and its subsequent legislative history reveal that the legislature intended water supply land to be valued based on its use for agriculture. “In West Hartford v. Board of Water Commissioners, 44 Conn. 360 (1877), we held that a reservoir owned by a municipal corporation in another town was not subject to taxation in the town where the reservoir is situated. The General Assembly’s dissatisfaction with the result of this case prompted adoption of the original version of § 12-76, which provided: ‘Land owned or taken by any municipal corporation, for the purpose of creating or furnishing a supply of water for its use or benefit, shall be hable to taxation, and shall be set in the hst in the town where such land is situated, to the corporation owning or controlling such water supply, at a valuation which would be fair for said land if used for agricultural purposes: provided, however, that no such land shall be liable to taxation, or set in any hst as aforesaid, wherever the inhabitants of the town in which the said land is situated have the right to the use of such water supply upon the same terms and conditions as the inhabitants of such municipal corporation, and when such town actually uses the same.’ . . . Public Acts 1879, c. 79.” (Emphasis in original.) Metropolitan District v. Barkhamsted, supra, 298-99. In other words, requiring a town to value water supply land as property whose highest and best use was for agricultural purposes was the means by which the legislature aimed to provide fair compensation to a taxing town without imposing an undue tax burden on customers of municipal corporations.

Subsequent amendments to § 12-76 (a) did not alter the legislature’s original intent in enacting the statute. “[I]n 1913, the legislature deleted the language ‘at a valuation which would be fair for said land if used for agricultural purposes’ and substituted ‘at the average assessed valuation per acre of the improved farming land in said town.’ . . . Public Acts 1913, c. 156.” (Emphasis in original.) Metropolitan District v. Barkhamsted, supra, 199 Conn. 299. This amendment reflected the fact that, in 1913, Connecticut towns were predominantly rural and, accordingly, only restricted the method of valuing water supply land to the comparison of improved farmland located in the same town. In 1963, § 12-76 (a) was again amended to provide that “such land shall be hable to taxation and shall be assessed in the town in which such land is situated to the corporation owning or controlling such water supply at what would be its fair market value were it improved farm land.” (Emphasis added.) Public Acts 1963, No. 490, § 10. Nothing in the legislative record indicates that, in using the phrase “fair market value,” the legislature intended to alter the original purpose of the statute that watershed property should be valued according to its highest and best use as improved farmland with a continuing farming use. Rather, No. 490 of the 1963 Public Acts, entitled “An Act Concerning the Taxation and Preservation of Farm, Forest, and Open Space Land,” was enacted by the legislature for the express purpose of promoting the conservation of farmland and other open spaces. See 10 S. Proc., Pt. 7, 1963 Sess., pp. 2335-52; Conn. Joint Standing Committee Hearings, State Development and Agriculture, 1963 Sess., pp. 30-50. This amendment to § 12-76 (a) changed the standard of valuation from a comparison of improved farmland solely within the town in which the reservoir was located, to one that also permitted comparison with farmland located outside of the town.

In 1982, the legislature again amended § 12-76 (a) to include land owned by municipal water districts created by special act and added the phrase “notwithstanding the provisions of [General Statutes] section 12-63 . . . .” Public Acts 1982, No. 82-452, § 1. The legislative record does not support the view that, in including water districts under the taxation scheme of the statute, the legislature intended to stray from treating water supply land as improved farmland with a continuing farming use. Rather, the defendant concedes that the legislature’s apparent purpose in adding the phrase “notwithstanding the requirements of § 12-63,” was to preclude municipal corporations and water districts from benefiting from the lower assessment of water supply land that would result if the statute allowed water supply land to be valued based on averaging the values of all types of farmland, including the reduced values of lands referred to in General Statutes §§ 12-107c, 12-107d and 12-107e, which are assessed under § 12-63 according to their current use. See 25 S. Proc., Pt. 13, 1982 Sess., pp. 4220-22.

The legislative history of § 12-76 (a) thus indicates that the legislature, in setting forth the method of valuing water supply land, intended to depart from the general rule of valuation provided for in § 12-63. The genealogy of the statute supports our conclusion that, by enacting and subsequently amending § 12-76 (a), the legislature struck an equitable balance between, on the one hand, the interests of the taxing municipality and, on the other hand, the tax paying customers of water districts and municipal corporations. This balance was achieved by requiring the value of water supply land to be based on its fair market value as improved farmland with a continuing farming use. On the basis of our review of the plain language and the legislative history of § 12-76 (a), and in light of the legislative policy underlying the legislature’s enactment of the statute, we conclude that the trial court properly construed § 12-76 (a) to require water supply land to be valued as if it were improved farmland with a continuing farming use.

II

The defendant next claims that the trial court improperly based the valuation of the plaintiffs water supply land on the value of properties along the Connecticut River flood plains. We disagree.

