author: BORDEN, J.

text:
    STATE OF CONNECTICUT v. MIGUEL M. BELTRAN
    (SC 15635)
    Borden, Berdon, Norcott, Katz and Palmer, Js.
    Argued May 28
    officially released August 11, 1998

      Elizabeth M. Inkster, assistant public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, was Jonathan C. Benedict, state’s attorney, for the appellee (state).
   Opinion

BORDEN, J.

The defendant appeals from the judgment of conviction, after a jury trial, of one count of capital felony in violation of General Statutes § 53a-54b (8). The defendant claims that: (1) the trial court’s instructions on self-defense were flawed; and (2) he was deprived of his state and federal constitutional rights to equal protection of the laws because the trial court improperly sustained the state’s peremptory challenge to a Hispanic venireperson. We affirm the judgment.

The jury reasonably could have found the following facts. The defendant, Miguel M. Beltran, a fifty-five year old married man, had been involved romantically with one of the victims, thirty-three year old Lucy Torres (Torres), for approximately three years. Prior to September 29,1995, Torres had ended her relationship with the defendant, and at that time she was dating the other victim, Wilfredo M. Reyes. The defendant repeatedly had attempted but failed to resume his relationship with Torres. Within the two week period between their break-up and September 29, 1995, the defendant called Gloria Rivera, Torres’ friend, several times each day asking Rivera to help him mend his relationship with Torres. The defendant told Rivera that he would kill Torres if she did not resume their relationship in two weeks. Early in the evening of September 29, 1995, the defendant told Jose Torres, the victim’s brother, that he had given her two weeks, and the two weeks were up. On that same day, the defendant telephoned Torres several times, but she declined to speak with him. Instead, Adaliz Cintron, who was living with Torres at the time, spoke with the defendant, and he told Cintron that he had written a letter explaining why he would kill Torres.

Later that night, Torres, Jose Torres, Cintron, Rivera and Reyes were gathered at the Spanish-American Family Center, a social club located in Bridgeport. Between 10:15 and 10:45 p.m., the defendant arrived at the club. He had not been to the club for approximately one year. While at the club, the defendant told Gilberto Garcia, the proprietor of the club, that he had decided to do what he had vowed to do and he pointed at Torres. On his way out, the defendant passed by the victims’ table, which was located near the club’s exit, and told Reyes that he wanted to see him outside. Reyes, accompanied by Torres, followed the defendant outside. Approximately twenty seconds later, four closely-spaced gun shots were heard. Jose Torres, Rivera and Cintron went outside, where they saw the defendant standing behind his car taking the bullet casings out of a gun that he was holding and putting them into his pocket. All three individuals saw the defendant get in his car and drive away.

Jose Torres, Rivera and Cintron then saw Reyes and Torres lying on the ground motionless and bleeding. The defendant had shot Torres twice. One bullet had entered the palm of Torres’ right hand and exited from its back. The other bullet initially had penetrated her left rib cage, pierced her left lung, abraded her heart, fractured a thoracic vertebrae, and passed through the lowerpart of her right lung before exiting her body three inches above its point of entry. This bullet killed Torres.

The defendant also had shot Reyes twice. One bullet had grazed Reyes’ right arm, and the other, the fatal bullet, had entered his right buttock, passed through his pelvic bone and the pelvic area damaging an artery, traveled through the bladder, penetrated the opposite side of the pelvic bone, injured another artery, and finally exited his body from the groin area. Reyes bled to death.

Both victims had been shot by a high-powered weapon at close range. Although the police did not find a weapon or any empty bullet casings at the scene of the crime, they did find an empty case for a .44 caliber handgun and .44 caliber ammunition at the defendant’s house. Forensic tests performed on the defendant’s hands and clothing indicated that he recently had fired a gun, while tests on Reyes’ hands conclusively indicated that he had not fired a gun.

At the defendant’s trial, he claimed self-defense, and offered the jury the following evidence to support his claim. Reyes and the defendant had exchanged words while the defendant was leaving the club. Reyes and Torres followed the defendant outside, where Reyes verbally threatened and insulted the defendant while keeping his hand behind his back as if Reyes was concealing a weapon. While maintaining this posture, Reyes approached the defendant and slapped him. The defendant reacted by grabbing Reyes’ right hand, in which Reyes was holding a gun, and a struggle over the gun ensued. While Torres was attempting to separate the two by positioning herself between them, the gun accidentally discharged four shots. According to the defendant, he left the gun at the scene and drove away only because he thought Torres’ friends and family might attempt to kill him. The defendant speculated that no gun was found at the scene because it had been picked up by one of the bystanders before the arrival of the police.

The trial court instructed the jury on the defense of self-defense. The jury found the defendant guilty of two counts of murder and one count of capital felony as charged in the information. The trial court merged the two murder counts with the capital felony count, and rendered a judgment of conviction accordingly. This appeal followed.

I

The defendant raises two challenges to the trial court’s instructions on self-defense, namely, that the trial court improperly failed to instruct the jury on: (1) mistake of fact as requested by the defendant; and (2) the initial aggressor doctrine. We reject both of these claims.

A

The defendant first claims that the trial court improperly omitted instructions on the defense of mistake of fact from its charge to the jury. We reject this claim because the evidence in this case did not require a specific mistake of fact instruction.

The defense of mistake of fact is available under General Statutes § 53a-6 (a), which provides in relevant part: “A person shall not be relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief of fact, unless: (1) Such factual mistake negates the mental state required for the commission of an offense ... or (3) such factual mistake is of a kind that supports a defense of justification.” A mistake of fact exists “when one makes an erroneous perception of the facts as they actually exist. . . . The defense arises only where the defendant misperceives an objective state of existing fact . . . .” (Citation omitted; internal quotation marks omitted.) State v. Silveira, 198 Conn. 454, 460-61, 503 A.2d 599 (1986). An instruction on mistake of fact is required “only when evidence supporting [this] . . . defense is placed before the jury.” (Internal quotation marks omitted.) Id., 462; see also State v. Fuller, 199 Conn. 273, 278, 506 A.2d 556 (1986). “The court . . . has a duty not to submit to the jury, in its charge, any issue upon which the evidence would not reasonably support a finding.” State v. Diggs, 219 Conn. 295, 299, 592 A.2d 949 (1991). No mistake of fact instruction was required in the present case because there was no evidence showing that the defendant acted under any mistaken belief of fact.

In this case, the state argued to the jury that the defendant, acting out of jealousy and rage, executed his plan to shoot and kill Reyes and Torres. On the other hand, the defendant contended that he had been threatened by Reyes, forcing the defendant to defend himself. According to the defendant, Reyes not only had assumed a posture of attack by threatening and insulting the defendant while aggressively advancing toward the defendant with his hand behind his back, but Reyes actually drew a gun to attack the defendant. The defendant maintained throughout the trial that because of Reyes’ attack, which resulted in a struggle over the gun, the victims were accidentally shot. He did not testify nor was there any other evidence showing that he later found his perception of these events to be incorrect. Hence, there was no evidence tending to show a factual mistake on the part of the defendant’s comprehension of the circumstances to be tested by the jury. Therefore, an instruction regarding a mistake of fact was unwarranted.

B

The defendant’s second challenge to the self-defense instruction is that the trial court improperly failed to instruct the jury on the initial aggressor doctrine. This claim, which the defendant raises under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), is unavailing.

Under Golding, the defendant may prevail if: (1) the record is adequate for reviewing the alleged error; (2) the alleged error is of a constitutional dimension; (3) the defendant’s alleged constitutional claim clearly exists and clearly deprived him of a fair trial; and (4) the error was not harmless. Id., 239-40. The first two steps in the Golding analysis address the reviewability of the claim, while the last two steps involve the merits of the claim.

We agree with the defendant that the record is adequate for a determination of whether the instruction, as given by the court, comported with the law. We also agree that an instruction that omits an element of a defense is constitutionally inadequate. State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982). We conclude, however, that the defendant’s claim fails because the trial court’s failure to instruct the jury on the initial aggressor doctrine was not improper.

