text:
    Clinton Rowe v. Raymond Godou et al.
    (13318)
    Healey, Shea, Callahan, Hull and Santaniello, Js.
    Argued October 14
    decision released December 6, 1988

      Robert C. Pinciaro, with whom were Bruce L. Levin and, on the brief, Serge G. Mihaly, for the appellant (plaintiff).

      David Noel Feliu, assistant city attorney, for the appellees (defendants).
   Callahan, J.

This case is in this court by virtue of our certification from the Appellate Court. Rowe v. Godou, 12 Conn. App. 538, 532 A.2d 978 (1987), cert. granted, 206 Conn. 802, 535 A.2d 1316 (1988). As set forth in the Appellate Court opinion, the plaintiff, Clinton Rowe, commenced an action in a single count against the defendants, Raymond Godou and the city of Bridgeport, seeking compensation for property damage to his motor vehicle allegedly caused by Godou’s negligent operation of a fire truck owned by the city. Id., 539. The defendants moved to strike the plaintiff’s' entire complaint on the ground that his action was “barred by statute.” Id. The defendants’ motion was accompanied by a memorandum of law that specified General Statutes § 7-308 as the statute that “barred” the plaintiff’s action. The trial court granted the defendants’ motion to strike and, upon the failure of the plaintiff to plead over, rendered judgment for the defendants. Id., 539-40; see Practice Book § 157.

The plaintiff appealed to the Appellate Court from the judgment rendered on the defendants’ motion to strike. In his appeal, the plaintiff first claimed that the defendants’ motion to strike was itself fatally defective because it failed to comply with Practice Book §§ 154 and 109A. The Appellate Court held that the motion as supplemented by the memorandum of law was adequate to submit to the court the material issue concerning the alleged flaw in the plaintiff’s complaint and was, therefore, sufficiently specific to comply with Practice Book § 154. The Appellate Court also concluded that Practice Book § 109A was directory, rather than mandatory, and although the defendants’ motion to strike failed to identify precisely the statute that it claimed “barred” the plaintiff’s cause of action, that failure did not invalidate the defendants’ motion. Rowe v. Godou, supra, 541-44. We agree with the reasoning of, and the result reached by, the Appellate Court in deciding the plaintiffs claims relative to the defendants’ alleged failure to comply with Practice Book §§ 154 and 109A.

The plaintiff next maintains that the Appellate Court erred by “divining” facts not alleged in his complaint and by finding, without foundation, that his action was brought pursuant to General Statutes § 7-308. He claims, consequently, that the Appellate Court erred when it upheld the striking of his complaint for failure to comply with the notice requirements of that statute. We agree.

Section 7-308 is an indemnification statute that, generally, requires a municipality to pay on behalf of any “paid or volunteer fireman” all sums that the fireman becomes obligated to pay as damages by reason of liability incurred while performing “fire duties.” Haehl v. Port Chester, 463 F. Sup. 845, 847-48 (S.D.N.Y. 1978); Reinhardt v. New Haven, 23 Conn. Sup. 321, 323-24, 182 A.2d 925 (1961). It has application only to a “paid or volunteer fireman” engaged in “fire duties” at the time that the liability was incurred. Shaw v. Industrial Safety Supply Co., 23 Conn. Sup. 149, 151-52, 178 A.2d 284 (1962). The plaintiffs complaint does allege that, at the time of the accident which damaged his motor vehicle, the defendant Godou was operating a fire truck owned by the city of Bridgeport as “agent, servant and/or under a general authority to drive.” Nowhere in his complaint, however, is it alleged that at that time Godou was a “paid or volunteer fireman” or that he was performing “fire duties.” Further, there is nothing in the plaintiffs complaint to indicate that he was proceeding under § 7-308, nor are there allegations of compliance or attempted compliance with its provisions. The Appellate Court determined, however, that the conclusion was “inescapable” that the language of the complaint implicated Godou in his capacity as a “paid or volunteer fireman” who was performing “fire duties.” Rowe v. Godou, supra, 545. It concluded, therefore, that the plaintiff sought recovery for his damages pursuant to § 7-308 and that his “complaint was deficient due to its failure to allege compliance with the notice provision as required by the statute.” Id.

Without reciting a litany of other possibilities, we disagree with the Appellate Court that the conclusion was “inescapable” that, at the time of the accident, Godou was a “paid or volunteer fireman” engaged in the performance of “fire duties.” Suffice it to say, the plaintiffs complaint did not so allege. In order, to arrive at its conclusion, therefore, the Appellate Court had either to speculate or to resort to information outside the complaint. In ruling on the motion to strike, however, the Appellate Court was limited to the facts alleged in the plaintiffs complaint. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988); King v. Board of Education, 195 Conn. 90, 93, 486 A.2d 1111 (1985); Cavallo v. Derby Savings Bank, 188 Conn. 281, 285-86, 449 A.2d 986 (1982).

Further, in ruling on a motion to strike, the court must construe the facts alleged in the complaint in the manner most favorable to the plaintiff. Gordon v. Bridgeport Housing Authority, supra; Amodio v. Cunningham, 182 Conn. 80, 82-83, 438 A.2d 6 (1980). So construed, the facts alleged in his complaint can be viewed as an effort by the plaintiff to seek compensation for his damages in a common law negligence action against the individual defendant. “We have previously held that an injured party may maintain a common-law action against a municipal employee covered by the statute [§ 7-465], thereby avoiding those requirements which are unique to recovery under the indemnification statute.” Fraser v. Henninger, 173 Conn. 52, 56, 376 A.2d 406 (1977); Wakelee v. DeSanto, 152 Conn. 44, 46, 202 A.2d 833 (1964); see also Norwich v. Silverberg, 200 Conn. 367, 372, 511 A.2d 336 (1986); Bowrys v. Santanella, 39 Conn. Sup. 102, 106, 470 A.2d 1245 (1983). “A plaintiffs failure to sustain his complaint against the municipality is no reason for turning the plaintiff out of court if he can sustain his complaint against the employee.” Fraser v. Henninger, supra, 57.

It is true that the plaintiff’s complaint is confusing because it combines, in a single count, separate causes of action against the individual defendant and the municipality. Since there was nothing to prevent those two possible causes of action from being joined in the same complaint, however, the proper way to cure any confusion in that regard is to file a motion to revise, not a motion to strike the entire complaint. Practice Book § 147 (3). If a request to revise had been granted and complied with, the defendants would then have been in a position to move to strike any count of the plaintiff’s revised complaint pertaining to their respective liabilities for which the plaintiff was unable to allege the necessary prerequisites. Practice Book § 152 (1); see Moore v. State, 15 Conn. Sup. 251, 252 (1947).

There is error, the judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand to the trial court with direction to deny the defendants’ motion to strike.

In this opinion the other justices concurred.

       “[Practice Book] Sec. 157.—substitute pleading; judgment
      “Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading; provided that in those instances where an entire complaint, counterclaim or cross complaint has been stricken, and the party whose pleading has been so stricken fails to file a new pleading within that fifteen-day period, the court may upon motion enter judgment against said party on said stricken complaint, counterclaim or cross complaint.”

       “[Practice Book] Sec. 154.—reasons
      “Each motion to strike raising any of the claims of legal insufficiency enumerated in the preceding sections shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency.”

       “[Practice Book] Sec. 109A.— allegations based on statutory grounds
      “When any claim made in a complaint, cross complaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number. This section shall apply only to pleadings filed after September 1, 1979.”

       “[General Statutes] Sec. 7-308. assumption of liability for damages caused by firemen. The word ‘municipality,’ as used in this section, shall have the meaning ascribed to it by section 7-314 and the words ‘fire duties’ mean those duties the performance of which is defined in said section. Each municipality of this state, notwithstanding any inconsistent provisions of law, general, special or local, or any limitation contained in the provisions of any charter, shall pay on behalf of any paid or volunteer fireman of such municipality all sums which such fireman becomes obligated to pay by reason of liability imposed upon such fireman by law for damages to person or property, if the fireman, at the time of the occurrence, accident, injury or damages complained of, was performing fire duties and if such occurrence, accident, injury or damage was not the result of any wilful or wanton act of such fireman in the discharge of such duties. This section shall not apply to damages to person caused by an employee to a fellow employee while both employees are engaged in the scope of their employment for such municipality if the employee suffering such damages or, in the case of his death, his dependent has a right to benefits or compensation under chapter 568 by reason of such damages. If a fireman or, in the case of his death, his dependent has a right to benefits or compensation under chapter 568 by reason of injury or death caused by the negligence or wrong of a fellow employee while both employees are engaged in the scope of their employment for such municipality, such fireman or, in the case of his death, his dependent shall have no cause of action against such fellow-employee to recover damages for such injury or death unless such wrong was wilful and malicious. The municipality may arrange for and maintain appropriate insurance or may elect to act as a self-insurer to maintain such protection. No action or proceeding instituted pursuant to the provisions of this section shall be prosecuted or maintained against the municipality or fireman unless at least thirty days have elapsed since the demand, claim or claims upon which such action or special proceeding is founded were presented to the clerk or corresponding officer of such municipality. No action for personal injuries or damages to real or personal property shall be maintained against such municipality and fireman unless such action is commenced within one year after the cause of action therefor has arisen nor unless notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the clerk or corresponding officer of such municipality and with the fireman within six months after such cause of action has accrued. No action for trespass shall lie against any fireman crossing or working upon lands of another to extinguish fire or for investigation thereof. Governmental immunity shall not be a defense in any action brought under this section. In any such action the municipality and the fireman may be represented by the same attorney if the municipality, at the time such attorney enters his appearance, files a statement with the court, which shall not become part of the pleadings or judgment file, that it will pay any verdict rendered in such action against such fireman. No mention of any kind shall be made of such statement by any counsel during the trial of such action.”

