author: Katz, J.

text:
    Joseph Antinerella et al. v. Alfred J. Rioux et al.
    (14734)
    Peters, C. J., Borden, Berdon, Norcott and Katz, Js.

      Argued February 17—
    decision released May 31, 1994

      Timothy Brignole, for the appellants (plaintiffs).

      Michael J. Lanoue, assistant attorney general, with whom were Margaret Quitter Chappie, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, for the appellees (defendants).
   Katz, J.

The plaintiff, deputy sheriff Joseph Antinerella, an at-will employee, sued the defendant, Alfred J. Rioux, as an individual and in his capacity as high sheriff of Hartford county, for wrongfully terminating the plaintiff’s employment for the alleged purposes of misappropriating the plaintiff’s business of serving process and furthering the defendant’s own illegal fee splitting enterprise. The principal issue on appeal is whether the trial court properly dismissed the suit on the grounds that the doctrine of sovereign immunity and the immunity provisions of General Statutes § 4-165 shielded the defendant from suit in his capacity as sheriff and as an individual, respectively. Because we conclude that the defendant’s alleged conduct exceeded his authority and was outside the scope of his employment as high sheriff, he is not immune from suit. Accordingly, we reverse.

The plaintiff brought a five count complaint seeking damages and injunctive relief against the defendant individually and in his capacity as sheriff for: (1) violation of the Connecticut Unfair Trade Practices Act (General Statutes § 42-110a et seq.); (2) tortious interference with the plaintiff’s contractual relationships; (3) racketeering activities; (4) illegal conspiracy; and (5) breach of contract. The plaintiff alleged in each of the five counts in his complaint the following facts that, for the purposes of this appeal, we consider to be accurate. From 1980 through 1991 the plaintiff maintained a highly profitable business with clients statewide as a deputy sheriff serving process and papers and executing process in Hartford county. To assist him in this business, the plaintiff employed Lori Chirico as a secretary to handle collections, type returns of service and deal with clients. As a result, Chirico became thoroughly familiar with all of the plaintiff’s accounts and customer lists.

In 1990, the defendant hired Chirico as his personal secretary, although his appointment of her as a special deputy allowed him to pay her with state funds. At or around the same time, the defendant entered into agreements with several deputy sheriffs he had appointed. Under the agreements, the defendant was to forward business he had obtained from law firms and state agencies to designated deputy sheriffs who would thereafter serve process, and, in turn, pay him 40 percent of the statutory rate in violation of General Statutes §§ 6-46 and 53a-161c.

Each count contained the critical allegation that the defendant, after forming the agreement with the deputy sheriffs, terminated the plaintiffs employment for the purposes of obtaining the plaintiffs business and personally benefiting from the forbidden and illegal fee splitting arrangements the defendant had devised. Thereafter, the plaintiff, on the basis of these shared facts, asserted particular legal claims accompanied by additional supporting allegations. The plaintiff claimed that the defendant, by his illegal conduct, tortiously interfered with the plaintiffs contractual relationships and breached his employment contract. The plaintiff further alleged that the defendant’s efforts to engage in unfair methods of competition and unfair and deceptive acts or practices in the distribution of service of process, and the restraint, termination and confiscation by the defendant of the plaintiffs business for his own personal gain were in violation of General Statutes § 42-110b et seq. Moreover, the plaintiff claimed that the defendant, by having engaged in racketeering activities in violation of General Statutes §§ 53a-159, 53a-161 and 53a-161c, caused him serious economic and personal injury in violation of General Statutes § 53-395 et seq.

The defendant moved to dismiss the plaintiffs complaint, arguing that the action against him in his official capacity was barred by the doctrine of sovereign immunity and that the action against him in his individual capacity was barred by the immunity provisions of General Statutes § 4-165. The trial court granted the defendant’s motion and dismissed the plaintiff’s complaint. The trial court in its memorandum of decision concluded that the defendant was personally immune from suit because, pursuant to §§ 6-37 and 6-45, the high sheriff has the unlimited statutory authority to hire and fire a deputy sheriff “at his pleasure regardless of his motives or the propriety of his reasons for such dismissal.” The trial court also noted that, to defeat the doctrine of sovereign immunity, the plaintiff had to point to a legislative enactment indicating the state’s consent to be sued. The trial court concluded that the plaintiff’s reliance on General Statutes §§ 6-30 and 6-30a was misplaced, and, that in the absence of any other provision expressly authorizing suit against the sheriff for wrongful termination of employment, the doctrine of sovereign immunity insulated the defendant from suit in his official capacity.

On appeal, the plaintiff argues that because the defendant fired him to further his own financial gain through a fee splitting agreement with various deputy sheriffs in violation of General Statutes §§ 6-36 and 6-46, the defendant exceeded his authority as high sheriff and, therefore, cannot claim the protection of sovereign immunity. The plaintiff similarly contends that because the defendant’s behavior exceeded the scope of his employment, the defendant cannot claim the personal immunity afforded by § 4-165. Finally, the plaintiff argues that the express exception contained in § 4-165, eliminating immunity for a state employee acting in a wanton, reckless or malicious fashion, precludes the defendant from asserting the immunity defense. We agree with the plaintiff and therefore conclude that the trial court should not have dismissed the complaint.

I

“We have . . . recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state.’ Sentner v. Board of Trustees, 184 Conn. 339, 342, 439 A.2d 1033 (1981). In its pristine form the doctrine of sovereign immunity would exempt the state from suit entirely, because the sovereign could not be sued in its own courts and ‘there can be no legal right as against the authority that makes the law on which the right depends.’ Kawananakoa v. Polyblank, 205 U.S. 349, 353, 27 S. Ct. 526, 51 L. Ed. 834 (1907); Bergner v. State, 144 Conn. 282, 284-85, 130 A.2d 293 (1957). This absolute bar of actions against the state has been greatly modified both by statutes effectively consenting to suit in some instances as well as by judicial decisions in others.” Doe v. Heintz, 204 Conn. 17, 31, 526 A.2d 1318 (1987); see also 57 Am. Jur. 2d, Municipal, County, School and State Tort Liability § 61 et seq. (1988).

“It does not necessarily follow, however, that every action in which state officials or members of state agencies are named defendants and designated by official titles should be treated as an action against the state such as to clothe the defendants with immunity from suit.” Simmons v. Parizek, 158 Conn. 304, 307, 259 A.2d 642 (1969). Sovereign immunity does not bar suits against state officials acting in excess of their statutory authority or pursuant to an unconstitutional statute. Horton v. Meskill, 172 Conn. 615, 624, 376 A.2d 359 (1977).

“ ‘In those cases in which it is alleged that the defendant officer is proceeding ... in excess of his statutory authority, the interest in the protection of the plaintiffs right to be free from the consequences of such action outweighs the interest served by the sovereign immunity doctrine. . . .’ ” Id., quoting J. Block, “Suits Against Government Officers and the Sovereign Immunity Doctrine,” 59 Harv. L. Rev. 1060, 1080-81 (1946). In such instances, the need to protect the government simply does not arise and “the government cannot justifiably claim interference with its functions . . . .’” Horton v. Meskill, supra, 172 Conn. 624. “ ‘Where[, however,] no substantial claim is made that the defendant officer is acting pursuant to an unconstitutional enactment or in excess of his statutory authority, the purpose of the sovereign immunity doctrine requires dismissal of the suit for want of jurisdiction.’ ” Id.

In light of these principles, the dispositive issue faced by the trial court in this case in determining whether to dismiss the action on the grounds of sovereign immunity was whether the defendant had allegedly acted in excess of his statutory authority when he terminated the plaintiff’s employment. Although we have recognized the legal principle that sovereign immunity does not apply to suits against state officials acting in excess of their statutory authority, we have never had occasion actually to apply that doctrine. This case presents the first opportunity to do so. We begin with a discussion of the standard for appellate review of a trial court’s dismissal of a complaint for lack of jurisdiction.

“[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.” Amore v. Frankel, 228 Conn. 358, 364, 636 A.2d 786 (1994). “When a [trial] court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light.” Reynolds v. Soffer, 183 Conn. 67, 68, 438 A.2d 1163 (1981). Because this case comes to us on a threshold sovereign immunity issue, pursuant to a motion to dismiss; Practice Book § 143; we do not pass on whether the complaint was legally sufficient to state a cause of action. Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). In the posture of this case, we examine the pleadings to decide if the plaintiff has alleged sufficient facts: (1) with respect to sovereign immunity, to support a conclusion that the defendant acted in excess of his statutory authority; and (2) with respect to personal immunity under § 4-165, to support a conclusion that the defendant was acting outside the scope of his employment or wilfully or maliciously. Id., 542; see Barde v. Board of Trustees, 207 Conn. 59, 64, 539 A.2d 1000 (1988).

The plaintiff maintains that he has met his burden. The defendant argues, however, that the plaintiff’s allegation that the defendant had engaged in or had planned to engage in prohibited conduct after the plaintiffs dismissal does not constitute an act in excess of authority. Such an argument reflects a formalistic and myopic view of the complaint and contradicts the modern trend to read pleadings broadly and realistically rather than narrowly and technically. See Beaudoin v. Town Oil Co., 207 Conn. 575, 588, 542 A.2d 1124 (1988), and cases cited therein. We conclude that the factual allegations, common to each of the five 'counts, broadly, rather than narrowly, construed make out a claim that the defendant was acting in excess of his statutory authority when he terminated the plaintiffs employment in order to accomplish that which §§ 6-36 and 6-46 specifically prohibit.