General Statutes § 53a-19 (c), which embodies the initial aggressor doctrine, provides in relevant part: “Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using physical force when ... (2) he is the initial aggressor . . . .” Subsection (a) of § 53a-19 provides the legal standard under which a defendant may establish self-defense. Subsection (a), however, is subject to subsection (c), because it provides: “Except as provided in subsections (b) and (c) of this section, a person is justified in using reasonable physical force upon another person to defend himself . . . .” (Emphasis added.) General Statutes § 53a-19 (a).

Both subsection (a) and (c) of § 53a-19 (a), therefore, demonstrate that one is not entitled to the defense of self-defense if subdivision (2) of subsection (c) is proven. Put another way, the defendant is not entitled to avail himself of the defense of self-defense if he is the initial aggressor. Essentially, therefore, the concept of initial aggressor is a limitation on what would otherwise be a valid defense of the justified use of force in self-defense.

In the present case, the state did not claim that the defendant was the initial aggressor. Therefore, the defendant’s self-defense claim was not exposed to the possibility of being undermined by § 53a-19 (c) (2). Because there had been no attempt by the state to defeat the defendant’s self-defense claim by using the initial aggressor doctrine, there was no occasion for the trial court to instruct the jury on that doctrine. We fail to see, therefore, how the defendant can complain about the omission of an instruction on a doctrine that only would have harmed him had it been given to the jury.

The question for the jury in this case was whether the defendant shot and killed Reyes and Torres in cold blood out of rage and jealousy, or whether the defendant, in the course of a hand-to-hand struggle with Reyes over the gun, accidentally shot and killed the victims. Whether the defendant was the initial aggressor simply was not an issue in this case. Thus, an instruction on § 53a-19 (c) (2) could only have confused the jury and ultimately harmed the defendant.

II

The defendant’s final claim is that the trial court violated his federal and state constitutional rights to the equal protection of the laws in concluding that the state’s race-neutral explanation for exercising a peremptory challenge was satisfactory. The defendant bases his claims on the following facts.

During the jury selection, the state used a peremptory challenge to remove a young Hispanic woman, Estella Rodriguez, from the venire panel. The defendant objected to the state’s peremptory challenge, and the trial court asked the state to provide its reasons for the peremptory challenge. The assistant state’s attorney stated: “She’s nineteen years old; she just graduated from high school. She’s unmarried. Particularly her age but ... if you look at everybody who has been selected so far in this case they all are on some sort of a career track. Almost everybody is married, has children, etc. I don’t believe that this person has had enough exposure to society to, in my opinion, sit on a murder case.” The trial court found that these reasons were race-neutral. The defendant did not respond in any way, and the venireperson was excused.

On appeal, the defendant claims that the state’s explanations for using its peremptory challenge were pretexts to camouflage what was in reality a racially biased challenge in violation of the equal protection clause under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), and State v. Holloway, 209 Conn. 636, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989). We disagree.

In Batson, the United States Supreme Court set forth the guidelines for assessing a defendant’s claim of purposeful, race-based peremptory challenges by the state. Batson v. Kentucky, supra, 476 U.S. 96-98. Procedurally, the facts necessary to prove the state’s racially discriminatory purpose under the Batson test are propounded by the parties through a three step process. First, the defendant must establish a prima facie case of purposeful racial discrimination by the state. Id., 96-97. The burden then shifts to the state to propound a race-neutral- purpose for seeking the removal of the venireperson. Id., 97-98. Last, the defendant may then demonstrate that the state’s reasons are pretextual or insufficient. Id. “The defendant carries the ultimate burden of persuading the trial court, by a preponderance of the evidence, that the jury selection process in his or her particular case was tainted by purposeful discrimination.” State v. Gonzalez, 206 Conn. 391, 395, 538 A.2d 210 (1988).

In Holloway, we held that in order to establish a prima facie case of purposeful, racially motivated jury selection by the state, it is only necessary for the defendant to show that he or she is “a member of a cognizable racial group and [that] the prosecutor exercise [d] peremptory challenges to remove members of [the] defendant’s race from the venire.” (Internal quotation marks omitted.) State v. Holloway, supra, 209 Conn. 646 n.4. Because the record establishes that both the defendant and the venireperson were Hispanic, a cognizable racial group; see, e.g., United States v. Rioux, 97 F.3d 648, 654 (2d Cir. 1996); we conclude that the first step of the Batson-Holloway test was met.

After a prima facie case of a purposeful, racially biased peremptory challenge is established, the state must “articulate a neutral explanation related to the particular case to be tried” for attempting to remove the venireperson. Batson v. Kentucky, supra, 476 U.S. 98. The state, in the present case, provided its reasons, and the trial court found that the state had provided a valid, race-neutral explanation for using its peremptory challenge to remove Rodriguez from the venire panel. The record supports the trial court’s finding.

To satisfy the second part of the Batson-Holloway test, the nature of the state’s reason must be race-neutral, meaning that it must not be motivated by a racially biased assumption; id., 97-98; and the state’s reasons must be related to the case. Id., 98. A plurality of the United States Supreme Court has stated that “ [a] neutral explanation in [this] context . . . means an explanation based on something other than the race of the juror. At this step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” Hernandez v. New York, 500 U.S. 352, 360, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991) (Rehnquist, C. J., and Kennedy, White and Souter, Js.). Generally, an explanation based on something other than the race of the juror is neutral in this context. Id., 374 (O’Connor and Scalia, Js., concurring). Because age, level of education, profession or marital status are not intrinsically racial characteristics, the trial court was justified in finding the state’s explanation to be facially race-neutral.

In addition, the state’s reasons bore a rational relation to the case. This connection is established as long as the record “adequately substantiate [s]” legitimate reasons for exercising a peremptory challenge. State v. Gonzalez, supra, 206 Conn. 405. In the present case, the state’s general contention was that Rodriguez had not “had enough exposure to society to . . . sit on a murder case.” The venireperson in this case was an unmarried, nineteen year old, recent high school graduate. These facts reasonably supported the state’s expressed concerns regarding her competence to serve as a juror in a double murder case.

Once the state met its burden of producing a race-neutral explanation, it was incumbent upon the defendant to persuade the trial court that the state’s reasons were insufficient or pretextual. To have done so, the defendant could have advanced reasons “that are salient to a showing of pretext.” State v. Gonzalez, supra, 206 Conn. 399. The defendant, however, made no effort to carry his burden under the third step of the Batson-Holloway test. Therefore, the only inference that the trial court could have drawn was that the defendant accepted the state’s explanation.

On appeal, however, the defendant argues that the trial court, after having requested and received a valid race-neutral explanation from the state, and after the defendant made no effort to challenge that explanation, had a sua sponte duty to do something more before excusing the venireperson. The defendant offers no authority or reason for such an unorthodox application of the Batson-Holloway test, and we decline to fashion one in the present case.

The judgment is affirmed.

In this opinion the other justices concurred.

       The defendant appealed directly to this court pursuant to General Statutes § 51-199 (b), which provides in relevant part: “The following matters shall be taken directly to the Supreme Court . . . (3) an appeal in any criminal action involving a conviction for a capital felony . . . .”

       General Statutes § 53a-54b provides in relevant part: “A person is guilty of a capital felony who is convicted of . . . (8) murder of two or more persons at the same time or in the course of a single transaction . . . .”
      The defendant also had been charged with two counts of murder in violation of General Statutes § 53a-54a (a), which provides: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       General Statutes § 53a-19 (a) provides: “Except as provided in subsections (b) and (c) of this section, a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.”

       The defendant also claimed severe emotional distress as an affirmative defense to the crime of murder pursuant to General Statutes § 53a-54a (a). See footnote 2 of this opinion. He does not raise on appeal, however, any claim regarding that affirmative defense.

       The defendant filed a written request to charge on mistake of fact, which included the following: “The language of our self-defense statute presents a question of fact about what the defendant himself reasonably believed about his exposure to jeopardy under the circumstances. It focuses on the person claiming self-defense. The jury must view the circumstances which the defendant claims justified the use of force from the perspective of the defendant and then determine whether his belief was reasonable. In determining the reasonableness of his beliefs as to the necessity for the use of force and the degree of force necessary, the jury should consider his perceptions concerning both the physical circumstances requiring the use of force and his familiarity of the deceased and the deceased’s earlier violent behavior against him. Even if the defendant was mistaken in his belief regarding the necessity of using force, if his belief was reasonable, then his actions were justified.” (Emphasis added.)
      In all respects, the trial court’s instructions were substantially the same as what was requested by the defendant, except that the trial court omitted that portion of the request referring to the defendant’s mistaken belief. In light of the defendant’s written request, the defendant’s claim was properly preserved for review under Practice Book § 42-16.