       General Statutes § 7-465 is an indemnification statute similar to General Statutes § 7-308 which applies to municipal employees except firemen covered by § 7-308.

       The plaintiff appears to have been operating under the assumption, when he made the city of Bridgeport a defendant in this action, that liability attached directly to the city simply by reason of its ownership of the fire truck that he claimed was being operated by Godou as an “agent, servant and/or under a general authority to drive.” At oral argument, he abandoned that theory and conceded that without alleging notice under an indemnification statute he was required to rely on the liability of the individual defendant.

       See Practice Book § 133.

       “[Practice Book] Sec. 147. request to revise
      “Whenever any party desires to obtain (1) a more complete or particular statement of the allegations of an adverse party’s pleading, or (2) the deletion of any unnecessary, repetitious, scandalous, impertinent, immaterial or otherwise improper allegations in an adverse party’s pleading, or (3) separation of causes of action which may be united in one complaint when they are improperly combined in one count, or the separation of two or more grounds of defense improperly combined in one defense, or (4) any other appropriate correction in an adverse party’s pleading, the party desiring any such amendment in an adverse party’s pleading may file a timely request to revise that pleading.”

       We are aware that the trial court file reveals that the defendants made a request to revise in 1984 and that the request was objected to by the plaintiff and denied by the trial court. Despite the denial of the motion to revise, the city still had the opportunity to move to strike the allegations of the complaint insofar as they purported to state a cause of action against it.

       “[Practice Book] Sec. 152.—in general
      “Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted, or (2) the legal sufficiency of any prayer for relief in any such complaint, counterclaim or cross complaint, or (3) the legal sufficiency of any such complaint, counterclaim or cross complaint, any count thereof, because of the absence of any necessary party, or (4) the joining of two or more causes of action which cannot properly be united in one complaint, whether the same be stated in one or more counts, or (5) the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof.
      “A motion to strike on the ground of the nonjoinder of a necessary party must give the name and residence of the missing party or such information as the moving party has as to his identity and residence and must state his interest in the cause of action.”


source: Caselaw Access Project

author: Glass, J.

license: Public Domain

text:
    North Haven Association of Educational Support Staff v. Board of Education of the Town of North Haven
    (13404)
    Peters, C. J., Callahan, Glass, Covello and Hull, Js.
    Argued October 11
    decision released December 6, 1988

      W. Paul Flynn, with whom, on the brief, were Charles L. Flynn and Howard A. Lawrence, for the appellant (plaintiff).

      Anthony J. Palermino, with whom was Gary R. Atkinson, for the appellee (defendant).
   Glass, J.

The sole issue in this appeal is whether, under General Statutes § 52-417, the trial court properly refused to confirm an advisory arbitration award.

The plaintiff, North Haven Association of Educational Support Staff (association), represents certain employees of the defendant board of education of the town of North Haven (board), including the grievant, Marie Freitag. In May, 1986, Freitag, then employed as a library aide in the North Haven school system, applied for the newly created position of computer operator/clerk. Freitag had participated in the school system’s program to acquire computer operator skills, and had completed a twelve week computer training course under the school system’s aegis. Ultimately, however, a candidate with less seniority than Freitag was selected for the new position.

On June 18, 1986, the association filed a grievance on Freitag’s behalf. Pursuant to the parties’ collective bargaining agreement, the grievance was submitted for arbitration to the Connecticut state board of mediation and arbitration. The submission was as follows: “Was the promotion denial of Marie Freitag by the Board of Education in violation of . . . the collective bargaining agreement? If so, what shall the remedy be?” On April 8, 1987, the arbitrators made an award in favor of Freitag, on the ground that the board had failed in its evaluation process to consider Freitag’s seniority as required by the bargaining agreement. The award provided: “Ms. Freitag is to be appointed to the position of Computer Operator . . . within 30 days from the date of this award.”

The board, however, refused to appoint Freitag to the position. On August 5,1987, the association applied to the trial court to confirm the arbitration award, pursuant to General Statutes § 52-417. On January 5,1988, the trial court dismissed the application, concluding that, under the terms of the bargaining agreement, the award was advisory only and, therefore, could not be confirmed under § 52-417. The association appealed the trial court’s denial of its application to the Appellate Court on January 15,1988. The appeal was transferred to this court pursuant to Practice Book § 4023.

On appeal, the association claims error in the trial court’s conclusion that the language of the bargaining agreement precluded the court from confirming the award. We find no error.

The critical language of the parties’ bargaining agreement provides: “The Connecticut State Board of Mediation and Arbitration shall serve as the arbitrators acting under its rules and regulations. The decision of the arbitrators shall be advisory. The arbitrators shall have no authority to amend, modify, alter, subtract from or add to this Agreement.”

The trial court found that, absent a waiver by the parties, any arbitration decision under the agreement would be advisory and nonbinding. The court ruled that because the award was not binding, it had no authority to confirm the award under § 52-417. We agree with the trial court’s conclusion.

“The principles governing the arbitration of disputes are well established. Because arbitration is a ‘creature of contract,’ the parties themselves ordinarily determine the issues to be decided and define the scope of the arbitrator’s power. Administrative & Residual Employees Union v. State, 200 Conn. 345, 348, 510 A.2d 989 (1986); Caldor, Inc. v. Thornton, 191 Conn. 336, 341, 464 A.2d 785 (1983), aff’d, 472 U.S. 703, 105 S. Ct. 2914, 86 L. Ed. 2d 557 (1985); Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 20, 453 A.2d 1158 (1983).” Masters v. Masters, 201 Conn. 50, 70, 513 A.2d 104 (1986). “The authority to arbitrate is strictly limited by the provisions of the collective bargaining agreement and the scope of the matter to be considered by the arbitrators is limited by the submission. Board of Police Commissioners v. Maher, 171 Conn. 613, 621, 370 A.2d 1076 (1976).” (Emphasis added.) Board of Education v. AFSCME, 195 Conn. 266, 271, 487 A.2d 553 (1985).

The parties’ collective bargaining agreement provided that arbitration awards would be advisory. This language permitted either party to decline to follow any arbitration decision. “ ‘Courts of law must allow parties to make their own contracts, and can enforce only such as they actually make. Whether the [arbitration] contract is wise or unwise, reasonable or unreasonable, is ordinarily an immaterial inquiry.’ ” Chase Brass & Copper Co. v. Chase Brass & Copper Workers Union, 139 Conn. 591, 595, 96 A.2d 209 (1953).

The association, however, argues that by agreeing to the unrestricted submission, the board agreed to be bound by the award. It claims that the “advisory” language of the bargaining agreement was a procedural limitation on the arbitrators’ authority. As such, it asserts that the limitation implicated the arbitrability of the dispute itself. The association maintains that the board’s failure to raise the issue either before the arbitrators or by an action for injunctive relief in the courts operated as a waiver of the limitation. See Policemen’s & Firemen’s Retirement Board v. Sullivan, 173 Conn. 1, 6, 8-9, 376 A.2d 399 (1977); Waterbury Board of Educations. Waterbury Teachers Assn., 168 Conn. 54, 63, 357 A.2d 466 (1975). We disagree.

A party’s submission to arbitration may constitute a waiver as to the arbitrability of the dispute. Board of Trustees v. Federation of Technical College Teachers, 179 Conn. 184, 192, 425 A.2d 1247 (1979). The question of the efficacy of the “advisory” award provision, however, concerns the nature of the award rather than the arbitrability of the dispute. Consequently, even if, under the present agreement, a party could waive an objection to a dispute’s arbitrability by not raising it prior to the arbitration proceedings; see Paranko v. State, 200 Conn. 51, 58, 509 A.2d 508 (1986); Waterbury Board of Education v. Waterbury Teachers Assn., supra; the arbitrability of the dispute is not at issue in this case. By stating that arbitration awards would be advisory, the agreement provided the arbitrators with the authority to issue nonbinding awards, and nothing more. Board of Education v. AFSCME, supra, 271. The parties did not expressly waive this provision in agreeing to the submission. Nor was the board required expressly to reserve that which had already been explicitly provided for in the agreement. Cf. Board of Trustees v. Federation of Technical College Teachers, supra (by agreeing to unrestricted submission, party does not waive claim that award itself violates statutes or regulations).

Similarly, the association argues that, because the arbitrators’ authority to modify the agreement was also an issue for the arbitrators to decide, the board should have raised the question of the advisory nature of the award before arbitration began. The association’s argument suggests that the initiation of arbitration under the unrestricted submission automatically converted the contract’s express term “advisory” into the term “binding” or “final,” and that the board consequently had the obligation to object to such a “modification.” We are not persuaded.