Each of the five counts contained in the complaint expressly states that “[tjhe defendant, Alfred J. Rioux did intentionally terminate the plaintiff, Joseph Antinerella for the express purpose of obtaining his business and personally benefitting under the forbidden and illegal fee splitting arrangements he had with appointed deputy sheriffs.” The plaintiff also alleged that: (1) the defendant “has engaged in unfair methods of competition and unfair and deceptive acts or practices in the distribution of service of process, the restraint of the [pjlaintiff s business, the termination of the [pjlaintiff s business and the taking of the [pjlaintiff s business for his own personal gain in violation of [General Statutes § 42-110a et seq.J”; (2) “[tjhe [djefendant's tortious interference arises out of his scheme and conspiracy to obtain the [pjlaintiff s client list and establish a system by which the customers and clients of the [pjlaintiff would thereafter be necessitated or required to use the services of the [djefendant thereby providing him with personal gain for the [djefendanf s tortious interference with the [pjlaintiff s contractual relationships”; (3) the defendant: (a) “[cjonspired to take the [pjlaintiff s business”; (b) “[tjerminated the [pjlaintiff s license to serve process without good or reasonable cause”; and (c) “[cjonspired with deputy sheriffs to fabricate false accusation and allegations against [the plaintiff] to use as a basis to terminate [the plaintiff]”; and (4) the “[defendant did engage in activity in violation of [General Statutes § 6-46] of receiving compensation from deputy sheriffs, in fee splitting, which activity was established to provide benefit to the [defendant upon [the plaintiffs] termination.” Construing the pleaded facts in the light most favorable to the plaintiff; Duguay v. Hopkins, 191 Conn. 222, 227, 464 A.2d 45 (1983); we, therefore, presume that the defendant discharged the plaintiff in order to take his business and personally benefit under the statutorily forbidden and illegal fee splitting arrangement he had made with several appointed deputy sheriffs. That termination of his employment under the facts and circumstances of this case constituted an action in excess of his authority.

The defendant argues that because § 6-45 authorizes him to terminate the employment of deputies at will, his termination of the plaintiffs employment could not have been in excess of his statutory authority. We disagree. Not all uses of that authority are protected. For example, had the defendant used his authority to transport a prisoner, pursuant to General Statutes § 6-32d, for the express purpose of arranging for that prisoner to be assaulted, such intentional criminal behavior would not be shielded. Similarly, despite the sheriffs authority to hire and fire contained in § 6-45, the plaintiffs allegations as set forth in the complaint describe a course of conduct that is egregious in nature.

The defendant also posits that because his appointment of deputy sheriffs is solely within his discretion, deputy sheriffs have no entitlement and, therefore, cannot claim interference with any business interest. In Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980), we provided a public policy exception to the employment at-will rule in an effort to balance the competing interests of employer and employee. The employer must be allowed to make personnel decisions without fear of incurring civil liability. The employee, however, must be protected against actions by his employer that contravene public policy. “Given the inherent vagueness of the concept of public policy, it is often difficult to define precisely the contours of the exception. [We look to see whether] the plaintiff has . . . alleged that his discharge violated any explicit statutory or constitutional provision . . . [or whether] he alleged that his dismissal contravened any judicially conceived notion of public policy.” Morris v. Hartford Courant Co., 200 Conn. 676, 680, 513 A.2d 66 (1986).

Application of that doctrine is particularly appropriate under the facts and circumstances of this case when, according to the allegations considered to be true for purposes of the motion to dismiss, the defendant has acted to accomplish what statutes specifically prohibited him from doing. Sections 6-36 and 6-46 reflect the clear public policy that a high sheriff may not engage in fee splitting. It would be totally incongruous for the legislature to prohibit any fee splitting by the high sheriff, but nevertheless for us to allow him to advance the scheme by terminating the plaintiffs employment with total immunity. Sections 6-36 and 6-46 are indicative of the public policy that the defendant’s scheme was aimed at circumventing. This case presents claims that genuinely involve the mandates of public policy derived directly from state statutes. “Certainly when there is a relevant state statute we should not ignore the statement of public policy that it represents.” Sheets v. Teddy’s Frosted Foods, Inc., supra, 179 Conn. 480.

Had the plaintiff been the one to discover the defendant’s illegal fee splitting scheme and the one to “blow the whistle” on the defendant, and had the defendant thereafter fired the plaintiff in order to continue his illegal conduct, undoubtedly, the plaintiff could bring an action for retaliatory discharge. Id. We see no reason to differentiate between that employee and this plaintiff, whose employment was also terminated in order that his employer could perpetuate a fee splitting arrangement, a scheme clearly prohibited by statute. We reject the defendant’s contention that the plaintiff’s allegations do not support his claim that his employment had been terminated in violation of a distinct public policy. We are persuaded that the plaintiff’s complaint, read so as to sustain its validity, amply charges that “his discharge involve[d] ‘impropriety . . . derived from some important violation of a public policy.’” Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 572, 479 A.2d 781 (1984).

Finally, the defendant argues that §§ 6-36 and 6-46, which authorize the removal from office of any high sheriff who engages in fee splitting, were intended by the legislature to provide a sufficient remedy to deter such illegal conduct and to protect deputy sheriffs from such intimidation. According to the defendant, neither statute provides any rights of employment to a deputy, limits the authority of the high sheriff to dismiss deputy sheriffs or allows for private enforcement of their provisions. The defendant further asserts that the ethics commission is empowered to impose the appropriate remedy for violation of General Statutes §§ 1-84 (c) and 1-85. See General Statutes §§ 1-88 and 1-89.

These statutes provide for a public remedy and are indicative of our public policy, consistent with the legislature’s obvious interest in ensuring that elected officials conduct themselves within the parameters of the law, that any sheriff who has engaged in this kind of prohibited conduct has abused his authority and deserves to be removed from office. That does not mean, however, that a private remedy for the same conduct can never coexist.

In determining whether a statute prohibiting certain conduct also affords a private cause of action for damages, we generally apply the rule of statutory construction that “[w]hen the legislature has authorized supplementary private causes of action, it has done so expressly. See, e.g., General Statutes §§ 22a-16 (Connecticut Environmental Protection Act) and 42-110g (a) (Connecticut Unfair Trade Practices Act).” Middletown v. Hartford Electric Light Co., 192 Conn. 591, 596, 473 A.2d 787 (1984). As part of this analysis, we assess whether the legislature concluded that private interests were amply served without private causes of action. For example, in the area of environmental law, we have examined the administrative regulatory process to see if private persons had been afforded access by way of complaints to the Connecticut department of environmental protection or the council on environmental quality. Id.

Sections 6-36 and 6-46 provide solely for the public’s rights to be vindicated through the authority of the Superior Court and the General Assembly to terminate the high sheriff’s employment. Although we find nothing in any of the pertinent provisions that specifically prohibits a private cause of action by an injured deputy sheriff whose employment has been terminated by the high sheriff in order to effectuate an illegal purpose, these statutes do “not [expressly] authorize a private cause of action for damages. Thus the plaintiffs action is necessarily at common law.” Boehm v. Kish, 201 Conn. 385, 389, 517 A.2d 624 (1986). We already have recognized the existence of a common law action for an at-will employee whose employment has been terminated in violation of a distinct public policy.

Because this case involves a significant matter of clear and well defined public policy, this plaintiff is no less entitled to a modicum of judicial protection. We conclude that the mandates of public policy derived directly from §§ 6-36 and 6-46 impose some limits on the defendant’s unbridled discretion to terminate a deputy’s employment and that the plaintiff is entitled to vindicate his claims through a private cause of action.

The “ ‘[p]ublic office [held by the defendant] is a trust conferred by public authority for a public purpose. . . .’ ” Gaynor-Stafford Industries, Inc. v. Water Pollution Control Authority, 192 Conn. 638, 648, 474 A.2d 752, cert. denied, 469 U.S. 932, 105 S. Ct. 328, 83 L. Ed. 2d 265 (1984); State ex rel. Stage v. Mackie, 82 Conn. 398, 401, 74 A. 759 (1909). “ ‘The rights, authority and duty . . . conferred upon the sheriff by law, clearly invest him with a portion of the sovereign power of the government to be exercised by him for the public good.’ ” In re Application of Griffiths, 162 Conn. 249, 256, 294 A.2d 281 (1972), rev’d on other grounds, 413 U.S. 717, 93 S. Ct. 2851, 37 L. Ed. 2d 910 (1973); Sibley v. State, 89 Conn. 682, 685, 96 A. 161 (1915). “In the American system, sovereignty is inherent in the people. They can delegate it to a government which they create and operate by law. They can give to that government the power and authority to perform certain duties and furnish certain services. The government so created and empowered must employ people to carry on its task. Those people are agents of the government. They exercise some part of the sovereignty entrusted to it. They occupy a status entirely different from those who carry on a private enterprise. They serve the public welfare and not a private purpose.” Norwalk Teachers’ Assn. v. Board of Education, 138 Conn. 269, 276, 83 A.2d 482 (1951).

Our decision today supports the central statutory purpose of eradicating illegal behavior by people in authority. It also, however, allows persons who have suffered injuries as a result of these illegalities to be made whole. When an elected official acts within the limits of his or her authority, we have little occasion to supervise, review, restrain or punish. LaTorre v. Hartford, 167 Conn. 1, 9, 355 A.2d 101 (1974); and no reason to circumvent the doctrine of sovereign immunity. When, however, the state employee acts solely to further his or her own illegal scheme and not to carry out government policy, there is no reason to provide immunity from suit. Termination of his or her employment serves one purpose while allowing for damages to flow to the injured party serves another.

Although there is a mounting trend to eliminate the immunity defense in many jurisdictions; see 18 E. McQuillin, Municipal Corporations (3d Ed. Rev. 1993) § 53.02.10, p. 141 n.37; the plaintiff is not seeking judicial abrogation of sovereign immunity. By our decision we do not chip away at the doctrine, relax its parameters or expand any well developed exceptions. Rather than rely on any exception to the rule, we hold simply that the doctrine does not apply when there is a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer’s statutory authority.

