author: Peters, C. J.

text:
    Gregory Bartholomew v. Nancy Schweizer et al.
    (13921)
    Peters, C. J., Callahan, Glass, Covello and Hull, Js.
    Argued January 17
    decision released March 12, 1991

      Frederick W. Danforth, Jr., with whom were Nada K. Morin and, on the brief, Marcella Gereg, for the appellants (defendants).

      Max F. Brunswick, for the appellee (plaintiff).
   Peters, C. J.

The principal issue in this appeal is the constitutionality of General Statutes § 52-216b, which permits closing argument to the trier of fact to include counsel’s suggestion of an appropriate monetary recovery. The plaintiff, Gregory Bartholomew, brought this personal injury action to recover damages arising out of an automobile accident allegedly caused by the negligent driving of the named defendant, Nancy Schweizer, of a car owned by the defendant General Motors Acceptance Corporation. The trial court, Gormley, J., granted the plaintiffs motion for summary judgment on the issue of liability on September 5,1989. After the effective date of Public Acts 1989, No. 89-319, now codified as General Statutes § 52-216b, a jury trial on the issue of damages resulted in a plaintiffs verdict of $150,000, in accordance with which the trial court, Berdon, J., rendered judgment in favor of the plaintiff. We transferred the defendants’ appeal from that judgment to this court pursuant to Practice Book § 4023, and now affirm.

The jury could reasonably have found that the nineteen year old plaintiff was injured when, on September 14, 1985, the defendant Schweizer drove her car so as to strike the plaintiff’s car from the rear. As a result of the accident, the plaintiff suffered pain and stiffness in his back, and missed work for five weeks, working only half-time for two more weeks before returning to work full-time. At the time of the accident, the plaintiff had been actively engaged in karate training, which he had begun six months earlier. Because of the injuries received in the accident, the plaintiff was unable to pursue his future plans for advanced karate training, for participation in karate competition and for qualification as a karate instructor.

On October 27,1989, toward the end of the jury trial on damages, counsel for the plaintiff informed counsel for the defendants that he intended, in his closing argument, to suggest to the jury specific monetary sums as damages for the plaintiff’s injuries. The trial court permitted this argument, despite the defendants' motion in limine that it be disallowed on state constitutional grounds. The trial court’s subsequent charge to the jury included a cautionary instruction, in accordance with subsection (b) of § 52-216b, that arguments of counsel are not evidence.* ** The trial court also instructed the jury that it could consider, as a compensable injury, the plaintiffs claim that he could not pursue karate as an avocation or as a career because of the injuries he had sustained in the accident. The defendants excepted to the portion of the charge concerning the plaintiffs karate activities.

After the jury returned a verdict awarding the plaintiff $150,000 in damages, the defendants moved to set aside the verdict and for remittitur. The trial court denied the motions and rendered judgment on the verdict for the plaintiff.

The defendants’ appeal from the judgment raises two constitutional and two nonconstitutional issues. The defendants contend that § 52-216b is unconstitutional because it violates the separation of powers provision of the Connecticut constitution and because it infringes upon the constitutional right to trial by an impartial jury. They also maintain that the trial court’s “karate charge” was contrary to law and that the trial court should have set aside the jury’s verdict as excessive in amount, or reduced it by a remittitur. We are unpersuaded by any of these contentions.

I

Because a validly enacted statute carries with it a strong presumption of constitutionality, those who challenge its constitutionality must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt. State v. Breton, 212 Conn. 258, 269, 562 A.2d 1060 (1989); University of Connecticut Chapter, AAUP v. Governor, 200 Conn. 386, 391, 512 A.2d 152 (1986); Eielson v. Parker, 179 Conn. 552, 560, 427 A.2d 814 (1980); State v. Darden, 171 Conn. 677, 678, 372 A.2d 99 (1976). In construing a statute, moreover, we will search for an effective and constitutional construction that reasonably accords with the legislature’s underlying intent. State v. Floyd, 217 Conn. 73, 79, 584 A.2d 1157 (1991); McConnell v. Beverly Enterprises-Connecticut, Inc., 209 Conn. 692, 705-706, 553 A.2d 596 (1989).

A

The defendants’ principal claim for the unconstitutionality of § 52-216b focuses on the alleged incompatibility of the statute with the separation of powers provision of article second of the Connecticut constitution. That article provides: “The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.”

Recognizing that executive, legislative and judicial powers frequently overlap, we have consistently held that the doctrine of the separation of powers cannot be applied rigidly. University of Connecticut Chapter, AAUP v. Governor, supra, 394; Adams v. Rubinow, 157 Conn. 150, 155, 251 A.2d 49 (1968); In re Application of Clark, 65 Conn. 17, 38, 31 A. 522 (1894). “In the context of challenges to statutes whose constitutional infirmity is claimed to flow from impermissible intrusion upon the judicial power, we have refused to find constitutional impropriety in a statute ‘simply because it affects the judicial function. . . .’” (Citation omitted.) Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 522, 461 A.2d 938 (1983). A statute violates the constitutional mandate for a separate judicial magistracy only “if it represents an effort by the legislature to exercise a power which lies exclusively under the control of the courts . . . or if it establishes a significant interference with the orderly conduct of the Superior Court’s judicial functions.” (Citations omitted.) State v. Darden, supra, 679; University of Connecticut Chapter, AAUP v. Governor, supra.

Concededly, our decisions in Carchidi v. Rodenhiser, 209 Conn. 526, 551 A.2d 1249 (1989), and Pool v. Bell, 209 Conn. 536, 551 A.2d 1254 (1989), were the occasion for the enactment of § 52-216b. In these cases we held as a matter of judicial policy that, in their closing arguments to a jury, counsel would no longer be permitted to suggest the pecuniary amount of damages claimed to be recoverable either by advancing a “lump sum” amount; Carchidi v. Rodenhiser, supra, 535; or by articulating a mathematical formula. Pool v. Bell, supra, 539-40. The legislative history of § 52-216b demonstrates that its purpose was to overturn the limitations on oral argument that we had imposed. See Substitute House Bill No. 6990, 1989 Sess.; 32 S. Proc., Pt. 11, 1989 Sess., p. 3913, remarks of Sen. Anthony V. Avallone; 32 H.R. Proc., Pt. 14, 1989 Sess., p. 4781, remarks of Rep. Jay B. Levin. Although this record establishes that the statute “affects the judicial function,” it does not resolve the issue whether the function regulated is one that is properly or historically within the exclusive control of the judicial branch of government.

Citing some of the arguments of policy on which we relied in our decision in Carchidi, the defendants advance three contentions to sustain their position that the supervision of closing arguments by counsel is a matter within the exclusive control of the judiciary. They urge us to conclude that § 52-216b conflicts with (1) the traditionally recognized broad discretion of trial courts to control closing arguments, (2) the judicial authority to discipline and regulate the conduct of counsel, and (3) the prohibition against the submission of the ad damnum clause to the jury contained in Practice Book § 313. We disagree that the statute, fairly construed, is unconstitutional.

Although we have regularly held that trial courts have broad discretion to control oral arguments, we have never held that the court’s authority in this regard is exclusive of concurrent legislative authority. For instance, the defendants cite State v. Hoyt, 47 Conn. 518, 535-36 (1880), as having established that a trial court has the power to limit the time allotted for closing arguments of counsel. In that case, however, a statute provided that “ ‘in no trial before the Superior Court . . . shall counsel occupy more than one hour in argument, unless the court shall, on motion for special cause before the commencement of argument, allow a longer time.’ ” Id., 535. The court in Hoyt assumed, however, the existence of concurrent legislative and judicial authority to limit the arguments of counsel. The only issue that the court addressed was whether such a limitation violated a criminal defendant’s constitutional right “to be heard by himself and by counsel.” Id.

None of the cases that recite the uncontroverted principle that “ ‘[t]he trial court is invested with a large discretion with regard to the arguments of counsel’ Tomczuk v. Alvarez, 184 Conn. 182,193, 439 A.2d 935 (1981); Levin v. Ritson, 179 Conn. 223, 226, 425 A.2d 1279 (1979); see also State v. Herring, 210 Conn. 78, 102, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230,106 L. Ed. 2d 579 (1989); suggests that such power is exclusive of legislative authority. Like the authority to adjudge the competency of witnesses, where we have recognized that exercise of a legislative prerogative to limit judicial discretion is constitutionally permissible; State v. James, 211 Conn. 555, 560-63, 560 A.2d 426 (1989); the existence of discretionary judicial authority over oral arguments does not automatically preclude some measure of legislative regulation.

We turn then to the defendants’ allegation that the challenged statute impermissibly interferes with the orderly conduct of the court’s constitutional responsibility to discipline and regulate the conduct of counsel. The defendants perceive a conflict between § 52-216b and Rule 3.4 (e) of the Rules of Professional Conduct, which was adopted by the judges of the Superior Court pursuant to their rulemaking authority. Rule 3.4 (e) provides in relevant part that a lawyer shall not, at trial, “allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.” A conflict arises, according to the defendants, because § 52-216b permits attorneys in civil actions to argue monetary figures based on personal opinion or speculation not supported by the evidence. We are not persuaded that the legislature intended to override the authority of the court to require attorneys to adhere to this ethical prohibition.