Ordinarily, where the authority to arbitrate devolves from contract, an unrestricted submission carries with it the power to decide, with finality, all issues of fact or law in the proceedings. Wilson v. Security Ins. Group, 199 Conn. 618, 626, 509 A.2d 467 (1986); Meyers v. Lakeridge Development Co., 173 Conn. 133, 135, 376 A.2d 1105 (1977); see also Stratford v. Local 134, IFPTE, 201 Conn. 577, 584, 519 A.2d 1 (1986). Under the terms of the agreement in the present case, however, the arbitrators could not have rendered anything but an advisory award. The submission, therefore, could not “carry” to the arbitrators the authority to render a binding award. We also note that although the award was phrased in mandatory terms, the arbitrators did not state that they intended the award to supersede the advisory award provision of the agreement.

We also disagree with the association’s further argument that the trial court improperly used the association’s application to confirm the award under § 52-417 as a vehicle for vacating the award under General Statutes § 52-418 (a) (4). Relying on Board of Education v. Bridgeport Education Assn., 173 Conn. 287, 291, 377 A.2d 323 (1977), and Norwich Roman Catholic Diocesan Corporation v. Southern New England Contracting Co., 164 Conn. 472, 477, 325 A.2d 274 (1973), the association asserts that the trial court’s resort to the language of the bargaining agreement was contrary to the settled law that courts will only examine the submission and the award to determine whether the arbitrators have exceeded their powers. By referring to the contract, the association contends, the court improperly “second-guessed” the arbitrators by determining whether certain language in the written agreement would support or defeat the claim. See United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 585, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960); United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 568, 80 S. Ct. 1343, 4 L. Ed. 2d 1403 (1960); American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 186, 530 A.2d 171 (1987).

We first note that the trial court in this case did not “vacate” the arbitration award under § 52-418. The trial court dismissed the association’s application to confirm the award under § 52-417. As the board correctly points out, the board was not obligated to seek to vacate the award under § 52-418 since the language of the agreement itself permitted it to elect not to implement the award.

Second, the association’s reliance on Bridgeport Education Assn. and Norwich Roman Catholic Diocesan Corporation is misplaced. Those cases hold that, under § 52-418 (a) (4), the trial court’s review of whether the arbitrators exceeded their powers is limited to a comparison of the award with the submission. See Board of Education v. Bridgeport Education Assn., supra, 290-91 (in deciding whether arbitrators have exceeded their powers under § 52-418, courts need only examine submission and award); Norwich Roman Catholic Diocesan Corporation v. Southern New England Contracting Co., supra, 477 (under § 52-418, review limited to comparing award with submission). As we have noted above, § 52-418 is not in issue in this case.

Moreover, the language of Bridgeport Education Assn. and Norwich Roman Catholic Diocesan Corporation upon which the association relies does not encompass the entire scope of our decisions in this area. The trial court is not in all circumstances limited to a comparison of the award with the submission under § 52-418. “[T]he mere conformity of the submission to the award does not foreclose the court from reviewing whether that award is in violation of the parties’ agreement.” Waterbury Board of Education v. Waterbury Teachers Assn., supra, 63. Consequently, even if we assume, arguendo, that the trial court’s dismissal of the application implicated § 52-418 (a) (4), the court’s reference to the bargaining agreement was not improper. If, as the association contends, the arbitrators purported to issue a “final” or “binding” award, that action would have violated the parties’ agreement. The board, of course, could not have “waived” an objection to such an action by failing to raise the issue during the proceedings since it could not have anticipated that the arbitrators would depart from the terms of the agreement. Cf. Waterbury Board of Education v. Waterbury Teachers Assn., supra.

Finally, we acknowledge that § 52-417 states in part that “[t]he court . . . shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in sections 52-418 and 52-419.” It is axiomatic, however, that courts may not decree what they cannot enforce. “It is not [the courts’] function to render opinions which are simply advisory.” Pellegrino v. O’Neill, 193 Conn. 670, 683, 480 A.2d 476, cert. denied, 469 U.S. 875, 105 S. Ct. 236, 83 L. Ed. 2d 176 (1984). The court in the present case had no power to confirm the award under § 52-417 since, under the terms of the parties’ agreement, the court could not enforce it. Moreover, our previous decisions indicate that the mandatory confirmation of an award that is not vulnerable under §§ 52-418 and 52-419 is predicated on an award that is final and binding under the collective bargaining agreement. See, e.g., Interna tional Brotherhood of Teamsters v. Trudon & Platt Motor Lines, Inc., 146 Conn. 17, 21, 147 A.2d 484 (1958) (arbitration award under agreement providing for final and binding award must be confirmed unless vulnerable to attack under separate statutory grounds); see also Chase Brass & Copper Co. v. Chase Brass & Copper Workers Union, supra, 594-95 (agreement provided that award would be final and binding).

We conclude that the trial court did not err in refusing to confirm the advisory arbitration award under General Statutes § 52-417.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 52-417. APPLICATION FOR ORDER CONFIRMING AWARD. At any time within one year after an award has been rendered and the parties to the arbitration notified thereof, any party to the arbitration may make application to the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, to any judge thereof, for an order confirming the award. The court or judge shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in sections 52-418 and 52-419.”

       On January 1, 1988, Freitag was appointed to the position of library clerk in the North Haven school system. In its brief and in a subsequent motion filed in this court, the board moved to dismiss the association’s appeal as moot, arguing that Freitag’s new position was comparable in pay and status to the position that was the subject of the grievance. At oral argument, however, the board conceded that a ruling in favor of the association on appeal might entitle Freitag to recover the salary differential accruing after the board had refused to follow the arbitrators’ award. As a consequence, this appeal is not moot.

       The association also claims that, because the agreement did not define the term “grievance,” that term should be defined, according to case law, as “ ‘the voluntary submission, by the interested parties, of an existing or future dispute to a disinterested person or persons for final determination.’ Gores v. Rosenthal, 150 Conn. 554, 557, 192 A.2d 210 [1963].” Gary Excavating, Inc. v. North Haven, 164 Conn. 119, 121, 318 A.2d 84 (1972). As noted above, however, the parties in this case expressly agreed that any arbitration award would be advisory. The definition in Gary Excavating, Inc., therefore, is not controlling.

       “[General Statutes] Sec. 52-418. vacating award, (a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects ... (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       “[General Statutes] Sec. 52-419. modification or correction of award, (a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated, or, when the court is not in session, any judge thereof, shall make an order modifying or correcting the award if it finds any of the following defects: (1) If there has been an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in the award; (2) if the arbitrators have awarded upon a matter not submitted to them unless it is a matter not affecting the merits of the decision upon the matters submitted; or (3) if the award is imperfect in matter of form not affecting the merits of the controversy.
      “(b) The order shall modify and correct the award, so as to effect the intent thereof and promote justice between the parties.”

       In oral argument, counsel for the association asserted that the Connecticut state board of mediation and arbitration (state board) cannot, under its rules and regulations, issue nonbinding or advisory awards. Thus, the association claimed, the contract language purporting to endow the state board with that function is a nullity. We disagree.
      The association has not pointed to any specific statutory or regulatory provision prohibiting the state board from rendering advisory awards. See General Statutes § 31-91 et seq.; Regs., Conn. State Agencies § 31-91-1a et seq. Section 31-91-44 of the regulations defines “award” without such a limitation. Moreover, § 31-91-23 of the regulations provides: “(a) A grievance or dispute will be heard by the board when any of the following conditions is met: (1) The board is specifically named as arbitrator within a collective bargaining agreement or; (2) The parties to the dispute submit in writing their mutual request for arbitration and mutual agreement to be bound by the board’s decision. ...” (Emphasis added.) In this case, the state board’s participation as arbitrator arose, under subsection (a) (1), from the language of the collective bargaining agreement naming it as arbitrator. Significantly, in contrast with subsection (a) (2), subsection (a) (1) does not state that the collective bargaining agreement must provide for binding arbitration.


author: Peters, C. J.

text:
    State of Connecticut v. James Avis
    (13156)
    Peters, C. J., Shea, Callahan, Glass and Hull, Js.

      Argued October 5
    decision released December 6, 1988

      William F. Gallagher, with whom was Robert P. Borquez, for the appellant (defendant).

      Geoffrey E. Marion, deputy assistant state’s attorney, with whom, on the brief, was Dennis Santore, state’s attorney, for the appellee (state).
   Peters, C. J.

The principal issue in this appeal is the admissibility of the defendant’s written statement, which he claims was procured in violation of the rules of professional conduct, and was involuntary and unreliable. The present proceedings result from a retrial ordered by this court in State v. Avis, 198 Conn. 644, 504 A.2d 1364 (1986) (Avis I). The defendant, James Avis, had been found guilty of felony murder in violation of General Statutes § 53a-54c after a joint trial with a codefendant, Daniel Vinal, Jr. In Avis I we found reversible error in the trial court’s failure to grant the defendants’ motions for severance and ordered that Avis and Vinal be retried separately. The state thereafter filed a substituted bill of particulars, again charging the defendant with felony, murder in violation of § 53a-54c. After a trial to a jury, the defendant was found guilty as charged. He appeals from the judgment sentencing him to a term of imprisonment of not more than life and not less than ten years. We find no error.

