author: Shea, J.

text:
    Louis J. Faraci v. Connecticut Light and Power Company
    (13539)
    Peteks, C. J., Healey, Shea, Callahan and Covello, Js.

      Argued February 8
    decision released May 9, 1989

      Russell S. Palmer, with whom was Averum J. Spreeher, for the appellant (plaintiff).

      Jonathan F. Reik, for the appellee (defendant).
   Shea, J.

The sole issue in this case is whether General Statutes § 31-308 (d), which excludes workers’ compensation for any scar resulting from spinal surgery, violates the equal protection clauses of the fourteenth amendment to the United States constitution and article first, § 20 of the Connecticut constitution.

The parties have stipulated to the facts relevant to this appeal. On December 27,1984, while employed by the defendant, the plaintiff sustained a compensable injury to his back. Thereafter, the plaintiff underwent spinal surgery for the removal of a herniated intervertebral disc in the lumbar spine. As a result of this surgery, the plaintiff has a nine centimeter vertical scar in the area of the lower lumbar spine.

The plaintiff sought an award under § 31-308 (d) for the scar on his back. Section 31-308 (d) provides that “[i]n addition to compensation for total or partial incapacity . . . the commissioner may award . . . compensation . . . for any permanent significant disfigurement of, or permanent significant scar on, any part of the body . . . but no compensation shall be awarded ... for any scar resulting from an inguinal hernia operation or any spinal surgery.” (Emphasis added.) The compensation commissioner determined that the scar was not compensable, because it was “caused by surgery on his spine.” The compensation review division upheld that decision, but declined to address the plaintiff’s claim that the spinal surgery exclusion in § 31-308 (d) is unconstitutional. This appeal followed.

We note at the outset that the challenge of a statute on constitutional grounds always imposes a difficult burden on the challenger. We have consistently held that every statute is presumed to be constitutional and have required that invalidity be established beyond a reasonable doubt. Eielson v. Parker, 179 Conn. 552, 557, 427 A.2d 814 (1980); Patterson v. Dempsey, 152 Conn. 431, 444, 207 A.2d 739 (1965); Norwalk Street Ry. Co.’s Appeal, 69 Conn. 576, 594, 37 A. 1080 (1897).

The standard by which § 31-308 (d) must be tested, for equal protection purposes, is whether the classifications that it embodies bear a rational relationship to a legitimate state interest. Eielson v. Parker, supra, 563; Lovett v. Atlas Track Leasing, 171 Conn. 577, 585, 370 A.2d 1061 (1976). “[W]hen measured by the rational relationship test, the equal protection guaranty does not take from state legislatures ‘all power of classification. . . . Most laws classify, and many affect certain groups unevenly, even though the law itself treats them no differently from all other members of the class described by the law. When the basic classification is rationally based, uneven effects upon particular groups within a class are ordinarily of no constitutional concern. . . . The calculus of effects, the manner in which a particular law reverberates in a society, is a legislative and not a judicial responsibility. . . . ’ ” (Citations omitted.) Eielson v. Parker, supra, 564-65.

We begin our analysis, therefore, by reviewing the legislative background of the scarring provisions of § 31-308 (d) to discern the state interest that the legislature sought to promote. Before doing so, however, we emphasize that, like the United States Supreme Court, we have “consistently deferred to legislative determinations concerning the desirability of statutory classifications affecting the regulation of economic activity and the distribution of economic benefits.” Idaho Department of Employment v. Smith, 434 U.S. 100, 101, 98 S. Ct. 327, 54 L. Ed. 2d 324 (1977) (per curiam); see Schieffelin & Co. v. Department of Liquor Control, 194 Conn. 165,186,479 A.2d 1191 (1984); Brunswick Corporation v. Liquor Control Commission, 184 Conn. 75, 83-84, 440 A.2d 792 (1981).

In Rivera v. I. S. Spencer’s Sons, Inc., 154 Conn. 162, 223 A.2d 808 (1966), this court had occasion to review the legislative background of the disfigurement provisions of § 31-308 (d). We noted that the pattern of the various amendments to the disfigurement statute “was to increase the portions of the body embraced in the disfigurement provision and that this purpose was accomplished by the enumeration of additional specific portions of the body . . . .” Id., 165-66. Significantly, we noted further that “the broadening of the disfigurement provision, by successive amendments, to include additional enumerated portions of the body has tended to follow the increasing exposure of modern dress.” Id., 166. Public Acts 1967, No. 842 amended § 31-308 and replaced the enumeration of compensable body parts with an all-inclusive coverage of “scarfs] on, any part of the body” but excluded those “resulting from a hernia operation or any spinal surgery.” Thus, the disfigurement coverage of § 31-308 for scars was changed from a system of enumerated inclusions to one of enumerated exclusions. In 1975, Public Acts 1975, No. 75-48 changed the “hernia operation” exclusion to ‘an inguinal hernia operation” exclusion to make the disfigurement provision consistent with the “[previous practice” of allowing compensation for “visible scars.” 18 H.R. Proc., Pt. 3, 1975 Sess., p. 1292, remarks of Representative Joseph S. Coatsworth.

Throughout the evolution of the disfigurement statute, an important consideration for the legislature has been whether a scar is “more likely to be exposed to view.” Rivera v. I. S. Spencer’s Sons, Inc., supra, 166. It appears, therefore, that the state interest the legislature sought to promote has been compensating workers for scars that are ordinarily visible.

The plaintiff challenges the reasonableness of the classifications of § 31-308 (d) in two related respects. He first claims that our holding in Rivera v. I. S. Spen cer’s Sons, Inc., supra, supports the proposition that probability of exposure is an unsound basis for determining which scars are compensable. He argues further that the classifications are irrational because they do not afford benefits to all workers who are similarly situated, thereby including less than would be logical to achieve the intended government end. We find neither argument persuasive.

In Rivera v. I. S. Spencer’s Sons, Inc., supra, we held that the phrase “legs below the knees,” describing an area of the body for which compensation for scars was allowed by the disfigurement statute, did not include the feet, but that the portion of the scar extending above the plaintiffs foot, though not likely to be exposed, was nonetheless compensable under the then current version of the statute. We did not hold that the legislature could not base a classification on the likelihood that certain scars would ordinarily be exposed to view while others would not. Indeed, we recognized that the probability of exposure is “an important consideration in a determination of the amount of the award, if any is made.” Id., 167.

Accordingly, having determined that the legislature has a legitimate interest in compensating workers for visible scars, and thus could base its classification on whether a scar was likely to be exposed to view, we need decide only whether the spinal surgery exclusion is rationally related to that objective. The classifications set forth in § 31-308 (d) pass this test. It was surely rational for the legislature to conclude that scars resulting from spinal surgery would less likely be exposed to view because such scars are usually located on a person’s trunk, an area ordinarily not exposed to view, which had been excluded from coverage in earlier stages of the evolution of the disfigurement statute.