       The defendant did not preserve this claim for review. The defendant’s written request to charge included the following: “(If instructions on [General Statutes] § 53a-19 [c] [2] are given) The use of words which cause a confrontation does not make someone the initial aggressor and thereby render self-defense unavailable. In other words, it is not necessary for the defendant to have been totally without fault or blame in this incident to avail himself of the doctrine of self-defense.” (Emphasis added.)
      Section 53a-19 (c) (2), which was referred to by the defendant in his request, embodies the initial aggressor doctrine and its legal effect on a self-defense claim. The defendant’s request demonstrates that an instruction defining who is no t an initial aggressor would have been necessary only if an instruction on who is an initial aggressor were to be given by the court. Because the court did not instruct the jury on the initial aggressor doctrine, the court was free not to consider the defendant’s request. By making a conditional request, the defendant effectively failed to make an affirmative written request to have the jury charged on the scope of the initial aggressor doctrine. Indeed, if anything', the defendant’s request to charge would have indicated to the trial court that the defendant did not consider an instruction on the initial aggressor doctrine necessary to the case. Therefore, the defendant’s claimed error was not properly preserved at trial, and the defendant may prevail, if at all, only under the rule of Golding.

       “Because the defendant has failed to provide any independent analysis under the state constitution, we limit our review to the federal constitution.” State v. Porter, 241 Conn. 57, 133 n.77, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998).

       In State v. Gonzalez, supra, 206 Conn. 399, we compiled a nonexhaustive list of such evidence, which included: “(1) The reasons given for the challenge were not related to the trial of the case ... (2) the prosecutor failed to question the challenged juror or only questioned him or her in aperfunctory manner ... (3) prospective jurors of one race were asked a question to elicit a particular response that was not asked of the other jurors ... (4) persons with the same or similar characteristics but not the same race as the challenged juror were not struck ... (5) the prosecutor advanced an explanation based on a group bias where the group trait is not shown to apply to the challenged juror specifically . . . and (6) the prosecutor used a disproportionate number of peremptory challenges to exclude members of one race.” (Citations omitted; internal quotation marks omitted.)


source: Caselaw Access Project

author: KATZ, J. MCDONALD, J.,

license: Public Domain

text:
    MICHAEL CONETTA v. CITY OF STAMFORD ET AL.
    (SC 15807)
    Callahan, Borden, Norcott, Katz and McDonald, Js.
    Argued April 24
    officially released August 11, 1998

      Booth M. Kelly, Jr., for the appellant (named defendant).

      Michael Osborne and Kara K. DeRosa, certified legal interns, with whom were Carolyn W. Kaas and Deborah R. Within, for the appellee (plaintiff).
   Opinion

KATZ, J.

The dispositive issue in this appeal is whether, at this particular stage of the proceedings, we have jurisdiction to consider the defendant’s appeal. We conclude that we do not. Accordingly, we are constrained to dismiss the appeal.

The record discloses the following undisputed facts. The plaintiff, Michael Conetta, became a police officer for the named defendant, the city of Stamford (defendant), on August 10, 1970. On July 7,1985, the plaintiff failed to report to work due to a psychiatric episode, which he claimed arose out of and in the course of his employment. At the behest of the Stamford police department (department), the plaintiff met with and was thereafter treated by Rafique Tai, a psychiatrist, who diagnosed the plaintiff as suffering from severe depression and manifesting major clinical features of agitated and delusional thoughts. When the plaintiffs condition improved, Tai recommended to the department that the plaintiff be allowed to resume his duties as a police officer, but be assigned to indoor or inactive duties, without a gun, under supervision. When the department could not find a position that could accommodate the plaintiffs disability, the defendant, on the basis of the decision of the police pension board (pension board), pursuant to § C7-20-1 of the charter of the city of Stamford (city charter), placed him on disability retirement.

Thereafter, pursuant to General Statutes § 31-308 (a), the plaintiff applied for workers’ compensation benefits. The defendant challenged the plaintiffs eligibility on the grounds that the plaintiffs alleged psychiatric condition was not work-related, and, even if work-related, it was nevertheless barred because the condition had manifested itself more than three years before the plaintiff had filed his claim for compensation. The plaintiff argued in response that, on the basis of the doctrine of res judicata, the defendant was estopped from denying that his illness was work-related because, by paying him a disability pension pursuant to the city charter, the pension board had necessarily determined that his illness had resulted from his employment.

The hearing, conducted over several days between March, 1990, and June, 1991, was presided over by Commissioner Michael Sherman. After Sherman recused himself, Commissioner Linda Blenner Johnson (commissioner), with the permission of both parties, reviewed the transcripts and evidence and issued a “Finding and Dismissal,” denying the plaintiffs claim for compensation. Pursuant to General Statutes §31-301, the plaintiff filed a petition with the workers’ compensation review board (review board), claiming that the commissioner’s conclusion was legally inconsistent with the subordinate facts and that many of the purported factual findings simply recited the evidence or were mere narrations of the claims of the parties.

The review board agreed that the commissioner merely had recited the evidence and made few factual findings to support her conclusion. Furthermore, the review board noted that, although the record did not reflect that the city charter had been introduced into evidence or that the commissioner had taken administrative notice of it, the commissioner had included in her decision a photostatic copy of § C7-20-1 of the city charter. On the basis of its determination that the commissioner improperly had made a finding based on a document not in evidence, and on the basis of its determination that there was a paucity of factual findings to support the commissioner’s dismissal, the review board remanded the matter to the commissioner for further proceedings. As part of the remand, the review board ordered the commissioner to articulate the legal bases of her decision, specifically, to indicate whether she had dismissed the claim because the plaintiff had failed to prove causation or because the claim was time barred by § 31-294c. See footnote 3 of this opinion; see also Conetta v. Stamford, 13 Conn. Workers’ Comp. Rev. Op. 68, 69-70 (1994).

On November 13, 1995, concluding that the review board had precluded her from considering the city charter, the commissioner conducted a limited hearing, allowing only reargument, and on November 30, 1995, she again ruled against the plaintiff. As part of her decision, the commissioner made five findings of fact. She found that: (1) the plaintiff had been hired as a police officer by the defendant on August 1, 1970; (2) the plaintiff alleged that on July 7, 1985, he had experienced the first manifestations of depression arising out of the course of his employment; (3) the defendant contested the claim on the theories that the disorder was not work-related and that, even if work-related, it was time barred; (4) Tai treated the plaintiff for his psychiatric condition; and (5) Tai made certain statements in a September 29,1986 letter, which the plaintiff had introduced into evidence. The commissioner then recited portions of the letter and concluded that the plaintiff had failed to sustain his burden of proof on the issue of causation. The commissioner made no determination on the issue of whether the claim was time barred.

The plaintiff moved to correct the commissioner’s findings, primarily to include the opinion of a prior treating physician pertaining to the work-related nature of delusional thoughts and a psychiatric disorder that the plaintiff suffered in 1985, and to distinguish that illness from past bouts of both work and nonworkrelated depression. The commissioner denied the motion to correct.

Thereafter, on appeal, the review board concluded that the commissioner had misunderstood the nature of its previous ruling. The commissioner “was not instructed to omit the city charter from evidence; rather, the panel was saying that that document would first need to be placed in evidence before any findings could flow from it. The [plaintiff] has contended throughout the proceedings that by paying him a disability pension, the [defendant] necessarily has to have acknowledged that his illness was work-related. By not considering the charter, the commissioner omitted the possibility that the [plaintiff] could persuade her that the [defendant] should be estopped from contesting the causal relationship of his depression. She did not make a finding on timely notice, of course; her 1995 decision was based solely on the [plaintiffs] failure to prove causation. The commissioner’s mistaken belief that she was precluded from considering the charter (or any other new evidence) may thus have had a determinative effect on this decision.”