II

The second issue pertains to the plaintiff’s suit against the defendant in his individual capacity. The defendant claims that he is immune from suit by virtue of General Statutes § 4-165. Section 4-165, however, is implicated only after it has been determined that the state may rightfully be sued. McKinley v. Musshorn, 185 Conn. 616, 621, 441 A.2d 600 (1981). The trial court determined that because sovereign immunity applied, neither the state nor the defendant individually could be subject to suit. Because we have concluded that the defendant is not shielded by the sovereign immunity doctrine, we must determine what, if any, protection § 4-165 affords the defendant in his individual capacity.

The umbrella of personal immunity provided by § 4-165 applies only to a state officer or employee who causes injury or damage while acting “within the scope of his [or her] employment.” We have interpreted similar language in the context of an action, pursuant to General Statutes § 53-39a, for indemnification by an officer against his employing governmental unit for economic loss he sustained in successfully defending himself against the state’s prosecution for a crime he had allegedly committed while acting “ ‘in the course of his duty’ ” as an officer. Link v. Shelton, 186 Conn. 623, 627, 443 A.2d 902 (1982). In interpreting the phrase “in the course of his duty” as used in § 53-39a, we focused on whether the employee was reasonably fulfilling the duties of employment or doing something incidental to it. Id. In light of the allegations that the defendant’s wrongful conduct was intended to effectuate an illegal fee splitting scheme for which the defendant himself could be fired, it would be inconsistent and inappropriate for us to consider such conduct by the defendant to be incidental to his employment as high sheriff or beneficial to the government as his employer.

The defendant argues that when he terminated the plaintiff’s employment, he was merely using his authority pursuant to § 6-45 and that he, therefore, was still acting within the scope of his employment. Once again, the defendant’s misuse of his authority was personal to him and was not “ ‘primarily employer rooted’ ” or “reasonably incidental to the performance of employment duties.” Manale v. Dept. of Police, 673 F.2d 122, 126 (5th Cir. 1982). The defendant’s alleged conduct was not designed to advance any interest of his employer, the state, and did not serve any legitimate state interest. Rather, the defendant’s alleged actions were motivated by purely personal considerations entirely extraneous to his employer’s interest. Therefore, we conclude that § 4-165, by its own explicit and unambiguous terms, provides the defendant with no protection from suit.

The trial court relied on § 6-45 as a blanket authorization for the defendant “to dismiss deputies at his pleasure regardless of his motives or the propriety of his reasons for such dismissal.” The trial court noted that § 6-45 expressly authorized the defendant to terminate the plaintiffs employment. The trial court reasoned, therefore, that the defendant could not be personally liable when acting in his official capacity with express authority. We have already concluded that § 6-45 is not authorization to act for an illegal purpose and that sovereign immunity will not protect the defendant against the allegations that he acted in excess of his authority. We hold that personal immunity provided by § 4-165 is likewise unavailable. We conclude, therefore, that the trial court should not have dismissed the plaintiffs action brought against the defendant individually.

The judgment is reversed, and the case is remanded for further proceedings according to law.

In this opinion the other justices concurred.

       Louri Antinerella, Joseph Antinerella’s wife, is also a plaintiff in this case. She seeks damages for the deprivation of the services, support and consortium of her husband. Because her claim is wholly derivative of Joseph Antinerella’s and will thus survive or be barred according to the disposition of the issues on appeal as applied to him, this opinion does not refer to her separately in her role as plaintiff.

       The plaintiff appealed from the judgment of dismissal of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       As a special deputy, Chirico was required by statute to transport prisoners, maintain the orderly form of the court and, in the event of a riot, be available to suppress it. See General Statutes § 6-43.

       General Statutes § 6-46 provides: “sheriff may recover on bond of DEPUTY. NOT TO DEMAND FEE FROM deputy. If any sheriff is sued on account of the default of his deputy, he may recover on the bond of such deputy fifteen dollars in addition to the amount recovered from him or which he has been compelled to pay on account of such default. If any sheriff demands or receives any compensation from any deputy, he shall, by the superior court in the county for which he is sheriff, on the information of the state’s attorney, be removed from office and adjudged forever disqualified to hold the office of sheriff.”
      General Statutes § 53a-161c provides: “receiving kickbacks: class d felony, (a) A person is guilty of receiving kickbacks whenever he by force, intimidation or threat of procuring dismissal from employment induces any person who is employed in the construction, completion or repair of any public building, public work, or building or work financed in whole or in part by loans or grants from the state, or who has a contract with the state, to give up any part of the compensation to which he is entitled.
      “(b) Receiving kickbacks is a class D felony.”

       General Statutes § 42-110b provides: “UNFAIR TRADE PRACTICES prohibited. legislative INTENT, (a) No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.
      “(b) It is the intent of the legislature that in construing subsection (a) of this section, the commissioner and the courts of this state shall be guided by interpretations given by the Federal Trade Commission and the federal courts to Section 5 (a) (1) of the Federal Trade Commission Act (15 U.S.C. 45 (a) (1)), as from time to time amended.
      “(c) The commissioner may, in accordance with chapter 54, establish by regulation acts, practices or methods which shall be deemed to be unfair or deceptive in violation of subsection (a) of this section. Such regulations shall not be inconsistent with the rules, regulations and decisions of the federal trade commission and the federal courts in interpreting the provisions of the Federal Trade Commission Act.
      “(d) It is the intention of the legislature that this chapter be remedial and be so construed.”

       General Statutes § 53a-159 provides: “BRIBE receiving BY A LABOR official: class d felony, (a) A labor official is guilty of bribe receiving by a labor official if he solicits, accepts or agrees to accept any benefit from another person upon an agreement or understanding that such benefit will influence him in respect to any of Ms acts, decisions or duties as such labor official.
      “(b) Bribe receiving by a labor official is a class D felony.”
      General Statutes § 53a-161 provides: “RECEIVING A COMMERCIAL BRIBE: CLASS A misdemeanor, (a) An employee, agent or fiduciary is guilty of receiving a commercial bribe when, without consent of Ms employer or principal, he solicits, accepts or agrees to accept any benefit from another person upon an agreement or understanding that such benefit will influence his conduct in relation to his employer’s or principal’s affairs.
      “(b) Receiving a commercial bribe is a class A misdemeanor.”
      See footnote 4 for General Statutes § 53a-161c.

       General Statutes § 53-395 provides: “PROHIBITED ACTIVITIES, (a) It is unlawful for any person who has knowingly received any proceeds derived, directly or indirectly, from a pattern of racketeering activity or through the collection of an unlawful debt to use or invest, whether directly or indirectly, any part of such proceeds, or the proceeds derived from the investment or use thereof, in the acquisition of any title to, or any right, interest or equity in, real property or in the establishment or operation of any enterprise.
      “(b) It is unlawful for any person, through a pattern of racketeering activity or through the collection of an unlawful debt, to receive anything of value or to acquire or maintain, directly or indirectly, any interest in or control of any enterprise or real property.
      “(c) It is unlawful for any person employed by, or associated with, any enterprise to knowingly conduct or participate in, directly or indirectly, such enterprise through a pattern of racketeering activity or through the collection of an unlawful debt.”

       General Statutes § 4-165 provides: “immunity op state oppicees and EMPLOYEES feom personal liability. No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his duties or within the scope of his employment. Any person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter. For the purposes of this section ‘scope of employment’ shall include, but not be limited to, representation by an attorney appointed by the public defender services commission as a public defender, assistant public defender or deputy assistant public defender or an attorney appointed by the court as a special assistant public defender of an indigent accused or of a child on a petition of delinquency, representation by such other attorneys, referred to in section 4-141, of state officers and employees, in actions brought against such officers and employees in their official and individual capacities, the discharge of duties as a trustee of the state employees retirement system, the discharge of duties of a commissioner of superior court hearing small claims matters or acting as a fact-finder, arbitrator or magistrate or acting in any other quasi-judicial position, and the discharge of duties of a person appointed to a committee established by law for the purpose of rendering services to the judicial department; provided such actions arise out of the discharge of the duties or within the scope of employment of such officers or employees. For purposes of this section, members or employees of the soil and water district boards established pursuant to section 22a-315 shall be considered state employees.”

       General Statutes § 6-37 provides: “deputies, chief deputy. Each sheriff may appoint deputies to act under him, who shall have the same powers as such sheriff to serve civil process, and each such deputy shall be responsible for his neglect, wrongdoing, malfeasance, misfeasance and default in the execution of the service of process. Each sheriff shall appoint one of such deputies to be a chief deputy, who shall, in the absence, illness or disability of the sheriff or by his direction, exercise all the powers and perform all the duties of the sheriff prescribed by statute; and, in the event of the death, resignation or removal of the sheriff, shall exercise such powers and perform such duties until the vacancy in the office of sheriff has been filled.”
      General Statutes § 6-45 provides: “appointments and removal of deputies. Appointments of deputy sheriffs shall be in writing, under the hand of the sheriff, and recorded in the records of the superior court in the county for which they are appointed. The sheriff may, at his pleasure, dismiss from office the deputies appointed by him, but only upon his delivering to the person removed a written discharge and filing a copy thereof with the clerk of the superior court in such county for record in the records of said court.”