The following additional facts are necessary to the resolution of this claim. Heberger presented in his second scenario an analysis of nine comparable sales of improved farmland located primarily on flood plains along the Connecticut River that were purchased for continuing farming purposes. In contrast, Oles based his appraisal and testimony solely on an analysis of property sold for the purpose of single-family residential development. Oles did not present any evidence regarding the value of flood plain land or any farmland in the town of Burlington.

In its memorandum of decision, the trial court noted that, in Metropolitan District v. Barkhamsted, supra, 199 Conn. 302, this court had defined the term “ ‘improved farmland’ ” under § 12-76 (a) as “land that has been altered or developed from its natural state in order to enhance or promote its use for farming.” Agreeing with Heberger that the only available comparable properties purchased for farming purposes were located in flood plains outside the town of Burlington, the trial court used the higher priced comparables of the nine flood plain properties that Heberger had presented in his appraisal report. Averaging these higher priced comparables, the court valued the plaintiffs property at $2250 per acre for a total amount of $5,471,325.

We afford wide discretion to the trial court’s determination of the value of property in a property tax appeal. Carol Management Corp. v. Board of Tax Review, supra, 228 Conn. 40-41. Because the trial court acts as the fact finder, it may accept or reject evidence regarding valuation as it deems appropriate. First Bethel Associates v. Bethel, 231 Conn. 731, 741, 651 A.2d 1279 (1995); Carol Management Corp. v. Board of Tax Review, supra, 36. “Whether a property has been overvalued for tax assessment purposes is a question of fact for the trier.” Newbury Commons Ltd. Partnership v. Stamford, 226 Conn. 92, 103, 626 A.2d 1292 (1993). The trial court’s factual findings regarding valuation may be reversed or modified only if they are clearly erroneous in view of the evidence and record as a whole. First Bethel Associates v. Bethel, supra, 744. Furthermore, “the application of [the improved farmland] standard to a particular parcel of land is a question of fact for the trial court.” Metropolitan District v. Barkhamsted, supra, 199 Conn. 303.

Our careful review of the record reveals that the trial court properly exercised its discretion as the fact finder in relying on the higher priced flood plain comparables provided by Heberger in his appraisal report and in his testimony. The trial court heard testimony that these properties all were improved farmland within the meaning of § 12-76 (a) and the definition of that term as set forth in Metropolitan District v. Barkhamsted, supra, 199 Conn. 302. Heberger’s appraisal of the nine properties detailed the essential characteristics of the properties, including the various ways in which the land had been developed for farming purposes. Noting that the comparables that Heberger had offered restricted the land to basic farming, including cultivation of garden vegetables, com and hay, and pasture use, the trial court emphasized that Metropolitan District v. Barkhamsted, supra, 301, had established that improved farmland also included farmland used for dairying and forestry. The trial court based its valuation of the plaintiffs water supply land on the higher priced flood plain comparables presented under Heberger’s second scenario. In light of the fact that the defendant did not provide any evidence to dispute the comparable values provided by Heberger, we conclude that the trial court acted fully within its discretion in determining the value of the plaintiffs property based on the higher priced flood plain lands.

Ill

Finally, the defendant contends that the trial court improperly refused to order an assessment of the plaintiffs property at 100 percent, rather than at 70 percent, of its fair market value as improved farmland for the years 1988 through 1991. We disagree.

Prior to October 1, 1992, § 12-76 (a) provided that water supply land “shall be assessed ... at what would be its fair market value were it improved farm land . . . .” General Statutes (Rev. to 1989) § 12-76 (a). In 1990, the legislature amended the statute, effective as of October 1, 1992, to provide that water supply land was to be assessed at 70 percent of the property’s market value, or “the uniform rate required by subsection (b) of section 12-62a . . . .” Public Acts 1990, No. 90-289, § 1.

In its answer to the plaintiffs amended complaint, the defendant stated that it had improperly assessed the subject property at only 70 percent, rather than at 100 percent, of the property’s fair market value before the legislature amended the statute effective in 1992. At trial, the defendant argued that the trial court accordingly should permit the defendant to offset any reduction by the amount of tax that the defendant could have collected during the years prior to the 1992 amendment if it had valued the property at 100 percent of the property’s fair market value from 1988 through 1991. The trial court dismissed the defendant’s claim on the ground that the defendant presented “no evidence that [it] ever took appropriate steps to change the assessment to tax the [plaintiff] at the 100 percent rate.”