The review board expressed concern that a third decision by the same commissioner would “appear to be a mere exercise in ‘going through the motions’ ” and that the plaintiff would emerge from the proceedings feeling that he had not “had a meaningful day in court.” The review board then concluded that due process required that the matter be reheard de novo by a different commissioner “in order to preserve the vital appearanee of impartiality in workers’ compensation proceedings.” This appeal followed.

On appeal, the defendant claims that the review board: (1) improperly remanded the case because the commissioner had failed to adhere to the board’s remand following her first decision; (2) improperly ordered a remand for a trial de novo before a commissioner other than the one who previously had presided over the case based on what the board concluded was an “appearance of partiality”; (3) improperly ordered the commissioner to admit into evidence the city charter when the record had been closed and no motion to admit additional evidence pursuant to § 31-301 (b) had been filed; (4) applied an improper standard of review in deciding that the commissioner’s conclusion had resulted from an incorrect application of the law to the subordinate facts; and (5) improperly reversed the decision of the commissioner because, even if the city charter should have been admitted into evidence, the plaintiff had failed to prove that the decision granting him a disability pension had a res judicata effect. Additionally, the parties have briefed the question of whether the appeal from the decision of the review board ordering that the case be remanded for a trial de novo before a different, commissioner had been taken from a final judgment. In connection with this last issue, we note that the commissioner who presided over this case resigned her position as a workers’ compensation commissioner while this appeal was pending. We conclude that this court does not have jurisdiction over this appeal.

I

We begin with the jurisdictional question of whether this appeal is from a final judgment. “It is axiomatic that, except insofar as the constitution bestows upon this court jurisdiction to hear certain cases; see Fonfara v. Reapportionment Commission, 222 Conn. 166, 610 A.2d 153 (1992); the subject matter jurisdiction of the Appellate Court and of this court is governed by statute. Grieco v. Zoning Commission, 226 Conn. 230, 231, 627 A.2d 432 (1993). It is equally axiomatic that, except insofar as the legislature has specifically provided for an interlocutory appeal or other form of interlocutory appellate review; see, e.g., General Statutes § 52-278Í (prejudgment remedies); General Statutes § 54-63g (petition for review of bail); General Statutes § 51-164x (court closure orders); State v. Ayala, 222 Conn. 331, 340, 610 A.2d 1162 (1992); appellate jurisdiction is limited to final judgments of the trial court. General Statutes § 52-263 . . . .” (Citation omitted.) Waterbury Teachers Assn. v. Freedom of Information Commission, 230 Conn. 441, 447, 645 A.2d 978 (1994).

Appeals from decisions of the review board are taken pursuant to General Statutes § 31-301b. “[T]he practice and procedure for [workers’ compensation] appeals to the appellate court . . . shall conform to the rules of practice governing other appeals.” Practice Book § 4165, now Practice Book (1998 Rev.) § 76-1. With regard to such appeals, “references in the rules of appellate procedure to trial court or trial judge shall, where applicable, be deemed to mean the individuals who comprised the board which rendered the decision from which the appeal was taken . . . .” Practice Book § 4165.6, now Practice Book (1998 Rev.) § 76-6.

Therefore, in order for a decision of the review board to be appealable under § 31-301b, it must be a decision that has the same elements of finality as a final judgment rendered by a trial court. See Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 294-98, 695 A.2d 1051 (1997); see also State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). In workers’ compensation cases, “[t]he test that determines whether such a decision is a final judgment turns on the scope of the proceedings on remand: if such further proceedings are merely ministerial, the decision is an appealable final judgment, but if further proceedings will require the exercise of independent judgment or discretion and the taking of additional evidence, the appeal is premature and must be dismissed.” Szudora v. Fairfield, 214 Conn. 552, 556, 573 A.2d 1 (1990). This rule is an application of the more general final judgment principle that an otherwise interlocutory order is appealable where (1) it terminates a separate and distinct proceeding, or (2) so concludes the rights of the parties that further proceedings cannot affect them. Schick v. Windsor Airmotive Division/Barnes Group, Inc., 31 Conn. App. 819, 822, 627 A.2d 478 (1993).

It is well settled that orders of remand that entail the hearing of further evidence generally are not appealable final judgments. Id.; Cleveland v. U.S. Printing Ink, Inc., 218 Conn. 181, 185-86, 588 A.2d 194 (1991). Moreover, the parties do not dispute that additional evidence will be taken at the new hearing or that the commissioner’s actions will be more than ministerial. Therefore, it is apparent that this appeal is governed by a line of cases in which the proceedings on remand will not be merely ministerial but, rather, will require the commissioner to hear additional evidence and exercise independent judgment and discretion. Accordingly, the question that remains is whether this case falls within an exception to the final judgment rule.

II

The defendant’s first claim on appeal is addressed to whether the review board acted properly when it remanded the case for the second time because the commissioner had failed to adhere to the review board’s remand following her first decision. The resolution of this issue depends on whether the board in 1994, in its first decision, properly remanded the case to the commissioner for a new hearing due, in part, to her failure in the first hearing to mark the city charter as an exhibit or to take judicial notice of it despite the numerous findings she had made based on the document. That decision is controlled by Szudora and does not fall within any recognized exception to the final judgment rule. By the very terms of the 1994 decision, the board remanded the case for further proceedings on the plaintiffs claim. Consequently, only when a final decision is rendered, and the issue remains viable, can the defendant avail itself of the appeals process in order to challenge this ruling. Szudora v. Fairfield, supra, 214 Conn. 556.

Similarly, we do not review the defendant’s third, fourth and fifth claims, which we have rephrased for clarity. The defendant argues that the review board’s decision to remand the case for a new hearing was improper because (1) the review board applied an improper standard of review to the commissioner’s findings, (2) the review board improperly ordered the commissioner to admit into evidence or take judicial notice of the city charter, and (3) even if the city charter should have been admitted into evidence, that document was irrelevant to the plaintiffs claim that the doctrine of res judicata precluded the defendant from contesting that the plaintiffs injury was work-related.

In the first of these claims, the defendant argues that the “commissioner lacks authority prior to making an award to reopen the record to receive additional evidence without a showing of good cause,” and that, consequently, by reversing the commissioner’s decision due to her refusal to receive additional evidence, the review board deviated from its limited scope of review. See Fair v. People’s Savings Bank, 207 Conn. 535, 539, 542 A.2d 1118 (1988) (“conclusions drawn . . . from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts”). This claim is similar to the second of these claims, challenging the review board’s authority in the first appeal to remand the case for the commissioner to receive additional evidence. That decision, however, did not terminate any separate or distinct proceeding. It simply reversed the ruling of the commissioner regarding issues that took place within the ambit of the proceedings on the plaintiffs claim against the defendants. Nor did the decision so conclude the rights of the parties that further proceedings could not affect them. By the decision’s very terms, the review board remanded the case to the commissioner for further proceedings on the plaintiffs claim. Consequently, only when a final decision is rendered, and the issues remain unresolved to its satisfaction, can the defendant avail itself of the appeals process in order to challenge these rulings. Szudora v. Fairfield, supra, 214 Conn. 556.

A related problem exists in connection with the last of these claims. The plaintiff had claimed before the commissioner that the pension board had already concluded that he must have suffered a work-related injury in order for it to award him a disability pension pursuant to § C7-20-1 of the city charter. On the basis of this earlier determination, the plaintiff argued that the doctrine of res judicata precludes the defendant from denying its liability before the workers’ compensation commission. In this last claim, the defendant contends that the city charter is irrelevant and that consequently the review board improperly focused on it. Because the commissioner failed to follow the review board’s remand order, however, and the document is not before the court, we are unable to evaluate this claim. Furthermore, to the extent that the defendant is attempting to resurrect the action taken by the review board in its first decision, the defendant has not cited to any authority to suggest that the claim falls within an. exception to the final judgment requirement. See Schick v. Windsor Airmotive Division/Barnes Group, Inc., supra, 31 Conn. App. 822.