The events surrounding the defendant’s conviction are fully set forth in Avis I, supra, 647. As in that case, the present jury could reasonably have found the following facts. The victim, the defendant and Vinal were together in a Torrington bar early on the morning of October 8, 1978. The defendant knew that Vinal was armed. When the victim left the bar, the defendant and Vinal, in a car driven by the defendant, followed the victim’s car as the victim drove toward Litchfield. After blinking his headlights to persuade the victim to pull over, the defendant parked his own car in the immediate vicinity, and he and Vinal accosted the victim in his car. Either the defendant or Vinal then attempted to take the victim’s wallet; when he resisted, Vinal shot the victim and one of the two took his wallet, which was never recovered. After questioning by the police, the defendant fled the state. The victim died of his gunshot wound. Vinal was later arrested and charged with the murder of the victim.

An investigator hired by Vinal’s attorney obtained from the defendant a written statement in which he confessed to shooting and robbing the victim, and exonerated Vinal. The investigator gave the statement to the police who obtained a warrant for the defendant’s arrest. The defendant was arrested in Seattle, Washington, and returned to Connecticut for trial.

In the present proceedings, in which the defendant was charged with felony murder, the state conceded that it was Vinal who had shot the victim. What was at issue at trial was the defendant’s role in the robbery. The defendant maintained that he had been unaware of Vinai’s intent to rob the victim and had himself taken no part in the robbery. The state contended, to the contrary, that the defendant had participated in the robbery in the course of which Vinal killed the victim. After the jury found the defendant guilty, the trial court denied his motions for a new trial, to arrest judgment and for acquittal.

In his appeal from the trial court’s judgment, the defendant has raised seven issues that can conveniently be addressed in four groupings. The defendant’s principal claim of error is that the trial court erred in denying his motion to suppress his written statement. He also contends that the trial court made several erroneous evidentiary rulings, erred in its charge to the jury and in its submission of documents to them, and improperly denied his motion for acquittal.

I

The main issue on appeal is the defendant’s claim that the trial court should have granted his motion to suppress his written statement. He claims that his statement was inadmissible for three reasons: unethical procurement, involuntariness and unreliability. We are not persuaded.

A

In the defendant’s motions to suppress at trial, he claimed that his written statement was inadmissible because it had been obtained through the allegedly unethical conduct of Joseph Gallicchio, Vinal’s attorney. Under Disciplinary Rule 7-104 (A) (2) of the Code of Professional Responsibility, an attorney must avoid giving a person legal advice when there is a reasonable possibility of conflict of interest between that person and the attorney’s client. According to the defendant, a violation of this rule precludes the state from introducing the resulting document into evidence.

A necessary predicate to the defendant’s argument is a factual finding of professional misconduct. The trial court, however, made the contrary finding. Even if we apply to this finding the scrupulous review that we undertake when constitutional rights are possibly implicated; see State v. Weidenhof 205 Conn. 262, 267-68, 533 A.2d 545 (1987); the trial court’s finding must stand.

The relevant evidence, at trial, began with a showing that Robert DePretis, an investigator hired by Vinal’s attorney, Gallicchio, located the defendant in New Hampshire. DePretis, Gallicchio, and Vinal then went to New Hampshire where Vinal, wearing a “wire,” met the defendant to discuss the incident. The defendant was aware of the “wire” and refused to enter into a discussion. Eight days later, after another visit from DePretis and Gallicchio, and a private conference with the latter, the defendant agreed to discuss the incident, but only if Vinal were present. The following day the defendant spoke with Vinal alone and then wrote a confession in DePretis’s presence. The confession stated, inter alia, that the defendant had robbed and shot the victim and that Vinal had been in the car unconscious during the incident. When the defendant gave the statement to DePretis, he also instructed him not to release it until the following Monday. DePretis held the statement until Monday and then turned it over to the Connecticut state police, who obtained and executed a warrant for the defendant’s arrest.

This record contains no definitive evidence that the defendant’s written statement was the product of conduct by Gallicchio that violated DR 7-104 (A) (2). The defendant testified that he relied upon Gallicchio because Gallicchio had formerly represented him in a matrimonial matter, that he had been influenced by Gallicchio’s advice about his legal situation, and that Gallicchio promised him monetary benefits, from Vinal, for his statement. Gallicchio, however, testified otherwise. He denied having made representations about financial rewards for a statement. According to Gallicchio, the defendant was told that Gallicchio represented Vinal and was looking for information about what had happened on the night in question, which Vinal allegedly could not remember. Gallicchio stated that the defendant then indicated that he might have something to say, but would not say it unless Vinal were present.

On this record, it was not clearly erroneous for the trial court to have found Gallicchio the more credible witness and to have concluded that the state had proven that Gallicchio had not given the defendant legal advice. In the absence of a factual showing of a violation of DR 7-104 (A) (2), we need not reach the question of whether a private attorney’s unethical behavior would require the court to exclude evidence obtained thereby from a criminal defendant not in police custody.

B

The defendant also contends that the court should have granted his motion to suppress his written statement because it was given involuntarily. In accordance with settled principles of due process, the state may not make use of an involuntary confession at trial; Brown v. Allen, 344 U.S. 443, 475, 73 S. Ct. 397, 97 L. Ed. 469 (1953); State v. Smith, 200 Conn. 465, 475, 512 A.2d 189 (1986); and bears the burden of proving voluntariness by a preponderance of the evidence. Lego v. Twomey, 404 U.S. 477, 489, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972); State v. Smith, supra, 477. The dispositive question in determining voluntariness is: “ ‘Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.’ ” Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). In order to resolve this question, a court must undertake a factual determination that considers the totality of the relevant circumstances. State v. Smith, supra, 477; State v. Derrico, 181 Conn. 151, 162, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980).

On the record before us, we conclude that the trial court was not clearly erroneous in finding the defendant’s statement voluntary. The defendant contends that the statement was made involuntarily because it was made upon the advice of a person he considered to be his attorney and in return for a promise of financial gain from Vinal. As previously noted, both of these allegations were controverted at trial. Furthermore, the record demonstrates the defendant’s exercise of independent control over the circumstances leading to his statement. For example, he repeatedly refused to cooperate in efforts to have a discussion of the incident until he could set preconditions for such a conference, and he successfully insisted on a delayed time schedule for public disclosure of his statement after he had written it. Finally, there is neither allegation nor evidence that the defendant was threatened, physically restrained or coerced into giving the statement. In light of the totality of the circumstances surrounding the defendant’s statement, the trial court reasonably found that the defendant’s will was not overborne nor was his capacity for self-determination critically impaired.

C

The defendant further contends that the trial court erred in denying his motion to suppress his written statement because it was substantially inaccurate, unreliable and untrustworthy. The basis for this claim is that the statement materially contradicted other evidence and was inconsistent with the state’s theory of the incident. The trial court determined, however, that the statement was more probative than prejudicial.

The trial court has wide discretion to determine the relevancy of evidence. State v. Fritz, 204 Conn. 156, 167, 527 A.2d 1157 (1987); State v. Boucino, 199 Conn. 207, 225, 506 A.2d 125 (1986); State v. Sharpe, 195 Conn. 651, 658-59, 491 A.2d 345 (1985); State v. Piskorski, 177 Conn. 677, 695, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. State v. Fritz, supra, 167-68; State v. Boucino, supra; State v. Falcon, 196 Conn. 557, 566, 494 A.2d 1190 (1985).

The defendant contends that the state cannot use his written statement as evidence that a robbery occurred because the statement includes his confession that he shot the victim. According to the defendant, the unreliability of the statement is established by the state’s own acknowledgement, in its prosecution of Vinal, that Vinal, and not the defendant, shot the victim. In the present proceedings, however, the state has not relied upon the statement in its entirety but only upon the portion that is evidence of the defendant’s participation in a robbery. Such reliance is consistent with the conviction of Vinal for the robbery and murder of the victim.

Statements may be admitted into evidence although portions of those statements are known to be false. For example, statements intended by the defendant to be exculpatory may be admitted for an inculpatory purpose. State v. Stepney, 191 Conn. 233, 251, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984); State v. DeMatteo, 186 Conn. 696, 702-703, 443 A.2d 915 (1982) (misstatement admissible because it permits the inference that it was made to avoid detection). Just as the state need not vouch in its entirety for the credibility of the witnesses it calls; see, e.g., State v. Williams, 204 Conn. 523, 530-31, 529 A.2d 653 (1987); State v. Graham, 200 Conn. 9, 14-18, 509 A.2d 493 (1986); so the state is not required to adopt an all or nothing position with respect to the admission of written statements. The trial court’s decision to admit the defendant’s written statement into evidence was not an abuse of discretion in the circumstances of this case.