It is well settled in Connecticut that tax assessments may only be made in strict conformity with the taxation statutes. Caulfield v. Noble, 178 Conn. 81, 88-89, 420 A.2d 1160 (1979). Once municipal tax assessors have completed their duties, they have no power to alter a grand list except to remedy a clerical omission or mistake. National CSS, Inc. v. Stamford, 195 Conn. 587, 594, 489 A.2d 1034 (1985). The defendant does not dispute that its assessors failed to take any steps to increase the assessment of the plaintiffs property for the years prior to the amendment to § 12-76 (a) that was effective in 1992. The defendant’s only claim is that the trial court abused its discretion by refusing to exercise its discretionary powers under § 12-117a to “grant such relief as to justice and equity appertains . . . .” In light of the lack of any evidence indicating that the defendant had attempted to follow the statutory provisions regarding the correction or modification of assessments of real property, we conclude that the trial court acted well within its discretion in refusing to allow the defendant to increase the assessment on the plaintiffs property for the years 1988 through 1991.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 12-76 (a) provides: “Land owned or taken by any municipal corporal ion, including any metropolitan district established under provisions of the general statutes or any special act, for the purpose of creating or furnishing a supply of water for its use shall be exempt from taxation when the inhabitants of the town in which such land is situated have the right to use, and use, such water supply upon the same terms as the inhabitants of such municipal corporation; otherwise such land shall be liable to taxation, shall be assessed in the town in which such land is situated to the corporation owning or controlling such water supply, shall be valued at what would be its fair market value were it improved farm land and shall be assessed at the uniform rate required by subsection (b) of section 12-62a, notwithstanding the provisions of section 12-63 or any special act. Any such municipal corporation shall, with respect to any such land acquired on or after January 1, 1978, which is situated in a town other than that in which such municipal corporation is located, make annual payments to such town equal to the taxes which would otherwise be due if such land were assessed in accordance with section 12-63, exclusive of any taxes on improvements made on such land subsequent to acquisition by such corporation.”
      General Statutes § 12-62a (b) provides in relevant part: “Each such municipality shall, no later than the close of its next revaluation required under the provisions of section 12-62, assess all property for purposes of the local property tax at a uniform rate of seventy per cent of present true and actual value . . .
      General Statutes § 12-63 provides: “The present true and actual value of land classified as farm land pursuant to section 12-107c, as forest land pursuant to section 12-107d, or as open space land pursuant to section 12-107e shall be based upon its current use without regard to neighborhood land use of a more intensive nature, provided in no event shall the present true and actual value of open space land be less than it would be as if such open space land comprised a part of a tract or tracts of land classified as farm land pursuant to section 12-107c. The present true and actual value of all other property shall be deemed by all assessors and boards of assessment appeals to be the fair market value thereof and not its value at a forced or auction sale.”

       The total assessed amount is equivalent to 70 percent of $13,860,690, which is the present and actual value of the plaintiffs property as determined by the defendant. See General Statutes § 12-62a (b).

       General Statutes § 12-117a provides in relevant part: “Any person, including any lessee of real property whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes, claiming to be aggrieved by the action of the board of tax review or the board of assessment appeals, as the case may be, in any town or city may, within two months from the date of the mailing of notice of such action, make application, in the nature of an appeal therefrom . . . to the superior court for the judicial district in which such town or city is situated, which shall be accompanied by a citation to such town or city to appear before said court. Such citation shall be signed by the same authority and such appeal shall be returnable at the same time and served and returned in the same manner as is required in case of a summons in a civil action. The authority issuing the citation shall take from the applicant a bond or recognizance to such town or city, with surety, to prosecute the application to effect and to comply with and conform to the orders and decrees of the court in the premises. Any such application shall be a preferred case, to be heard, unless good cause appears to the contrary, at the first, session, by the court or by a committee appointed by the court. The pendency of such application shall not suspend an action by such town or city to collect not more than seventy-five per cent of the tax so assessed or not more than ninety per cent of such tax with respect to any real property for which the assessed value is five hundred thousand dollars or more, and upon which such appeal is taken. If, during the pendency of such appeal, a new assessment year' begins, the applicant, may amend his application as to any matter therein, including an appeal for such new year, which is affected by the inception of such new year and such applicant need not appear- before the board of tax review or board of assessment appeals, as the case may be, to make such amendment effective. The court shall have power to grant such relief as to justice and equity appertains, upon such terms and in such manner and form as appear equitable, and, if the application appear-s to have been made without probable cause, may tax double or triple costs, as the case appears to demand; and, upon all such applications, costs may be taxed at the discretion of the court. If the assessment made by the board of tax review or board of assessment appeals, as the case may be, is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes, together with interest, and any costs awarded by the court, or, at the applicant’s option, shall be granted a tax credit for such overpayment, interest and any costs awarded by the court:. Upon motion, said court shall, in event of such overpayment, enter judgment in favor of such applicant and against such city or town for the whole amount of such overpayment, together with interest and any costs awarded by the court. The amount to which the assessment is so reduced shall be the assessed value of such property on the grand lists for succeeding years until the tax assessor finds that the value of the applicant’s property has increased or decreased.”