The plaintiff’s related claim is in terms of underinclusiveness. This aspect of § 31-308, the plaintiff maintains, renders the statute unconstitutional, because it frustrates, rather than promotes, the state’s interest in compensating workers for scars resulting from work-related injuries. Perfect line drawing, however, is a rarity. Thus, “ ‘[i]f the classification has some “reasonable basis,” it does not offend the Constitution simply because the classification “is not made with mathematical nicety or because in practice it results in some inequality.” ’ ” Idaho Department of Employment v. Smith, supra, 101. Further, although certain statutory classifications appear underinclusive when viewed in light of a single legislative objective, the legislature may actually have sought to achieve more than one purpose simultaneously. L. Tribe, American Constitutional Law (2d Ed.) § 16-4, p. 1447. The state has a legitimate interest, for example, in controlling its own costs, as well as those of private employers. See Geduldig v. Aiello, 417 U.S. 484, 495-96, 94 S. Ct. 2485, 41 L. Ed. 2d 256 (1974).

The classification challenged in the present case relates to the asserted underinclusiveness of the set of risks, involving work-related scars, that the state has selected to insure or has required private employers to insure. There is nothing in the constitution, however, that requires the state to subordinate or compromise its legitimate interests solely to create a more comprehensive program than it already has. Id., 496. As the United States Supreme Court has reminded us, a state, consistent with the equal protection clause, “ ‘may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. . . . The legislature may select one phase of one field and apply a remedy there, neglecting the others. . . .’ Particularly with respect to social welfare programs, so long as the line drawn by the State is rationally supportable, the courts will not interpose their judgment as to the appropriate stopping point. ‘[T]he Equal Protection Clause does not require that a State must choose between attacking every aspect of a problem or not attacking the problem at all.’ ” (Citations omitted.) Id., 495.

There is no error.

In this opinion the other justices concurred.

       Section 1 of the fourteenth amendment to the United States constitution provides in part that no state shall ‘ ‘deny to any person within its jurisdiction the equal protection of the laws.”
      Article first, § 20, of the Connecticut constitution provides: “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his civil or political rights because of religion, race, color, ancestry, national origin or sex.” The plaintiff has acknowledged that the equal protection provisions of the state and federal constitutions have the same meaning and the same limitations. See Caldor’s, Ine. v. Bedding Barn, Inc., 177 Conn. 304, 314, 417 A.2d 303 (1979).

       At oral argument, the plaintiff claimed that there must be some indication in the legislative history that the rational basis that might justify a classification was in fact the one upon which the legislature acted. The test, however, is whether this court can conceive of a rational basis for sustaining the legislation; we need not have evidence that the legislature actually acted upon that basis. See United Illuminating Co. v. New Haven, 179 Conn. 627, 642, 427 A.2d 830, appeal dismissed, 449 U.S. 801, 101 S. Ct. 45, 66 L. Ed.2d 5 (1980). To hold otherwise would not only drastically alter the rational basis standard, but would also undermine the presumption of constitutionality, ab initio, for economic legislation.


source: Caselaw Access Project

author: Arthur H. Healey, J.

license: Public Domain

text:
    Helen Hensley v. Commissioner of Transportation
    (13586)
    Peters, C. J., Healey, Callahan, Glass and Hull, Js.
    Argued February 1
    decision released May 9, 1989

      John R. FitzGerald, with whom, on the brief, was Mary E. Holzworth, for the appellant (plaintiff).

      Michael J. Lombardo, assistant attorney general, with whom, on the brief, were Clarine Nardi Riddle, acting attorney general, and Joseph I. Lieberman, former attorney general, for the appellee (defendant).
   Arthur H. Healey, J.

In this appeal, the plaintiff challenges the damages that she was awarded in connection with the defendant’s condemnation of her property for highway reconstruction purposes. This appeal from a trial referee’s reassessment of the commissioner of transportation’s original assessment of damages involves three claims of error: (1) that the trial referee erred in failing to view the condemned property; (2) that the trial referee erred in failing to consider the unique characteristics and special use to which the property had been put; and (3) that the trial referee improperly admitted certain evidence. We find no error.

A review of the record reveals the following. The condemned property is located on River Street in the town of Waterford. The property is located just south of Route 156 and is divided into two parcels by River Street, which runs southerly from, and perpendicular to, Route 156. The smaller of the two parcels is approximately .24 acres in size, with 200 feet of frontage on the Niantic River, and the larger parcel, which is located immediately across River Street from the smaller parcel, is approximately .82 acres. Improvements on the property include a mobile home that the plaintiff occupied, a storage building, formerly a fish market, that is in fair condition, two small sheds that are in poor condition, and a cooler building that is in fair condition. The property is serviced by two septic systems and has two docks on the Niantic River. According to the plaintiff, the larger property has an unpaved area on which seventy-five to one hundred cars can be parked.

In addition to residing at the condemned property, the plaintiff had operated a head boat fishing business from the location. The trial court specifically found that the plaintiffs property “was being used as the site of a party fishing boat operation.” The plaintiff docked her sixty-five foot vessel, the Black Hawk, at the docks jutting from her property and ran two fishing trips daily from mid-April to October 31. Each trip could accommodate up to seventy-six persons and each patron would spend between $15 and $40 per trip, according to the plaintiff. In 1987, the plaintiff had a net income of approximately $55,000 from this business. The trial referee found that the “highest and best use of the property would be the continuation of the present use.”

The date of the taking was September 25, 1987. At that time, the state paid the plaintiff $416,000, the amount of the department of transportation’s assessment of damages.

In her action for reassessment of the damages before the trial referee, pursuant to General Statutes § lSa-76, the plaintiff introduced the testimony of John B. Flint, a real estate appraiser. Flint testified that he estimated the value of the property at $695,000 as of the taking date. He arrived at this figure by using a comparable sales analysis to value the land at $624,000, and by using a cost approach analysis to value the improvements at $71,000.

The state’s appraiser, Edgar Russ, testified that the value of the condemned property as of the taking date was $437,000. Russ valued the improvements at $46,500. Both appraisers agreed that the highest and best use of the property was its continued use as the base of operations for a head boat fishing business.

After hearing the testimony of the experts and testimony from the plaintiff on May 23,1988, the trial referee issued a memorandum of decision on June 13, 1988. In that memorandum, the trial referee stated: “From the evidence, the Court concludes that the fair market value of the premises at the time of taking to be $461,000. The plaintiff has been paid $416,000. Judgment may enter for the plaintiff to recover $35,000, the balance of the award, together with interest from September 25,1987, plus costs and expenses as follows: Appraiser, John B. Flint, $3,500.” In a corrected memorandum of decision, the trial referee stated: “From the evidence, the Court concludes that the fair market value of the premises at the time of taking to be $451,000. The plaintiff has been paid $416,000.” Apparently, this corrected memorandum was to correct the discrepancy between the value of the property and balance due under the original memorandum of decision. The plaintiff appealed the trial referee’s decision to the Appellate Court and we transferred the case to this court pursuant to Practice Book § 4023.

I

The plaintiff’s first claim of error is that the trial referee erred in failing to view the condemned property as required by General Statutes § 13a-76. Additionally, the plaintiff claims that she did not waive that requirement. Although we agree with the plaintiff that the viewing requirement is mandatory, we disagree with her contention that she did not waive the requirement.

The only discussion of the view requirement at trial appears on the first transcribed page of the trial proceedings. After the parties stipulated that the taking date was September 25,1987, the trial referee declared, “I do not intend to view the premises, because I’m familiar with the area. I’ve had a number of—,” to which the plaintiff’s counsel interrupted and said, “Well, Your Honor, this is a rather —it’s a business that’s been taken on the river; and my client would like it viewed.” The trial referee responded by saying, “Well, I’ll hear the evidence. If I decide that it’s necessary, I’ll see it.” Aside from a comment by the trial referee later that he had not seen the property since the time that there was a fish market there, this exchange is the only discussion during the trial relevant to the plaintiff’s first claim of error.