It is true that in Carchidi this court, acting within its common law power to declare the law in the absence of legislative action, concluded that the consideration of appropriate monetary damages for pain and suffering, like the determination of the credibility of witnesses, is a function that should be performed by the trier of fact rather than by trial counsel, whose statements are made “in the course of the zealous representation of a client’s cause” and may tend to be “self-serving.” Carchidi v. Rodenhiser, supra, 534. We did not hold, however, that such statements would constitute unprofessional or unethical conduct. Indeed, we acknowledged that such statements had long been permitted in Connecticut, subject only to the sound discretion of the trial court. Id., 529-30, quoting Levin v. Ritson, supra, 227; see also Cascella v. Jay James Camera Shop, Inc., 147 Conn. 337, 342-43, 160 A.2d 899 (1960).

We find in § 52-216b no evidence that the legislature intended to abrogate the power of the court to discipline attorneys or to control their statements during oral argument as justice may require. The history of the enactment of § 52-216b indicates that it was intended essentially to reinstate the governing legal principles that existed prior to our decisions in Carchidi and Pool. In the House of Representatives, the legislator who had introduced the bill and had reported it out of committee expressly stated that trial judges would retain the power, under the statute, to forbid attorneys to argue damages if no factual basis for such argument had been established in the course of trial. 32 H.R. Proc., Pt. 14, 1989 Sess., p. 4780, remarks of Rep. Jay B. Levin. Representative Levin further indicated that the bill was not intended to make “a dramatic change” in the law of Connecticut, but rather to restore the process that had been followed prior to this court’s decisions that year. Id., p. 4781. His explanation that “an appropriate basis would have to be laid” for such arguments; id.; indicates that it was his expectation, as a sponsor of the bill, that the trial court would retain broad discretion, even under the statute, to preclude such arguments if unsupported by the evidence presented. “The statement of the legislator who reported the bill out of committee carries particular weight and deserves careful consideration.” Manchester Sand & Gravel Co. v. South Windsor, 203 Conn. 267, 275, 524 A.2d 621 (1987); Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 15 n.4, 434 A.2d 293 (1980). Because the language of § 52-216b does not purport to limit the appropriate exercise of judicial discretion, we will not ascribe to the legislature an unexpressed intention to encroach upon the fundamental judicial power to control the conduct of attorneys in the course of a trial.

Despite the enactment of § 52-216b, the trial court continues to have the power to monitor closing arguments in the service of justice. The statute does not purport to abrogate the power or the duty of the trial court to comment upon the propriety of counsel’s argument; see State v. Herring, supra; to give curative instructions if necessary after the arguments of counsel to prevent prejudice; see Tomczuk v. Alvarez, supra; or to declare a mistrial or to set aside a verdict if counsel’s comments were so prejudicial that no curative instruction could preserve the parties’ right to a fair trial. See Meadows v. Vigneault, 152 Conn. 708, 710, 206 A.2d 840 (1965).

The defendants finally argue, in support of their challenge to the constitutionality of § 52-216b under the separation of powers doctrine, that the statute violates the judicial policy expressed in Practice Book § 313, which prohibits the submission of the ad damnum clause to the jury. This court, to be sure, has found some inconsistency between permitting arguments regarding monetary amounts and the policy underlying Practice Book § 313. Carchidi v. Rodenhiser, supra, 532-33. In view of the fact that such arguments had long been permitted within the discretion of the trial court, however, we cannot say that the rule itself precludes the legislature from reaching a different conclusion regarding the policy concerns at issue.

In Carchidi, we recognized that our decision placed Connecticut among a small number of states that prohibit counsel from commenting on the value of pain and suffering. Id., 534. A substantial majority of states that have considered this question have concluded that suggestions of monetary sums for pain and suffering are essentially similar to other inferences from evidence that counsel are properly permitted to suggest in closing argument, in the discretion of the trial court. See, e.g., Evening Star Newspaper Co. v. Gray, 179 A.2d 377, 382 (D.C. 1962); Yates v. Wenk, 363 Mich. 311, 317-20,109 N.W.2d 828 (1961). This diversity of reasoned opinion persuades us that the propriety of permitting counsel to argue specific monetary sums for pain and suffering is a matter of public policy, which the legislature has the authority to resolve. In the absence of a demonstrated infringement on the fundamental powers or responsibilities of a coordinate department of government, “the primary responsibility for formulating public policy must remain with the legislature.” State v. Whiteman, 204 Conn. 98,103, 526 A.2d 869 (1987); Kellems v. Brown, 163 Conn. 478, 491, 313 A.2d 53 (1972).

Section 52-216b, properly construed, does not infringe upon the broad discretion of the trial court to regulate arguments of counsel. We concur, accordingly, with the conclusion of the trial court that the statute does not violate the constitutional provision regarding the separation of powers.

B

The defendants also assert that § 52-216b is unconstitutional because it infringes upon the right to trial by an impartial jury. The Connecticut constitution provides, in article first, § 19, that “[tjhe right of trial by jury shall remain inviolate.” Although the right to a trial by jury encompasses the right to have the jury “ ‘pass upon the factual issue of damages’ Seals v. Hickey, 186 Conn. 337, 351, 441 A.2d 604 (1982), quoting Prosser v. Richman, 133 Conn. 253, 256, 50 A.2d 85 (1946); we disagree with the defendants’ claim that the statute infringes upon this right.

In support of their contention that § 52-216b violates the constitutional guarantee of the right to trial by jury, the defendants again rely extensively upon our discussion of these concerns in Carckidi. We there noted that the risk of potential prejudice to litigants caused by arguments regarding the monetary value of noneconomic injuries might permit “an unwarranted intrusion into the domain of the jurors.” See Carchidi v. Rodenhiser, supra, 535. As we noted in Part A above, this discussion must be read in context. In the absence of authoritative statutory guidance, we expressed a strong preference, as a matter of common law policy, for restricting the scope of closing arguments with respect to monetary assessments of damages. We did not ground these prudential policy considerations in constitutional law.

In order to minimize the risk of possible prejudice, subsection (b) of § 52-216b requires the trial court to give the jury a curative instruction, when specific monetary sums or mathematical formulae have been articMated during closing arguments, to inform the jury that the sums or formulae “are not evidence but only arguments and that the determination of the amount of damages to be awarded, if any, is solely the jury’s function.” The defendants contend, nonetheless, that such arguments of counsel are inevitably so prejudicial that no curative instruction can ensure a fair result after an attorney has posited such a value.

Although this court expressed its doubt as to the efficacy of curative instructions following oral arguments about monetary damages; Carchidi v. Rodenhiser, supra, 535; we reiterate that these doubts do not rise to the level of a constitutional concern. Our courts routinely rely on the ability of jurors in both civil and criminal cases to follow a trial court’s instructions to disregard arguments not supported by the evidence. See, e.g., Vajda v. Tusla, 214 Conn. 523, 538, 572 A.2d 998 (1990); State v. Fullwood, 194 Conn. 573, 584, 484 A.2d 435 (1984). The legislature’s inclusion of subsection (b) in § 52-216b merely codifies this common understanding. A substantial majority of the states that have considered the question of permitting counsel to argue monetary amounts for pain and suffering have concluded that such a curative instruction is usually adequate to preserve the rights of all the parties. See, e.g., Nicholson v. Blanchette, 239 Md. 168, 176-77, 210 A.2d 732 (1965); see also annot., 14 A.L.R.3d 541 (1967). The Supreme Court of Washington, for instance, observed that “[argument is not evidence, and we cannot attribute to any jury in this state lack of sufficient mentality to distinguish between the two. This is especially true after the court has instructed that any remark of counsel not sustained by the evidence should be disregarded.” Jones v. Hogan, 56 Wash. 2d 23, 31-32, 351 P.2d 153 (1960). If in any case the statements of counsel so exceed the bounds of propriety that no curative instruction can remove their taint, the court retains the power and the duty to declare a mistrial or to set aside a jury’s verdict. See Meadows v. Vigneault, supra.

In the present case, the plaintiff’s own counsel reminded the jury, before suggesting an amount for consideration, that “the sole determination of what is fair, just and reasonable” was a matter for the jury alone to decide. Following the arguments of counsel, the trial court, in compliance with the statute, properly instructed the jury that the plaintiff’s counsel’s suggested amounts were “not evidence but only argument of counsel,” and that “[t]he determination of the amount to be awarded, if any, is solely the jury’s function.” In light of the cautionary safeguard incorporated into the statute and the proper cautionary instruction given in this case, we conclude that the arguments permitted by § 52-216b did not violate the defendants’ right to a trial by jury.

II

The defendants also challenge the validity of the plaintiff’s judgment on two nonconstitutional grounds. They assert that (1) the trial court’s “karate charge” improperly stated the law of damages in Connecticut, and (2) the verdict was excessive as a matter of law. We find no merit in either of these claims.

A

The defendants contend that the trial court improperly charged the jury that it could consider evidence regarding the plaintiff’s karate activities in its determination of damages. They assert that the charge was flawed in two respects: (1) it created a new category of damage awards for “loss of special talent,” and (2) it was duplicative because the trial court gave the instruction regarding karate twice, once in regard to the period of time between the accident and the trial and once in regard to the future. Our review of the charge in its entirety persuades us that it is an accurate statement of the law of damages in Connecticut.