         General Statutes § 12-55 provides in relevant part: “(a) When the lists of any town have been so received or made by the assessor or board of assessors, they shall equalize the same, if necessary, and make any assessment omitted by mistake or required by law. The assessor or board of assessors may increase or decrease the valuation of property as named in any of such lists or in the last-preceding grand list, but, in each case of any increase in valuation of such property above the valuation, if any, stated by the person filing such list or in each case of any increase of valuation above the valuation of such property in the last-preceding grand list, except with respect to (he valuation of any motor vehicle, they shall send written notice by mail of such increase in accordance with subsection (b) of this section, including in such notice the valuation prior to and after such increase with respect to each parcel of real property or any improvement thereon, the valuation of which has been increased, to the last-known address of the person whose list or valuation is so changed. . . .
      “(b) The written notice of assessment increase as required in subsection (a) of this section shall be mailed no earlier than the assessment date and no later than the tenth calendar day immediately following the date on which the grand list abstract is signed and attested to by the assessor or board of assessors. If such assessment increase notice is sent later than the time period herein prescribed, such increase shall become effective on the next succeeding grand list.”

       General Statutes § 12-107c provides in relevant part: “Classification of land as farm land, (a) An owner of land may apply for its classification as farm land on any assessment list of a municipality by filing a written application for such classification with the assessor of such municipality not earlier than thirty days before nor later than thirty days after the date of such assessment list, provided in a year in which a revaluation of all real property in accordance with section 12-62 becomes effective such application may be filed not later than ninety days after the assessment date in such year. Such assessor shall determine whether such land is farm land and, if he determines that it is farm land, he shall classify and include it as such on such assessment list. In determining whether such land is farm land, such assessor shall take into account, among other things, the acreage of such land, the portion thereof in actual use for farming or agricultural operations, the productivity of such land, the gross income derived therefrom, the nature and value of the equipment used in connection therewith, and the extent to which the tracts comprising such land are contiguous. ...”
      General Statutes § 12-107d provides in relevant part: “Classification of land as forest land, (a) An owner of land may file a written application with the State Forester for its designation by the State Forester as forest land. When such application has been made, the State Forester shall examine such application and, if he determines that it is forest land, he shall issue a triplicate certificate designating it as such, and file one copy of such certificate in his office, furnish one to the owner of the land and file one in the office of the assessor of the municipality in which the land is located. . . .”
      General Statutes § 12-107e provides in relevant part: “Classification of land as open space land, (a) The planning commission of any municipality in preparing a plan of development for such municipality may designate upon such plan areas which it recommends for preservation as areas of open space land, provided such designation is approved by a majority vote of the legislative body of such municipality. Land included in any area so designated upon such plan as finally adopted may be classified as open space land for purposes of property taxation if there has been no change in the use of such area which has adversely affected its essential character as an area of open space land between the date of the adoption of such plan and the date of such classification. . .


author: CALLAHAN, C. J.

text:
    CYNTHIA A. JAWORSKI v. HARRY KIERNAN
    (SC 15562)
    Callahan, C. J., and Borden, Berdon, Katz and McDonald, Js.
    Argued March 26
    officially released June 17, 1997

      Michael E. Riley, with whom were Michael J. O’Sullivan and Joseph Busher, for the appellant (defendant).

      David W. Cooney, with whom, on the brief, was Kathryn Calibey, for the appellee (plaintiff).
   Opinion

CALLAHAN, C. J.

The sole issue in this appeal is what duty of care the defendant, Harry Kieman, owed the plaintiff, Cynthia A. Jaworski, while both were participating on opposing teams in an adult coed soccer game sponsored by the recreation department of the town of South Windsor. We conclude that the defendant owed the plaintiff a duty of care to refrain from reckless or intentional conduct. Because the jury determined that the defendant’s conduct, which caused the plaintiff’s injuries, was negligent only, and not reckless or intentional, we reverse the judgment of the trial court.

The jury reasonably could have found the following facts. The South Windsor recreation department sponsors an outdoor adult coed soccer league. On May 16, 1993, during a game, the defendant made contact with the plaintiff while she was shielding the soccer ball from the opposition so that the goalie on her team could retrieve the ball. As a result of this incident, the plaintiff suffered an injury to her left anterior cmciate ligament, which caused a 15 percent permanent partial disability of her left knee.

The plaintiff brought this action against the defendant in two counts. In the first count, she alleged that the defendant failed to exercise due care and that his conduct was negligent and careless in that he “hit” and “tripped” her from behind and that he challenged a female player, both in violation of league rules. The plaintiff further alleged that the defendant’s negligent conduct caused her injury. In the second count, the plaintiff alleged that the defendant’s conduct was wanton and reckless, citing the same violations of league rules, and claiming that his conduct caused identical harm. The defendant moved to strike the plaintiffs negligence count, claiming that a participant in an athletic contest is, as a matter of law, not liable to a coparticipant for injuries sustained as a result of simple negligence during the playing of the game. The defendant’s motion was denied. The defendant then filed a special defense to the plaintiffs action, alleging that the plaintiffs own conduct was negligent, and that the plaintiffs negligence exceeded his alleged negligence. The jury returned a verdict for the plaintiff on the first count of her complaint, the negligence count, and found no comparative negligence attributable to the plaintiff. The jury found for the defendant on the second count of the plaintiffs complaint wherein she had alleged reckless conduct. The jury awarded the plaintiff damages in the amount of $20,910.33, the exact amount of her medical bills.