General Statutes § 13a-76 provides that in a reassessment appeal before a trial referee, the referee “shall view the land.” In the absence of contrary legislative intent, we construe the term “shall” as imposing a mandatory requirement. Hughes v. Bemer, 200 Conn. 400, 402-403, 510 A.2d 992 (1986); see Lo Sacco v. Young, 210 Conn. 503, 507, 555 A.2d 986 (1989); cf. Tramontano v. Dilieto, 192 Conn. 426, 433-34, 472 A.2d 768 (1984). The defendant does not offer, nor have we found, any indication of contrary legislative intent that would require us to construe “shall” other than as mandatory in this case. Our determination that the view requirement under General Statutes § 13a-76 is mandatory, however, does not end our inquiry. Although mandatory, the requirement can be waived. Houston v. Highway Commissioner, 152 Conn. 557, 558, 210 A.2d 176 (1965).

In general, federal and state constitutional and statutory rights can be waived. See, e.g., Johnson v. Manson, 196 Conn. 309, 324, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787, reh. denied, 475 U.S. 1061, 106 S. Ct. 1290, 89 L. Ed. 2d 597 (1986); Grecki v. New Britain, 174 Conn. 200, 201-202, 384 A.2d 372 (1978). Waiver is the voluntary, knowing and intelligent relinquishment of a right or privilege. See State v. Wilson, 199 Conn. 417, 443, 513 A.2d 620 (1986). “ ‘Waiver does not have to be express, but “may consist of acts or conduct from which waiver may be implied. Andover v. Hartford Accident & Indemnity Co., 153 Conn. 439, 445, 217 A.2d 60 [1966]. In other words, waiver may be inferred from the circumstances if it is reasonable to do so. DiFrancesco v. Zurich General Accident & Liability Ins. Co., 105 Conn. 162,168,134 A. 789 [1926].” Breen v. Aetna Casualty & Surety Co., [153 Conn. 633, 646, 220 A.2d 254 (1966)] (dissenting opinion).’ Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 562, 316 A.2d 394 (1972).” Loda v. H. K. Sargeant & Associates, Inc., 188 Conn. 69, 76, 448 A.2d 812 (1982). “Waiver is a question of fact for the trier.” Id. The individual conduct of both parties is relevant in determining whether a waiver has occurred. See Snow v. Calise, 174 Conn. 567, 573, 392 A.2d 440 (1978). Because waiver is a factual issue, we must determine whether the trial referee’s implied finding that the view requirement had been waived was “clearly erroneous in view of the evidence.” Practice Book § 4061; Temple v. Meyer, 208 Conn. 404, 407, 544 A.2d 629 (1988); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

In this case, we find that the trial referee’s decision not to view the condemned property was not clearly erroneous. Following the referee’s statement indicating that he did not intend to view the land, the plaintiff’s counsel simply stated that his client would like it viewed. The referee then alternatively suggested that he would hear the evidence and then if he decided that viewing the property was necessary, he would do so. The plaintiff’s counsel did not respond to the trial referee’s statement. Thus, it was reasonable for the trial referee to infer from the plaintiff’s silence that she acquiesced to his approach to viewing the property. Furthermore, the plaintiff did not renew her request to have the property viewed during the trial. She had a prime opportunity to do this when the referee stated that he had not seen the property since the time that there was a fish market on it, but she did not.

Similarly, at the closing of the trial and after both parties had rested, the trial referee said: “I’ll take the papers. You want to argue?” Mr. Fitzgerald, the plaintiff’s counsel, replied: “I have nothing to—I think, Your Honor, the reports pretty much speak for themselves. I think His Honor has seen and heard Mrs. Hensley and Mr. Flint [plaintiff’s appraiser].” While this again presented the plaintiff with the opportunity to persist and bring home to the trial court her present claim on the viewing of the property, nothing was said. The defendant’s counsel made no comment at that time. The plaintiff never took any exception to the trial court’s stated position on a view of the property. It is apparent on this record that the defendant’s counsel acquiesced in the trial court’s position. From this evidence, it was reasonable for the trial referee to find, under all of the circumstances, that the plaintiff had waived the mandatory viewing requirement, and thus his ruling was not erroneous.

II

The plaintiffs second claim is that the trial referee erred in determining the value of the condemned property because he did not take into consideration the unique characteristics of the property and the special use to which the property had been put. We disagree with the factual basis of the plaintiffs claim.

We do not dispute the plaintiffs claim that in assessing the value of property being taken by eminent domain, “the trier must take into consideration everything by which value is legitimately affected.” Wronowski v. Redevelopment Agency, 180 Conn. 579, 586, 430 A.2d 1284 (1980); Tandet v. Urban Redevelopment Commission, 179 Conn. 293, 299, 426 A.2d 280 (1979); Altman v. Hill, 144 Conn. 233, 240, 129 A.2d 358 (1957). This consideration includes “the existence on the plaintiff’s] property of an established special business use combined with the many unusual characteristics of the property as factors which would enhance its fair market value.” Wronowski v. Redevelopment Agency, supra; Feigenbaum v. New Britain Housing Site Development Agency, 164 Conn. 254, 258, 320 A.2d 824 (1973). Our dispute with the plaintiffs claim, however, centers on her factual assertion that the trial referee did not consider her special use of the property. We note in passing that despite this claim, the plaintiff did not seek any articulation concerning it. See Practice Book § 4051.

The validity of this factual claim is again governed by the “clearly erroneous” standard of review. Practice Book § 4061; Temple v. Meyer, supra; Pandolphe’s Auto Parts, Inc. v. Manchester, supra. The plaintiff claims that “despite the uncontradicted testimony and evidence presented to the Court regarding the unique characteristics and special use of the property, the Trial Referee fails to take into account these factors in reaching his determination of value. The Court simply makes the following broad based conclusion: ‘From the evidence the court concludes that the fair market value of the premises at the time of the taking to be $461,000.00.’ ” The plaintiff’s factual assertion, however, is incorrect.

A review of the trial transcript reveals that the trial referee explicitly recognized the special nature of the plaintiff’s business operation on her property. In cross-examining Russ, the state’s appraiser, the plaintiff’s counsel inquired as to whether Russ considered the plaintiff’s use of the property in arriving at his appraisal. The following exchange between the plaintiff’s counsel and the court then occurred: “The Court: Are you claiming the return on the—her income from the property as high?

“Mr. Fitzgerald: I’m claiming it’s a speciality, Your Honor, and the Court has got to —

“The Court: It’s a speciality, but it’s not too high for—considering the fact that she puts in—

“Mr. Fitzgerald: Well, she gets free rent too, Your Honor. That’s worth something.

“The Court: Well, she has the mobile home there.

“Mr. Fitzgerald: Free rent. All her taxes are paid.

“The Court: Out of her own pocket. It’s an individual entity, however.

“Mr. Fitzgerald: Yes, it’s sole proprietorship.

“The Court: So, it doesn’t make any difference how she treats it.

“Mr. Fitzgerald: Well, I don’t-

“The Court: But she’s not making a lot of money there, $55,000 for an investment of 400 according to the last appraisal which Mr. Russ has, $437,000, isn’t exactly a lot of money for the—considering she puts—

“Mr. Fitzgerald: $55,000 at 432 that’s—that’s better than 12 percent, you can’t get that across the street.