A plaintiff is entitled to recover as damages “the award of an amount based on the destruction of the capacity to carry on life’s activities, as well as compensation for conscious pain and suffering.” Katsetos v. Nolan, 170 Conn. 637, 659, 368 A.2d 172 (1976); see also Mather v. Griffin Hospital, 207 Conn. 125, 150, 540 A.2d 666 (1988); Waldron v. Raccio, 166 Conn. 608, 619, 353 A.2d 770 (1974). The trial court’s discussion of the plaintiff’s interest in karate as an avocation or as a career indicated only that such evidence could be considered as an example of the loss of his capacity to enjoy certain activities.

A plaintiff’s right to recover compensation for injuries incurred encompasses both past and future damages arising from the same causal event. See, e.g., Mather v. Griffin Hospital, supra, 137-50. The plaintiff was required, moreover, under the principles governing the doctrine of res judicata, to bring all such claims in one action. See Duhaime v. American Reserve Life Ins. Co., 200 Conn. 360, 363-65, 511 A.2d 333 (1986). “[T]he purpose of a law suit is not only to do substantial justice but to bring an end to controversy.” F. James & G. Hazard, Civil Procedure (3d Ed. 1985) § 11.2, p. 590. It was not duplicative, therefore, for the trial court to inform the jury that it could consider the plaintiff’s alleged inability to participate in karate activities in regard to both past and future damages.

B

The defendants argue, finally, that the verdict of $150,000 was excessive as a matter of law in light of the fact that the plaintiff suffered a “relatively minor” soft tissue injury and had incurred medical expenses and lost wages that were small in relation to the jury’s award. They claim that the trial court should have set aside the verdict or ordered a remittitur.

A trial court has the inherent power to set aside as excessive a verdict that, in the court’s opinion, is not supported by the evidence adduced. Buckman v. People Express, Inc., 205 Conn. 166, 175, 530 A.2d 596 (1987). That power, however, is limited by the litigants’ right to have factual issues determined by the jury. Mather v. Griffin Hospital, supra, 138. “The size of the verdict alone does not determine whether it is excessive. ‘The only practical test to apply to this verdict is whether the award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption.’ McKirdy v. Cascio, 142 Conn. 80, 86, 111 A.2d 555 (1955).... In considering a motion to set aside the verdict, the court must determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury’s verdict.” (Citations omitted.) Mather v. Griffin Hospital, supra, 139.

In our determination of whether a jury verdict is unjust, “this court places great weight on the ruling of the trial court in refusing to set aside the verdict as excessive. Because the trial court had an opportunity far superior to ours to evaluate the evidence and to sense the tenor of the trial, every reasonable presumption is made in favor of the correctness of its ruling; its conclusion will not be disturbed unless there is a clear abuse of discretion.” Kiniry v. Danbury Hospital, 183 Conn. 448, 462, 439 A.2d 408 (1981); Mather v. Griffin Hospital, supra, 139; Birgel v. Heintz, 163 Conn. 23, 26, 301 A.2d 249 (1972); Zarrelli v. Barnum Festival Society, Inc., 6 Conn. App. 322, 326, 505 A.2d 25, cert. denied, 200 Conn. 801, 509 A.2d 516 (1986).

The jury in this case heard evidence that the plaintiff suffered a severe blow, causing injuries to his neck and back, when his automobile was struck from the rear by the automobile of the defendants. Although the plaintiff was able to resume full-time employment within two months, he experienced significant pain at the time of the accident, and continued to experience such pain from time to time up until the time of the trial. He was treated by physicians and was referred for extensive physical therapy that provided brief symptomatic relief. One of the physicians who had treated him after the accident testified that the plaintiff had sustained a 5 percent permanent partial disability of the back and a 5 percent permanent partial disability of the neck as a result of the accident. By the time of trial, the plaintiff had incurred more than $9000 in medical expenses, most of which had been for physical therapy. A chiropractic physician testified that the plaintiff would continue to require treatment into the future. It was stipulated that the plaintiff, who was nineteen years old at the time of the accident, had a 49.2 year life expectancy at the time of trial.

The plaintiff testified, in addition, that at the time of the accident he had been actively involved in karate classes and that he had been practicing karate one to two hours every night. His karate instructor testified that the plaintiff had progressed rapidly in his karate training, had become a teaching assistant, and had demonstrated the ability to continue to progress toward his goal of earning a black belt.

Taking into consideration the plaintiffs evidence regarding his age, his continuing pain, his need for future physical therapy, and his loss of ability to participate in karate as an avocation or as a career, we conclude, as the trial court did, that the jury’s award may have been generous, but that it nevertheless falls “somewhere within the necessarily uncertain limits of just damages.” The award was not so large as to shock this court’s sense of justice or to compel the conclusion that the jury was influenced by “ ‘partiality, prejudice, mistake or corruption.’ ” Mather v. Griffin Hospital, supra, 151; McKirdy v. Cascio, supra.

The judgment is affirmed.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 52-216b. articulation to trier of fact of AMOUNT OF DAMAGES CLAIMED TO BE RECOVERABLE PERMITTED, (a) In any civil action to recover damages resulting from personal injury or wrongful death, counsel for any party to the action shall be entitled to specifically articulate to the trier of fact during closing arguments, in lump sums or by mathematical formulae, the amount of past and future economic and noneconomic damages claimed to be recoverable.
      “(b) Whenever, in a jury trial, specific monetary sums or mathematical formulae are articulated during closing arguments as provided for in subsection (a) of this section, the trial court shall instruct the jury that the sums or mathematical formulae articulated are not evidence but only arguments and that the determination of the amount of damages to be awarded, if any, is solely the jury’s function.”

       General Statutes § 52-216b became effective on October 1, 1989.

       As permitted by General Statutes § 52-216b, counsel for the plaintiff suggested in his closing argument a mathematical formula by which the jury could calculate damages. He argued: “What I’m asking you to consider, ladies and gentlemen, forty-nine more years Mr. Bartholomew’s advice is [sic]—he may live longer, he may live less, but the tables—the mortality tables tell us statistically somebody of his age is likely to live that long. . . . If you find that he suffered a permanent injury and if you find that he is unable to resume his karate activities and you have to take into consideration the fact that he has to live for the rest of his life with that, and if you so find his Honor is going to instruct you that you, in addition to all of his special or out-of-pocket damages, you are to make an award that you feel is fair and just compensation for the fact that he will have this injury for the rest of his life and that he will be unable to resume his chosen activities for the rest of his life, and you’re talking about forty-nine years. Now, ladies and gentlemen, I know it’s hard to put a figure on such a—an award, and his Honor’s going to instruct you that the sole determination of what is fair, just and reasonable is up to you alone. But in any case involving personal injuries, it is proper for attorneys to state specific amounts during closing arguments of past and future and non-economic damages that they claim to be recoverable. And what I’m saying here is that—what I would ask you to do is to take each year of the rest of Mr. Bartholomew’s life, and [ask] what is it worth to have a disability for a year, is it worth a thousand, two thousand dollars for a year? And if you figure it out as what it is worth to live with such a disability for a whole year, I don’t think it’s unreasonable to consider that it’s worth two thousand dollars or three thousand dollars a year for the rest of your life to have to live like that[,] having given up your chosen—being forced to given [sic] up your chosen field.”

       The trial court gave the following instruction in compliance with subsection (b) of General Statutes § 52-216b: “Now, counsel, in his closing argument, has suggested that you consider awarding certain sums to the plaintiff for his injuries. In fact, he suggested certain amounts on an annualized basis. These sums suggested by counsel [are] not evidence but only argument of counsel. The determination of the amount to be awarded, if any, is solely the jury’s function. In sum, taking all these elements into consideration, you should determine the fair, just and reasonable compensation for the injuries sustained by the plaintiff as a result of this accident which occurred on September the 14th, 1985, that is, you should determine the full amount necessary to compensate him for all the injuries and effects thereof which were proximately caused as a result of the accident for the period of time prior to the trial and for the future if you should find that there are any future damages. You must remember that the plaintiff has the burden of proving his injuries and the effects thereof by a fair preponderance of the evidence, that is, by the better or weightier evidence, and you may only compensate him for those matters to the extent of his proof.”

       The statute cited in State v. Hoyt, 47 Conn. 518, 535 (1880), was General Statutes (1875 Rev.) p. 61, § 9. This statutory provision has survived, with minor change, into the present; it is now codified as General Statutes § 52-209.

       General Statutes § 52-216b also would not preclude promulgation of a rule, similar to that which we adopted with respect to comment on inferences to be drawn from missing witnesses; Secondino v. New Haven Gas Co., 147 Conn. 672, 674,165 A.2d 598 (1960); that would require advance notice of counsel’s intention to make an argument in accordance with the statute, so as to afford opposing counsel a fair opportunity to respond. See State v. Daniels, 180 Conn. 101,113, 429 A.2d 813 (1980); see also Pedersen v. Vahidy, 209 Conn. 510, 525, 552 A.2d 419 (1989).