Ill

In its second claim on appeal, the defendant has challenged the review board’s authority to order a remand of the case to a new commissioner. The effect of that hearing will be to render the decision previously rendered by Johnson a nullity. At first blush, therefore, the review board’s order in this case is comparable to an order of the trial court opening a judgment, which, ordinarily, is not an appealable final judgment because its effect is to ehminate the judgment that was rendered previously. Connecticut National Bank v. Great Neck Development Co., 215 Conn. 143, 147, 574 A.2d 1298 (1990). Any review of such an order would generally have to await the judgment that follows the second trial.

We have recognized an exception, however, for those cases in which the appellant makes a colorable challenge to the jurisdiction of the trial court to open the judgment. Solomon v. Keiser, 212 Conn. 741, 747, 562 A.2d 524 (1989); Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 418, 426 A.2d 1324 (1980). The Appellate Court has held that that exception applies with equal force where there is a challenge to the power of the review board to order a new hearing before a new commissioner. Schick v. Windsor Airmotive Division/ Barnes Group, Inc., supra, 31 Conn. App. 823.

In the present case, the defendant claims that the board improperly remanded the matter to a new commissioner for a trial de novo. The defendant, therefore, challenges the power of the review board to set aside the commissioner’s November, 1995 finding and decision, and to transfer the case to a different commissioner. Whether this appeal falls squarely within the exception to the final judgment rule outlined in Solomon and Costle is an issue, however, that we leave for another day in light of another problem that precludes this court from exercising jurisdiction over the appeal.

“When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” In re Romance M., 229 Conn. 345, 357, 641 A.2d 378 (1994). “It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” (Internal quotation marks omitted.) Loisel v. Rowe, 233 Conn. 370, 378, 660 A.2d 323 (1995). In the present case, even were we to agree with the defendant that the review board improperly transferred the case to a different commissioner, because the commissioner who heard the case has resigned her position, there is no relief that can be afforded the defendant.

We note that an otherwise moot question may qualify for review under the “capable of repetition, yet evading review” exception. To do so, however, it must meet three requirements. “First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot.” Id., 382-83.

We recognize the importance of the issue of whether the action to transfer the case to a new commissioner was proper. The articulated reason for the transfer was that it was “to preserve the vital appearance of impartiality in workers’ compensation proceedings.” Whether the decision to transfer was a proper exercise of authority or an abuse of its power is a very important question. Certainly, just as is the case with a trial judge, a commissioner’s conduct must be characterized by the absence of any issue of partiality or impropriety; any departure from that standard would cast a shadow on the workers’ compensation system. See Postemski v. Landon, 9 Conn. App. 320, 322, 518 A.2d 674 (1986), citing Cameron v. Cameron, 187 Conn. 163, 168-69, 444 A.2d 915 (1982).

Although we appreciate the public importance of the issue presented in this case, our ability to review the claim is nevertheless thwarted by the other requirements of the three part test that must also be satisfied. As we have stated, “the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded [and] there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate.” Loisel v. Rowe, supra, 233 Conn. 382. There is nothing before the court to suggest that either of these requirements can be met. The case does not involve functionally insurmountable time constraints; Goodson v. State, 228 Conn. 106, 115-17, 635 A.2d 285 (1993), on appeal after remand, 232 Conn. 175, 653 A.2d 177 (1995); and it is highly improbable that this plaintiff or his surrogate will again be subject to commissioner reassignment. See Shays v. Local Grievance Committee, 197 Conn. 566, 574, 499 A.2d 1158 (1985).

The appeal is dismissed.

In this opinion CALLAHAN, C. J., and BORDEN and NORCOTT, Js., concurred.

MCDONALD, J.,

dissenting. The commissioner found for the city of Stamford on the merits in this workers’ compensation case. The workers’ compensation review board remanded the matter to a new commissioner for a rehearing de novo on all issues. In so doing, the review board reversed the commissioner’s findings, which were in favor of the city.

I do not agree with the majority that this ruling by the review board is not an appealable final judgment. A party may appeal from an order to an administrative agency for a totally new hearing. See Schieffelin & Co. v. Dept. of Liquor Control, 202 Conn. 405, 410, 521 A.2d 566 (1987); Watson v. Howard, 138 Conn. 464, 467, 86 A.2d 67 (1952); Santos v. Publix Theatres Corp., 108 Conn. 159, 161-62, 142 A. 745 (1928); see also W. Horton & S. Cormier, Rules of Appellate Procedure (1998 Ed.) § 4000, p. 35. The majority treats the remand as if it were merely ordering further proceedings, applies the final judgment test for interlocutory orders and concludes that the order is not appealable.

I do not read the review board’s order as a remand for completion of a hearing, to hear further evidence or for articulation, all of which may not be appealed. See Matey v. Estate of Dember, 210 Conn. 626, 630-31, 556 A.2d 599 (1989); Burdick v. United States Finishing Co., 128 Conn. 284, 285-88, 22 A.2d 629 (1941); see also W. Horton & S. Cormier, supra, § 4000, p. 35. Rather, it was an outright reversal of a finding in favor of the city that put the parties back to square one. The majority’s rule would subject any party that is successful on the merits before a commissioner to endless reversals and remands without any judicial review.

Accordingly, I respectfully dissent from the decision of this court dismissing this appeal.

       Rollins Hudig Hall, the other defendant in the case, is not involved in this appeal.

       General Statutes § 31-308 provides in pertinent part: “Compensation for partial incapacity, (a) If any injury for which compensation is provided under the provisions of this chapter results in partial incapacity, the injured employee shall be paid a weekly compensation equal to seventy-five per cent of the difference between the wages currently earned by an employee in a position comparable to the position held by the injured employee before his injury, after such wages have been reduced by any deduction for federal or state taxes, or both, and for the Federal Insurance Contributions Act in accordance with section 31-310, and the amount he is able to earn after the injury, after such amount has been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310, except that when (1) the physician attending an injured employee certifies that the employee is unable to perform his usual work but is able to perform other work, (2) the employee is ready and willing to perform other work in the same locality and (3) no other work is available, the employee shall be paid his full weekly compensation subject to the provisions of this section. Compensation paid under this subsection shall not be more than one hundred per cent, raised to the next even dollar, of the average weekly earnings of production and related workers in manufacturing in the state, as determined in accordance with the provisions of section 31-309, and shall continue during the period of partial incapacity, but no longer than five hundred twenty weeks. If the employer procures employment for an injured employee that is suitable to his capacity, the wages offered in such employment shall be taken as the earning capacity of the injured employee during the period of the employment. . . .”

       General Statutes § 31-294c provides in pertinent part: “Notice of claim for compensation. Notice contesting liability, (a) No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury, provided, if death has resulted within two years from the date of the accident or first manifestation of a symptom of the occupational disease, a dependent or dependents, or the legal representative of the deceased employee, may make claim for compensation within the two-year period or within one year from the date of death, whichever is later. Notice of a claim for compensation may be given to the employer or any commissioner and shall state, in simple language, the date and place of the accident and the nature of the injury resulting from the accident, or the date of the first manifestation of a symptom of the occupational disease and the nature of the disease, as the case may be, and the name and address of the employee and of the person in whose interest compensation is claimed. An employee of the state shall send a copy of the notice to the Commissioner of Administrative Services. As used in this section, ‘manifestation of a symptom’ means manifestation to an employee claiming compensation, or to some other person standing in such relation to him that the knowledge of the person would be imputed to him, in a manner that is or should be recognized by him as symptomatic of the occupational disease for which compensation is claimed. . .