“The Court: Well, that’s debatable.

“Mr. Fitzgerald: Well. All right, in any event.” (Emphasis added.)

This discussion indicates that, contrary to the plaintiff’s assertions, the trial referee did indeed take into consideration the unique characteristics and special use of the plaintiff’s property; it appears, however, that he disagreed with the plaintiff’s position on the importance of the special use.

Significantly, in its memorandum of decision, the trial referee also noted that the property “was being used as the site of a party fishing boat operation,” that the “party boat is 65 feet in length and makes two trips a day during the summer,” and that both appraisers “agreed that the highest and best use would be to continue as its present use.” The trial referee himself made the declarative statement in its memorandum that “[t]he highest and best use of the property would be the continuation of the present use.” The referee’s statement in his memorandum of decision, “[f]rom the evidence, the Court concludes ...” incorporates these findings. Because we conclude that the trial referee did consider the plaintiff’s special use, his decision in this regard certainly was not clearly erroneous.

III

The plaintiffs final claim is that the trial referee erred in admitting four pages of the state’s appraisal report. Again, we disagree.

In order for an error in an evidentiary ruling to be a reversible error, the court’s ruling “ ‘must be both wrong and harmful.’ ” Rokus v. Bridgeport, 191 Conn. 62, 70, 463 A.2d 252 (1983), quoting W. Maltbie, Conn. App. Proc. § 23; Saphir v. Neustadt, 177 Conn. 191, 201, 413 A.2d 843 (1979). When there is a claim of inadmissibility based on irrelevancy, the claimant has the burden of showing that the ruling was both wrong and harmful. Saphir v. Neustadt, supra, citing DeCarufel v. Colonial Trust Co., 143 Conn. 18, 21, 118 A.2d 798 (1955); Senderoff v. Senderoff, 133 Conn. 300, 303, 50 A.2d 422 (1946); W. Maltbie, supra.

In the present case, the plaintiff objected to pages nineteen through twenty-two of the state’s appraisal report on the ground that those pages contained data about land sales that were not comparable to the plaintiffs property. The plaintiff claimed that they were contained in the report “simply to get a low figure.” Russ claimed that he put them in the report because one of the sales involved property adjacent to that of the plaintiff and the other involved property 300 feet away from the plaintiff’s land. The trial referee decided to admit them “as informational only,” and he advised the plaintiff’s counsel that he could develop during cross-examination whether Russ used the figures in his appraisal.

In her brief, the plaintiff does not claim that the trial referee considered these informational sales in reassessing damages. Furthermore, at oral argument, the plaintiff conceded that there was no indication that the challenged information was used in the referee’s determination. Therefore, regardless of whether the evidence was properly admitted, there is no claim of harm and thus the plaintiff has failed to carry her burden of proof on this claim.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 13a-76 provides: “appeal to superior court, reassessment OF DAMAGES OR BENEFITS BY TRIAL REFEREE. Any person claiming to be aggrieved by the assessment of such special damages or such special benefits by the commissioner may, at any time within six months after the same has been so filed, apply to the superior court for the judicial district within which such land is situated or, if said court is not in session, to any judge thereof for a reassessment of such damages or such benefits so far as the same affect such applicant, and said court or such judge, after causing notice of the pendency of such application to be given to said commissioner, shall appoint a state trial referee to make such reassessment of such damages or such benefits. Such trial referee, having given at least ten days’ notice to the parties interested of the time and place of hearing, shall hear the applicant and said commissioner, shall view the land and take such testimony as such trial referee deems material and shall thereupon reassess such damages and benefits so far as they affect such applicant. If the amount of the reassessment of such damages awarded to any such property owner exceeds the amount of the assessment of such damages by the commissioner for such land, such trial referee shall award to such property owner such appraisal fees as such trial referee determines to be reasonable. If no appeal to the appellate court is filed within the time allowed by law, or if one is filed and the proceedings have terminated in a final judgment finding the amount due the landowner, the clerk shall send a certified copy of the assessment of the commissioner and of the judgment to the comptroller, who shall, upon receipt thereof, draw his order upon the treasurer in favor of the landowner for the amount due him as damages. The pendency of any such application for reassessment shall not prevent or delay the layout, extension, alteration, widening, change of grade or other improvement of any such highway. As used in this section, a trial referee means a referee appointed pursuant to subdivision (1) or (2) of- subsection (a) of section 52-434 and designated a trial referee pursuant to subsection (b) of said section.”

       Russ also used comparable sales analysis to value the land and cost approach analysis to value the improvements. Although the condemned property is divided into two parcels by River Street, both appraisers valued the property as one unit.

       We note that “ ‘[w]e have consistently held that the visual observations made by the trier on a visit to the property are as much evidence as the evidence presented for his consideration by the witnesses under oath. They are in fact supplemental evidence. . . ."' (Citations omitted.) Birnbaum v. Ives, 163 Conn. 12, 20, 301 A.2d 262 (1972); see also White Oak Excavators, Inc. v. Burns, 172 Conn. 478, 484, 374 A.2d 1097 (1977); Houston v. Highway Commissioner, 152 Conn. 557, 558, 210 A.2d 176 (1965).

       There were no pretrial or posttrial briefs filed by either party in this case “discussing the issues in the case and the factual or legal basis upon which they ought to be resolved.” Practice Book § 285A. This Practice Book rule further provides: “If a party intends to raise any claim of law which may be the subject of an appeal, he must either state the same distinctly to the court before his argument is closed or state it in a written trial brief. If this is not done, it will not be the duty of either the trial court or the appellate court to decide the claim.” This was not done.

       We need not address the plaintiff’s contention first made at oral argument that the view requirement is a constitutionally imposed evidentiary requirement. See Roche v. Fairfield, 186 Conn. 490, 505 n.14, 442 A.2d 911 (1982); see footnote 4, supra.

       “ ‘It is important to recognize that a claim of error cannot be predicated on an assumption that the trial court acted incorrectly.’ Barra v. Ridgefield Card & Gift Gallery, Ltd., 194 Conn. 400, 407, 480 A.2d 552 (1984); Giammattei v. DiCerbo, 135 Conn. 159, 162, 62 A.2d 519 (1948). Rather, we are entitled to assume, unless it appears to the contrary, that the trial court . . . acted properly, including considering the applicable legal principles. See State v. One 1977 Buick Automobile, 196 Conn. 471, 481, 493 A.2d 874 (1985); Barra v. Ridgefield Card & Gift Gallery, Ltd., supra, 407-408.” Rosenblit v. Danaher, 206 Conn. 125,134, 537 A.2d 145 (1988).

         We note that the trier has broad discretion in determining the admissibility of evidence on relevancy grounds. State v. Higgins, 201 Conn. 462, 470, 518 A.2d 631 (1986), citing State v. Briggs, 179 Conn. 328, 333, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912,100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980).


author: Covello, J.

text:
    State of Connecticut v. James Lewis
    (12960)
    Peteks, C. J., Shea, Callahan, Covello and Hull, Js.
    Argued March 8
    decision released May 16, 1989

      Daniel V. Presnick, for the appellant (defendant).

      Steven M. Sellers, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, Gerard F. Esposito, assistant state’s attorney, and Michael E. O’Hare, former assistant state’s attorney, for the appellee (state).
   Covello, J.