       General Statutes § 6-30 provides: “bond. No person shall enter upon the duties of sheriff until he executes a bond of ten thousand dollars, to the acceptance of the governor, payable to the state, conditioned that he will faithfully discharge the duties of his office, including his duties when serving as deputy of another sheriff under the provisions of section 6-38, and answer all damages which any person may sustain by his unfaithfulness, malfeasance, wrongdoing, misfeasance or neglect; and the governor may, at any time, demand of any sheriff a new bond and, on neglect or refusal to give it, such sheriff shall be considered to have resigned his office. Each sheriff shall receive a commission and his bond shall be lodged with the secretary and recorded in the records of the state and a copy thereof, certified by the secretary, shall be evidence of its execution.”
      General Statutes § 6-30a provides: “personal liability insurance. Each sheriff and deputy sheriff, on or after October 1,1976, shall be required to carry personal liability insurance for damages caused by reason of his tortious acts in not less than the following amounts: For damages caused to any one person or to the property of any one person, one hundred thousand dollars and for damages caused to more than one person or to the property of more than one person, three hundred thousand dollars. For the purpose of this section ‘tortious act’ means negligent acts, errors or omissions for which such sheriff or deputy sheriff may become legally obligated to any damages for false arrest, erroneous service of civil papers, false imprisonment, malicious prosecution, libel, slander, defamation of character, violation of property rights or assault and battery if committed while making or attempting to make an arrest or against a person under arrest; provided, it shall not include any such act unless committed in the performance of the official duties of such sheriff or deputy sheriff.”

       General Statutes § 6-36 provides: “removal from office by general assembly. If any sheriff (1) knowingly demands or receives illegal fees for serving process, (2) illegally detains any money collected by him or (3) refuses to satisfy any execution issued against him, the general assembly shall remove him from office. The terms ‘knowingly demands’ and ‘receives,’ as used in this section, include billing for and the receipt of fees for work by a sheriff who did not actually perform the work for which billing is made or for which payment has been received.”
      See footnote 4 for General Statutes § 6-46.

       The plaintiff also relies on General Statutes §§ 6-30 and 6-30a as authorizing his claim. Because we agree with the plaintiff that the defendant’s conduct, if proved, exceeded his authority and that sovereign immunity therefore does not bar the action, we do not decide whether either of these statutes provides the express consent of the state to be sued, as the plaintiff suggests.

       This court has also “entertained suits [against state officials] . . . in which declaratory relief is sought as well as related injunctive relief; Rogan v. Board of Trustees for State Colleges, 178 Conn. 579, 424 A.2d 274 (1979); and also suits seeking only to enjoin state officers from illegal or unconstitutional acts. Sentner v. Board of Trustees, supra, [184 Conn.] 344-45; see University of Connecticut Chapter, AAUP v. Governor, 200 Conn. 386, 388, 512 A.2d 152 (1986); Duguay v. Hopkins, 191 Conn. 222, 227 n.4, 464 A.2d 45 (1983). With respect to the . . . injunctive relief sought by the plaintiffs . . . these precedents plainly establish that sovereign immunity is unavailable as a defense . . . Doe v. Heintz, supra, 204 Conn. 31-32; see also Krozser v. New Haven, 212 Conn. 415, 562 A.2d 1080 (1989), cert. denied, 493 U.S. 1036, 110 S. Ct. 757, 107 L. Ed. 2d 774 (1990).

       General Statutes § 6-32d provides: “responsibility for transportation and CUSTODY OF PRISONERS. Except as otherwise agreed between the advisory board and the department oi' correction or other appropriate agency, the responsibility for transportation and custody of prisoners shall be assumed as follows:
      “(1) Each high sheriff shall be responsible for the transportation of male prisoners between courthouses within his county and: (A) Community correction centers, until sentencing; (B) other places of confinement after arraignment and until sentencing; and (C) the place of initial confinement, after sentencing. In addition, each high sheriff shall be responsible for the transportation of adult female prisoners between courthouses within his county and community correction centers, not including the correctional institution at Niantic. If such transportation is in other than state vehicles, the owner of the vehicle used shall be reimbursed by the state at the rate then established for state employees within the office of policy and management.
      “(2) The department of correction shall be responsible for the transportation of adult female prisoners between places of confinement and either courthouses or community correction centers, at the discretion of the commissioner of correction.
      “(3) Each high sheriff shall be responsible for the custody of prisoners at courthouses within his county, except that the local police operating any lockup which is designated by the chief court administrator as a courthouse lockup shall be responsible for the custody of prisoners within that lockup. In addition, if such designated lockup is not in the same building as the courthouse serviced by it, the local police operating such designated lockup shall be responsible for escorting prisoners from the lockup to the courthouse. The town in which such a designated lockup is located shall be reimbursed pursuant to section 7-135a.”

       This is equally trae for other persons in law enforcement. General Statutes § 29-9 provides: “ACCEPTANCE OR OFFERING OF GIFTS OR REWARDS BY OR to state or local police, (a) Any state police officer appointed as provided in section 29-4, any police officer of any city, town or borough and any person having the power of arrest who, directly or indirectly, receives a reward, gift or gratuity for the purpose of influencing his behavior in office, or any person who gives, offers or promises to a police officer or any person having the power of arrest any reward, gift or gratuity with the intent to influence his behavior in office, shall be fined not more than one hundred dollars or imprisoned not more than six months or both, and the police officer shall be dishonorably discharged from the division of state police or from the police department.
      “(b) The provisions of subsection (a) shall not apply to rewards, gifts or gratuities which are approved by the commissioner of public safety, or the police chief or board of police commissioners, as the case may be, and are given to the police officer on account of his official services.”
      It is mandated that a state police officer be dishonorably discharged if he receives a gratuity for the purpose of influencing his behavior. Therefore, were someone to bribe a state officer to “look the other way” while he assaulted a prisoner in the officer’s custody, the officer would be discharged. Although this statute provides for the officer’s discharge, and indeed authorizes a fine and imprisonment for this wrongful conduct, there is nothing in its language that suggests that the injured prisoner would not be able to bring an action against the officer. Whether his claim could survive a motion to dismiss based on sovereign immunity would depend strictly on the allegations in his complaint.

       See footnote 8.

       In Brown v. Housing Authority, 23 Conn. App. 624, 583 A.2d 643 (1990), cert. denied, 217 Conn. 808, 585 A.2d 1233 (1991), a case brought under the theory of respondeat superior for damages suffered as a result of an assault and battery committed by the defendant’s employee, the Appellate Court applied the master-servant doctrine to decide whether the defendant was acting “within the scope of his employment” when he assaulted the plaintiff. “ ‘ “A master is liable only for those torts of his servant which are done with a view of furthering his master’s business within the field of this employment—for those which have for their purpose the execution of the master’s orders or the doing of the work assigned to him to do.” ’ Bradlow v. American District Telegraph Co., 131 Conn. 192, 196, 38 A.2d 679 (1944); Turner v. American District Telegraph & Messenger Co., 94 Conn. 707, 110 A. 540 (1920).” Brown v. Housing Authority, supra, 628. Although it is more often “ ‘the function of the jurors to determine from the facts before them whether, under this test, a servant was acting within the scope of his employment,’ ” the Appellate Court noted that sometimes the acts of a servant are “ ‘so clearly without the scope of his authority that the question is one of law.’ ” Id., quoting Bradlow v. American District Telegraph Co., supra, 195.
      The Appellate Court concluded that the employee’s “intentional, criminal acts were in no way connected to the defendant’s business.” Brown v. Housing Authority, supra, 23 Conn. App. 628. “ ' “In the course of his employment” means while engaged in the service of the master, and it is not synonymous with the phrase “during the period covered by his employment.” ’ Levitz v. Jewish Home for Aged, Inc., 156 Conn. 193, 198, 239 A.2d 490 (1968).” Brown v. Housing Authority, supra, 23 Conn. App. 628; see also Mitchell v. Resto, 157 Conn. 258, 262, 253 A.2d 25 (1968) (“it must be the affairs of the principal, and not solely the affairs of the agent, which are being furthered in order for the doctrine to apply”).

       In light of our resolution of this case on the ground that the defendant acted outside the scope of his employment, we need not address the plaintiff’s claim that General Statutes § 4-165 does not protect a state officer who has exhibited “wanton, reckless or malicious” conduct.


source: Caselaw Access Project

author: Berdon, J.

license: Public Domain

text:
    Steven Elliot et al. v. Sears, Roebuck and Company
    (14764)
    Borden, Berdon, Norcott, Katz and Palmer, Js.

      Argued January 13—
    decision released May 31, 1994

      Philip T. Newbury, Jr., for the appellant (defendant).

      John J. Nazzaro, with whom, on the brief, was Robert I. Reardon, Jr., for the appellees (plaintiffs).
   Berdon, J.

In this product liability claim brought pursuant to the Product Liability Act (act); General Statutes § 52-572m et seq.; the dispositive issue is whether the defendant product seller was entitled to a jury instruction on the defense of alteration or modification predicated on misuse under General Statutes § 52-572p, in addition to an instruction on misuse under the common law.

The plaintiff Steven Elliot brought this action for damages as a result of injuries he received in a fall from a ladder sold by the defendant, Sears, Roebuck and Company. The jury, in finding the issue of liability in favor of the plaintiff, also found that the damages sustained by the plaintiff totaled $136,050, and that those damages were to be reduced by 25 percent as a result of the plaintiffs comparative responsibility. The trial court accordingly reduced the plaintiffs award, and rendered judgment for the plaintiff in the amount of $102,037.50. After the trial court denied the defendant’s motion to set aside the verdict, the defendant appealed to the Appellate Court. The Appellate Court affirmed the trial court’s judgment; Elliot v. Sears, Roebuck & Co., 30 Conn. App. 664, 621 A.2d 1371 (1993); and we granted the defendant’s petition for certification. Although we affirm the judgment of the Appellate Court, we base our decision on an analysis of the statutory language not relied upon by that court.

The jury could reasonably have found the following facts. In April, 1987, the plaintiff and his wife, with the assistance of a contractor, were adding a full second floor to their A-frame house in Waterford. As a means of access to the new floor under construction, they borrowed a sixteen foot aluminum extension ladder, constructed with rounded rungs, belonging to the plaintiffs father-in-law. The ladder had been purchased from the defendant in 1985.