II

Apart from the admissibility of his inculpatory statement, the defendant raises three other evidentiary issues. He maintains that the trial court erred in: (1) limiting his direct examination of the state’s attorney and an assistant state’s attorney concerning the reliability of his statement; (2) limiting his cross-examination of Robert DePretis by excluding evidence of prior allegedly inconsistent statements; and (3) limiting his cross-examination of DePretis by excluding evidence of alleged misconduct on his part. None of these evidentiary rulings was erroneous.

A

The defendant sought to examine the state’s attorney and assistant state’s attorney, during the hearing on the motion to suppress the defendant’s written statement, in order to ascertain their opinions about the statement’s reliability. The defendant claims that the trial court erred in sustaining the state’s objection that these questions were irrelevant and immaterial.

The defendant maintains that the excluded questions were relevant with respect to the reliability of his confession because the state is under an ethical obligation not to offer tainted evidence. Whatever the contours of that obligation may be; see State v. Jones, 180 Conn. 443, 455, 429 A.2d 936 (1980), overruled in part on other grounds, State v. Powell, 186 Conn. 547, 442 A.2d 939, cert. denied sub nom. Moeller v. Connecticut, 459 U.S. 838, 103 S. Ct. 85, 74 L. Ed. 2d 80 (1982); State v. Moynahan, 164 Conn. 560, 568, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 (1973); we have already held that it does not encompass a duty to suppress a statement in its entirety simply because the state disavows it in part. See part IC, supra. In light of this holding, the trial court did not abuse its discretion in ruling that the proffered evidence was irrelevant and immaterial. State v. Williams, 203 Conn. 159, 183-84, 523 A.2d 1284 (1987); State v. Fritz, supra, 167-68.

B

The defendant sought to impeach the credibility of Robert DePretis by cross-examining him about allegedly inconsistent prior statements. The trial court ruled, on the state’s urging, that DePretis’s prior statements at the defendant’s first trial were not materially inconsistent with his present testimony. The defendant assigns error to this ruling and to the trial court’s consequent refusal to permit the questioning or to admit the earlier transcript into evidence.

The allegedly inconsistent statements in this case concern conversations that DePretis had with the defendant in New Hampshire when the defendant was persuaded to write his inculpatory statement. First, on cross-examination in the present trial, DePretis testified that he had gone to New Hampshire in order to find out what had happened on the night of the murder, because Vinal allegedly could not remember. In the Avis I trial, the witness had answered in the affirmative a question asking him whether he had hoped that the defendant would incriminate himself and exonerate Vinal. Second, during the present cross-examination, DePretis testified that he had never told the defendant that the victim’s wallet was missing, whereas, in Avis I, his response to a similar question had been, “I believe I may have.” The trial court found no inconsistencies in either of these sets of statements.

Before examining the particulars of the defendant’s claims of error, we must clarify the applicable standard of review. The defendant maintains that the trial court’s limitation of the DePretis cross-examination violated the defendant’s constitutional rights of confrontation and due process. In light of the defendant’s wide-ranging cross-examination of DePretis, we are not persuaded that his claim has constitutional implications. The defendant sought to establish that DePretis had been inconsistent in describing the circumstances surrounding the execution of the defendant’s written statement, but the alleged inconsistencies did not directly implicate any improper motive, interest, bias or prejudice on DePretis’s part. In these circumstances, the scope of cross-examination raises an evidentiary and not a constitutional question, and is within the discretion of the trial court. State v. Weidenhof, supra, 270-71; State v. Douglas, 203 Conn. 445, 455, 525 A.2d 101 (1987).

As an evidentiary matter, evidence of a witness’s prior inconsistent statement is admissible to attack the witness’s credibility. State v. Reed, 174 Conn. 287, 302, 386 A.2d 243 (1978); State v. Vega, 163 Conn. 304, 307, 306 A.2d 855 (1972); State v. Keating, 151 Conn. 592, 597, 200 A.2d 724 (1964), cert. denied sub nom. Joseph v. Connecticut, 379 U.S. 963, 85 S. Ct. 654, 13 L. Ed. 2d 557 (1965). A statement is admissible as a prior inconsistent statement, however, only when the trial court is persuaded that, taking the testimony of the witness as a whole, the statements are in fact inconsistent. State v. Piskorski, supra, 710; State v. Reed, supra, 302-303; State v. Chesney, 166 Conn. 630, 636, 353 A.2d 783, cert. denied, 419 U.S. 1004, 95 S. Ct. 324, 42 L. Ed. 2d 280 (1974). Such a determination as to inconsistency lies within the discretionary authority of the trial court. State v. Piskorski, supra, 711; State v. Reed, supra, 303.

Applying these criteria in the present circumstances, we find no error. There is certainly no clear inconsistency with respect to DePretis’s interest in discovering what had happened on the night of the murder and his hoping that he might learn something that would inculpate the defendant and exculpate his client, Vinal. The various statements about the victim’s missing wallet present a closer question, but they too are not, in context, inconsistent. When DePretis, in Avis I, testified about possibly having told the defendant that the wallet was missing, he could not recall whether this conversation had occurred before or after the defendant wrote his confession. In the present proceedings, prior to the questioning at issue here, DePretis testified that he had discussed the missing wallet with the defendant after the defendant had told him of taking the wallet during the robbery. Consequently, DePretis stated in both trials that he had discussed the wallet with the defendant. In the testimony at issue here, DePretis was not testifying that he had never discussed the wallet with the defendant, but rather that he did not tell the defendant that the victim’s wallet was missing. When DePretis’s testimony is viewed in its entirety, it is not clear that his statements were inconsistent, and the trial court accordingly did not abuse its discretion in finding no inconsistency.

c

The defendant also sought to impeach the credibility of DePretis by cross-examining him about alleged prior misconduct. Because DePretis had been named in a grand jury report investigating alleged misconduct in the Torrington police department, the defense attempted to ascertain from DePretis whether he had ever received proceeds from the illegal sale of evidence held by the Torrington police while he was a member of that department. The trial court sustained the state’s objection to this questioning. The defendant contends that the court should not have excluded this evidence because it was relevant to the veracity of DePretis.

A witness may be cross-examined regarding specific acts of misconduct only if they bear a specific significance upon the issue of the witness’s veracity. State v. Martin, 201 Conn. 74, 86, 513 A.2d 116 (1986); State v. Sharpe, supra, 658; State v. Dolphin, 195 Conn. 444, 459, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985). “ ‘Whether to permit cross-examination as to particular acts of misconduct . . . lies largely within the discretion of the trial court.’ ” State v. Martin, supra, 86, quoting State v. Vitale, 197 Conn. 396, 401, 497 A.2d 956 (1985).

The trial court could reasonably have concluded that the proffered evidence was lacking in factual support and more likely to be prejudicial than probative. The court noted that the report of an investigatory grand jury is, at best, accusatory. The alleged misconduct, not being especially relevant to veracity, might have served to distract the jury’s attention. Accordingly, the trial court’s ruling was not an abuse of its discretion.

Ill

The defendant claims that the trial court erred in its instructions to the jury and in the documentation it submitted to the jury for its deliberations. We find no reversible error in either of these claims.

A

The defendant does not challenge the accuracy of the trial court’s basic instructions to the jury. He takes issue, instead, with the trial court’s refusal to give supplemental charges to the jury to define “passive acquiescence” and “intentional.”

So long as jury instructions provide sufficient overall guidance for the jury; State v. Rodgers, 198 Conn. 53, 56, 502 A.2d 360 (1985); State v. Mason, 186 Conn. 574, 585, 442 A.2d 1335 (1982); State v. Cooper, 182 Conn. 207, 211, 438 A.2d 418 (1980); they need not contain standard dictionary definitions, because such definitions are “taken as a matter of common knowledge which the jury is supposed to possess.” State v. Asherman, 193 Conn. 695, 737, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). “ Tn appeals not involving a constitutional question the court must determine whether it is reasonably probable that the jury were misled . . . .’” State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982), quoting State v. Williams, 182 Conn. 262, 268, 438 A.2d 80 (1980).

The trial court read General Statutes § 53a-8 to the jury in its final instructions. As part of its explanation of liability under this statute, the court charged: “To find a person guilty under this section, you must find he was more than inactively present at the commission of the crime, or passively acquiesced in the crime, or innocently did acts which in fact did aid in the commission of the crime.” On seven occasions, the jury requested that the court reread that portion of the charge. During one of these supplemental rereadings, one of the jurors requested that the court define “passively acquiesced.” The court refused. The court also refused the defendant’s request that the court define “passive acquiescence.” The defendant claims that the trial court should have responded affirmatively to these requests.

“Passive acquiescence” is not statutorily defined and has no legal meaning beyond the words’ ordinary usage. Consequently, the court would ordinarily not be called upon to define the term. State v. MacFarlane, 188 Conn. 542, 550-52, 450 A.2d 374 (1982). The jury’s multiple requests to hear the portion of the charge dealing with “passive acquiescence,” however, support the defendant’s claim that the court’s refusal to define “passive acquiescence” in response to these requests might have deprived the jury of sufficient guidance in its deliberation. State v. Fletcher, 207 Conn. 191, 193-94, 540 A.2d 370 (1988). Consequently, we agree with the defendant that the trial court erred in refusing to define “passive acquiescence.”