       As one judge has observed, dissenting from a view similar to that taken by this court in Carchidi v. Rodenhiser, 209 Conn. 526, 551 A.2d 1249 (1989), “[tjhe jury must observe, weigh, and then finally equate the evidence of pain with a money judgment____Since the verdict must be consistent with the evidence, in other words, inferrable from it, it should follow that counsel’s estimate of the value should also be inferrable from the evidence.” Caylor v. Atchison, T. & S.F. R. Co., 190 Kan. 261, 274, 374 P.2d 53 (1962) (Wertz, J., dissenting).


source: Caselaw Access Project

license: Public Domain

text:
    Herbert C. Hallas et al. v. Town of Windsor et al.
    (14007)
    Peters, C. J., Shea, Callahan, Hull and Borden, Js.
    Argued January 16
    decision released March 12, 1991

      Jon L. Schoenhorn, with whom were Mary Katz Moule and Herbert C. Hallas, for the appellants (plaintiffs).

      Francis H. Morrison III, with whom were Susan J. Barnes and, on the brief, Judith A. Blank, David J. Elliott, Ralph G. Elliot and Sylvia M. Ho, for the appellees (defendants).
   Peters, C. J.

The sole issue on this appeal is whether a judgment declaring moot the counts of a complaint seeking injunctive relief also rendered moot another count seeking damages. In a prior decision of this court; Hallas v. Windsor, 212 Conn. 338, 562 A.2d 499 (1989) (Hallas I); we considered the viability of two counts of the amended complaint of the plaintiffs, Herbert Hallas and Mary Katz Moule, which sought to enjoin disbursement of certain town appropriations for road construetion in the absence of a vote of the Windsor town meeting approving the appropriations. Id., 339-40. We concluded that these claims, on which the trial court, Alien, J., had rendered judgment in favor of the defendants, had become moot because of an intervening town meeting that purported to ratify the appropriations in question. Id., 347-48. As a result of this ratification, we held that the trial court should not have rendered a declaratory judgment in favor of the defendants because “the trial court was without jurisdiction to hear or decide that matter.” Id., 350 n.7.

On remand to the trial court, the plaintiffs attempted to pursue the third count of their complaint, in which they had alleged that they were entitled to damages because the defendants’ conduct constituted a violation of their constitutional rights; 42 U.S.C. § 1983; an infringement of their state constitutional rights; Conn. Const., art. 1, § 1; and a fraud on their rights as taxpayers. The trial court, Ripley, J., ruled, however, that our decision in Hallas I had deprived the trial court of any further jurisdiction whatsoever to hear the plaintiffs’ complaint.

The plaintiffs appealed the dismissal of the third count of their complaint to the Appellate Court. That court granted the defendants’ motion to dismiss the plaintiffs’ appeal. The plaintiffs then filed a petition for certification, which we granted; Hallas v. Windsor, 216 Conn. 805, 579 A.2d 93 (1990); limited to the following issue: “Did the Appellate Court properly dismiss the plaintiffs’ appeal from the dismissal by the trial court of the third count of the complaint, claiming damages for violation of state and federal constitutional and statutory rights, on the ground of mootness?” We conclude that the plaintiffs’ appeal should not have been dismissed.

The plaintiffs argue that although the court in Hallas I concluded that their counts seeking injunctive relief had been rendered moot, their damages count nonetheless survived. The defendants counter that the ratifying vote of the town meeting in that case cured any alleged illegal conduct ab initio and nunc pro tunc. Consequently, because the ratification formed the basis of our finding of mootness in Hallas I, the defendants argue that all of the plaintiffs’ claims based on the ratified conduct—the damages count as well as the two counts seeking injunctive relief—were rendered moot. We agree with the plaintiffs that their damages count is not moot.

As a general matter, while cessation of allegedly unconstitutional or illegal activity may render moot a claim for injunctive relief, such cessation will not render moot a case that also states a claim for damages resulting from such activity prior to its cessation. See, e.g., Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 7-9, 98 S. Ct. 1554, 56 L. Ed. 2d 30 (1978); Gibson v. DuPree, 664 F.2d 175, 177 (8th Cir. 1981); Klein v. Califano, 586 F.2d 250, 255 n.7 (3d Cir. 1978); 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure: Jurisdiction (2d Ed.) § 3533.3. We recently recognized this distinction in Moshier v. Goodnow, 217 Conn. 303, 586 A.2d 557 (1991). In that case, the plaintiff taxpayer sought to have a town’s board of selectmen and tax collector enjoined from collecting taxes because he believed that the tax levy had been improperly established. An injunction issued and the defendants appealed. Subsequent to the filing of the appeal to this court, however, the electors approved a new budget, establishing a mill rate identical to that established in the contested rate bill. We held that this action required dissolution of the injunction but that it did not render the entire case moot. We noted that, having failed to pay the local taxes under the contested rate bill, the plaintiffs liability for interest on that nonpayment was dependent upon the date on which the effective mill rate had been legally set. We concluded that a sufficient controversy existed over the plaintiff’s liability for interest charges to prevent the case from being dismissed on grounds of mootness.

Our decision in Hallas I must be construed in accordance with this general proposition. We then considered the viability of only two counts in the plaintiffs’ complaint, those seeking injunctive relief. Because claims for injunctive relief are necessarily prospective, this court decided that the town meeting’s ratification had effectively rendered those claims moot. We concluded only that any controversy that may have once existed between the parties regarding the lack of a town meeting vote “ceased to exist after the . . . special town meeting where the people present voted to approve” the contested appropriations. (Emphasis added.) Hallas I, supra, 348. Having found mootness, we lacked the jurisdiction to consider the merits of the two counts seeking injunctive relief. We therefore expressed no opinion on the effect of the ratification on conduct that had occurred prior to the ratifying vote, or on whether ratification was necessary at all.

While the answers to the aforementioned questions might indeed dispose of the plaintiffs’ third count, those questions are not properly before us today. Accordingly, we do not decide the merits of the plaintiffs’ third count, i.e., whether the defendants’ conduct was improper or whether the plaintiffs suffered any compensable damages under applicable state and federal law. We hold only that the finding of mootness in Hallas I related solely to the plaintiffs’ two counts claiming injunctive relief and not to their third count claiming damages. The Appellate Court, therefore, should not have dismissed the plaintiffs’ appeal from the trial court’s dismissal of the third count of their complaint.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand the case to the trial court with direction to set aside its judgment of dismissal and for further proceedings.

In this opinion the other justices concurred.

       The defendants are the town of Windsor, its town manager, its director of finance and its former director of finance.


text:
    Keith Reynolds v. Carolyn Reynolds

      John C. Koelseh, in support of the petition.

      Carolyn Reynolds, pro se, in opposition.
    Decided December 6, 1990
   The plaintiff’s petition for certification for appeal from the Appellate Court is denied.


text:
    State of Connecticut v. Benjamin Bell

      Donald Dakers, public defender, in support of the petition.

      Leon F. Dalbec, Jr., deputy assistant state’s attorney, in opposition.
    Decided December 6, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 315, is denied.


text:
    Basma Shaham v. John Capparelli et al.

      Neil W. Sutton, in support of the petition.

      Raymond J. Plouffe, Jr., in opposition.
    Decided December 6, 1990
   The plaintiff’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 468, is granted, limited to the following issues:

“1. Did the Appellate Court properly determine that the evidence offered in rebuttal was properly excluded by the trial court?

“2. If not, did the ruling of the trial court constitute grounds for reversal?”


text:
    State of Connecticut v. Alice F. Moore

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

      Michael K. Courtney, assistant public defender, in opposition.
    Decided December 6, 1990
   The state of Connecticut’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 479, is denied.


text:
    State of Connecticut v. Vincent Edwards

      Dennis F. O’Toole, assistant public defender, in support of the petition.

      Paul J. Ferencek, deputy assistant state’s attorney, in opposition.
    Decided December 6, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 816, is denied.


text:
    State of Connecticut v. David Pagano

      Thomas Ullman, assistant public defender, in support of the petition.

      Marjorie Allen Dauster, deputy assistant state’s attorney, in opposition.
    Decided December 13, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 447, is denied.


text:
    Thomas Cohn v. Peter R. Johl

      Peter R. Johl, pro se, in support of the petition.
    Decided December 20, 1990
   The defendant’s petition for certification for appeal from the Appellate Court is denied.


text:
    Ralph Esposito et al. v. Daniel V. Presnick

      Daniel V. Presnick, pro se, in support of the petition.

      D. Kirt Westfall, in opposition.
    Decided December 20, 1990
   The defendant’s petition for certification for appeal from the Appellate Court is denied.


text:
    Maxine Gaudio v. Arthur Gaudio et al.

      Pat Labbadia III, in support of the petition.

      Gina A. Pasquini, in opposition.
    Decided December 20, 1990
   The defendant Frank Eannelli’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 287, is denied.


text:
    Richard K. Klaus v. Metcalfe Glass Company, Inc.

      Timothy Brignole, in support of the petition.

      Robert C. Danaher, in opposition.
    Decided December 20, 1990
   The plaintiffs petition for certification for appeal from the Appellate Court, 23 Conn. App. 822, is denied.


text:
    Central Bank v. Joseph S. Heggelund et al.

      Henry D. Marcus, in support of the petition.
    Decided December 20, 1990
   The named defendant’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 266, is granted, limited to the following issues:

“1. Was the foreclosing plaintiff entitled to a deficiency judgment based upon the price it bid at the foreclosure sale when that price was substantially below the appraised value of the property as found by the trial court and the appraisers appointed by the court?

“2. Is the defendant, who contested the confirmation of the sale, barred from raising the issue of whether the sale should have been confirmed in his appeal from the deficiency judgment?