The plaintiff set up the ladder in the following manner. The base of the ladder was secured against a board that was nailed into the floor framing. The “fly” of the ladder, the moving part which extends its length, was extended one or two feet and tied to a two-by-four affixed to a partition on the second floor. The plaintiff set up the ladder in this manner so that it would not move or slip during use. The ladder was set at approximately a sixty degree angle, so that it would function as a staircase. At the top of the fly of the ladder, there was a sharp metal edge that was exposed when the ladder was extended. The plaintiff had not noticed this exposed edge prior to his injury.

The plaintiff often descended the ladder with his back to the rungs. A label on the ladder warned users “always [to] face ladder when climbing, working or descending.” The label also contained the warning that users should always maintain a firm grip on the ladder. The plaintiff had not read any of the labels on the ladder prior to his accident.

On April 17, 1987, the plaintiff was visited by a friend. They each climbed the ladder to the second floor so the plaintiff could show him the progress made on the addition. After fifteen to twenty minutes, the telephone, which was located in the kitchen on the first floor, rang. In order to answer the telephone, the plaintiff descended the ladder, with his back to it, and about half way down he lost his balance and slipped. As he fell, he reached out with his left hand to grab something to steady himself. He was wearing his wedding ring on his left hand ring finger. As he attempted to break his fall, the ring snagged on the exposed sharp metal edge at the top of the extension ladder. This caused the plaintiff to suffer a degloving injury to the finger, leaving him with an exposed bone and tendon without any skin or soft tissue. His finger was eventually amputated.

Eric Jordan, an associate professor of mechanical engineering at the University of Connecticut, testified as an expert witness for the plaintiff. Jordan testified that it is generally recognized that metal ladders should include end caps and end closures or equivalent protection against sharp edges and snagging. He testified that although the ladder did include end caps, there was an exposed sharp upper edge of the ladder that was not capped. In his opinion, this presented a significant hazard of snagging, and therefore the end caps included with the ladder did not “fulfill the intended purpose of the end cap with regards to preventing snagging and sharp edge injury.” In Jordan’s opinion, the ladder was unreasonably dangerous due to the defectively designed end caps. Jordan also testified that the top of the ladder could have been fully capped without impairing the function of the ladder and without incurring a significant cost. Finally, he testified that although it is a misuse of the ladder to descend with one’s back to the ladder, it is a common and foreseeable misuse that could reasonably be anticipated by the seller.

In adopting the act, the legislature intended to incorporate in a single cause of action an exclusive remedy for all claims falling within its scope. Winslow v. Lewis- Shepard, Inc., 212 Conn. 462, 471, 562 A.2d 517 (1989). In doing so, “the legislature was merely recasting an existing cause of action and was not creating a wholly new right for claimants harmed by a product. The intent of the legislature was to eliminate the complex pleading provided at common law. . . . 22 S. Proc., Pt. 14, 1979 Sess., pp. 4637-38; 22 H.R. Proc., Pt. 20, 1979 Sess., pp. 7021-22.” Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 292, 627 A.2d 1288 (1993). The act, however, is no model of clarity; an example is its ambiguous treatment of the defense of misuse that has resulted in this appeal.

One point of confusion regarding the act, as demonstrated by the briefs of the parties before us and by members of the bar, is the belief that it was patterned after the Model Uniform Product Liability Act (model act), 44 Fed. Reg. 62714-50 (1979), recommended by the United States Department of Commerce on October 31, 1979. As we have previously stated, however, the act is based on the Draft Uniform Product Liability Law (draft act), published by the Department of Commerce on January 12, 1979, in 44 Fed. Reg. 2996 et seq. for public comment. See Freeman v. Alamo Management Co., 221 Conn. 674, 681 n.7, 607 A.2d 370 (1992); Winslow v. Lewis-Shephard, Inc., supra, 212 Conn. 469. This origin of our act is indicated by the date of its adoption, its language, and its legislative history. There are substantial differences between the model act and the draft act. This is particularly so in regard to § 112 of the model act, upon which the defendant relies, as indicated below in this opinion.

The defendant, in addition to denying liability, raised two special defenses that are relevant to this appeal. In the first special defense, upon which the trial court instructed the jury, it alleged misuse of the product under the common law. The defendant based this claim on its allegations that the plaintiff descended the ladder as though it were a staircase, facing away from the ladder, and failed to read and follow the instructions and warnings concerning the use of the ladder. In the second special defense, predicated upon General Statutes § 52-572p, the defendant alleged that the “ladder was altered or modified by the plaintiffs or a third-party from the condition in which it was sold.” The trial court refused to instruct the jury on the second special defense, but did instruct on the first. The defendant claims that, although the trial court satisfactorily instructed the jury on the common law defense of misuse, it was also entitled to an instruction on the second special defense predicated on statutory alteration/modification by misuse under § 52-572p. Section 52-572p provides in pertinent part: “(a) A product seller shall not be liable for harm that would not have occurred but for the fact that his product was altered or modified by a third party unless: (1) The alteration or modification was in accordance with the instructions or specifications of the product seller; (2) the alteration or modification was made with the consent of the product seller; or (3) the alteration or modification was the result of conduct that reasonably should have been anticipated by the product seller, (b) For the purposes of this section, alteration or modification includes changes in the design, formula, function or use of the product from that originally designed, tested or intended by the product seller.” (Emphasis added.)

The defendant argues that the defense of misuse under the common law and the defense of alteration/modification by “changes in the . . . use of the product” under § 52-572p are separate and distinct defenses. The distinction drawn by the defendant is as follows: common law misuse is the failure to use a product in the manner intended by or reasonably foreseeable to the seller, while alteration/modification by misuse under § 52-572p “changes some essential characteristic of the product so that the user no longer views the product as it was intended by the manufacturer. It makes the user behave differently than he or she would have behaved if the product was not altered.” This is certainly a fine line distinction and would appear, in this case, to be a distinction without a difference.

We agree with the defendant that misuse under the common law “occurs when a product is not used ‘in a manner which should have been foreseen by the defendant.’ ” Norrie v. Heil Co., 203 Conn. 594, 600, 525 A.2d 1332 (1987), quoting Hoelter v. Mohawk Service, Inc., 170 Conn. 495, 517, 365 A.2d 1064 (1976). We also determine in this opinion that the common law defense of misuse by a plaintiff may be asserted in a claim brought under the act. We disagree, however, with the claim that the § 52-572p alteration/modification by misuse defense has any application to conduct by a plaintiff.

In reaching our conclusion, we begin with the plain language of the act. “This court has consistently stated that [i]f the language of the statute is clear and unambiguous, it is assumed that the words themselves express the intention of the legislature and there is no room for judicial construction.” (Internal quotation marks omitted.) Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 395, 618 A.2d 1340 (1993). By its own terms, § 52-572p limits its application to alterations and modifications made by a “third party.” The term “third party” is not defined in the act. “Where a statute . . . does not define a term, it is appropriate to focus upon its common understanding as expressed in the law and upon its dictionary meaning.” (Internal quotation marks omitted.) AirKaman, Inc. v. Groppo, 221 Conn. 751, 756-57, 607 A.2d 410 (1992). The dictionary definition of “third party” is “[o]ne not a party . . . to . . . an action”; Black’s Law Dictionary (6th Ed. 1990); and therefore does not include a plaintiff.

This conclusion is further reinforced by analyzing § 52-572p within the context of the act as a whole. The act provides the following definition of “claimant”: “[A] person asserting a product liability claim for damages incurred by the claimant or one for whom the claimant is acting in a representative capacity.” General Statutes § 52-572m (c). Accordingly, the plaintiff in this case is clearly a “claimant.” If the legislature had intended to include a plaintiff’s conduct under § 52-572p, it would have made the provision expressly applicable to “claimants” as it did with other provisions in the act. See, e.g., General Statutes §§ 52-572o (a) and 52-572q (a) and (b); see also New Haven v. United Illuminating Co., 168 Conn. 478, 485, 362 A.2d 785 (1975) (in determining the meaning of a word or designation, it is appropriate to look to related statutory provisions). Therefore, the legislature appears to have unambiguously crafted an alteration/modification defense that is not applicable to the conduct of a claimant.

Even if it can be argued that “third party” as set out in § 52-572p is ambiguous, we determine that the “claimant” is not within its scope for several reasons. First, because our Product Liability Act is modeled on the draft act, we look for guidance to commentaries on the draft act. Maloney v. Pac, 183 Conn. 313, 326-27, 439 A.2d 349 (1981). More specifically, we consult the commentary to § 110 of the draft act because § 52-572p adopted the language of that provision nearly verbatim. The commentary states that § 110 of the draft act “deals with the situation where a third party—one other than the product seller or the claimant—has altered or modified the product and this has led to [the] claimant’s harm.” (Emphasis added.) 44 Fed. Reg. 3010 (1979).

Second, our conclusion that the § 52-572p alteration/modification defense does not apply to the conduct of a claimant is further reinforced by its plain language that, with certain exceptions, provides for a complete bar to recovery when the product has been altered or modified. That statute provides that the product seller “shall not be liable for harm that would not have occurred but for the fact that his product was altered or modified by a third party . . . .” (Emphasis added.) Of course, the defendant’s argument that the absolute bar of § 52-572p is applicable to the conduct of a claimant is inconsistent with § 52-572o, which provides that the claimant’s right to recover is based on pure comparative responsibility. In other words, a partial recovery is allowed even if the claimant’s injury is attributable mostly to his or her conduct. “A statute should be read as a whole and interpreted so as to give effect to all of its provisions.” Pintavalle v. Volkanos, 216 Conn. 412, 418, 581 A.2d 1050 (1990). The purpose of this rule is to avoid construing the statutes in such a way as to create a conflict between statutes; “[sjuch . . . reconciliation is especially important in dealing with provisions that are enacted as part of the same legislation.” Malerba v. Cessna Aircraft Co., 210 Conn. 189, 195, 554 A.2d 287 (1989).