The trial court’s error was, however, harmless. The record indicates that the jury was ultimately satisfied with the court’s responses to its inquiries. Furthermore, read as a whole, the charge adequately instructed the jury that the defendant could not be convicted pursuant to § 53a-8 without intending to aid, and aiding, in the commission of the crime. It is not probable that the jury was misled to believe otherwise.

The defendant also contends that the trial court erred in refusing to grant his request to define the word “intentional” as used in General Statutes § 53a-8. As the Appellate Court has stated: “The plain and ordinary meaning of the word ‘intentionally’ is so obvious that it is not error for the trial court to refuse to instruct the jury on its statutory definition.” State v. Lopez, 5 Conn. App. 599, 605, 502 A.2d 418 (1985), cert. denied, 199 Conn. 803, 506 A.2d 146 (1986). In addition, the trial court, on four occasions, read to the jury the definition of intentional conduct contained in General Statutes § 53a-3 (11). The jury did not request that “intentional” be defined and there is no showing that it was confused by the court’s refusal to grant the defendant’s request to define that term. The court’s refusal of the defendant’s request was therefore not erroneous.

B

The defendant also claims that the jury’s deliberations were impaired because the trial court, over his objection, erroneously submitted his original indictment to the jury. The indictment that underlay the proceedings in Avis I charged that either the defendant or Vinal had shot the victim. The substituted bill of particulars filed by the state before the defendant’s retrial charged instead that “in the course of and in furtherance of the said robbery or flight therefrom, the co-participant, Daniel Vinal, caused the death of the victim . . . . ” A subsequent substituted bill of particulars specifically alleged that Vinal had caused the death of the victim.

The trial court submitted the original indictment to the jury on the ground that the jury had been adequately instructed about the charge on which the defendant was being prosecuted. As the state virtually concedes, the trial court erred. “The trial court should submit no issue to the jury which is foreign to the facts in evidence, or upon which no evidence was offered, and it should not submit to the jury considerations which find no support in the evidence.” State v. Rodgers, supra, 56; see also State v. Cofone, 164 Conn. 162, 168, 319 A.2d 381 (1972).

We are, however, persuaded that the trial court’s error was harmless. The court had correctly instructed the jury that the substituted bill of particulars stating that Vinal caused the victim’s death was binding on the state and that the defendant was not charged with intentional murder. The court had also correctly instructed the jury that the indictment was not to be considered evidence. On this state of the record, the defendant was not prejudiced by the court’s error and suffered no substantial injustice because of it. State v. Smith, 198 Conn. 147, 153, 502 A.2d 874 (1985).

IV

The final issue is whether the trial court erred in denying the defendant’s motion for acquittal. The defendant contends that the evidence against him was insufficient to support the jury’s guilty verdict. He challenges in particular the sufficiency of the evidence to establish that he participated in the alleged robbery. We are not persuaded.

When a verdict is challenged because of insufficient evidence, the issue is whether “ ‘ “the jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” ’ ” State v. Braxton, 196 Conn. 685, 691, 495 A.2d 273 (1985), quoting State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984). Appellate analysis of a claim of insufficiency of the evidence requires us to undertake a twofold task: We must first review the evidence construing it in the light most favorable to sustaining the trial court’s verdict. State v. Williams, 205 Conn. 456, 468, 534 A.2d 230 (1987); State v. Vincent, 194 Conn. 198, 206, 479 A.2d 237 (1984); State v. D'Antuono, 186 Conn. 414, 421, 441 A.2d 846 (1982); State v. Perez, 182 Conn. 603, 606, 438 A.2d 1149 (1981). “ ‘ “We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt .... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.” ’ ” State v. Plourde, 208 Conn. 455, 458, 545 A.2d 1071 (1988), quoting State v. Rollinson, 203 Conn. 641, 665-66, 526 A.2d 1283 (1987), and cases cited therein.

There was sufficient evidence at trial to support the jury’s finding in this case. In addition to the defendant’s confession, the state proved that the defendant, in the company of Vinal, whom he knew to be armed, followed the victim’s car and persuaded the victim to stop by the side of the road. The jury could reasonably have disbelieved the defendant’s story that he thereafter remained in his own car and fell asleep or passed out. The defendant’s testimony that he saw Vinal throw a wallet into the river after the incident, his subsequent misstatements to the police, and his flight from Connecticut, using a number of aliases, supported the inference that he was conscious of his guilt. Although the evidence against the defendant was in part circumstantial, the jury could nonetheless have found that the defendant was, beyond a reasonable doubt, guilty as charged. The trial court therefore did not err in denying the defendant’s motion for acquittal.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-54c. felony murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, sexual assault in the first degree with a firearm, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (A) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (D) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”

       Vinal was retried and found guilty of the crimes of murder in violation of General Statutes § 53a-54a and felony murder in violation of General Statutes § 53a-54c. Vinal appealed to this court, which found no error. State v. Vinal, 205 Conn. 507, 534 A.2d 613 (1987).

       The defendant filed motion to suppress the statement dated May 6,1986, and a motion to dismiss or in limine dated September 5,1986. After a suppression hearing, the trial court denied both motions.

       Disciplinary Rule 7-104 (A) (2) of the Code of Professional Responsibility, in effect at the time in question, provided in relevant part: “During the course of his representation of a client a lawyer shall not... (2) Give advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of his client.”

       The statement reads:
      “To whom it may concern:
      On or about October 8,1978, in the early morning hours, I pulled a vehicle over on Old Route 8, East Litchfield, Connecticut. The vehicle was driven by the sole occupant known to me as ‘Freddy.’ I intended to rob him. He put up a struggle, and I fired at him twice. I left him unconscious, his car engine running. The wallet that was in his possession prior to my taking it was discarded by me at the bottom of Toll Gate Hill in a brook in Litchfield. The man riding in my vehicle was passed out and knew absolutely nothing about the incident mentioned above. My passenger was Danny Vinal. I found the gun in the front seat of the car I drove. I really don’t know what make or model it was. I discarded the weapon somewhere during my travels since this incident occurred.
      I’m confessing of this crime to rid myself of the overpowering guilt feelings. I gave this confession to Robert DePretis of Torrington, Connecticut.
      Signed James J. Avis”

       The United States Supreme Court has stated that “[t]he most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible under the Due Process Clause.” Colorado v. Connelly, 479 U.S. 157, 166, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986). That court has held that “coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment.” Id., 167. We reserve for another day the issue of whether statements made to a private individual may be found involuntary within the meaning of the due process clause contained in the Connecticut constitution.

       The trial court stated: “The reliability and trustworthy arguments, again, perhaps raise more smoke than substance. . . . [W]hile there was some inconsistency in the statement apparently bearing on the truth thereof, this is not to say that the entire statement or entire confession has to be excluded ■for that reason.
      “The Court is satisfied that it does have substantial probative value, that that probative value does outweigh any prejudicial or inflammatory consideration it may have, and it does shed light actually on the fact that there really was a robbery.”

       On cross-examination, DePretis testified:
      “Q. You never told Mr. Avis that a wallet was missing?
      “A. No.
      “Q. You never did?
      “A. No.”
      In the July 9, 1981 testimony that the defendant contends is inconsistent, DePretis testified:
      “Q. Did you tell him that [the victim’s] wallet was missing?
      “A. I believe I may have.
      “Q. Before he wrote the confession? . . .
      “The Court: You have to answer the question, oh you’re thinking.
      “The Witness: Yes. Um, I can’t recall.”

       DePretis testified: “Q. Was there any indication between you and Avis about the contents of that particular statement?
      “A. In reference to the wallet, for corroborative purposes, to indicate where he had discarded it, so the police could retrieve it, and that would corroborate the facts in that statement.
      “Q. So I’m clear on this, you told him you wanted to know where the wallet had been thrown?
      “A. After he told me he had taken it during the robbery.”

       In addition, we note that DePretis’s statements regarding whether he told the defendant that the victim’s wallet was missing are substantively irrelevant. Later testimony by the defendant provides support for a conclusion that the victim’s wallet was taken and that, therefore, a robbery occurred. The defendant testified that after the incident, Vinal told him to stop the car because he had to throw something out. Vinal then got out of the car and threw a wallet into the river.

       “[General Statutes] Sec. 53a-8. criminal liability for acts of another. A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       The court charged as follows: “To find a person guilty under this section, you must find he had a criminality of intent and unlawful purpose in common with the person or persons who actually committed the crime. . . .
      “If you find that a person committed the felony murder in question, then the next thing you must decide is whether the Defendant shared the intent of the person who committed the crime and, again, let me remind you that the intent which I speak of is the intent to steal, not to kill.”

       The court instructed the jury as follows: “As I told you, you can’t consider the indictment as evidence of anything ....
      “The State is not alleging that the Defendant intended to cause the death of the victim. That would constitute an intentional act of murder. In fact, the bill of particulars alleges Mr. Vinal shot [the victim] and not Mr. Avis.”


author: Hull, J.

text:
    Sonia Torres Williamson v. Commissioner of Transportation
    (13366)
    Peters, C. J., Healey, Callahan, Glass and Hull, Js.
    Argued October 12
    decision released December 13, 1988

      Bruce L. Levin, with whom, on the brief, was Serge G. Mihaly, for the appellant (plaintiff).