Both parties filed posttrial motions with respect to the verdict. The defendant moved to set aside the verdiet and for judgment notwithstanding the verdict as to the negligence count, claiming, again, that an “action for personal injuries sustained in an athletic competition must be predicated on recklessness and not mere negligence.” The plaintiff also moved to set aside the verdict as to the negligence count, claiming that the verdict was “inadequate as a matter of law due to the jury’s failure to award noneconomic damages.” The plaintiff therefore moved the court to order an additur. The court denied the defendant’s motion to set aside the verdict and for judgment notwithstanding the verdict. The court, however, granted the plaintiffs motion for an additur and conditionally granted her motion to set aside the verdict. The court ruled that if the defendant did not file a $45,000 additur with the clerk or if the plaintiff did not accept such an additur, the motion to set aside the verdict would be granted, and a new trial on the first count as to both liability and damages would be ordered. See Fazio v. Brown, 209 Conn. 450, 455-58, 551 A.2d 1227 (1988). If, however, the additur was filed and accepted, judgment would enter in the sum of $65,910.33. The defendant did not file an additur. Consequently, the verdict as to the first count was set aside, and a new trial was ordered as to that count.

The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). Because we conclude that participants in a team athletic contest owe a duty to refrain only from reckless or intentional conduct toward other participants, we reverse in part the judgment and remand the case with direction to strike the first count of the plaintiffs complaint.

The plaintiff, in support of the trial court’s conclusion that negligence is the proper standard of care to apply to team athletic competition, argues that the theory of negligence is flexible enough to fix a person’s standard of care for any set of circumstances. In addition, the plaintiff cites Walsh v. Machlin, 128 Conn. 412, 23 A.2d 156 (1941), wherein the plaintiff was injured when struck by a golf ball, for the proposition that we have already determined that negligence is the appropriate standard to apply to conduct that occurs during an athletic contest. In particular, the plaintiff points to our statement in Walsh that “[i]t is undisputed that the duty to the plaintiff which rested upon the defendant while playing this game was the usual one of reasonable care under the circumstances.” Id., 414. The plaintiff also argues that the assumption of risk principles upon which a reckless conduct standard of care is based — i.e., that plaintiffs have assumed the risk of negligent conduct, but not of reckless or intentional conduct, by their participation in the athletic contest — (1) are incompatible with Connecticut law, and (2) have been replaced by General Statutes § 52-572h, and therefore, the reckless conduct standard is inappropriate. Last, the plaintiff makes a public policy argument, stating that “society has an obligation not to tolerate behavior which is unreasonable, especially when it involves the violation of [athletic] safety rules.”

The defendant, on the other hand, summarizes cases from foreign jurisdictions, the vast majority of which has adopted an intentional or reckless conduct standard of care for athletic contests. He also presents two public policy arguments, which he contends support that conclusion: (1) promoting vigorous competition and participation; and (2) avoiding a flood of litigation. Finally, the defendant challenges the plaintiffs contention that the theory of assumption of risk was completely abolished by the enactment of § 52-572h.

We first note that the determination of whether a duty exists between individuals is a question of law. Petriello v. Kalman, 215 Conn. 377, 382, 576 A.2d 474 (1990); Shore v. Stonington, 187 Conn. 147, 151, 444 A.2d 1379 (1982). Only if a duty is found to exist does the trier of fact go on to determine whether the defendant has violated that duty. Petriello v. Kalman, supra, 382-83. When “the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record. Practice Book § 4061; United Illuminating Co. v. Groppo, 220 Conn. 749, 752, 601 A.2d 1005 (1992) . . . .” (Citations omitted; internal quotation marks omitted.) SLI International Corp. v. Crystal, 236 Conn. 156, 163, 671 A.2d 813 (1996).

“Duty is a ‘legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual.’ 2 D. Pope, Connecticut Actions and Remedies, Tort Law (1993) § 25:05, p. 25-7. Although it has been said that ‘no universal test for [duty] ever has been formulated’; W. Prosser & W. Keeton, [Torts (5th Ed. 1984)] § 53, p. 358; our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. ‘The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised. ... By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant’s position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?’. . . Frankovitch v. Burton, 185 Conn. 14, 20-21, 440 A.2d 254 (1981); Noebel v. Housing Authority, 146 Conn. 197, 200-201, 148 A.2d 766 (1959); Orlo v. Connecticut Co., 128 Conn. 231, 237, 21 A.2d 402 (1941). . . .