Third, construing § 52-572p to apply only to the conduct of persons or entities other than the claimant whose modifications or alterations of the product cause the claimant’s injury is consistent with our common law. Prior to the enactment of the act, we adopted a cause of action in strict tort liability based on the Restatement (Second) of Torts § 402 A. Rossignol v. Danbury School of Aeronautics, Inc., 154 Conn. 549, 559-60, 227 A.2d 418 (1967). Section 402 A shields defendants from liability for products altered or modified by providing that the product seller can be liable only when the seller’s product “was expected to and did reach the user or consumer without substantial change in the condition in which it was sold. ” (Emphasis added.) Prokolkin v. General Motors Corp., 170 Conn. 289, 299, 365 A.2d 1180 (1976); Rossignol v. Danbury School of Aeronautics, Inc., supra, 559. In other words, the defendant would be absolved of liability under § 402 A if the plaintiffs injury was the result of an alteration or modification to the product made by a third party. See 2 Restatement (Second), Torts § 402 A, comment (g) (1965). “In determining whether or not a statute abrogates or modifies a common-law rule the construction must be strict, and the operation of a statute in derogation of the common law is to be limited to matters clearly brought within its scope.” Willoughby v. New Haven, 123 Conn. 446, 454, 197 A. 85 (1937).

Our conclusion leaves the defense of misuse on the part of the claimant without an express statutory basis in the act. Although § 52-572o, the comparative responsibility provision, is based on and mirrors the first part of § 111 of the draft act, the second part of § 111 extends beyond § 52-572o by expressly delineating the specific types of conduct that are chargeable to the claimant, including misuse. The legislative history of our act is silent as to the reason why this part of § 111 was not adopted.

Nevertheless, it is apparent that the legislature did not intend to eliminate consideration of the claimant’s conduct in determining liability or the amount of damages. Otherwise, there would be no purpose for adopting the principle of comparative responsibility under § 52-572o. “In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result.” (Internal quotation marks omitted.) State v. Hinton, 227 Conn. 301, 320, 630 A.2d 593 (1993).

Furthermore, under our common and statutory law, misuse by the claimant is a defense to a product liability action. General Statutes § 52-572l; Norrie v. Heil Co., supra, 203 Conn. 594. We will not interpret a statute to have the effect of altering prior statutory or common law unless the language of the statute clearly expresses an intent to have such an effect. Lynn v. Haybuster Mfg., Inc., supra, 226 Conn. 290. No language of the act expresses such an intent. To the contrary, § 52-572o (a) contains broad language requiring the trier of fact to consider “the comparative responsibility of, or attributed to, the claimant, [which] shall not bar recovery but shall diminish the award of compensatory damages proportionately, according to the measure of responsibility attributed to the claimant.” It is reasonable to construe this broad language to incorporate the defense of misuse of a product by a claimant. Accordingly, we conclude that the legislature did not intend to abrogate this common law defense, but rather the act incorporates misuse as part of the consideration of pure comparative fault.

With this statutory construction in mind, we now turn to the trial court’s instructions on misuse. With regard to the first certified question, although our conclusion is based on reasoning not relied upon by the Appellate Court, we agree with that court that the defendant was not entitled to a jury instruction on the defense of alteration/modification by misuse under § 52-572p. The trial judge did instruct on misuse under the common law and the defendant does not raise any claim of error in this respect.

In regard to the second certified question, we conclude, and the defendant conceded at oral argument, that comparative responsibility under § 52-572o is applicable to the common law misuse defense. The defendant’s claim that comparative responsibility is not applicable to misuse has reference solely to § 52-572p.

The judgment is affirmed.

In this opinion the other justices concurred.

       The plaintiff Robin Elliot, the wife of the named plaintiff, joined this action claiming damages for loss of consortium. See Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 627 A.2d 1288 (1993). The jury found that her damages totaled $10,000, and that those damages should be reduced by 25 percent as a result of her husband’s comparative responsibility. The trial court accordingly rendered judgment in her favor in the amount of $7500. Because, for the purpose of the issues involved in this appeal, the merits of her case are dependent upon her husband’s case, we make reference only to the plaintiff Steven Elliot in this appeal.

       The defendant also filed other postverdict motions, none of which are relevant to this appeal.

       We certified for review the following questions: “1. Where the defense of alteration/modification of a product is asserted as a defense to a product liability claim, and there is evidence to support that defense, is the defendant entitled to a jury instruction on that defense separate and apart from any instruction on the issue of misuse of the product?
      “2. Where it is claimed that misuse of a product is the proximate cause of an injury, and there is evidence to support that defense, is the defendant entitled to an instruction that if the jury so finds, the plaintiff is barred from recovery?” Elliot v. Sears, Roebuck & Co., 225 Conn. 925, 625 A.2d 826 (1993).

       The parties agreed that the plaintiff probably would not have fallen had he been facing the ladder as he descended it.

       See, e.g., R. Yules, “An Analysis of Connecticut’s New Product Liability Law,” 56 Conn. B.J. 269, 269 and n.1 (1982).

       “The [product liability] act . . . was effective on October 1,1979. The House of Representatives approved the final version of the act on May 11, 1979, and the Senate approved the act on May 29, 1979. 22 H.R. Proc., Pt. 21,1979 Sess., p. 4306; 22 S. Proc., Pt. 14,1979 Sess., p. 4650.” Lynn v. Haybuster Mfg., Inc., supra, 226 Conn. 291. The model act was published for the first time in the Federal Register on October 31, 1979. Department of Commerce, Office of the Secretary, 44 Fed. Reg. 62714-50 (1979).

       See Public Acts 1979, No. 79-483, as amended by Public Acts 1979, No. 79-631, § 106.

       See 22 H.R. Proc., Pt. 20,1979 Sess., p. 7021, remarks of Representative John A. Berman (“the bill is based upon a Department of Commerce draft in the area of product liability”); 22 S. Proc., Pt. 14, 1979 Sess., p. 4636, remarks of Senator Salvatore C. DePiano; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 1979 Sess., p. 568, remarks of John Anderson, member of the governor’s product liability task force.

       In an articulation, the trial court gave its reasons for not instructing the jury under the special defense of alteration or modification as follows. “The court refused to charge as requested by the defendant on the issue of alteration or modification of the product because, in descending the ladder with his back to the ladder, [the] plaintiff ... did not alter or modify the ladder as contemplated by General Statutes § 52-572p. Subsection (b) of [§] 52-572p defines alteration or modification to include ‘changes in the design, formula, function or use of the product from that originally designed, tested or intended by the product seller.’ The ladder was used by the plaintiff to ascend to, and descend from, one location to another location, which was the function or use intended by the product seller for the ladder.”

       “The definition of claimant is based on the definition in the draft uniform product liability law.” 22 S. Proc., Pt. 14,1979 Sess., p. 4636, remarks of Senator Salvatore C. DePiano.

       The legislature’s first attempt to enact a comprehensive product liability act; Public Acts 1978, No. 78-380; was vetoed by Governor Ella Grasso. Conn. Senate Journal, Pt. 2, Veto Message (June 7,1978). Substantial differences between the product liability act and its vetoed predecessor provide additional evidence that the legislature’s omission of “claimant” from General Statutes § 52-572p was intentional. The vetoed bill contained the following open-ended language: “In any products liability action, the manufacturer shall not be liable for any injury, death or property damage caused by a product which has been substantially altered or modified. ” (Emphasis added.) Public Acts 1978, No. 78-380, § 4. It would appear that this broad language would apply to the conduct of a claimant as well as the conduct of third parties. In her veto message, Governor Grasso stated that one of the fatal flaws of the 1978 bill was an overly broad product alteration or modification defense. Conn. Senate Journal, Pt. 2, Veto Message (June 7, 1978). The 1979 bill; Public Acts 1979, No. 79-483, § 5; enacted as our Product Liability Act, is limited expressly to conduct of third parties. John Anderson, who served on the governor’s product liability task force, testified before the judiciary committee in support of the 1979 bill: “Last year . . . [the product modification section was] basically framed in terms of [an] absolute [defense]. This year, our approach is quite different and it’s modeled very much after the United States Commerce Department document. With respect to modification, it’s a very qualified and conditioned defense.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 1979 Sess., p. 569.

       Section 110 of the draft act provides: “(a) A product seller shall not be liable for harm that would not have occurred but for the fact that his product was altered or modified by a third party unless: (1) The alteration or modification was in accordance with the product seller’s instructions or specifications; (2) The alteration or modification was made with the express consent of the product seller; or (3) The alteration or modification was the result of conduct that reasonably should have been anticipated by the product seller, (b) For the purposes of this section, alteration or modification includes changes in the design, formula, function or use of the product from that originally designed, tested or intended by the product seller. It includes failure to observe routine care and maintenance, but does not include ordinary wear and tear. ” (Emphasis added.) 44 Fed. Reg. 3000. Except for the omission of the emphasized language, General Statutes § 52-572p is identical to § 110.

       Section 112 of the model act, on which the defendant claims that General Statutes § 52-572p was based, contains language substantially different than that of § 110 of the draft act. Section 112 provides in relevant part: “(D) Alteration or Modification of a Product. (1) ‘Alteration or modification’ occurs when a person or entity other than the product seller changes the design, construction, or formula of the product, or changes or removes warnings or instructions that accompanied or were displayed on the product. ... (2) When the product seller proves, by a preponderance of the evidence, that an alteration or modification of the product by the claimant, or by a party other than the claimant or the product seller, has caused the claimant’s harm, the claimant’s damages shall be subject to reduction or apportionment to the extent that the alteration or modification was a cause of the harm. Under this Subsection, the trier of fact may determine that the harm arose solely because of the product alteration or modification.” (Emphasis added.) 44 Fed. Reg. 62737. The emphasized language demonstrates a clear intent to reach the conduct of a claimant, and to apply the principle of comparative fault to the conduct of a claimant. Therefore, § 112 of the model act bears little resemblance to § 52-572p.