“3. Should the court have applied the equitable doctrine of appropriation in determining the amount of the deficiency judgment and used the fair market value of the property rather than its sale price in its calculation of the deficiency?”


text:
    State of Connecticut v. Robert Ducatt

      Brian M. O’Connell and Steven F. Meo, in support of the petition.

      Jacqueline J. Footman, deputy assistant state’s attorney, in opposition.
    Decided December 20, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 22 Conn. App. 88, is denied.


text:
    Frank J. Rice v. Kevin V. Dowling, Trustee et al.

      Victor J. Dowling, in support of the petition.
    Decided January 3, 1991
   The named defendant’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 460, is denied.


text:
    State of Connecticut v. Heriberto Berrios

      Jeremiah Donovan, in support of the petition.

      Richard F. Jacobson, assistant state’s attorney, in opposition.
    Decided January 3, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 532, is denied.


text:
    Merrill Lynch Equity Access, Inc. v. Leon E. Cooper et al.

      LeonE. Cooper, pro se, and Mary P. Cooper, pro se, in support of the petition.
    Decided January 8, 1991
   The defendants’ petition for certification for appeal from the Appellate Court is denied.


text:
    Dorothy C. Hudson et al. v. Wilfred Megin

      Wilfred Megin, pro se, in support of the petition.

      Thomas W. Beecher, in opposition.
    Decided January 17, 1991
   The defendant’s petition for certification for appeal from the Appellate Court is denied.


text:
    Lynda Pasqualucci et al. v. Barkhamsted Zoning Board of Appeals

      James T. Flaherty, in support of the petition.

      Peter C. Herbst and Lynn D. Wittenbrink, in opposition.
    Decided January 17, 1991
   The defendant’s petition for certification for appeal from the Appellate Court is denied.


text:
    Rochelle P. Tesler, Executrix (Estate of Michael A. Tesler) v. Gary T. Johnson et al.

      Raymond L. Baribeault, Jr., in support of the petition.

      John W. O’Meara, in opposition.
    Decided January 17, 1991
   The plaintiff’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 536, is denied.


text:
    Ellis Sheila Franke Berne v. Town of Stratford

      Anthony M. Guerrera, in support of the petition.

      Laurence V. Parnoff, in opposition.
    Decided January 17, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 554, is denied.


text:
    State of Connecticut v. Earl Badgett
   The state of Connecticut’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 571, is granted, limited to the following issue:

“Did the Appellate Court properly conclude that the trial court should have conducted an evidentiary hearing on whether the defendant should be allowed to withdraw his plea based upon a statement that the defendant did not understand the court’s conclusion that he was not drug dependent?”

Frederick W. Fawcett, assistant state’s attorney, in support of the petition.

G. Douglas Nash, public defender, in opposition.

Decided January 17, 1991


text:
    Galt Booth et al. v. Robert C. Flanagan et al.

      Henry Elstein, in support of the petition.

      Roger Sullivan, in opposition.
    Decided January 17, 1991
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 23 Conn. App. 579, is granted, limited to the following issue:

“What effect should a mortgage contingency clause, that does not comply with General Statutes § 49-5b, have where the buyers have waived the terms of the clause and are ready, willing and able to purchase the property without third party mortgage financing?”


text:
    State of Connecticut v. Pablo Rivera

      Michael R. Sheldon and Gary A. Cicchiello, certified legal intern, in support of the petition.

      Frederick W. Fawcett, assistant state’s attorney, in opposition.
    Decided January 17, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 592, is denied.


text:
    State of Connecticut v. Timothy James Durkin

      Judith Rossi, assistant state’s attorney, in support of the petition.

      George P. D’Amico, in opposition.
    Decided January 17, 1991
   The state of Connecticut’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 642, is granted, limited to the following issue:

“Did the Appellate Court correctly conclude that the trial court abused its discretion when it found that the defendant was voluntarily absent from his probation revocation hearing?”


text:
    Laurence Seelen v. Ellen Seelen

      Victor Feingold, in support of the petition.

      Alfred J. Garofolo, in opposition.
    Decided January 24, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 819, is denied.


text:
    Jimmy Lee Brown v. Housing Authority of the City of New Haven

      Terence S. Hawkins, in support of the petition.

      James J. Giulietti, in opposition.
    Decided February 5, 1991
   The plaintiff’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 624, is denied.


text:
    Carol Beinhorn v. Nicholas A. Saraceno

      Joel M. Ellis, in support of the petition.

      Alexandra Davis, in opposition.
    Decided February 5, 1991
   The plaintiffs petition for certification for appeal from the Appellate Court, 23 Conn. App. 487, is denied.


text:
    State of Connecticut v. Linda Murdick

      John R. Williams, in support of the petition.

      James A. Killen, assistant state’s attorney, in opposition.
    Decided February 5, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 692, is denied.


text:
    State of Connecticut v. James F. Hickey

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

      Carolyn K. Longstreth, assistant state’s attorney, in opposition.
    Decided February 5, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 712, is denied.


text:
    Kim Dorsey v. Jack C. Mancuso

      William L. Ankerman, in support of the petition.

      Norman F. Fishbein and Kim Dorsey, pro se, in opposition.
    Decided February 7, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 629, is denied.


text:
    State of Connecticut v. Byron Anderson

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

      Leon F. Dalbec, Jr., assistant state’s attorney, in opposition.
    Decided February 13, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 564, is granted, limited to the following issue:

“Did the defendant’s agreement to plead guilty to fewer charges than contained in the original information in consideration of the state’s promise to recommend a sentence of twenty years imprisonment with the defendant reserving the right to argue for a lesser sentence constitute a ‘plea agreement’ within the meaning of General Statutes § 51-195 so that he is not entitled to review of the sentence imposed of twenty years imprisonment?”


text:
    Roseville Estates, Inc. v. Board of Tax Review of the Town of Westport Kowalsky Properties, Inc. v. Board of Tax Review of the Town of Westport

      Randy Lynn Cohen, in support of the petition.

      Keith D. Dunnigan and Michael S. Lynch, in opposition.
    Decided February 13, 1991
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 23 Conn. App 827, is denied.


text:
    State of Connecticut v. David Plaza

      Gregory T. D’Auria, in support of the petition.

      Frederick W. Fawcett, assistant state’s attorney, in opposition.
    Decided February 21, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 543, is denied.


text:
    Thermoglaze, Inc. v. Morningside Gardens Company

      Gina A. Pasquini, in support of the petition.

      Eric L. Reinken, in opposition.
    Decided February 21, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 741, is denied.


text:
    State of Connecticut v. Veronica Hart
   The state of Connecticut’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 746, is granted, limited to the following issues:

“1. Did the Appellate Court correctly rule that the state may not satisfy its burden of proving the defendant is not drug-dependent by destroying the credibility of defense witnesses, even though drug dependency is not an element of General Statutes § 21a-278 (b)?

“2. Was the Appellate Court correct in not considering facts elicited by the state during cross-examination when it determined there was insufficient evidence of non-drug-dependency?

“3. Did the Appellate Court correctly conclude that the trial court’s instructions were erroneous because it instructed the jury to determine whether the defendant’s evidence of drug dependency was credible?”

RitaM. Shair, deputy assistant state’s attorney, in support of the petition.

Susan Brown, assistant public defender, in opposition.

Decided February 21, 1991


author: Covello, J.

text:
    Paul Heigl, Administrator (Estate of Jason Heigl), et al. v. Board of Education of the Town of New Canaan
    (14006)
    Shea, Glass, Covello, Hull and Borden, Js.
    Argued January 18
    decision released March 19, 1991

      Richard A. Silver, with whom was Catherine C. Ziehl, for the appellants-appellees (plaintiffs).

      Michael T. Bologna, for the appellee-appellant (defendant).
   Covello, J.

This appeal presents the issue of whether a town board of education, in adopting a so-called open campus policy, is insulated from tort liability by reason of the doctrine of governmental immunity. We conclude that this is so and affirm the judgment of the trial court.

The plaintiffs’ complaint alleged, inter alia, that on September 23, 1986, Jason Heigl, a tenth grade student at New Canaan High School, left the school grounds, pursuant to the defendant board of education’s open campus policy, in a vehicle operated by another student. The vehicle subsequently was involved in a one-car accident. On September 30, 1986, Jason Heigl died of injuries sustained as a consequence of the accident.

The plaintiffs alleged further that the defendant failed to exercise due care in supervising the town’s high school students. The trial court, Lewis, J., granted the defendant’s motion to strike the complaint, concluding that a board of education is an agent of the state and, therefore, is immune from tort liability by reason of the doctrine of sovereign immunity. The plaintiffs thereafter filed an amended complaint alleging that the board of education had failed to supervise properly the town’s high school students and had exceeded its statutory authority by implementing an open campus policy that allowed students to leave the high school during unscheduled times without permission. The trial court again granted the defendant’s motion to strike the amended complaint and, upon the plaintiffs’ failure to plead over, rendered judgment for the defendant. See Practice Book § 157. The plaintiffs appealed to the Appellate Court. We thereafter transferred the matter to ourselves pursuant to Practice Book § 4023.

The two issues presented on appeal are whether the defendant is immune from tort liability because either: (1) the town board of education is an agent of the state and is protected by the doctrine of sovereign immunity; or (2) the town board of education, in adopting an open campus policy, is engaged in a discretionary activity and is protected by the doctrine of governmental immunity. We conclude that the defendant was engaged in a legislative function requiring the exercise of independent judgment or discretion in establishing the open campus policy, and therefore is insulated from tort liability under the doctrine of governmental immunity. We need not, therefore, decide the first issue presented.