“A simple conclusion that the harm to the plaintiff was foreseeable, however, cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally ‘foreseeable,’ yet for pragmatic reasons, no recovery is allowed. See, e.g., Maloney v. Conroy, 208 Conn. 392, 400-401, 545 A.2d 1059 (1988) (looking beyond foreseeability, this court imposed limitations on the right of a bystander to recover for emotional distress that allegedly resulted from medical malpractice of doctors in their treatment of the plaintiffs . . . mother). A further inquiry must be made, for we recognize ‘that “duty” is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.’ W. Prosser & W. Keeton, supra, § 53, p. 358. ‘While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree.’. . . Maloney v. Conroy, supra, 401-402. The final step in the duty inquiry, then, is to make a determination of ‘the fundamental policy of the law, as to whether the defendant’s responsibility should extend to such results.’ W. Prosser & W. Keeton, supra, § 43, p. 281.” RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 385-86, 650 A.2d 153 (1994).

Our first step in an analysis of whether a duty exists and the extent of the defendant’s duty, therefore, is to determine the foreseeability of the plaintiffs injury, i.e., whether a reasonable person in the defendant’s position, knowing what he knew or should have known, would have anticipated the harm that resulted from his actions. Soccer, while not as violent a sport as football, is nevertheless replete with occasions when the participants make contact with one another during the normal course of the game. When two soccer players vie for control of the ball, the lower limbs are especially vulnerable to injury. If a player seeks to challenge another player who has possession of the ball or seeks to prevent another player from gaining possession of the ball, the resulting contact could reasonably be foreseen to result in injury to either player. We conclude, therefore, that the plaintiffs injury was foreseeable.

Having concluded that the plaintiffs injury was a foreseeable consequence of the defendant’s actions, we need to determine as a matter of policy the extent of the legal duty to be imposed upon the defendant. In order to determine the extent of the defendant’s responsibility, we consider: (1) the normal expectations of participants in the sport in which the plaintiff and the defendant were engaged; (2) the public policy of encouraging continued vigorous participation in recreational sporting activities while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions. See, e.g., Maloney v. Conroy, supra, 208 Conn. 400-401 (looking beyond foreseeability to other pragmatic concerns to limit liability).

In athletic competitions, the object obviously is to win. In games, particularly those played by teams and involving some degree of physical contact, it is reasonable to assume that the competitive spirit of the participants will result in some rules violations and injuries. That is why there are penalty boxes, foul shots, free kicks, and yellow cards. Indeed, the specific rules applicable to this game demonstrate that rules violations were expected in the normal course of the game. See footnote 1 of this opinion. Some injuries may result from such violations, but such violations are nonetheless an accepted part of any competition. Simply put, when competitive sports are played, we expect that a participant’s main objective is to be a winner, and we expect that the players will pursue that objective enthusiastically. We also anticipate that players in their enthusiasm will commit inadvertent rules violations from which injuries may result. The normal expectations of participants in contact team sports include the potential for injuries resulting from conduct that violates the rules of the sport. These expectations, in turn, inform the question of the extent of the duty owed by one participant to another. We conclude that the normal expectations of participants in contact team sports counsel the adoption of a reckless or intentional conduct duty of care standard for those participants.

A proper balance of the relevant public policy considerations surrounding sports injuries arising from team contact sports also supports limiting the defendant’s responsibility for injuries to other participants to injuries resulting from reckless or intentional conduct. The Appellate Court of Illinois in Nabozny v. Barnhill, 31 Ill. App. 3d 212, 334 N.E.2d 258 (1975), was the first appellate court, of which we are aware, to address the issue that is before us today. In Nabozny, the court described the tension between two relevant public policy considerations as follows: “This court believes that the law should not place unreasonable burdens on the free and vigorous participation in sports by our youth. However, we also believe that organized, athletic competition does not exist in a vacuum. Rather, some of the restraints of civilization must accompany every athlete on to the playing field.” Id., 215. The court thereafter concluded that a player was liable only for deliberate, wilful or reckless conduct. Id.

We too appreciate the tension between promoting vigorous athletic competition on the one hand and protecting those who participate on the other. As have most jurisdictions, we conclude that this balance is best achieved by allowing a participant in an athletic contest to maintain an action against a coparticipant only for reckless or intentional conduct and not for merely negligent conduct. We believe that participants in recreational sports will not alter their enthusiasm for competition or their participation in recreational activities for fear of liability for injuring someone because of their reckless or intentional conduct. We are convinced, however, that liability for simple negligence would have an opposite effect. We also are convinced that a recklessness standard will sufficiently protect participants in athletic contests by affording them a right of action against those who cause injuries not inherent in the particular game in which the participants are engaged. In other words, we believe that the reckless or intentional conduct standard of care will maintain civility and relative safety in team sports without dampening the competitive spirit of the participants.