       The commentary to the draft act explains the considerations underlying the rule of § 110 that the product seller is not liable when a third party’s alterations or modifications of the product cause the plaintiffs injury. To impose liability in such cases would “border on absolute liability” and would “fail to place the incentive for risk prevention on the party or parties who have engaged in the wrongful conduct.” 44 Fed. Reg. 3010 (1979).

       General Statutes § 52-572o provides: “(a) In any claim under sections 52-240a, 52-240b, 52-572m to 52-572r, inclusive, or 52-577a, the comparative responsibility of, or attributed to, the claimant, shall not bar recovery but shall dimmish the award of compensatory damages proportionately, according to the measure of responsibility attributed to the claimant.
      “(b) In any claim involving comparative responsibility, the court may instruct the jury to give answers to special interrogatories, or if there is no jury, the court may make its own findings, indicating (1) the amount of damages each claimant would receive if comparative responsibility were disregarded, and (2) the percentage of responsibility allocated to each party, including the claimant, as compared with the combined responsibility of all parties to the action. For this purpose, the court may decide that it is appropriate to treat two or more persons as a single party.
      “(c) In determining the percentage of responsibility, the trier of fact shall consider, on a comparative basis, both the nature and quality of the conduct of the party.
      “(d) The court shall determine the award for each claimant according to these findings and shall enter judgment against parties liable on the basis of the common law joint and several liability of joint tortfeasors. The judgment shall also specify the proportionate amount of damages allocated against each party liable, according to the percentage of responsibility established for such party.
      “(e) If a judgment has been rendered, any action for contribution must be brought within one year after the judgment becomes final. If no judgment has been rendered, the person bringing the action for contribution either must have (1) discharged by payment the common liability within the period of the statute of limitations applicable to the right of action of the claimant against him and commenced the action for contribution within one year after payment, or (2) agreed while action was pending to discharge the common liability and, within one year after the agreement, have paid the liability and brought an action for contribution.”

       Representative John A. Berman, in the debate in the House of Representatives regarding the act, pointed out that under pure comparative responsibility, “if an individual is 10 percent at fault, then he would recover 90 percent, and ... if he were 60 percent at fault, he would recover 40 percent. If he were 100 percent at fault, of course, he would recover nothing under this proposal.” 22 H.R. Proc., Pt. 20, 1979 Sess., p. 7021.

       Section 111 of the draft act provides the following: “(a) General Rule. In any claim under this Act, the comparative responsibility of, or attributed to, the claimant, shall not bar recovery but shall diminish the award of compensatory damages proportionately, according to the measure of responsibility attributed to the claimant.
      “(b) Apportionment of Damages. In any claim involving comparative responsibility, the court, unless otherwise requested by all parties, shall instruct the jury to give answers to special interrogatories, or the court shall make its own findings if there is no jury, indicating—
      “(1) The amount of damages each claimant would have received if comparative responsibility were disregarded, and “(2) The percentage of responsibility allocated to each party, including the claimant, as compared with the combined responsibility of all parties to the action. For this purpose, the court may decide that it is appropriate to treat two or more persons as a single party.
      “(3) In determining the percentage of responsibility, the trier of fact shall consider, on a comparative basis, both the nature and quality of the conduct of the party.
      “(4) The court shall determine the award for each claimant according to these findings and shall enter judgment against parties liable on the basis of the common law joint and several liability of joint tortfeasors. The judgment shall also specify the proportionate amount of damages allocated against each party liable, according to the percentage of responsibility established for that party.
      “(5) Upon a motion made not later than one year after judgment is entered, the court shall determine whether all or part of a party’s share of the obligation is uncollectible from that party, and shall reallocate any uncollectible amount among the other parties, including a claimant at fault, according to their respective percentages of fault. A party whose liability is reallocated is still to be subject to contribution and to any continuing liability to the claimant on the judgment.
      “(c) Conduct Affecting Claimant’s Responsibility.
      “(1) Failure to Discover a Defective Condition.
      “(i) A claimant is not required to have inspected the product for defective condition. Failure to have done so does not render the claimant responsible for the harm caused.
      “(ii) Where a claimant using a product is injured by a defective condition that would have been apparent to an ordinary prudent person, the claimant’s damages are subject to reduction according to the principles of subsections (a) and (b).
      “(2) Using a Product With a Known Defective Condition.
      “(i) A claimant who knew about a product’s defective condition, but who voluntarily and unreasonably used the product, shall be held solely responsible for injuries caused by that defective condition.
      “(ii) In circumstances where a claimant knew about a product’s defective condition and voluntarily used the product, but where the reasonableness of doing so was uncertain, claimant’s damages shall be subject to reduction according to the principles of subsections (a) and (b).
      “(3) Misuse of a Product.
      ‘ ‘(i) Where a claimant has misused a product by using it in a manner that the product seller could not have reasonably anticipated, the claimant’s damages shall be reduced according to the principles of subsections (a) and (b).
      “(ii) Where the injury would not have occurred but for the misuse defined in subsection (3) (i), the product is not defective for purposes of liability under this Act.”

       General Statutes § 52-5721 provides: “In causes of action based on strict tort liability, contributory negligence or comparative negligence shall not be a bar to recovery. The provisions of this section shall apply to all actions pending on or brought after June 7,1977, claiming strict tort liability notwithstanding the date on which the cause of action accrued. Nothing in this section shall be construed as barring the defense of misuse of the product or the defense of knowingly using the product in a defective condition in an action based on strict tort liability.”


author: Norcott, J.

text:
    State of Connecticut v. John Yurch
    (14831)
    Peters, C. J., Borden, Berdon, Norcott and Katz, Js.
    Argued February 18—
    decision released May 31, 1994

      Stephen R. Park, special assistant state’s attorney, with whom, on the brief, were John M. Bailey, chief state’s attorney, and Richard Blumenthal, attorney general, for the appellant (state).

      Louis S. Avitabile, with whom, on the brief, was Meryl Anne Spat, for the appellee (defendant).
   Norcott, J.

The issues raised in this certified appeal are (1) whether our decision in State v. Tatem, 194 Conn. 594, 483 A.2d 1087 (1984), requires automatic reversal and a new trial when a trial court uses the word “unreasonable” in place of “unfavorable” in a jury instruction issued pursuant to General Statutes § 54-84 (b), and (2) if not, whether the use of the word “unreasonable” in the present case was harmless beyond a reasonable doubt in the context of the jury charge as a whole.

After a jury trial, the defendant, John Yurch, was convicted of one count of offering to make home improvements without a current certificate of registration and three counts of making home improvements without that certificate of registration in violation of General Statutes § 20-427 (b) (5). At trial, the state presented evidence from which the jury could reasonably have found the following facts. On June 11,1990, the defendant entered into a written agreement with Salvatore and Janice Arena to build a three room addition to their Monroe residence in return for $28,000. On July 31, 1990, the defendant entered into a written agreement with Thomas Story. That agreement provided that the defendant would make home improvements to Story’s Woodbury residence in return for $4350. During the period between December, 1990, and July, 1991, the defendant reshingled the roof, boxed in the chimney and installed soffit vents on Story’s house. On October 5,1990, the defendant entered into a written agreement with Vivian Chabot to remodel the kitchen in her Woodbury residence for the price of $10,500. The defendant performed a portion of the work between January and June, 1991, but did not completely remodel the kitchen. On October 10, 1990, the defendant entered into a written agreement with Fred Thorpe and his wife to build two closets, an office and a bathroom with a whirlpool bath at the Thorpes’ Wood-bury residence for a price of $27,400. The defendant made those home improvements between November, 1990, and August, 1991.

The state also offered the testimony of Olivia Martinchek, a consumer information representative in the complaint center of the frauds division of the Connecticut department of consumer protection. Martincheck testified that she was the supervisor of the home improvement unit of the frauds division from July, 1985, through December, 1991, and that she was familiar with the procedures by which home improvement contractors were issued certificates of registration. She further testified that she was familiar with the records regarding the defendant’s registration as a home improvement contractor in the state of Connecticut. Martinchek testified that the defendant had been registered first on May 20, 1982, with yearly renewals through May 1, 1987, and again on April 1, 1989, through May 1, 1990, but that he had not held a valid certificate of registration at any time thereafter.

After the state had rested its case, the defendant neither presented evidence nor testified. Without presenting a theory of defense to the jury, he elected to rely on the prospect that the state had not carried its burden of proving beyond a reasonable doubt the elements of a violation of § 20-427 (b).

The jury returned a verdict of guilty of all counts. The trial court rendered a judgment of conviction and sentenced the defendant to a term of four years incarceration, suspended after two years, and two years probation with special conditions including payment of $55,419.79 in restitution to the homeowners.

The defendant appealed from the judgment of conviction to the Appellate Court. He claimed that the instruction given by the trial court pursuant to § 54-84 (b) was improper because it allowed the jury to draw any inference, favorable or unfavorable, from the fact that the defendant did not tesify. Relying on State v. Totem, supra, 194 Conn. 594, the Appellate Court concluded, in a per curiam opinion, “that the [trial court’s] use of ‘unreasonable’ instead of ‘unfavorable’ changes the substantive meaning of the statute and is therefore plain error,” which error entitled the defendant to a new trial. State v. Yurch, 31 Conn. App. 688, 690, 626 A.2d 1320 (1993). We granted the state’s petition for certification. State v. Yurch, 227 Conn. 910, 632 A.2d 699 (1993). We now reverse the judgment of the Appellate Court.