A town board of education can be an agent of the state for some purposes and an agent of the municipality for others. See, e.g., Cahill v. Board of Education, 187 Conn. 94, 101, 444 A.2d 907 (1982). A town board of education thus potentially enjoys immunity under two different theories of immunity for acts carried out within its governmental capacity. For example, “[w]e have long recognized the common-law principle [of sovereign immunity] that the state cannot be sued without its consent.” (Emphasis added.) Sentner v. Board of Trustees, 184 Conn. 339, 342, 439 A.2d 1033 (1981). Alternatively, “[a]t common law, Connecticut municipalities enjoy governmental immunity, in certain circumstances, from liability for their tortious acts.” (Emphasis added.) Ryszkiewicz v. New Britain, 193 Conn. 589, 593, 479 A.2d 793 (1984); see Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989).

The plaintiffs argue that the doctrine of sovereign immunity does not apply in this case because the board of education was acting as an agent of the town, and not the state, in establishing the open campus policy. The plaintiffs claim further that the board is not protected by the doctrine of governmental immunity because its decision to establish the open campus policy was a ministerial, not a discretionary, act and, as a result, is excepted from the protection afforded by the doctrine. See Rupp v. Bryant, 417 So. 2d 658, 665 (Fla. 1982).

A municipality’s potential liability for its tortious acts is limited by the common law principle of governmental immunity. Ryszkiewicz v. New Britain, 193 Conn. 589, 593, 479 A.2d 793 (1984). Governmental immunity, however, is not a blanket protection for all official acts. For example, “ ‘[a] municipality is immune from liability for the performance of governmental acts as distinguished from ministerial acts. . . .’ ” (Citations omitted.) Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 167, 544 A.2d 1185 (1988).

“This court has . . . discussed extensively the difference between a ministerial and a discretionary act.” Gordon v. Bridgeport Housing Authority, supra, 167. “Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature. ... On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action.” (Citations omitted.) Gauvin v. New Haven, 187 Conn. 180, 184, 445 A.2d 1 (1982).

The plaintiffs allege that the defendant board failed in the exercise of a “ministerial duty” and thus is not protected by governmental immunity. Specifically, the plaintiffs claim that the death of the decedent was “caused by the negligence of the New Canaan Board of Education . . . by promulgating a policy which permitted students to leave campus during unscheduled times without . . . supervision.” (Emphasis added.)

The act of promulgating a policy, however, is a discretionary activity. A policy, by definition, is “a definite course or method of action selected from among alternatives . . . to guide and determine present and future decisions.” Webster’s Ninth New Collegiate Dictionary. The fact that a policy is enacted “to guide . . . future decisions” indicates that the board was engaged in a legislative, and therefore discretionary, activity. See also Spitzer v. Waterbury, 113 Conn. 84, 87, 154 A. 157 (1931). Furthermore, the fact that the board chose to select an open campus policy from among various alternatives indicates that the exercise of judgment was involved.

That the board’s actions were not ministerial is supported by the fact that General Statutes § 10-221 (a) and (b) grant local boards of education certain powers including, inter alia, the authority to “implement written policies concerning . . . attendance . . . .’’By its very terms, therefore, § 10-221 permits local boards significant latitude in selecting an appropriate student attendance policy. As a result, therefore, it cannot be said that the board was acting “in a prescribed manner without the exercise of judgment” as would be true of a ministerial action.

The plaintiffs claim, however, that the defendant had a duty, implicit in General Statutes §§ 10-240, 10-184 and 10-15, to supervise the students during the hours for school attendance and, therefore, could not allow them to leave the school without supervision. The plaintiffs argue that the “duty to supervise high school students is generally ministerial in nature” and therefore the board is not protected by governmental immunity.

Neither the General Statutes nor our decisional law has ever stated that a board of education has a specific duty to supervise high school students. Even if such a duty exists, actions pursuant to such a duty are discretionary if they “ ‘are performed wholly for the direct benefit of the public . . . ” Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 167-68, 544 A.2d 1185 (1988). “If the duty imposed ... by the statute is of such a nature that the performance of it will affect an individual in a manner different in kind from the way it affects the public at large, the statute is one which imposes ... a duty to the individual . . . .” (Citations omitted.) Leger v. Kelley, 142 Conn. 585, 590-91, 116 A.2d 429 (1955). If, on the other hand, “no one individual is affected . . . in a manner different from other members of the general public . . . [t]he duty imposed [is] . . . public . . . .” Id., 591. Pursuant to its authority under the General Statutes, the board of education in this case established a policy that affected every member of the student population of New Canaan High School in the same manner. There is no suggestion that the decedent was singled out by the policy. Thus, the board was acting for the public benefit and was not discharging an affirmative duty toward an identifiable individual student. As a result, any action by the board in this regard was discretionary and therefore protected from liability.

We conclude that the board of education was engaged in a discretionary activity in establishing the open campus policy. As a result, the board is immune from tort liability by reason of the doctrine of governmental immunity. The trial court therefore correctly determined that the complaint failed to state a cause of action.

The judgment is affirmed.

In this opinion the other justices concurred.

       The plaintiffs Paul Heigl and Nancy Heigl are the administrators of the estate of Jason Heigl.

       The plaintiffs’ complaint describes the board’s open campus policy as a policy that “permitted tenth, eleventh and twelfth graders from New Canaan High School to leave campus for personal or school business during unscheduled time without requiring permission from school officials or parents and without supervision of off-campus activities.”

       The defendant filed a cross appeal claiming that the plaintiffs’ amended complaint was substantially similar to their original' complaint and that therefore the trial court improperly sustained the plaintiffs’ objection to their request to revise the amended complaint. See Royce v. Westport, 183 Conn. 177, 180-82, 439 A.2d 296 (1981); Good Humor Corporation v. Ricciuti, 160 Conn. 133, 136-37, 273 A.2d 886 (1970); 1 E. Stephenson, Connecticut Civil Procedure (2d Ed. 1982 Sup.) § 113 (d). Because we decide this case on the issue of governmental immunity, we do not address the merits of the cross appeal.

       We note that governmental immunity is subject to other qualifications not germane to this case. For example, the question of the extent of immunity granted a municipal employee as opposed to a municipal agency is not before us. See Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989). In addition, a municipality can be liable for even discretionary acts if they were committed maliciously or intentionally. See Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 167, 544 A.2d 1185 (1988). In addition, we do not address the various inapplicable exceptions to the doctrine of governmental immunity established by statute. See General Statutes § 13-149; see also 4 Restatement (Second), Torts § 895C, comment (e); note, “The Official Responsibility Rule and its Implications for Municipal Liability in Connecticut: Shore v. Town of Stonington, ”15 Conn. L. Rev. 641, 644-45 (1983).

       One reason for granting a local government immunity from tort liability is that, as in this case, a civil trial may be an inappropriate forum for testing the wisdom of legislative actions. This is particularly true if there is no “readily ascertainable standard by which the action of the government servant may be measured. . . .” Cady v.Plymouth-Carver Regional School District, 17 Mass. App. 211, 215, 457 N.E.2d 294 (1983), review denied, 391 Mass. 1103, 461 N.E.2d 1219 (1984). Thus, “[t]he policy behind the exception is to avoid allowing tort actions to be used as a monkey wrench in the machinery of government decision making.” Id.

       General Statutes (Rev. to 1985) § 10-221 provides in part: “board OF education to prescribe rules, (a) Boards of education shall prescribe rules for the management, studies, classification and discipline of the public schools and, subject to the control of the state board of education, the textbooks to be used; shall make rules for the control, within their respective jurisdictions, of school library media centers and approve the selection of books and other educational media therefor, and shall approve plans for public school buildings and superintend any high or graded school in the manner specified in this title.
      “(b) Not later than July 1, 1985, each local and regional board of education shall develop, adopt and implement written policies concerning homework, attendance, promotion and retention. The state department of education shall make available model policies and guidelines to assist local and regional boards of education in meeting the responsibilities enumerated in this subsection. . . .”

       General Statutes (Rev. to 1985) § 10-15 provides: “towns to maintain schools. Public schools including kindergartens shall be maintained in each town for a least one hundred eighty days of actual school sessions during each year. When public school sessions are cancelled for reasons of inclement weather or otherwise, the rescheduled sessions shall not be held on Saturday or Sunday. The state board of education may authorize the shortening of any school year on account of an unavoidable emergency and may authorize implementation of scheduling of school sessions to permit full year use of facilities which may not offer each child one hundred eighty days of school sessions within a given school year, but which assures an opportunity for each child to average a minimum of one hundred eighty days of school sessions per year during thirteen years of educational opportunity in the elementary and secondary schools. Notwithstanding the provisions of this section and section 10-6, the state board of education may, upon application by a local or regional board of education, approve for any single school year, in whole or in part, a plan to implement alternative scheduling of school sessions which assures at least four hundred fifty hours of actual school work for nursery schools and kindergartens and at least nine hundred hours of actual school work for grades one to twelve, inclusive.”
      General Statutes (Rev. to 1985) § 10-184 provides in part: “duties of parents. All parents and those who have the care of children shall bring them up in some lawful and honest employment and instruct them or cause them to be instructed in reading, writing, spelling, English grammar, geography, arithmetic and United States history and in citizenship, including a study of the town, state and federal governments. Each parent or other person having control of a child seven years of age and over and under sixteen years of age shall cause such child to attend a public day school regularly during the hours and terms the public school in the district wherein such child resides is in session, or while the school is in session in which provision for the instruction of such child is made according to law, unless the parent or person having control of such child is able to show that the child is elsewhere receiving equivalent instruction in the studies taught in the public schools . . . .”
      General Statutes § 10-240 provides: “control of schools. Each town shall through its board of education maintain the control of all the public schools within its limits and for this purpose shall be a school district and shall have all the powers and duties of school districts, except so far as such powers and duties are inconsistent with the provisions of this chapter.”