       General Statutes § 31-301 provides: “Appeals to the Compensation Review Board. Payment of award during pendency of appeal, (a.) At any lime within ten days after entry of an award by the commissioner, after a decision of the commissioner upon a motion or after an order by the commissioner according to the provisions of section 31-299b, either party may appeal therefrom to the Compensation Review Board by filing in the office of the commissioner from which the award or the decision on a motion originated an appeal petition and five copies thereof. The commissioner within three days thereafter shall mail the petition and three copies thereof to the chief of the Compensation Review Board and a copy thereof to the adverse party or parties.
      “(b) The appeal shall be heard by the Compensation Review Board as provided in section 31-280b. The Compensation Review Board shall hear the appeal on the record of the hearing before the commissioner, provided, if it is shown to the satisfaction of the board that additional evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the commissioner, the Compensation Review Board may hear additional evidence or testimony.
      “(c) Upon the final determination of the appeal by the Compensation Review Board, but no later than one year' after the date the appeal petition was filed, the Compensation Review Board shall issue its decision, affirming, modifying or reversing the decision of the commissioner. The decision of the Compensation Review Board shall include its findings, conclusions of law and award.
      “(d) When any appeal is pending, and it appears to the Compensation Review Board that any part of the award appealed from is not affected by the issues raised by the appeal, the Compensation Review Board may, on motion or of its own motion, render a judgment directing compliance with any portion of the award not affected by the appeal; or if the only issue raised by the appeal is the amount of the average weekly wage for the purpose of determining the amount of compensation, as provided in section 31-310, the commissioner shall, on motion of the claimant, direct the payment of the portion of the compensation payable under his award that is not in dispute, if any, pending final adjudication of the disputed portion thereof. In all appeals in which one of the parties is not represented by counsel, and in which the party talcing the appeal does not prosecute the case within a reasonable time from tire date of appeal, the Compensation Review Board may, of its own motion, affirm, reverse or modify the award.
      “(e) When an appeal is taken to the Compensation Review Board, the chief clerk thereof shall notify the commissioner from whose award the appeal was taken, in writing, of any action of the Compensation Review Board thereon and of the final disposition of the appeal, whether by judgment, withdrawal or otherwise, and shall upon the decision of the appeal, furnish the commissioner with a copy of the decision. Whenever any appeal is pending, if it appears to the Compensation Review Board that justice so requires, the Compensation Review Board shall order a certified copy of the evidence for the use of the employer, the employee or both, and the certified copy shall be made apart of the record on the appeal. The procedure in appealing from an award of the commissioner shall be the same as the procedure employed in an appeal from the Superior Court to the Supreme Court, where applicable. The chairman of the Workers’ Compensation Commission shall adopt regulations, in accordance with the provisions of chapter 54, to establish rules, methods of procedure and forms as the chairman deems expedient for the purposes of this chapter.
      “(f) During the pendency of any appeal of an award made pursuant to this chapter, the claimant shall receive all compensation and medical treatment payable under the terms of the award to the extent the compensation and medical treatment are not being paid by any health insurer or by any insurer or employer who has been ordered, pursuant to the provisions of subsection (a) of this section, to pay a portion of the award. The compensation and medical treatment shall be paid by the employer or its insurer.
      “(g) If the final adjudication results in the denial of compensation to the claimant, and he has previously received compensation on the claim pursuant to subsection (f) and this subsection, the claimant shall reimburse the employer or its insurer for all sums previously expended, plus interest at the rate of ten per cent per annum. Upon any such denial of compensation, the commissioner who originally heard the case or his successor shall conduct a hearing to determine the repayment schedule for the claimant.”

       The commissioner made no findings regarding the issue of res judicata, although the dismissal is, at a minimum, an implicit rejection of the plaintiffs claim in this regard.

       The defendant appealed from the decision of the review board to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023, now Practice Book (1998 Rev.) § 65-1, and General Statutes § 51-199 (c).

       The issue of which authority, the review board or the chairman of the workers’ compensation commission, acted to transfer the case to another commissioner was also implicated in this case. Specifically, defending the decision to remand the case to another commissioner, and, in an attempt to distinguish this case from Dixon v. United Illuminating Co., 232 Conn. 758, 775, 657 A.2d 601 (1995), the plaintiff argued that it was the chairman, pursuant to General Statutes § 31-280 (b), who transferred the case for administrative reasons.

       The review board ordered ‘'a trial de novo ... on all issues, including notice, compensability, and the possible res judicata, effect of the prior decision regarding the claimant’s pension.” (Emphasis altered.)


author: MCDONALD, J. KATZ, J., with whom PETERS, J.,

text:
    JULIO SALAMAN, ADMINISTRATOR (ESTATE OF JAIME C. SALAMAN) v. CITY OF WATERBURY ET AL.
    (SC 15653)
    Callahan, C. X, and Norcott, Katz, McDonald and Peters, Js.

      Argued January 14
    officially released August 11, 1998

      Linda L. Morkan, with whom, on the brief, was John H. Gorman, assistant corporation counsel, for the appellant (named defendant).

      Jonathan J. Einhom, with whom, were Steven D. Ecker and, on the brief, Leigh A. Newman, for the appellee (plaintiff).
   Opinion

MCDONALD, J.

The named defendant, the city of Waterbury (city), appeals from the Appellate Court’s decision reversing the trial court’s judgment granting the city’s motion for judgment notwithstanding the verdict. Salaman v. Waterbury, 44 Conn. App. 211, 687 A.2d 1318 (1997). There are two certified issues in this appeal: One, “[d]id the Appellate Court correctly conclude that the trial court had improperly set aside the verdict rendered in favor of the plaintiff because the plaintiff had failed to establish that (1) the city owed a duty to the plaintiffs decedent and (2) that the city had breached any such duty?” And two, “[d]id the Appellate Court correctly conclude that the trial court had granted the city’s motion for judgment notwithstanding the verdict on a ground that was not first raised in the city’s motion for directed verdict?” Salaman v. Waterbury, 240 Conn. 921, 692 A.2d 816 (1997). We reverse the judgment of the Appellate Court.

The plaintiff, Julio Salaman, administrator of the estate of his decedent, Jaime C. Salaman, brought an action against the city in three counts: nuisance, custodial negligence and premises liability negligence. The jury reasonably could have found the following facts. The plaintiffs decedent drowned while attempting to swim across the East Mountain Reservoir (reservoir) in Waterbury on September 2,1991. Approximately halfway across the reservoir, he experienced difficulty swimming and called for help. Two people tried to rescue the decedent, but were unsuccessful.

At the time of his death, the decedent was part of a group of people from the defendant New Opportunities for Waterbury, Inc. (NOW), a residential counseling program. Following a picnic and a basketball game, the group, supervised by the defendant Michael Trotman, a residential supervisor employed by NOW, had traveled by van to the reservoir to swim. The reservoir, which was owned by the city, was not surrounded by a fence. There was an area to the side of the access road that was used for parking, and a trail that led to the water. The reservoir had not been used as a public water supply for more than thirty years, and the city allowed fishing with a permit. On occasion, some people may have used the reservoir for swimming. The city, however, did not permit swimming in the reservoir. There were no lifeguards or lifesaving equipment at the reservoir. There were several old signs posted on the reservoir property which read: “City of Waterbuiy, No Trespassing, Public Water Supply.” There were no such signs in the parking area, on any of the trails or at the beach area. The decedent, a twenty-two year- old former high school athlete, was an excellent swimmer who had been swimming since childhood. Salaman v. Waterbury, supra, 44 Conn. App. 212-13.

After the conclusion of the plaintiffs case, the city moved for a directed verdict on all counts. The court granted the motion with respect to the nuisance count, but denied the motion as to the negligence count that was based on premises liability. The basis for the city’s motion for a directed verdict on that count was that the decedent was a trespasser as a matter of law. Id., 213.

In its charge to the jury, the trial court, after explaining the status of a trespasser on a landowner’s property, stated: “Therefore, if you find that the plaintiffs decedent. . . was a trespasser upon the reservoir property, then you must further find the [city] owed no duty to [him]. If you find no duty, then you must return a verdict in favor of the [city] . . . .” The trial court also instructed as to the duty owed a licensee as follows: “But if you find that the group had express or implied authority to be on the premises, then they are licensees. And in order to establish liability as to a licensee, three essential elements must be present. One, that the [city] knew of the presence of the [decedent]; two, that it thereafter failed to . . . warn him of a dangerous condition of which it knew and of which it could not reasonably assume the licensee knew of or which by reasonable use of his faculties would observe; and three, that such failure constituted the proximate cause of the [decedent’s] injuries. ... In order for the plaintiff to prevail, evidence must show that the circumstances were such that the knowledge of [the decedent’s] presence could be imputed to the [city]. Such circumstances are sufficient to impute knowledge of presence to the [city] only where they are the equivalent of actual knowledge. This equivalent arises where the [city] could have and should have reasonably anticipated the [decedent’s] presence on the premises because of the regular pattern of such presence at the approximate time of day and the place of injury.”