The state claims that the Appellate Court improperly interpreted State v. Tatem, supra, 194 Conn. 594, as mandating automatic reversal when the word “unreasonable” is used in place of “unfavorable” in a § 54-84 (b) jury instruction. The state argues instead that State v. Tatem, supra, and its progeny establish that such an improper jury instruction constitutes plain error that may be “ 'harmless if, when viewed in the context of the jury charge as a whole, there is no reasonable possibility that the jury was misled. . . .’” Id., 599. We agree with the state.

As a preliminary matter, “we note that we have repeatedly held that a claim of trial court noncompliance with § 54-84 (b) is reviewable on appeal even though a defendant, as in this case, did not at trial except to the charge as given.” State v. Townsend, 206 Conn. 621, 625, 539 A.2d 114 (1988); see Practice Book § 4185. As we have previously explained, “noncompliance with § 54-84 (b) is plain error because the statute serves to effectuate the fundamental right of a defendant not to testify in his criminal trial.” State v. Sinclair, 197 Conn. 574, 582, 500 A.2d 539 (1985); see State v. Tatem, supra, 194 Conn. 595. The defendant’s claim therefore was properly before the Appellate Court.

Whenever a defendant does not testify at trial, § 54-84 (b) requires that, “[u]nless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify. . . .” State v. Cobb, 199 Conn. 322, 324, 507 A.2d 457 (1986) (“it was error for the trial court not to give the charge in the statutory language”). In the present case, the trial court improperly departed from the statutory language. Instead, the trial court instructed the jury as follows: “The law does not compel a defendant to take the witness stand and testify, and no unreasonable inference may be raised, and no presumption of guilt may be drawn from the fact that a defendant decides not to testify.” (Emphasis added.) The state does not challenge the conclusion of the Appellate Court that the charge did not comply with the requirements of the statute, but argues instead that in light of the entire jury charge the trial court’s deviation was harmless.

In State v. Tatem, supra, 194 Conn. 599-600, we declined to give talismanic effect to the use of the word “unreasonable” in a § 54-84 (b) jury charge. Employing a harmless error analysis, we held that “ ‘[a]n erroneous instruction, even of constitutional dimension, is harmless if, viewed in the context of the charge as a whole, there is no reasonable possibility that the jury were misled. State v. Hines, 187 Conn. 199, 209, 445 A.2d 314 (1982).’ State v. Carrione, [188 Conn. 681, 685, 453 A.2d 1137 (1982), cert. denied, 460 U.S. 1084, 03 S. Ct. 1775, 76 L. Ed. 2d 347 (1983)]. . . . ‘[W]hether a charge is possibly misleading depends on the substance rather than the form of what is said.’ State v. Kurvin, 186 Conn. 555, 565, 442 A.2d 1327 (1982).” State v. Tatem, supra. Furthermore, when a statutory violation implicates the defendant’s constitutional right against self-incrimination; see footnote 5; it is the state’s burden to prove harmlessness beyond a reasonable doubt. State v. Sinclair, supra, 197 Conn. 584.

Because the Appellate Court failed to undertake a harmless error analysis in the present case, we now address the state’s claim that the erroneous instruction was, in the context of the jury charge as a whole, harmless beyond a reasonable doubt. After applying the above principles to the jury charge as a whole, we conclude that the trial court’s failure to follow the literal wording of § 54-84 (b) was harmless.

The defendant argues, on the basis of State v. Tatem, supra, 194 Conn. 594, that the trial court’s improper instruction allowed the jury to draw any inference whatsoever from the defendant’s failure to testify, resulting in prejudicial error. The state argues to the contrary that the trial court’s misstatement was rendered harmless by the language that immediately followed in the jury charge. Referring to the defendant’s failure to testify, the trial court stated immediately after the erroneous language: “You must not permit such a fact to weigh in the slightest degree against the defendant. Nor should it enter your discussions or deliberations. A defendant is not required to establish his innocence. He need not produce any evidence whatsoever if he does not choose to do so. As I have told you already, the burden is on the state to prove a defendant guilty beyond a reasonable doubt. If it fails, a defendant has the right to rely on that failure, and must be of right acquitted.” The defendant concedes that this language standing alone was in substance a proper statement of the principles underlying § 54-84 (b). Nonetheless, he argues that once the erroneous language was uttered by the court, the deviation could be cured only by a specific repudiation. We disagree.

On the basis of the foregoing language, we are persuaded that it was not reasonably possible that the jury would have understood the court to be permitting any inferences whatsoever to be drawn. The language following the improper charge served to alert the jury to the fact that it was to draw no inference whatsoever from the defendant’s failure to testify. It is axiomatic that “[a]n instruction prohibiting any inference would also preclude an unfavorable inference.” State v. Marra, 195 Conn. 421, 443, 489 A.2d 350 (1985). As a result, despite the trial court’s deviation from the statutory language, “the substantive meaning of the statutory requirement was conveyed.” Id. We conclude therefore that although the trial court improperly instructed the jury that it could not draw unreasonable inferences from the fact that the defendant did not testify, that misstatement was rendered harmless by the language that immediately followed, completely prohibiting the use of that fact.

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

In this opinion the other justices concurred.

       General Statutes § 54-84 provides: “testimony or silence of ACCUSED, (a) Any person on trial for crime shall be a competent witness, and at Ms or her option may testify or refuse to testify upon such trial. The neglect or refusal of an accused party to testify shall not be commented upon by the court or prosecuting official, except as provided in subsection (b) of this section.
      “(b) Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify. In cases tried to the court, no unfavorable inferences shall be drawn by the court from the accused’s silence.”

       General Statutes § 20-427 (b) provides: “No person shall: (1) Present or attempt to present, as his own, the certificate of another, (2) knowingly give false evidence of a material nature to the commissioner for the purpose of procuring a certificate, (3) represent himself falsely as, or impersonate, a registered home improvement contractor or salesman, (4) use or attempt to use a certificate which has expired or which has been suspended or revoked, (5) offer to make or make any home improvement without having a current certificate of registration under this chapter, (6) represent in any manner that his registration constitutes an endorsement of the quality of his workmanship or of his competency by the commissioner, (7) employ or allow any person to act as a salesman on his behalf unless such person is registered as ahorne improvement salesman, or (8) fail to refund the amount paid for a home improvement within ten days of a written request mailed or delivered to the contractor’s last known address, if no substantial portion of the contracted work has been performed at the time of the request and more than thirty days has elapsed since the starting date specified in the written contract. In addition to any other remedy provided for in this chapter, any person who violates any provision of this subsection shall be fined not more than five hundred dollars or imprisoned for not more than one year or be both fined and imprisoned. Notwithstanding subsection (d) of section 53a-29, if the court determines that a contractor cannot fully repay his victims within the period of probation established in that subsection, the court may impose probation for a period of not more than five years. A violation of any of the provisions of this chapter shall be deemed an unfair or deceptive trade practice under subsection (a) of section 42-110b.”

       The relevant portion of the trial court’s jury charge reads as follows: “The law does not compel a defendant to take the witness stand and testify, and no presumption of guilt may be raised, and no unreasonable inference may be drawn from the fact that a defendant decides not to testify. You must not permit such a fact to weigh in the slightest degree against the defendant. Nor should it enter your discussions or deliberations. A defendant is not required to establish his innocence. He need not produce any evidence whatsoever if he does not choose to do so. As I have told you already, the burden is on the state to prove a defendant guilty beyond a reasonable doubt. If it fails, a defendant has the right to rely on that failure, and must be of right acquitted.”

       We granted certification limited to the following issues:
      “1. Did the Appellate Court properly reverse the judgment of the trial court by holding that this court’s decision in State v. Tatem, 194 Conn. 594 (1984), establishes that the trial court’s use of the word ‘unreasonable’ in place of ‘unfavorable’ in instructing the jury under General Statutes § 54-84 (b) automatically requires reversal and a new trial?
      “2. If the answer to question 1. is no, was the trial court’s misstatement of the word ‘unreasonable’ in charging the jury under General Statutes § 54-84 (b), when viewed in the context of the jury charge as a whole and the evidence in the case, harmless beyond a reasonable doubt?” State v. Yurch, 227 Conn. 910, 632 A.2d 699 (1993).
      Because we conclude that, in the context of the entire jury charge, the trial court’s improper use of the word “unreasonable” was harmless beyond a reasonable doubt, we do not reach the state’s claim that such an error could be harmless in light of the overwhelming evidence tending to show the defendant’s guilt.

       The defendant’s right not to testify is rooted in the privilege against self-incrimination under both the federal and the state constitutions. “ ‘The fifth amendment to the United States constitution provides that no person “shall be compelled in any criminal case to be a witness against himself.” That provision acts as a restraint upon the individual states as well as the federal government under the fourteenth amendment to the United States constitution. Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1963). Article first, § 8, of the Connecticut constitution affords criminal defendants a similar protection in language at least as broad as its federal counterpart. That section, which sets forth the rights of accused persons in criminal prosecutions, provides that “[n]o person shall be compelled to give evidence against himself . . . ’ State v. Cohane, 193 Conn. 474, 482, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984).” State v. Sinclair, supra, 197 Conn. 583 n.10.

       Our application of a harmless error analysis is consistent with the basic tenets and goals of our adversarial system of criminal justice. “Indeed, the appellate harmless error doctrine is rooted in [a] fundamental purpose of our criminal justice system—to convict the guilty and acquit the innocent. ‘ “The harmless error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, United States v. Nobles, 422 U.S. 225, 230 [95 S. Ct. 2160, 45 L. Ed. 2d 141] (1975), and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.” ’ Rose v. Clark, 478 U.S. 570, 577, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986), quoting Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986).” Bunkley v. Commissioner of Correction, 222 Conn. 444, 460, 610 A.2d 598 (1992).