The defendant, James Lewis, was charged with three counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), and three counts of risk of injury to, or impairing the morals of, children in violation of General Statutes § 53-21. The state alleged that on divers dates during 1984 and 1985, the defendant sexually abused his three minor children, J, C and G, then ages 7, 5 and 2, respectively. Prior to trial, the state filed a motion to allow the testimony of the three minor victims to be presented on videotape. At a hearing conducted on its motion the state presented the testimony of a clinical psychologist. The trial court concluded that there were compelling reasons to videotape the children’s testimony and granted the state’s motion.

During the jury trial that followed, the state presented the videotaped testimony of J and C, electing not to present the videotaped testimony of G because it concluded that G was not a competent witness. The jury returned a guilty verdict on all six counts. The trial court sentenced the defendant to four years on each of the three sexual assault counts, to run concurrently, and to a term of ten years with execution suspended and placed on probation for five years, on each of the three risk of injury counts, to run concurrent with each other and consecutive to the sexual assault counts. The defendant was thus committed to a total effective sentence of fourteen years with execution suspended after four years and probation for five years. The defendant thereafter appealed his conviction.

After the parties filed their briefs, but before oral argument, this court decided State v. Jarzbek, 204 Conn. 683, 529 A.2d 1245 (1987), cert. denied, U.S. , 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988). The sole issue in Jarzbek was “whether, in a criminal prosecution involving alleged sexual abuse of children, a minor victim may testify through the use of a videotape made outside the physical presence of the defendant.” Id., 684. We held that “in criminal prosecutions involving the alleged sexual abuse of children of tender years, videotaping the testimony of a minor victim outside the physical presence of the defendant is a constitutionally permissible practice if, and only if, the state proves by clear and convincing evidence a compelling need to exclude the defendant from the witness room during the victim’s testimony.” Id., 707. The state must show “that the minor victim would be so intimidated, or otherwise inhibited, by the physical presence of the defendant that the trustworthiness of the victim’s testimony would be seriously called into question.” Id., 704-705. In deciding whether the state has met its burden, the trial court must, on a case-by-case basis, “balance the individual defendant’s right of confrontation against the interest of the state in obtaining reliable testimony from the particular minor victim in question.” Id., 704; see also State v. Zwirn, 210 Conn. 582, 556 A.2d 588 (1989); State v. Spigarolo, 210 Conn. 359, 556 A.2d 112 (1989); State v. Snook, 210 Conn. 244, 555 A.2d 390 (1989); State v. Bonello, 210 Conn. 51, 554 A.2d 277 (1989).

On September 9, 1987, the state filed a motion for articulation in this case with respect to the three issues raised by this court in the Jarzbek decision. The state’s motion propounded the following questions to the trial court: “(1) In ruling on the State’s motion to videotape the testimony of the two minor victims pursuant to General Statutes § 54-86g, did this Court find that the State had demonstrated a ‘compelling need’ for excluding the defendant from the witness room, as now required by State v. Jarzbek, [supra, 704]? (2) If this Court did find a ‘compelling need’ to exclude the defendant from the witness room during the videotaping of the minor victims’ testimony, did the State prove this compelling need by showing that ‘the minor victim[s] would be so intimidated, or otherwise inhibited, by the physical presence of the defendant that the trustworthiness of the victim[s’] testimony would be seriously called into question,’ as now required by State v. Jarzbek, [supra, 705]? (3) If this Court did find a ‘compelling need’ to exclude the defendant from the witness room during the videotaping of the minor victims’ testimony to ensure the trustworthiness of the victims’ testimony, did the State prove this compelling need by ‘clear and convincing evidence’ as now required by State v. Jarzbek, [supra]?”

The trial court responded to these questions in an articulation dated September 16,1987, as follows: “(1) Yes; (2) Yes; (3) Yes as to the minor child [J] only.” Thus, the trial court found that the state had met its burden of proof with respect to the videotaped testimony of J, but had not met this burden with respect to C. On October 2, 1987, we remanded this case and directed the trial court to afford the parties an opportunity to supplement the record at an evidentiary hearing addressing the criteria set forth in Jarzbek. In response to this order a further hearing was held on November 5,1988. At that time the state informed the trial court that neither the state nor the defendant could locate the complainant mother and the three children. In its memorandum of decision, the trial court noted the state’s inability further to supplement the record and determined that it had complied with the order of remand.

On appeal the defendant argues that the trial court erred in admitting the videotaped testimony of C, and therefore this court should order a new trial with respect to the two counts relating to C. He further claims that the improperly admitted videotaped testimony so tainted the proceedings that the convictions on the counts relating to J and G must also be overturned and a new trial should be ordered on all counts. We agree.

The state does not dispute the trial court’s finding that, as to C, it had failed to satisfy the “clear and convincing evidence” standard set forth in Jarzbek. The state argues, however, that the admission of the videotaped testimony of C, although violative of the defendant’s right to confrontation, constituted harmless error with respect to the remaining four counts and therefore the conviction on those four counts should stand. The question before us, therefore, is whether the improperly admitted testimony, which clearly violated the defendant’s right to confrontation, so tainted the trial that his conviction on all six counts must be overturned.

“The United States Supreme Court has recognized that certain constitutional protections are so central to the requirement of a fair trial that their violation absolutely requires that the conviction from which they arose be set aside. Chapman v. California, 386 U.S. 18, 23, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied, 386 U.S. 987, 87 S. Ct. 1283,18 L. Ed. 2d 241 (1967). In some circumstances, however, violations of other, less basic constitutional rights may be considered harmless and therefore do not compel reversal.” State v. Cohane, 193 Conn. 474, 484-85, 479 A.2d 763, cert. denied, 469 U.S. 990,105 S. Ct. 397, 83 L. Ed. 2d. 331 (1984). We have held that a violation “of the defendant’s sixth and fourteenth amendment guarantees of confrontation, does not require an automatic reversal. United States v. Christian, 786 F.2d 203, 212-13 (6th Cir. 1986).” State v. Milner, 206 Conn. 512, 528-29, 539 A.2d 80 (1988). On this issue, the state has the burden of proving beyond a reasonable doubt that the error was harmless. State v. Cohane, supra, 485; State v. Sorbo, 174 Conn. 253, 257, 386 A.2d 221 (1978); Aillon v. State, 168 Conn. 541, 547-48, 363 A.2d 49 (1975).

The evidence in this case was, as the state concedes, “intermingled.” C testified to the abuse she herself had suffered as well as to the abuse suffered by her sister and brother. With respect to all three children, C testified as to where the sexual abuse of each child took place, how often it took place and in what manner she and her siblings were sexually abused. In view of the importance of C’s testimony to each of the counts of sexual abuse we conclude that the state has not met its burden of proving the error harmless and, therefore, we must remand this case for a new trial on all six counts. See State v. Zwirn, supra, 587; State v. Jarzbek, supra, 708.

There is error, the judgment is set aside and the case is remanded for a new trial.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1983) § 53a-71 (a) provides: “sexual assault IN THE SECOND DEGREE: CLASS C FELONY: NINE MONTHS NOT SUSPENDA-BLE. (a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is (1) under fifteen years of age . . . .”