The jury returned a verdict in favor of the plaintiff, allocating comparative negligence as follows: the city, 28 percent; NOW and Trotinan, 57 percent; and the plaintiffs decedent, 15 percent. The jury awarded total damages of $1,226,264.60, and the city’s allocation amounted to $343,354.08. Id., 214.

Thereafter, the trial court granted the city’s motions to set aside the verdict and for judgment notwithstanding the verdict, concluding that the evidence was insufficient to impose liability on the city. The trial court concluded that trespasser liability could not be imposed as there was no evidence that the city’s intentional or reckless conduct caused the drowning. The trial court also concluded that licensee liability could not be imposed because there was insufficient evidence to demonstrate that: (1) the city had actual or constructive knowledge of the presence of the decedent; (2) the city failed to exercise reasonable care by failing to warn him of any dangerous conditions that it reasonably could not have assumed the licensee knew of or by reasonable use of his faculties could observe; and (3) the city’s failure to exercise reasonable care caused the decedent’s drowning.

The Appellate Court reversed the trial court’s judgment, concluding that the jury could have found that the decedent was a licensee because the jury reasonably could have inferred that the city had constructive knowledge of the general public’s use of the reservoir for swimming. The Appellate Court concluded that this constructive knowledge gave rise to the duty “to exercise reasonable care to warn ... of conditions posing an unreasonable risk of harm.” Id., 218. On the basis of that conclusion, the Appellate Court further concluded that the verdict should not have been set aside. Id., 219. This appeal followed.

I

With respect to the first certified issue, the city claims that the decision of the Appellate Court should be reversed because: (1) there was insufficient evidence to establish that the decedent was owed a duty as a licensee; (2) the Appellate Court misapplied the standard for determining whether a duty was owed to the decedent as a licensee; and (3) there was insufficient evidence to establish that any duty owed to the decedent was breached.

The city claims that its motion to set aside the verdict was properly granted because there was insufficient evidence to warrant recovery by the decedent as a licensee. We agree with the city, and, therefore, reverse the judgment of the Appellate Court.

“[The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion . . . .” (Internal quotation marks omitted.) A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 206, 579 A.2d 69 (1990). “In reviewing the court’s action in rendering a judgment notwithstanding the verdict, we consider the evidence in the light most favorable to the [plaintiff].” (Internal quotation marks omitted.) Id., 207. With these legal principles in mind, we conclude that the jury reasonably could not have found that the city breached a duty to the decedent as a licensee to warn him concerning any dangerous conditions on the premises.

The status of an entrant on another’s land, be it trespasser, licensee or invitee, determines the duty that is owed to the entrant while he or she is on a landowner’s property. Morin v. Bell Court Condominium Assn., Inc., 223 Conn. 323, 327, 612 A.2d 1197 (1992). In this case, the jury was properly instructed as to the city’s duty to the decedent if he was either a trespasser or a licensee. If the decedent was a trespasser, the city’s only duty was to refrain from causing him injury “intentionally, or by willful, wanton or reckless conduct.” (Internal quotation marks omitted.) Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 558, 707 A.2d 15 (1998). It is undisputed that the city did not intentionally or recklessly injure the decedent and the trial court was correct in its instructions. Therefore, as the Appellate Court observed, the jury must have concluded that the decedent was a licensee or it could not have imposed liability on the city. Salaman v. Waterbury, supra, 44 Conn. App. 218.

“A licensee is a person who is privileged to enter or remain upon land by virtue of the possessor’s consent, whether given by invitation or permission.” (Internal quotation marks omitted.) Laube v. Stevenson, 137 Conn. 469, 473, 78 A.2d 693 (1951). The duty that a landowner “owes to a licensee . . . does not ordinarily encompass the responsibility to keep the property in a reasonably safe condition, because the licensee must take the premises as he [or she] finds them. ... If the licensor actually or constructively knows of the licensee’s presence on the premises, however, the licensor must use reasonable care both to refrain from actively subjecting him [or her] to danger and to warn him [or her] of dangerous conditions which the possessor knows of but which he [or she] cannot reasonably assume that the licensee knows of or by reasonable use of his [or her] faculties would observe.” (Citations omitted; internal quotation marks omitted.) Morin v. Bell Court Condominium, Assn., Inc., supra, 223 Conn. 327-29. The trial court’s instruction to the jury on licensee liability was consistent with these principles and therefore correct.

In order to prove that the decedent was a licensee, the plaintiff was required to prove that the decedent was on the city’s land with its permission or by its express or implied invitation. In this case, we need not examine the record to determine if there was some evidence from which the jury reasonably might have concluded that the decedent was a licensee. Even if it is assumed that he was a licensee, we conclude that the evidence does not support a finding that the city-breached any duty to the decedent as a licensee.

The plaintiff was required to establish that the city breached the duty owed a licensee. After reviewing the evidence, we conclude that the jury reasonably could not have found that the city breached that duty. There was no claim or evidence to support a finding that the city actively subjected the decedent to danger. The city’s duty, therefore, concerned warnings as to the hidden hazards upon its property. The city’s duty to a licensee was to warn of “dangerous conditions which the owner knows of but which [the owner] cannot reasonably assume that the licensee knows of or by a reasonable use of [the licensee’s] faculties would observe.” Laube v. Stevenson, supra, 137 Conn. 474; Deacy v. McDonnell, 131 Conn. 101, 104, 38 A.2d 181 (1944).

The plaintiff argues that, because the reservoir was a dangerous condition, the city was required to post signs advising “Danger: Swimming is absolutely prohibited. No lifeguards on duty. No lifesaving equipment.” We cannot conclude, however, that the body of water constituting the reservoir itself should be considered a hidden, dangerous condition and the plaintiff did not offer any evidence indicative of hidden hazards in the reservoir. The city’s expert witness inspected the reservoir and testified that it contained no “hidden hazards.” He concluded that “[tjhere were no drop-offs, there were no currents, there was no underwater debris, there were no waves.” There was no contrary evidence.

The plaintiff argues that the decedent should have been warned that there were no lifeguards or lifesaving equipment at the reservoir. Under the circumstances of this case, the dangers of swimming in an unguarded body of water were such that the decedent should have, by the reasonable use of his faculties, been aware of such dangers and no such warning was necessary. Here, there was no evidence that the city encouraged or permitted swimming at the reservoir or that NOW, Trot-man, the decedent or anyone else had a permit, invitation or permission to swim there. The city was entitled to assume that any reasonable person would appreciate the risk of drowning while swimming in the reservoir. We conclude that the city was not required to remind adult swimmers of the obvious and commonly known danger of drowning inherent in swimming.

A rule requiring a property owner to post warning signs about the dangers inherent in swimming is unreasonable. In Connecticut, a small state, hundreds of miles of shoreline would be exposed to this unreasonable requirement. Property owners who have water on their land are entitled to assume that a reasonable adult would be aware of the risk of drowning in a body of water.

We conclude that the evidence does not support a finding that the city breached any duty to warn the decedent, an adult swimmer, of hidden dangers. We, therefore, reverse the judgment of the Appellate Court.

II

We now turn to the issue of whether the trial court could have granted the city’s motion for judgment notwithstanding the verdict. We conclude that the trial court’s action was proper.

The city had moved for a directed verdict at the close of the plaintiffs case. It argued that, as to the premises liability negligence count, the sole count against it to go to the jury, the decedent was a trespasser as a matter of law, and that the plaintiff had not established a basis for the city’s liability to a trespasser. The trial court denied the motion. After the verdict was returned, the city filed its motion for judgment notwithstanding the verdict on the ground that there was no evidence supporting liability to a licensee, and the motion was granted on that ground. At that time, NOW and Trotman filed a motion for remittitur, which, if granted, could have set the verdict aside as to them and resulted in a new trial. General Statutes § 52-228; Practice Book § 320, now Practice Book (1998 Rev.) § 16-35; Brunetto v. Royal Exchange Assurance Co., 126 Conn. 569, 571-72, 13 A.2d 138 (1940). The court denied the motion for remittitur at the same time that it granted the city’s motion for judgment notwithstanding the verdict. The Appellate Court concluded that the trial court improperly granted the city’s motion for judgment notwithstanding the verdict. The Appellate Court determined that the city had based its motion for a directed verdict solely on the ground that the decedent was a trespasser as a matter of law. Salaman v. Waterbury, supra, 44 Conn. App. 216. That court observed that, in its motion, the city had not raised the issue of whether there was sufficient evidence to find that the decedent was a licensee. Id. The Appellate Court concluded that, as a procedural matter, the trial court improperly granted the city’s motion for judgment notwithstanding the verdict on a different basis, but refused to reverse the trial court on that basis. Id. The plaintiff advances that procedural argument before us.