       See also 57 Am. Jur. 2d, Municipal, County, School, and State Tort Liability, § 96.


author: Hull, J.

text:
    Peter Levanti v. Dow Chemical Company et al.
    (14070)
    Peters, C. J., Callahan, Covello, Hull and Borden, Js.
    Argued December 6, 1990
    decision released March 19, 1991

      Lucas D. Strunk, for the appellants (named defendant et al.).

      Richard L. Gross, for the appellee (plaintiff).
   Hull, J.

The dispositive issue in this appeal is whether an employer may be required to pay specific indemnity workers’ compensation benefits to an employee, pursuant to General Statutes § 31-349, for a physical impairment caused by the combined effect of a compensable injury sustained during the course of employment by the employer and prior noncompensable injuries. The workers’ compensation commissioner for the second district (commissioner) determined that the named defendant, Dow Chemical Company, was so liable and accordingly ordered the defendant insurer, Aetna Casualty and Surety Company, to pay the plaintiff, Peter Levanti, an award of compensation benefits for a 15 percent back impairment. The compensation review division (review division) affirmed. The defendants appealed to the Appellate Court and we thereafter transferred the appeal to this court pursuant to Practice Book § 4023. We affirm.

The relevant facts are undisputed. In 1954 and in 1962, the plaintiff sustained injuries to his back during the course of his employment in the receiving department of Dow Chemical. Because our Workers’ Compensation Act did not provide specific benefits for back impairment until 1967; see Public Acts 1967, No. 842, § 15, which amended General Statutes § 31-308 to provide specific benefits for back impairment; the plaintiff did not receive specific benefits for the injuries sustained in 1954 and 1962. Thereafter, the plaintiff was promoted to a position in Dow Chemical’s traffic department that required minimal physical labor. In May, 1985, the plaintiff was returned to his previous position in the receiving department and on June 19, 1985, he sustained a third injury to his back during the course of his employment at Dow Chemical.

Following the third injury, the plaintiff received workers’ compensation benefits for total incapacity from Dow Chemical pursuant to a voluntary agreement that had been approved by the commissioner. After his back injury had reached maximum medical improvement, the plaintiff sought a specific award of workers’ compensation benefits for permanent partial impairment of his back. The defendants contested liability for the entire impairment, claiming that they were not liable for that portion of the impairment attributable to the earlier back injuries, since our Workers’ Compensation Act did not provide specific indemnity benefits for back impairment either in 1954 or in 1962. In a finding and award, the commissioner determined that the plaintiff “ha[d] suffered a 15% permanent partial disability of the back as a result of the injury of June 19, 1985 which ha[d] been superimposed upon previous injuries or condition, the sum total of which ha[d] contrived to make the [plaintiff’s] condition materially and substantially worse than had he suffered the injury of June 19, 1985 by itself alone” and that, therefore, under § 31-349, Dow Chemical was “liable for the full amount of the 15% permanent partial disability to the back.” Accordingly, the commissioner ordered Aetna to pay the plaintiff seventy-eight weeks of compensation benefits. The defendants renewed their claim in the review division which affirmed the commissioner’s finding and award.

The defendants claim that the commissioner’s finding and award are unsupported by the evidence. This claim has two subparts. First, the defendants argue that because the evidence before the commissioner pertained solely to the plaintiff’s physical impairment rather than to impairment of his earning capacity, the evidence was insufficient to support a finding that following the injury in 1985, the plaintiff had a “disability” within the meaning of § 31-349. The defendants next argue that the evidence was insufficient to sustain the commissioner’s finding that the plaintiffs overall disability following his most recent injury was “materially and substantially worse” as a consequence of his previous injuries. We do not agree.

An award of workers’ compensation benefits for permanent partial impairment of one’s back is a specific indemnity award. See General Statutes § 31-308 (b); J. Asselin, Connecticut Workers’ Compensation Practice Manual (1985) pp. 151-54. “Specific benefits are benefits for the loss or loss of the use of specific body parts. See Everett v. Ingraham, 150 Conn. 153, 155, 186 A.2d 798 (1962).” Morgan v. East Haven, 208 Conn. 576, 584, 546 A.2d 243 (1988); see also Panico v. Sperry Engineering Co., 113 Conn. 707, 710, 156 A. 802 (1931). “ ‘These [specific] benefits . . . are not paid as compensation for loss of earning power but to compensate the injured employee for the incapacity through life because of the loss or loss of use of the body member in question.’ J. Asselin, supra, p. 151.” Morgan v. East Haven, supra. Thus, “[compensation in such cases is not dependent upon actual incapacity in whole or in part. Franko v. Schollhorn Co., 93 Conn. 13, 104 Atl. 485 [1918].” Dombrozzi v. Gross & Co., 112 Conn. 627, 629, 153 A. 780 (1931); see also J. Asselin, supra, pp. 151-54. In fact, “[p]ermanent partial schedule awards are based on medical condition after maximum improvement has been reached and ignore wage loss entirely.” 2 A. Larson, Workmen’s Compensation Law § 57.13, p. 10-41. Nonetheless, “[a] limited schedule is not inconsistent with the earnings-impairment principle [of workers’ compensation law], provided that the items included are such that the conclusive presumption of probable actual wage loss is realistic and not fictitious. In addition, the loss must be obvious enough so that the reason for indulging the presumption-administrative convenience and prevention of litigation—is also realistic.” 2 A. Larson, supra, § 57.14 (a), p. 10-49.

In enacting the schedule of benefits set forth in General Statutes § 31-308 (b), our legislature must have presumed that the losses therein affected earning capacity, because any other construction would suggest that the section was intended to provide compensation solely for the body part itself, comparable to a tort recovery. This construction would be inconsistent with our Workers’ Compensation Act. “[Wjorkers’ compensation ‘established almost a complete substitute for the common law of torts . . .’” since “the‘purpose of our Act ... is to give to the employee . . . compensation for the loss of wages accruing from the employee’s injury.’ Bassett v. Stratford Lumber Co., 105 Conn. 297, 303, 135 A. 574 (1926).” Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 540, 494 A.2d 555 (1985).

Furthermore, in remarking on the defendants’ apparent confusion between general incapacity benefits and specific benefits, the review division implicitly concluded that an award of specific benefits does not require a showing of impairment of earning capacity because the probability of wage loss is presumed. This interpretation of the review division “ ‘warrants respect as the considered judgment of the governmental agency vested with primary authority for enforcing our workers’ compensation statutes.’ Felia v. Westport, [214 Conn. 181, 188, 571 A.2d 89 (1990)], citing Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 599, 522 A.2d 771 (1987); New Haven v. United Illuminating Co., 168 Conn. 478, 493, 362 A.2d 785 (1975).” Ancona v. Norwalk, 217 Conn. 50, 56, 584 A.2d 454 (1991).

The defendants have failed to show that evidence of loss or loss of use of a body part compensable under § 31-308 (b) is insufficient to sustain a finding of disability under our Workers’ Compensation Act. We conclude, therefore, that the evidence of the plaintiffs back impairment was sufficient to sustain the commissioner’s finding that the plaintiff had a disability within the meaning of § 31-349.

The defendants’ second assertion is that even if the evidence supported a finding of disability, it was inadequate to sustain the commissioner’s finding that as a result of the earlier injuries, the plaintiff’s overall disability following'the third injury was “materially and substantially worse than had he suffered the injury of June 19, 1985 by itself alone.” See General Statutes § 31-349. The commissioner determined that each of the three injuries had caused a 5 percent impairment of the plaintiff’s back for an overall 15 percent back impairment. The commissioner then concluded that because the earlier injuries together had caused a 10 percent impairment, two-thirds of the overall disability, the disability after the third injury was materially and substantially worse than it would have been had the earlier injuries not occurred. According to the defendants, because the commissioner merely compared the impairment percentages and did not find that the injuries had “combined and merged,” there was an insufficient basis on which to determine that the resultant disability was materially and substantially greater. We do not agree.

“It has always been accepted without question that the situation to which the Second Injury Fund applies consists of a prior noncompensable injury followed by and combining with a subsequent compensable injury.” (Emphasis in original.) 2 A. Larson, supra, § 59.32 (g), p.10-488. Contrary to the defendants’ assertion, the prior impairment need not combine with the compensable injury in any special way, but must merely add something to the overall disability before the fund can become liable. 2 A. Larson, supra, p. 10-472. Thus, evidence that the preexisting impairment has materially increased the claimant’s overall disability is sufficient to warrant application of § 31-349. See Lovett v. Atlas Truck Leasing, 171 Conn. 577, 583, 370 A.2d 1061 (1976).