       General Statutes § 53-21 provides: “injury or risk of injury to, or impairing morals OF, children. Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       In Coy v. Iowa, 487 U.S. , 108 S. Ct. 2798, 2803,101 L. Ed. 2d 857 (1988), the United States Supreme Court noted that it has “recognized that other types of violations of the Confrontation Clause are subject to that harmless error analysis, see, e.g., Delaware v. Van Arsdall, 475 U.S. [673,] 679, 684, [106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986),] and [it sees] no reason why denial of face-to-face confrontation should not be treated the same.”


author: Santaniello, J.

text:
    Theodore Kraus v. Irene Newton
    (13444)
    Peters, C. J., Healey, Shea, Glass and Santaniello, Js.

      Argued January 11
    decision released May 16, 1989

      Herbert Watstein, with whom, on the brief, was Julius Watstein, for the appellant (plaintiff).

      William J. Tracy, Jr., with whom, on the brief, was F. Patrick O’Sullivan, for the appellee (defendant).
   Santaniello, J.

This case is an appeal from the decision of the Appellate Court in Kraus v. Newton, 14 Conn. App. 561, 542 A.2d 1163, cert. granted, 208 Conn. 815, 546 A.2d 282 (1988). We granted certification to review the judgment of the Appellate Court limited to two issues: (1) whether the trial court’s failure to allow a statement by the defendant to be marked as an exhibit for identification was harmless error, and (2) whether there was error in the jury charge regarding the defendant’s duty of care.

The underlying facts were set forth in Kraus v. Newton, supra, and we summarize those pertinent to the issues in this appeal. On the morning of January 4, 1982, the plaintiff, a meter reader employed by Northeast Utilities, went to premises owned by the defendant in Bristol to read the meter. Freezing rain had begun to fall the previous evening and persisted at the time of the plaintiffs arrival. The stairs and the handrail of the defendant’s premises were covered with ice. Upon descending the stairs, the plaintiff slipped and fell, suffering injuries.

The plaintiff brought an action in negligence against the defendant. At trial, the defendant, who was called as a witness by the plaintiff, testified that she did not place sand on the stairway, despite her knowledge of the storm, her proximity to the premises, which she rented to others, and her knowledge that a meter reader was expected on or about the first of each month.

The defendant further testified that four years prior to trial she had signed a statement regarding the plaintiff’s fall. The trial court denied both the plaintiff’s request for production of the statement and his request to mark the statement for identification.

The jury returned a verdict for the defendant following a charge instructing it that “the rule of law is that an owner may await the end of a freezing rain or sleet storm and a reasonable time thereafter before removing ice and snow from its outside entrance walks, platforms, and steps.”

Although the trial court denied a motion by the plaintiff to set aside the jury verdict, its memorandum of decision addressing that motion acknowledged that the court had erred by failing to mark the defendant’s statement for identification. The trial court, however, had ordered the defendant to produce the statement at some time following the completion of the trial, marked the statement as a court exhibit and attached the statement to its memorandum of decision. After a review of the statement, the trial court found that any error in failing to allow the statement to be marked for identification was harmless.

The plaintiff argued to the Appellate Court that the failure to mark the defendant’s statement during trial prejudiced the plaintiff because it prevented him from offering the statement as a full exhibit. The Appellate Court recognized that a “ ‘trial court’s refusal to permit documents to be marked as exhibits for identification is “manifest error” ’; State v. Onofrio, 179 Conn. 23, 34, 425 A.2d 560 (1979); and that the ‘trial court must mark as an exhibit for identification anything offered by counsel.’ (Emphasis in original.) State v. Silva, 201 Conn. 244, 253, 513, A.2d 1202 (1986).” Kraus v. Newton, supra, 564. The purpose of marking an exhibit for identification is to preserve it as part of the record and to provide an appellate court with a basis for review. State v. Onofrio, supra. While the plaintiff in the present case did not have possession or control over the defendant’s statement, the record indicates that he requested that the statement be marked for identification and that he intended to offer the statement as a full exhibit.

We agree with the Appellate Court’s conclusion that, although the trial court should have allowed the statement to be marked as an exhibit for identification during trial, the subsequent marking of the statement, though unusual, made the appellate record whole and enabled the Appellate Court to decide whether the plaintiff was harmed by the trial court’s error. Because the statement contained nothing that could be considered inconsistent with the defendant’s testimony at trial and because the information found in the statement was already in evidence, there was nothing in the statement that would have helped the plaintiff’s case. The trial court’s error in failing to mark for identification the defendant’s written statement did not harm the plaintiff and therefore does not constitute reversible error. See McCahill v. Town & Country Associates, Ltd., 185 Conn. 37, 40, 440 A.2d 801 (1981); State v. Annunziato, 169 Conn. 517, 524, 363 A.2d 1011 (1975).

The defendant’s remaining claim on appeal is that the trial court erred in charging the jury that a property owner may await the end of a freezing rain or sleet storm and a reasonable time thereafter before removing ice and snow from outside entrance walks, platforms and steps. The Appellate Court concluded that the trial court’s instructions were proper and consistent with the well established rule of law in other jurisdictions. Given the particular facts of the present case, we agree with the Appellate Court’s conclusion that there was no error in the trial court’s charge to the jury.

The plaintiff argues that the trial court’s charge deviated from Connecticut precedent and amounted to a directed verdict for the defendant. The plaintiff relies on the rule of law enunciated in Reardon v. Shimelman, 102 Conn. 383, 389,128 A. 705 (1925), that “[a]n accumulation of ice or snow upon a common approach to a tenement house may impose upon the landlord a liability for injuries due to it, provided he knew, or in the exercise of a reasonable oversight ought to have known, of the existence of the dangerous condition and failed to exercise reasonable care to provide against injury by reason of it.” The circumstances giving rise to the rule in Reardon, however, differ considerably from the circumstances in the present case.

Unlike the present case, Reardon did not deal with a property owner’s duty to protect invitees upon his property when a storm is in progress. In Reardon, a case in which we found error in the trial court’s directed verdict for the defendant, there was no evidence presented of an ongoing storm. Evidence was presented, moreover, that the ice upon the defendant’s sidewalk, which caused the plaintiff’s fall, had been there for some days and that the defendant had notice of that fact.

Two additional cases relied upon by the plaintiff, Sheehan v. Sette, 130 Conn. 295, 33 A.2d 327 (1943), and Lessow v. Sherry, 133 Conn. 350, 51 A.2d 49 (1947), are also factually distinguishable from the present case. In Sheehan we upheld the trial court’s refusal to set aside the verdict for the plaintiff tenant who had fallen while walking up the ice covered steps that led to the defendant landlords’ house. The defendants in Sheehan argued that the defect had not existed long enough to give them constructive notice of its existence and a reasonable opportunity thereafter to remedy the defect. We concluded, however, that there was direct evidence from which the jury could reasonably have found that the steps had been slippery for almost five hours. Furthermore, the rain that later turned to ice and caused the plaintiff to fall had ceased some eleven and one-half hours prior to the plaintiffs fall. Unlike the present case, there was no evidence that there was a storm in progress at the time of the plaintiffs injury. The jury in Sheehan reasonably could have found that the defendants had a reasonable opportunity to remedy the defective condition before the accident.

In Lessow, the plaintiff had fallen on the ice covered private walk leading to the defendant’s home. Thick ice from a storm, which the plaintiff claimed had caused his fall, had covered the walk for three days, and no ashes or sand had been spread upon the ice. Although the trial court in Lessow admitted weather reports that indicated that freezing rain had been falling throughout the day of the plaintiff’s fall, we upheld the trial court’s denial of the defendant’s motion to set aside the verdict for the plaintiff. We reasoned that such evidence was not so probative of the existence of new ice at the time of the accident that a conclusion by the jury that the defendant fell upon the old ice was unreasonable.