The rules of practice establish a procedure pursuant to which a motion for a directed verdict, if denied, is considered renewed by the motion for judgment notwithstanding the verdict. Practice Book § 321, now Practice Book (1998 Rev.) § 16-37; 2 E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970) § 203, p. 823. Section 321 of the Practice Book, provides for a motion for judgment notwithstanding the verdict “in accordance with [the party’s] motion for a directed verdict.” Berry v. Loiseau, 223 Conn. 786, 819, 614 A.2d 414 (1992); see State v. Avcollie, 178 Conn. 450, 455, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980).

The purpose of the motion for directed verdict with respect to the motions to set aside and for judgment notwithstanding the verdict is to give notice to the trial court. State v. Avcollie, supra, 178 Conn. 455. In this case, the motions to set aside the verdict and for judgment notwithstanding the verdict were sufficiently in accordance with the motion for directed verdict. The motion for a directed verdict adequately alerted the plaintiff and the trial court to the legal issue of the decedent’s entrant status, upon which the trial court based its decision in setting aside the verdict. The plaintiff had introduced some evidence that people were swimming in the reservoir, which was relevant to both licensee and trespasser status. See Maffucci v. Royal Park Ltd. Partnership, supra, 243 Conn. 559; Morin v. Bell Court Condominium Assn., Inc., supra, 223 Conn. 327-29. The motion for a directed verdict, based on the decedent’s status as a trespasser, therefore, addressed the issue of sufficiency of the evidence to support a verdict based on licensee status. We conclude, therefore, that the trial court and the plaintiff were given adequate notice of the city’s claim that there was insufficient evidence that the decedent was other than a trespasser and thereby could be considered a licensee. We conclude that the trial court properly could have granted the motion upon the ground on which it relied.

The plaintiff also makes the argument that by granting the city’s motion after the jury had apportioned liability, the trial court unfairly deprived him of the percentage of damages allocated against the city. It may be that a plaintiff, if alerted by a motion for a directed verdict to a deficiency in his or her case, and fearing the later loss of an apportioned part of a jury award, might withdraw the case against one defendant. A plaintiff might also rely, in not doing so, upon a defendant’s failure to raise the issue before the case is submitted to the jury. If a defendant insists upon apportionment of an award, this scenario might present issues of fairness and justice requiring strict adherence to the rules of practice. See State v. Avcollie, supra, 178 Conn. 455.

In the circumstances of this case, the plaintiff could have urged the trial court, if inclined to rule against him, to order a new trial against NOW and Trotman who arguably would benefit by the amount of the vacated apportioned award to his detriment. He could also have urged the trial court to deny the city’s motion based on these considerations. He did neither. The plaintiff did not raise this issue before the trial court at any time, and he did not urge, as he does now, that the trial court should have granted a new trial as to NOW and Trotman when the city’s motion was to be granted. Consequently, NOW and Trotman are not involved in this appeal. Since the plaintiff did not present this issue to the trial court, he is not aggrieved by any decision of the trial court, and he cannot now raise it on appeal. Practice Book § 4000, now Practice Book (1998 Rev.) § 61-1.

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

In this opinion, CALLAHAN, C. J., and NORCOTT, J., concurred.

KATZ, J., with whom PETERS, J.,

joins, concurring. It has long been the rule that “[a] motion for a directed verdict is a prerequisite to the filing of a motion to set aside the verdict.” Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 49, 612 A.2d 742 (1998); see Frankovitch v. Burton, 185 Conn. 14, 15 n.2, 440 A.2d 254 (1981); Cruz v. Drezek, 175 Conn. 230, 232, 397 A.2d 1335 (1978); see also Practice Book § 321, now Practice Book (1998 Rev.) § 16-37 (“a party who has moved for a directed verdict may move to have the verdict and any judgment rendered thereon set aside and have judgment rendered in accordance with his motion for a directed verdict” [emphasis added]); W. Gallagher, Post-trial Motions (1980) p. 22 (“an absolute prerequisite to the motion under Section 321 is the filing of the motion for directed verdict”).

On appeal, the named defendant, the city of Waterbuiy (defendant), does not argue that a motion for directed verdict is not a prerequisite to a motion for judgment notwithstanding the verdict or to set aside the verdict. Implicitly recognizing the aforementioned authority, the defendant instead argues that, in the present case, the motion to set aside the verdict and for judgment notwithstanding the verdict was filed on the same grounds as the motion for a directed verdict because it adequately alerted the plaintiff to the legal issue, namely, the entrant status of the plaintiffs decedent, on which the trial court based its decision. It appears that the real dispute on appeal is not whether the motion for a directed verdict must give adequate notice of the grounds presented in the motion to set aside the verdict and for judgment notwithstanding the verdict but, rather, whether the notice provided by the motion for a directed verdict in the present case, which explicitly mentioned only trespasser status, was adequate.

By addressing the duty to warn a licensee of hidden hazards, the majority implicitly concludes that there was sufficient evidence that the defendant had constructive knowledge of the presence of the plaintiffs decedent at the reservoir. Evidence of the defendant’s awareness that people were swimming in the reservoir is relevant to both trespasser and licensee status, although the scope and nature of the duties owed differ. See Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 559, 707 A.2d 15 (1998) (duty owed where defendant knows or should know “that trespassers constantly intrude upon a limited area of the land” [internal quotation marks omitted]); Morin v. Bell Court Condominium Assn., Inc., 223 Conn. 323, 327-29, 612 A.2d 1197 (1992) (duty owed to licensee where defendant has actual or constructive knowledge of licensee’s presence).

The motion for a directed verdict in this case addressing the status of the plaintiffs decedent as a trespasser therefore incorporated the issue of whether the evidence triggering the duty to warn was sufficient to support a verdict based on licensee status. The jury was instructed as to the duty owed to both a licensee and a trespasser and evidence was presented at trial that bore on the issue of whether the defendant had actual or constructive notice that people were swimming in the reservoir. Furthermore, the plaintiff argued only that the defendant should have warned of the hidden hazards associated with the reservoir — protections that apply to a known trespasser as well as a licensee. Maffucci v. Royal Park Ltd. Partnership, supra, 243 Conn. 559-60.

Moreover, the record itself demonstrates that the plaintiff was not deprived of the notice of the defendant’s claim of insufficient evidence to which he was entitled pursuant to Practice Book § 16-37. The plaintiff makes no claim that the allegedly underinclusive motion for a directed verdict dissuaded him from presenting relevant evidence. For that reason, he cannot prevail on his argument that the motion, as drafted, had the effect of depriving him of his constitutional right to a jury trial on factual issues. Similarly, the plaintiff makes no claim that the motion, as drafted, interfered either with his framing of his own requests to charge or with the trial court’s instructions concerning the duties owed to trespassers and licensees. In sum, the plaintiff was neither surprised nor prejudiced by the defendant’s motion to set aside the verdict. Cf. Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., supra, 245 Conn. 49-52.

Accordingly, I concur.

       New Opportunities for Waterbury, Inc., and Michael Trotman are also defendants, but are not parties to this appeal.

       The count alleging custodial negligence with respect to the city was withdrawn by the plaintiff prior to trial.

       The city’s expert witness defined “hidden hazards” commonly found in water as hazards such as “a drop-off; at a surf beach ... a run-out, an area of water that really takes you and just pulls you off shore; littoral currents, currents that sweep you down the beach.”

       We have observed that “[t]he trial court has inherent power to set aside the verdict” and “the Practice Book merely lays out an advisable manner of exercising [that power].” State v. Avcollie, supra, 178 Conn. 455. The Appellate Court recognized this principle. Salaman v. Waterbury, supra, 44 Conn. App. 216 n.3.