A final public policy concern that influences our decision is our desire to stem the possible flood of litigation that might result from adopting simple negligence as the standard of care to be utilized in athletic contests. If simple negligence were adopted as the standard of care, every punter with whom contact is made, every midfielder high sticked, every basketball player fouled, every batter struck by a pitch, and every hockey player tripped would have the ingredients for a lawsuit if injury resulted. When the number of athletic events taking place in Connecticut over the course of a year is considered, there exists the potential for a surfeit of lawsuits when it becomes known that simple negligence, based on an inadvertent violation of a contest rule, will suffice as a ground for recovery for an athletic injury. This should not be encouraged.

The majority of jurisdictions addressing this issue has chosen to adopt either a reckless or an intentional conduct standard of care when determining liability for injuries that occur during an athletic contest. Nabozny v. Barnhill, supra, 31 Ill. App. 3d 212, also involved an injury received during a soccer game. The plaintiff was a goalie on one team and had fielded the ball within the penalty area surrounding his goal. The ball had been passed to the plaintiff by a teammate who was closely pursued by the defendant, an opponent. The defendant did not turn away after the plaintiff had fielded the ball, but continued to run toward him and subsequently kicked the plaintiff, causing injury. The court concluded that “a player is liable for injury in a tort action if his conduct is such that it is either deliberate, wilful or with a reckless disregard for the safety of the other player so as to cause injury to that player, the same being a question of fact to be decided by a jury.” Id., 215.

In Crown v. Campo, 136 N.J. 494, 496, 643 A.2d 600 (1994), the “[pjlaintiff was playing catcher in a pickup softball game and was injured when [the] defendant, attempting to score from second base, either slid or ran into him at home plate.” In rejecting the negligence standard, the court concluded: “One might well conclude that something is terribly wrong with a society in which the most commonly-accepted aspects of play — a traditional source of a community’s conviviality and cohesion — spurs litigation. The heightened recklessness standard recognizes a commonsense distinction between excessively harmful conduct and the more routine rough-and-tumble of sports that should occur freely on the playing fields and should not be second-guessed in courtrooms.” Id., 508.

Finally, we address the plaintiffs contention that in Walsh v. Machlin, supra, 128 Conn. 412, we imposed the negligence standard as the appropriate standard to be used for injuries occurring during athletic contests. Walsh is, however, distinguishable.

In Walsh, both the plaintiffs and the defendant’s golf balls were roughly one hundred feet from the green. “Standing by the defendant’s ball, the plaintiff and [the] defendant discussed the club the defendant should use and the defendant selected his mashie niblick. The plaintiff, seeing the defendant about to prepare to take his shot, said, ‘Now put it on the green,’ and walked away at almost right angles to the direct and intended line of flight from the ball to the green. Without calling ‘Fore,’ the defendant swung at his ball, shanked it so that it was deflected at almost a ninety degree angle to the right and hit the plaintiff in the eye as he turned to look back over his left shoulder just as he had reached his ball, causing him serious injury.” Id., 413.

Our conclusion herein does not conflict with Walsh because, initially, we decide the standard to be applied to only those injuries occurring during team athletic contests involving contact as part of the game. Golf, generally, is neither a team sport in the true sense nor a sport where contact with other participants is a part of the game. Further, the normal expectations of participants in a golf match are far different from those inherent in soccer, and therefore a different standard of care may be appropriate. We, therefore, leave the question of what standard of care might be applicable in other factual circumstances for another day.

Applying the foregoing considerations to the facts before us, we conclude that, as a matter of policy, it is appropriate to adopt a standard of care imposing on the defendant, a participant in a team contact sport, a legal duty to refrain from reckless or intentional conduct. Proof of mere negligence is insufflcient to create liability.

The judgment is reversed in part and the case is remanded with direction to strike the first count of the plaintiffs complaint.

In this opinion the other justices concurred.

       One rule in effect for league games was the “challenge rale,” which provides: “No male player may challenge a female player, however, he may ‘post up’ if more than six feet away at the time of possession. In the event of an infraction, the female player will be awarded a direct free kick (the exception is [the] goalie in the penalty area).
      “Any male player who is called for challenging a female player twice during the course of a game may be charged with unsportsmanlike conduct (at discretion of referee) and awarded a yellow card. ” South Windsor Recreation Dept., Adult Coed Soccer Program Rules and Regs. (1992).

       The defendant also moved to strike the reckless conduct count for failing to allege the necessary elements for an action founded on reckless conduct. That motion also was denied. That ruling, however, is not before us on appeal.

       This figure represents the jury’s award of $20,910.33 plus the $45,000 additur.

       The plaintiff filed a cross appeal in this action, which was subsequently withdrawn.