There was no evidence in the present case of a preexisting danger from a previous storm. There was, however, direct evidence from which the jury reasonably could have found that the storm was ongoing. On cross-examination, defense counsel asked the plaintiff, “Sir, at the time that this accident occurred when you fell down, isn’t it true that there was a freezing rain storm in progress?” The plaintiff replied, “Yes, it was.”

We believe that in the absence of unusual circumstances, a property owner, in fulfilling the duty owed to invitees upon his property to exercise reasonable diligence in removing dangerous accumulations of snow and ice, may await the end of a storm and a reasonable time thereafter before removing ice and snow from outside walks and steps. To require a landlord or other inviter to keep walks and steps clear of dangerous accumulations of ice, sleet or snow or to spread sand or ashes while a storm continues is inexpedient and impractical. Our decision, however, does not foreclose submission to the jury, on a proper evidentiary foundation, of the factual determinations of whether a storm has ended or whether a plaintiffs injury has resulted from new ice or old ice when the effects of separate storms begin to converge.

As we have previously noted, there was no evidence in this case of any preexisting dangerous condition upon the defendant’s premises. There was, however, evidence that the storm that produced the dangerous condition was still in progress at the time of the plaintiff’s injury. We conclude that under these specific circumstances, there was no error in the trial court’s charge to the jury.

The decision of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       The pertinent portion of the charge follows: “Under certain circumstances a landowner can be liable to a person on his property for a dangerous accumulation of ice and snow. The rule of law is that an owner may await the end of a freezing rain or sleet storm and a reasonable time thereafter before removing ice and snow from its outside entrance walks, platforms, and steps. Then, an owner may, without violating its duty to exercise reasonable care for the safety of business invitees, await the end of a freezing rain, sleet or snow storm or a reasonable time thereafter before removing sleet and snow from its outside walk and steps since removal would be ineffective, generally, during the continuation of a snowstorm in progress.
      “Evidence of the conditions existing in the area of the defendant’s property is relevant on the issues of notice and the standard of care but it doesn’t set the standard of care. The testimony you heard with respect to what the conditions of other properties may have been is one of those circumstances that you can take into consideration when you consider the totality of the situation as it existed. The fact that no other landowner in the vicinity, you might find, had not sanded or salted, the condition is evidence for you to consider as to what the proper standard of care is and whether the Defendant was under the obligation to remove, salt or sand under the condition. Where the precipitation is recent or continuous, the duty to remove such obstruction as it forms cannot be imposed, and the dangers arising therefrom are viewed as the normal hazards of life, for which no owner or person in possession of property is held responsible. The law does not require an inviter to engage in an unending and impractical, if not useless, contest with forces that may be uncontrollable of nature while a storm is in progress. Now, it is for you to make the determination as to what the facts were when the incident happened.”

       We further note that such action is not required under the ordinances of the city of Bristol. That city’s ordinance regulating ice and snow removal from sidewalks requires a property owner to remove snow or ice or to cover ice with salt and sand within twelve hours after a storm that ends between the hours of 3 a.m. and 9 p.m. and within nine hours after a storm that ends between 9 p.m. and 3 a.m.
      Additionally, a survey of the snow and ice removal ordinances in five municipalities bordering Bristol reveals a range from three to twenty-four hours following the end of a storm within which time a property owner must remove accumulations of snow and ice from sidewalks or cover the ice with sand or other suitable substances.
      Our decision, therefore, comports not only with the well established rule of law in other jurisdictions, as outlined in the Appellate Court decision, but also with the policy of the city of Bristol and the municipalities that surround it.


text:
    Lawrence J. Merly, Administrator (Estate of Alberto Ocasio) v. State of Connecticut
    (13527)
    Shea, Glass, Covello, Hull and F. Hennessy, Js.

      Argued March 9
    decision released May 16, 1989

      Judy Ann Stevens, for the appellant (plaintiff).

      Carolyn K. Querijero, assistant attorney general, with whom, on the brief, were Clarine Nardi Riddle, acting attorney general, and Joseph I. Lieberman, former attorney general, for the appellee (state).
   Shea, J.

In this wrongful death action against the state of Connecticut the principal issue is whether a special act enacted in 1984, Spec. Acts 1984, No. 21, § 1, which excused the failure of the estate to present its claim to the claims commissioner within one year after it had accrued, as required by General Statutes § 4-148 (a), violates the prohibition in article first, § l of our state constitution against any person being “entitled to exclusive public emoluments or privileges from the community.” The trial court found such a violation and rendered summary judgment for the state. The plaintiff, Lawrence J. Merly, as administrator of the estate of Alberto Ocasio, has appealed and claims that the court erred in granting the state’s motion for summary judgment because: (1) the alternative provision of § 4-148 (a), allowing claims for injury to be presented within one year after “the date when the damage or injury is discovered,” but no later “than three years from the date of the act or event complained of,” was applicable; (2) there were genuine issues of material fact concerning the cause of the delay in presenting the claim that could be resolved only by a trial; (3) the rejection by the legislature of the recommendation of the commissioner to deny the plaintiff’s claim implicitly accomplished the same purpose as the special act in allowing the claim to be pursued; (4) the action of the commissioner in granting permission to sue after passage of the special act is not reviewable by the court; and (5) the special act does not violate our state constitutional prohibition against “exclusive public emoluments or privileges” in view of circumstances allegedly indicating a public purpose for the act. We find no error.

On July 30,1979, at about 5:40 a.m., Alberto Ocasio was found dead after he had hanged himself by using his pajama bottom in a men’s room at the Fairfield Hills Hospital, a psychiatric hospital operated by the state. An autopsy was performed that day and a death certificate was prepared, which was filed the next day, stating the cause of death to have been “asphyxia by hanging . . . suicide.”

The decedent had been admitted to the hospital as a patient on a physician’s emergency certification on July 24, 1979, six days before his death. This admission had resulted from his attempt to commit suicide on that date at the Bridgeport police headquarters after he had been arrested for a disturbance. The decedent had also been treated at the hospital after having attempted suicide about one month before his death.

The decedent’s family made no attempt to pursue any claim against the state with regard to his death until late January, 1981, when they sent a letter requesting a copy of the autopsy report to the office of the chief medical examiner. On April 16, 1981, a written claim requesting permission to sue the state for wrongful death was filed with the claims commissioner by the plaintiff administrator. The commissioner dismissed the claim on July 15, 1983, denying permission to sue because the claim had not been filed within the time allowed by § 4-148 (a).

Pursuant to General Statutes § 4-158 (a), the claims commissioner reported to the General Assembly at its February 1984 session his action denying the plaintiff’s claim and sought approval thereof. Instead, the General Assembly voted to reject the commissioner’s recommendation. Substitute House Joint Resolution 21. Thereafter, Special Acts 1984, No. 21, § 1 was enacted, which authorized the estate to “prosecute its claim against the state notwithstanding the lack of proper notice.” The act also barred the state “from setting up the failure to comply with the provisions of sections 4-147 and 4-148 of the general statutes with respect to the claim” and “from denying that notice of the claim was properly and timely given pursuant to [those statutes].”