      Michael T. Bologna, for the appellee (defendant).
   Hull, J.

Pursuant to General Statutes § 13a-144, the plaintiff, Sonia Torres Williamson, instituted this action sounding in negligence against the defendant commissioner of transportation alleging that she sustained personal injuries as a result of the state’s failure adequately to maintain its highways. After a trial, the jury returned a verdict in favor of the defendant. The plaintiff appealed from the judgment rendered on the verdict. We find no error.

The jury could reasonably have found the following facts. On July 4,1980, the plaintiff, who lived in Bridgeport, was participating in a picnic trip to Lake Quassapaug with family and friends. The group proceeded in three vehicles north to Interstate 84 and was heading west when the plaintiff’s fiance, Larry Williamson, driving the first car, heard a noise in the car’s engine. He pulled the car over to the shoulder of the highway and stopped so that the doors on the passenger side were adjacent to a catch basin. The other vehicles stopped a short distance behind the lead car. Larry Williamson got out of the car, raised the hood, and discovered some ravelings on the fan belt, which he proceeded to cut off. At this time, he asked the plaintiff to go to the second vehicle, a van, and get him a beer. While the plaintiff was returning to the first car with a beer in hand, her right leg slipped or fell into an opening in the catch basin, causing the injuries.

After presentation of all the evidence, the court proceeded to charge the jury. In accordance with a long line of decisions discussing actions brought under General Statutes § 13a-144, the court instructed the jury, inter alia, that it was the plaintiffs burden to show that the defective highway was the sole proximate cause of her injuries. At the close of its instructions, the trial court provided the jury with a special verdict form on which to answer interrogatories relating to the allegations of the complaint. In response to these interrogatories, the jury found that the state had a duty to maintain the section of the highway where the plaintiff claimed to have been injured and failed to do so, making the area unsafe for public travel. The jury also found, however, that the plaintiff did not exercise due care, and, therefore, that the highway defect was not the sole proximate cause of her injuries. Accordingly, the jury returned a verdict in favor of the defendant. After denying the plaintiffs motion to set aside the verdict and for a new trial, the court rendered judgment in accordance with the verdict. This appeal ensued.

On appeal, the plaintiff claims that the trial court erred in charging the jury: (1) on the burden of proof; (2) that the highway defect must be the sole proximate cause of the plaintiffs injuries; (3) that the plaintiff was not on the “travel portion” of the highway when she was injured; (4) with respect to sovereign immunity, and (5) on third party negligence. The plaintiff also claims that the trial court “unduly emphasized” in its charge the plaintiff’s burden to prove that she exercised due care.

I

The plaintiff first contends that two sentences of the trial court’s seventy-four page jury charge relating to sufficiency of the evidence and burden of proof constituted reversible error. The portion of the charge in question reads as follows: “In this case, the commissioner has presented some evidence contradicting certain of the plaintiff’s claims. As to those where there has been no evidence by the defendant, there must still be proof by a fair preponderance of the evidence. Just by producing some evidence on the various points the plaintiff has not sustained her burden; and it’s up to you that she may or may not have, depending on what you find. There must be a finding by you that each and every element is more probable than not, and any finding which you make must be based upon substantial evidence, and not upon surmise, conjecture or sympathy.”

At trial, the plaintiff neither filed a request to charge on the issues of sufficiency of the evidence and burden of proof nor did she except to the trial court’s instructions quoted above. Ordinarily, such omissions at the trial level would render the plaintiff’s claim unreviewable. Practice Book §§ 315, 4185. The plaintiff maintains, however, that her failure to take a timely exception should be excused, and her claim now fully reviewed on appeal, because (1) her attorney was suffering from an undefined illness which may have prevented him from taking a timely exception to that portion of the charge, and (2) a timely exception was not required since it would have been “futile.” We find the plaintiff’s contentions without merit.

The trial transcript reveals that after the jury was charged and excused, the court asked counsel for both parties if they had any exceptions to the charge as given. Counsel for the plaintiff proceeded to take eleven exceptions. He did not, however, take exception to that portion of the charge now at issue. Counsel for the defendant then took two exceptions to the charge. After exceptions were taken, the trial transcript discloses that the plaintiffs counsel requested “a very brief recess,” which was granted by the court. The plaintiff states in her brief that this recess was requested by her attorney because “he was not feeling well.” Apparently, he excused himself from the courtroom and returned less that five minutes later. At no time, however, did the plaintiffs counsel state on the record his reasons for requesting the recess. Thereafter, the jury was reseated and the court proceeded to recharge them on three claimed errors raised by the attorneys in their exceptions. At the conclusion of the recharging, the jury retired to the deliberating room. No further exceptions were taken by either counsel.

The plaintiff initially claims that her failure to except timely to the instructions in question should be excused because her attorney was suffering from an undefined illness during the charge which may have prevented him from interposing a timely exception. We find that the record does not support such a claim. The trial transcript discloses that the plaintiff’s counsel had the presence of mind to articulate eloquently eleven exceptions to various portions of the charge, including exceptions to the court’s instructions regarding actual and constructive notice, proximate cause and sovereign immunity. These exceptions indicate to us that the plaintiff’s counsel’s ability to interpose timely exceptions to the jury charge, including the instructions at issue, was unaffected by any claimed illness. Our conclusion is bolstered by the fact that, despite ample opportunity to do so, the plaintiffs counsel failed to state on the record the nature and severity of his illness and precisely how it prevented him from raising an exception to the instructions the plaintiff now claims were erroneous. The failure to take even this small step renders the plaintiff’s claim all the more unconvincing. Accordingly, on the facts presented, we find that the plaintiff’s failure to raise an exception to the court’s instructions regarding sufficiency of the evidence and burden of proof is not excused on the basis of an undefined illness of her counsel.

The plaintiff next contends that the trial court’s failure to grant her motion to set aside the verdict on the basis that the jury instructions in question were erroneous demonstrates that the court would not have corrected these instructions even if the plaintiff had interposed a timely exception to them. Therefore, the plaintiff argues, her failure timely to except should be excused since it would have been a “futile act,” which the law does not require. We disagree.

The plaintiff’s assertion that the trial court would have disregarded a timely exception to the language in question is pure speculation and nothing more. By failing to except, the plaintiff deprived the trial court of an opportunity to correct the claimed error before the jury began its deliberations. The taking of exceptions immediately after the charge is delivered is required “to ensure that the trial court has an opportunity to cure any defects or ambiguities in the charge, thus avoiding the inconvenience and the expense of unnecessary retrial.” Thomas v. Katz, 171 Conn. 412, 414, 370 A.2d 978 (1976); see Practice Book § 315. The plaintiff cannot now complain that such an exception, had it been interposed, would have been an exercise in futility. Consequently, we find that the plaintiff’s failure to except to the relevant jury instructions is not excused on this basis. Accordingly, because the plaintiff has not offered any cognizable excuse for her failure to preserve properly her claim on appeal, we conclude that it is not entitled to full appellate review.

Alternatively, the plaintiff maintains that the court’s instructions constituted plain error of which this court may take notice despite the plaintiff’s failure to take a timely exception. Review under the plain error doctrine “is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985). We conclude that the jury instructions at issue, when read in the context of the entire charge, did not constitute plain error. State v. Silano, 204 Conn. 769, 773, 529 A.2d 1283 (1987); Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 570, 316 A.2d 394 (1972).

II

The plaintiff next claims that the trial court erred in charging that it was the plaintiff’s burden to demonstrate that the defective highway was the sole proximate cause of her injuries. The incorporation of the sole proximate cause requirement for actions brought under the state defective highway statute dates back to Perrotti v. Bennett, 94 Conn. 533, 109 A. 890 (1920). The plaintiff today asks us to overrule Perrotti and set aside the sole proximate cause requirement of § 13a-144. For the reasons stated herein, we decline to do so.

At trial, the plaintiff did not except to the court’s instructions on proximate cause nor did she take issue with these instructions in her motion to set aside the verdict. We have previously held that such omissions at the trial court level in civil jury cases “[limit] our consideration of the issues raised [on] appeal to ascertaining whether there has been ‘plain error.’ ” Pietrorazio v. Santopietro, 185 Conn. 510, 515, 441 A.2d 163 (1981); see Practice Book § 4185; Dunham v. Dunham, 204 Conn. 303, 310-11, 528 A.2d 1123 (1987); Kolich v. Shugrue, 198 Conn. 322, 326, 502 A.2d 918 (1986). In view of this, we find that our recent decision in Kolich v. Shugrue, supra, is controlling.