In this case, the commissioner determined that the prior injuries had caused a 10 percent back impairment while the third injury had caused a 5 percent back impairment for a total of 15 percent. The defendants do not challenge this finding. Because the earlier injuries increased the extent of the resultant disability by 200 percent, we conclude that the commissioner reasonably determined that the plaintiff’s overall disability was materially and substantially greater as a result of the earlier injuries within the meaning of § 31-349.

The defendants claim that applying § 31-349 in cases such as this will lead to irrational results by imposing liability on employers for consequences a mere fraction of which are attributable to their employment. This claim is without merit.

Section 31-349 does not create liability. To the contrary, it is an apportionment statute that limits the liability of employers previously imposed. Plesz v. United Technologies Corporation, 174 Conn. 181, 186, 384 A.2d 363 (1978); Lovett v. Atlas Truck Leasing, supra, 582-83. According to the general rule of workers’ compensation law, if an employee was injured during the course of his employment, an employer was liable to provide compensation for the full extent of the employee’s disability, regardless of whether the disability was due, in part, to a preexisting condition or impairment. Plesz v. United Technologies Corporation, supra, 185; Lovett v. Atlas Truck Leasing, supra, 581-82. Thus, “employers were often held liable for the full consequences of work-related accidents suffered by their employees, even though those consequences were aggravated by preexisting disabilities.” Jacques v. H.O. Penn Machinery Co., 166 Conn. 352, 356, 349 A.2d 847 (1974). The legislature, cognizant of the hardships posed by the general rule, including discrimination against handicapped workers and employer liability for consequences not attributable to their employment; Plesz v. United Technologies Corporation, supra; Lovett v. Atlas Truck Leasing, supra, 582; enacted § 31-349 to limit the employer’s liability to 104 weeks of compensation in situations where a claimant’s disability following a work-related injury is materially and substantially greater as a result of an earlier injury or previous condition.

In this case, because the award of compensation benefits was less than 104 weeks, the defendants had to pay the entire award. Nevertheless, if the resultant disability had warranted an award in excess of that amount, § 31-349 would have served to limit the defendants’ liability. We conclude, therefore, that application of § 31-349 in cases such as this promotes rational results.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 31-349 provides in pertinent part: “(a) The fact that an employee has suffered previous disability, or received compensation therefor, shall not preclude him from compensation for a later injury, nor preclude compensation for death resulting therefrom. If an employee who has previously incurred, by accidental injury, disease or congenital causes, total or partial loss of, or loss of use of, one hand, one arm, one foot or one eye, or who has other permanent physical impairment, incurs a second disability by accident or disease arising out of and in the course of his employment, resulting in a permanent disability caused by both conditions which is materially and substantially greater than that which would have resulted from the second injury alone, he shall receive compensation for the entire amount of disability, including total disability, less any compensation benefits payable or paid with respect to the previous disability, and necessary medical care, as elsewhere provided in this chapter, notwithstanding the fact that part of such disability was due to prior accidential injury, disease or congenital causes. The employer by whom the employee is employed at the time of the injury, or his insurance carrier, shall in the first instance pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability. . . . Thereafter all responsibility for compensation and medical treatment shall be with the custodian of the second injury fund. ...”

       Travelers Insurance Company and the Second Injury and Compensation Assurance Fund; see General Statutes § 31-349 et seq.; were also defendants in the plaintiff’s action for workers’ compensation benefits brought to the workers’ compensation commission. Nevertheless, because they were not parties to this appeal, our reference herein to “the defendants” is to Dow Chemical Company and Aetna Casualty and Surety Company.

       On February 1,1986, the plaintiff elected early retirement because he felt that he was no longer able to perform his job in the receiving department.

       General Statutes § 31-307 provides in pertinent part: “If any injury for which compensation is provided under the provisions of this chapter results in total incapacity to work, there shall be paid to the injured employee a weekly compensation equal to sixty-six and two-thirds per cent of his average weekly earnings at the time of the injury . . . .”

       At the time of the commissioner’s award, General Statutes § 31-308 (b) provided in pertinent part: “With respect to the following-described injuries the compensation, in addition to the usual compensation for total incapacity but in lieu of all other payments for compensation, shall be sixty-six and two-thirds per cent of the average weekly earnings of the injured employee, but in no case more than the maximum weekly benefit rate set forth in section 31-309, or less than twenty dollars weekly . . . (13) for the loss of the use of the back, that number of weeks which the proportion of incapacity represents to the maximum of five hundred and twenty weeks. . . .”

       General Statutes § 31-308 (b) sets forth the following schedule of benefits: “(1) For the loss of the master arm at or above the elbow or the complete and permanent loss of the use of the master arm, three hundred and twelve weeks; for the loss of the other arm, at or above the elbow; or the complete and permanent loss of the use of the other arm, two hundred and ninety-one weeks; (2) for the loss of the master hand at or above the wrist, or the complete and permanent loss of the use of said hand, two hundred and fifty-two weeks, and for such loss of the other hand or the use of said hand, two hundred and thirty-two weeks; (3) for the loss of one leg at or above the knee, or the complete and permanent loss of the use of one leg, two hundred and thirty-eight weeks; (4) for the loss of one foot at or above the ankle, or the complete and permanent loss of the use of one foot, one hundred and eighty-eight weeks; (5) for the complete and permanent loss of hearing in both ears, one hundred and fifty-six weeks; (6) for the complete and permanent loss of hearing in one ear, fifty-two weeks; (7) for the complete and permanent loss of the sight of one eye, or the reduction in one eye to one-tenth or less of normal vision, two hundred and thirty-five weeks; (8) for the complete and permanent loss of, or loss of the use of, the thumb on the master hand, ninety-five weeks, for the thumb on the other hand, eighty-one weeks; (9) for the loss of, or the complete and permanent loss of the use of, a first finger, fifty-four wéeks; (10) for the loss of, or the complete and permanent loss of the use of, a second finger, forty-four weeks; a third finger, thirty-one weeks; a fourth finger, twenty-six weeks; (11) for the loss of, or the loss of the use of, the great toe, forty-two weeks; (12) for the loss of, or the loss of the use of, any other toe, thirteen weeks. The loss of, or the loss of the use of, one phalanx of a thumb shall be construed as seventy-five per cent of the loss of the thumb, the loss of, or the loss of the use of, one phalanx of a finger shall be construed as fifty per cent of the loss of the finger; the loss of, or the loss of the use of, two phalanges of a finger shall be construed as ninety per cent of the loss of the finger; the loss of, or the loss of the use of, one phalanx of a great toe shall be construed as sixty-six and two-thirds per cent of the loss of the great toe; the loss of the greater part of a phalanx shall be construed as the loss of a phalanx, and shall be compensated accordingly; (13) for the loss of the use of the back, that number of weeks which the proportion of incapacity represents to the maximum of five hundred and twenty weeks. If the injury consists of the loss of a substantial part of a member resulting in a permanent partial loss of the use of a member, or if the injury results in a permanent partial loss of function, the commissioner may, in his discretion, in lieu of other compensation, award to the injured person such a proportion of the sum herein provided for the total loss of, or the loss of the use of, such member or for incapacity or both as represents the proportion of total loss or loss of use found to exist, and any voluntary agreement submitted in which the basis of settlement is such proportionate payment may, if otherwise conformable to the provisions of this chapter, be approved by the commissioner in his discretion.”

         Contrary to the defendants’ assertion, this rule was not limited to situations where the claimant suffered total as opposed to partial disability following the second injury. See Jacques v. H.O. Penn Machinery Co., 166 Conn. 352, 356, 349 A.2d 847 (1974); Hartz v. Hartford, Faience Co., 90 Conn. 539, 543, 97 A. 1020 (1916).

       The following examples further illustrate the rational operation of General Statutes § 31-349. In scenario one, an employee sustains an injury during the course of his employment. The employee had a preexisting 50 percent back impairment and following the work-related injury, his back impairment is 51 percent. According to the general rule of workers’ compensation law, the employer would have been liable to pay workers’ compensation benefits for the entire 51 percent impairment; Plesz v. United Technologies Corporation, 174 Conn. 181, 185-86, 384 A.2d 363 (1978); Lovett v. Atlas Truck Leasing, 171 Conn. 577, 581-82, 370 A.2d 1061 (1976); however, § 31-349 applies in this case. Because the employee’s total disability is materially and substantially greater as a result of his prior condition, the employer’s liability is limited to payment of 104 weeks of benefits. Any further liability is allocated to the Second Injury Fund. General Statutes § 31-349. This apportionment of liability is rational because the greater increment of the total disability, 50 percent, was caused by a condition unrelated to the employee’s present employment.
      In scenario two, an employee sustains an injury during the course of his employment. This employee had a preexisting 1 percent back impairment and following the work-related injury, his back impairment is 51 percent. According to the general rule, the employer is liable to pay workers’ compensation benefits for the entire 51 percent back impairment. Plesz v. United Technologies Corporation, supra; Lovett v. Atlas Truck Leasing, supra. There is no allocation to the Second Injury Fund pursuant to § 31-349, because it cannot be said that the employee’s total disability is materially and substantially greater as a result of his preexisting condition. This result is rational because the greater increment of the total disability, 50 percent, was caused by the injury suffered while in the employer’s employ.