       The jury was instructed that it could consider the following factors when assessing the defendant’s alleged negligence: “In the present context you may wish to consider the following circumstances, along with any other you deem relevant in determining whether the defendant breached his duty to act as a reasonable person under all of the circumstances of a sports event. What type of sport and game were involved, which in this case was an amateur coed recreational soccer game. The generally accepted customs and practices of amateur coed recreational soccer including the types of contact and the level of violence generally accepted in such games; whether the game was conducted pursuant to a recognized set of rules, and, if so, what those rules were; whether the conduct as you find it to be violated a rule of the game, and, if so, whether the rule was designed for the safety of participants; what risks were and were not inherent in the coed recreational soccer game as was expected to be played in this setting; the presence or absence of protective equipment; the ages, physical characteristics and skills of the participants; what degree of competitiveness was involved; what knowledge of the rules and customs of the game the participants possessed; what relationship the conduct of the participants bore to the ultimate purpose of the contest.”

       General Statutes § 52-572h provides in relevant part: “(b) In causes of action based on negligence, contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages resulting from personal ir\juiy, wrongful death or damage to property if the negligence was not greater than the combined negligence of the person or persons against whom recovery is sought including settled or released persons under subsection (n) of this section. The economic or noneconomic damages allowed shall be diminished in the proportion of the percentage of negligence attributable to the person recovering which percentage shall be determined pursuant to subsection (f) of this section. . . .
      “(e) In any action to which this section is applicable, the instructions to the jury given by the court shall include an explanation of the effect on awards and liabilities of the percentage of negligence found by the jury to be attributable to each parly. . . .

        “(f) The legal doctrines of last clear chance and assumption of risk in actions to which this section is applicable are abolished. . . .”

       In light of our conclusion that, as a matter of policy, the defendant owed the plaintiff a duty to refrain only from reckless or intentional conduct, irrespective of any notions of assumption of risk, we need not address this issue.

       Indeed, the league in which the parties participated, cognizant of probable leg injuries, required participants to wear shin guards and prohibited the use of metal spikes on participants’ shoes.

       The jury returned a general verdict for the plaintiff on the negligence count, and therefore, made no finding regarding whether the plaintiff had possession of the ball when the injury occurred and whether the challenge rule; see footnote 1 of this opinion; had been violated.

       The Illinois Supreme Court confirmed the Appellate Court’s legal conclusion in Nabozny twenty years later in Pfister v. Shusta, 167 Ill. 2d 417, 425-26, 657 N.E.2d 1013 (1995) (“[t]he circuit court properly applied the contact sports exception bar to liability for injuries caused by the mere simple negligence alleged in the plaintiffs complaint”).

       See also Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516, 524 (10th Cir. 1979) (“recklessness is the appropriate standard”); Pfister v. Shusta, 167 Ill. 2d 417, 425-26, 657 N.E.2d 1013 (1995) (“[t]he circuit court properly applied the contact sports exception bar to liability for injuries caused by the mere simple negligence alleged in the plaintiffs complaint”); Hoke v. Cullinan, 914 S.W.2d 335,339 (Ky. 1996) (“[n]ot until a participant’s conduct reaches a level of recklessness should civil liability attach”); Ross v. Clouser, 637 S.W.2d 11, 13-14 (Mo. 1982) (en banc) (“a cause of action for personal injuries incurred during athletic competition must be predicated on recklessness, not mere negligence”); Dotzler v. Tattle, 234 Neb. 176, 183, 449 N.W.2d 774 (1990) (“a participant in a game involving a contact sport such as basketball is liable for injuries in a tort action only if his or her conduct is such that it is either willful or with a reckless disregard for the safety of the other player”); Crawn v. Campo, 136 N.J. 494, 497, 643 A.2d 600 (1994) (“the duty of care applicable to participants in informal recreational sports is to avoid the infliction of injury caused by reckless or intentional conduct”); Tureotte v. Fell, 68 N.Y.2d 432, 441, 502 N.E.2d 964, 510 N.Y.S.2d 49 (1986) (“[a] professional clearly understands the usual incidents of competition resulting from carelessness, particularly those which result from the customarily accepted method of playing the sport, and accepts them. They are within the known, apparent and foreseeable dangers of the sport and not actionable. . . .”); Thompson v. McNeill, 53 Ohio St. 3d 102, 103, 559 N.E.2d 705 (1990) (“between participants in such sporting events, only injuries caused by intentional conduct, or in some instances reckless misconduct, may give rise to a cause of action”); Marchetti v. Kalish, 53 Ohio St. 3d 95, 99-100, 559 N.E.2d 699 (1990) (“before a party may proceed with a cause of action involving injury resulting from a recreational or sports activity, reckless or intentional conduct must exist”).

       Mashie niblick: “[A]n iron golf club with a loft between those of a mashie and a niblick — called also number six iron.” Webster’s Third New International Dictionary.