As in the present case, Kolich involved a defective highway claim brought under § 13a-144. On appeal, the plaintiffs in Kolich raised precisely the same issue that the plaintiff now raises here, i.e., whether the trial court erred in its charge on proximate cause when it instructed the jury that it was the plaintiffs’ burden to show that the defective highway was the sole proximate cause of their injuries. In Kolich v. Shugrue, supra, 326, where we were limited, as we are here, to plain error review of the relevant jury instructions on proximate cause, we made the following determination: “[W]e conclude that it was not plain error for the trial court to have instructed the jury as it did. The trial court’s instruction on causation was in accordance with a long line of decisions holding that parties suing the state under General Statutes § 13a-144 must prove that the defective highway was the sole proximate cause of their injuries. See Foster v. Waterford, 186 Conn. 692, 695, 443 A.2d 490 (1982); Lukas v. New Haven, 184 Conn. 205, 207, 439 A.2d 949 (1981); Donnelly v. Ives, 159 Conn. 163, 167, 268 A.2d 406 (1970); Pape v. Cox, 129 Conn. 256, 259, 28 A.2d 10 (1942); Roth v. MacDonald, 124 Conn. 461, 463-64, 200 A. 725 (1938).” Similarly, we conclude that by following the established rule of law, the trial court in the present case "can hardly be said to have committed plain error.” Id.

The plaintiff next asserts that the trial court’s charge unduly emphasized the plaintiff’s burden to prove that the highway defect was the sole proximate cause of her injuries and that she was not guilty of contributory negligence, before she would be entitled to recover damages. In charging the jury, the court should, so far as possible, preserve the proper perspective, and not unduly magnify certain considerations nor ignore or minimize others. State v. Rathbun, 74 Conn. 524, 527, 51 A. 540 (1902); compare Bruneau v. Quick, 187 Conn. 617, 627-28, 447 A.2d 742 (1982); Anderson & McPadden, Inc. v. Tunucci, 167 Conn. 584, 589-90, 356 A.2d 873 (1975). Our review of the trial court’s lengthy charge reveals three distinct references by the court to the plaintiff’s burden of demonstrating by a fair preponderance of the evidence that the highway defect was the sole proximate cause of her injuries and that she was free from contributory negligence. Reading the charge as a whole; State v. Jasper, 200 Conn. 30, 37, 508 A.2d 1387 (1986); we conclude that the trial court did not overly emphasize the sole proximate cause requirement and, accordingly, we find no error.

The plaintiff next claims that the court erred in charging the jury that there was evidence that the plaintiff was injured not on the “travel portion” of the highway, but on the “shoulder area” of the highway. The plaintiff contends that such an instruction by the court may have led the jury to believe, erroneously, that the plaintiff was outside the protection of § 13a-144, upon which the state’s liability is predicated. We find the plaintiff’s argument superfluous in view of the fact that the jury determined, necessarily, that the plaintiff was within the protection of the statute when they found, as evidenced by the special jury interrogatories, that the defendant had a duty to maintain the area where the plaintiff claimed she was injured. Accordingly, any alleged error by the trial court in charging on this point was clearly harmless in nature and does not warrant further discussion.

The plaintiff next assigns error in the court’s comment regarding sovereign immunity in its charge to the jury. The court briefly mentioned the common law concept of sovereign immunity as a preface to its discourse on the statutory requirements for recovery under § 13a-144, pursuant to which the state waives sovereign immunity and consents to be sued for the limited purposes recited therein. We find that the court’s remarks were proper in that they provided a fitting historical perspective to the court’s subsequent discussion of § 13a-144, upon which the plaintiff’s action was based.

Lastly, the plaintiff claims the trial court erred in charging the jury with respect to third party negligence. The court charged the jury as follows: “If there has been an injury caused by a defect in the highway, and all other elements have been proven, the plaintiff may still not recover unless she shows that there is no negligence, carelessness or inattention by herself or a third person which contributed to such injury. That is to say that even if the road were defective, if there is any negligence by the [plaintiff], even one percent, she may not recover. Likewise, if a third person was careless, and that carelessness caused in any way the plaintiff’s injuries, she is not entitled to recover, which likewise, if a third person were careless, negligent, and that caused in any way the plaintiff’s injuries, she is not entitled to recover.” The court’s charge on third party negligence is a correct statement of the law. See Bartram v. Sharon, 71 Conn. 686, 690, 43 A. 143 (1899). The plaintiff maintains, however, that the court should not have charged on this issue because there was no evidence from which the jury could reasonably have made a finding of third party negligence. We disagree.

The plaintiff was riding as a passenger in a vehicle operated by her fiance, Larry Williamson. There was testimony that Williamson, upon encountering engine trouble, parked directly adjacent to the catch basin and, by so doing, made it necessary for the plaintiff to walk over the catch basin in order to get in and out of the passenger side of the vehicle. From this evidence the jury could reasonably have concluded that a third party, namely Williamson, contributed to the plaintiffs injuries. Accordingly, we find the trial court was correct to charge the jury on third party negligence.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 13a-144 provides: “DAMAGES FOR INJURIES sustained on state HIGHWAYS OR sidewalks. Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the commissioner of transportation to keep in repair, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the adjoining ground so as to be unsafe for travel or, in case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the superior court. No such action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner. Such action shall be tried to the court or jury, and such portion of the amount of the judgment rendered therein as exceeds any amount paid to the plaintiff prior thereto under insurance liability policies held by the state shall, upon the filing with the comptroller of a certified copy of such judgment, be paid by the state out of the appropriation for the commissioner for repair of highways; but no costs or judgment fee in any such action shall be taxed against the defendant. This section shall not be construed so as to relieve any contractor or other person, through whose neglect or default any such injury may have occurred, from liability to the state; and, upon payment by the comptroller of any judgment rendered under the provisions of this section, the state shall be subrogated to the rights of such injured pesron to recover from any such contractor or other person an amount equal to the judgment it has so paid. The commissioner, with the approval of the attorney general and the consent of the court before which any such action is pending, may make an offer of judgment in settlement of any such claim. The commissioner and the state shall not be liable in damages for injury to person or property when such injury occurred on any highway or part thereof abandoned by the state or on any portion of a highway not a state highway but connecting with or crossing a state highway, which portion is not within the traveled portion of such state highway. The requirement of notice specified in this section shall be deemed complied with if an action is commenced, by a writ and complaint setting forth the injury and a general description of the same and of the cause thereof and of the time and place of its occurrence, within the time limited for the giving of such notice.”

       “GENERAL VERDICT INTERROGATORIES
      1. Do you find that it is the duty of the defendant to keep in repair the highway on which the plaintiff claims to have been injured?
      YES X NO
      2. Do you find that the plaintiff has been injured in person or property?
      YES X NO
      3. Do you find that the highway on which the plaintiff claims to have been injured was not reasonably safe for public travel?
      YES X NO
      4. Do you find that the defendant failed to take reasonable measures to make the highway safe?
      YES X NO
      5. If you find that the highway was not reasonably safe, do you find that any defect existed for such a length of time and was of such nature that the defendant should have had knowledge of its existence?
      YES X NO
      6. Do you find that the plaintiff was in the exercise of due care?
      YES NO X
      7. Do you find that a highway defect was the sole proximate cause of the plaintiffs claimed injuries?
      YES NO X
      8. Do you find that the plaintiff [gave] to the defendant notice of injury, within ninety days thereof, including the time, place and cause of a general description of the same?
      YES X NO”

       Practice Book § 4185 provides in pertinent part: “The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The supreme court may in the interests of justice notice plain error not brought to the attention of the trial court. ...”

       The plaintiff also assigns error in the trial court’s failure to charge the jury on comparative negligence. This issue is necessarily subsumed in the plaintiffs primary claim as to proximate cause. We fail to see how the trial court could consistently have charged the jury that the highway defect must be the sole proximate cause of injury while at the same time charging them on comparative negligence.

       The Dunham, Kolich and Pietrorazio decisions all involved instances where plain error review was invoked because the appellants in those cases failed to file a motion to set aside the verdict. Dunham v. Dunham, 204 Conn. 303, 528 A.2d 1123 (1987); Kolich v. Shugrue, 198 Conn. 322, 502 A.2d 918 (1986); Pietrorazio v. Santopietro, 185 Conn. 510, 441 A.2d 163 (1981). We see no viable distinction, however, between those cases and a case where, as here, the motion to set aside was in fact filed, but the particular claim of error on appeal was not briefed in the motion. In both instances, the effect is the same, i.e., the trial court is denied “a full opportunity to redress any errors which may have occurred at trial before the appellate process is begun.” Kolich v. Shugrue, supra, 326.

       After repeatedly instructing the jury that the defendant had a duty to maintain the shoulder areas of the highway, the court charged the jury as follows: “Now the next issue that I want to go over with you on this matter of liability is the matter of permitted uses of the highway, and we have indicated and there is evidence to indicate that this occurred not on the travel portion, but on the shoulder, and so that I want to state to you that a person must be on the highway for some legitimate purpose connected with travel thereon in order to obtain the protection of the highway defect statute. ...”

       See footnote 2, supra.

       The court charged as follows: “Now the first matter I’m going to be discussing is the statute, itself and the issue of sovereign immunity. All right. Under the common law, that is the law of the case as we have inherited from England, the Sovereign State of Connecticut holds the same immunity from law suits as was held by the King of England. It cannot'be sued without its consent. The defendant, commissioner in this case, has the same immunity because he was sued in his official capacity. However, the laws of negligence do not apply to this case, rather as you have heard reference, the suit is brought under a particular statute by which the state has consented to be sued, and the statute has particular and peculiar requirements all of which must be satisfied for the plaintiff to recover damages in this case.”