The plaintiff once again sought permission to sue the state from the claims commissioner. The state moved to dismiss this request, maintaining that the special act was unconstitutional. The commissioner rejected the state’s motion upon the ground that he lacked jurisdiction to decide such a constitutional issue. He authorized the plaintiff to institute suit on the claim against the state pursuant to General Statutes § 4-160 (a).

The plaintiff commenced this action on October 10, 1986, more than seven years after the date of the decedent’s death, claiming that the suicide resulted from the negligence of the Fairfield Hills Hospital in failing to protect against the likelihood of such an event in view of the decedent’s mental condition and his previous suicide attempts, of which state hospital personnel should have been aware.

I

The plaintiff claims that summary judgment should not have been granted because there remain genuine issues of fact as to whether the claim for wrongful death had accrued within one year before it was presented to the commissioner on April 16,1981. Section 4-148 (a) provides that such claims “shall be deemed to accrue on the date when the damage or injury is sustained or discovered or in the exercise of reasonable care should have been discovered . . . . ” The plaintiff does not dispute that the injury was “sustained” on July 30, 1979, when the decedent’s death occurred. He contends, nevertheless, that the statute contains three alternatives, any of which may be selected as the date when a claim “accrues”: (1) the date the legal injury was sustained; (2) the date the legal injury was discovered; or (3) the date when in the exercise of reasonable care the legal injury should have been discovered. Relying on the second alternative, the plaintiff maintains that the decedent’s family did not actually discover that the decedent’s death had been caused by any wrongful act until after February, 1981, when they received a response to their inquiry regarding the autopsy report. Thus, he argues that his claim filed with the commissioner on April 16, 1981, was presented within one year after actual discovery of the injury, as allowed by § 4-148 (a), and that the contrary finding of the commissioner, which the legislature disapproved, was incorrect.

The state maintains that it is unnecessary to decide whether the claims commissioner erred in concluding initially that the wrongful death claim had not been presented within the time allowed by § 4-148 (a). The only issue, according to the state, is the constitutionality of the special act validating the notice of claim that had been filed and authorizing the estate to prosecute its claim against the state despite its untimeliness. The portion of the special act referring to the claim as “otherwise valid except that proper notice of said claim was not filed with the clerk of the office of the claims commissioner . . . within the time specified by section 4-148 of the general statutes” indicates that the legislature has effectively ratified the finding of the commissioner that the plaintiff had failed to comply with the time limit of § 4-148 (a). The terms of the act indicate an intention to allow the plaintiff to proceed with his claim despite the untimeliness of its presentation to the commissioner.

Because the principal issue presented in this case is whether the special act on which the plaintiff relies should be declared invalid as an exclusive emolument or privilege, however, we must explore whether there is any conceivable justification for this challenged legislation from the public viewpoint. Hillier v. East Hartford, 167 Conn. 100,107-109, 355 A.2d 1 (1974); Tough v. Ives, 162 Conn. 274, 294, 294 A.2d 67 (1972); Sanger v. Bridgeport, 124 Conn. 183, 189, 198 A. 746 (1938). If the initial determination of the commissioner concerning noncompliance with § 4-148 (a) was mistaken, even though the legislature apparently reached the same conclusion, it could not be said that the plaintiff had been given any special privilege in being allowed to pursue a claim that had in fact been presented within the time allowed. Accordingly, we must address the issues the plaintiff has raised concerning the applicability of § 4-148 (a) as a bar to his claim.

This court has construed the word “injury” in General Statutes § 52-584, which establishes the date for commencement of the period allowed for bringing a malpractice action as “two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered,” to refer to some form of actionable harm. Catz v. Rubenstein, 201 Conn. 39, 45, 513 A.2d 98 (1986). “ ‘Actionable harm’ occurs when the plaintiff discovers, or in the exercise of reasonable care should have discovered, the essential elements of a cause of action.” Lambert v. Stovell, 205 Conn. 1, 6, 529 A.2d 710 (1987). The statute begins to run when the plaintiff discovers some form of actionable harm, not the fullest manifestation thereof. Burns v. Hartford Hospital, 192 Conn. 451, 460, 472 A.2d 1257 (1984). Applying this construction of the word “injury” to the same term as used in the similar provisions of § 4-148 (a), we agree with the plaintiff that his claim was not necessarily barred by the lapse of one year from July 30,1979, when the decedent’s death occurred.

We have not previously considered the interpretation advanced by the plaintiff that the phrase in § 4-148 (a), “sustained or discovered or in the exercise of reasonable care should have been discovered,” permits a claim to be presented within one year of the actual discovery of actionable harm, even though such harm would have been discovered earlier if reasonable care had been exercised. Implicitly, however, we rejected such a construction of the similar phrase in § 52-584, “first sustained or discovered or in the exercise of reasonable care should have been discovered,” when we approved the granting of summary judgment for the defendant in Lambert v. Stovell, supra, 7. There we concluded that the plaintiff “was aware of circumstances indicating that he had suffered a form of ‘actionable harm’ and should have discovered his injury at that time.” Id. To hold that a claimant has an option to present his claim within one year from the actual discovery of actionable harm rather than from the time when such harm “in the exercise of reasonable care should have been discovered” would render the latter phrase superfluous and wholly ineffective in requiring reasonable diligence on the part of claimants.

II

The plaintiff also contends that there were genuine issues of fact such as to preclude summary judgment with respect to whether the “actionable harm” suffered should have been discovered any earlier than one year before the presentation of the claim on April 16,1981. He points to the fact that the autopsy report was not signed by the acting chief medical examiner, who had performed the autopsy, until June 17, 1980, and that requests made of the examiner’s office by medical personnel at Fairfield Hills Hospital for the return of medical records and for copies of the autopsy report were not complied with fully until some time in June, 1980. He does not explain, however, how these delays on the part of state employees induced the decedent’s family to wait until late January, 1981, almost one and one-half years after the death, before initiating their investigation. It is not claimed that the state officials who requested information concerning the suicide were in any way connected with the family. Furthermore, since the publicly recorded death certificate specified the cause of death to have been asphyxia by hanging under circumstances indicating suicide, any delay in the preparation of the autopsy report could not have impeded the discovery of actionable harm to the decedent. The report merely confirmed the conclusions of the medical examiner as to the cause of death that had been set forth in the death certificate..

The plaintiff contends that knowledge of the decedent’s suicide, as stated in the death certificate, would not alone have indicated malpractice and that an examination of the medical records indicating awareness of the decedent’s previous suicide attempts on the part of hospital personnel was necessary before the family could possibly have learned the basis for a malpractice claim. He argues that a review of all the medical records as well as the autopsy report was necessary before any qualified expert opinion as to the existence of malpractice could have been obtained. In Lambert v. Stovell, supra, 6, we rejected a similar argument that the malpractice statute of limitations should not begin to run until the plaintiff “discovered all the information the defendant was allegedly obliged to disclose to him.” (Emphasis in original.)

In the present case, we conclude that the undisputed fact that the family, until one and one-half years after learning of the decedent’s suicide, did not start any investigation into the circumstances under which-it had occurred constituted as a matter of law a failure to exercise reasonable care to discover the accrual of the wrongful death claim. The plaintiff has advanced no circumstances to justify such an inordinate delay.

Ill

The plaintiff argues that, regardless of the validity of the special act, the rejection by the legislature of the commissioner’s recommendation that no award be granted to the estate of the decedent on its claim was in itself a sufficient basis, apart from the special act, to allow the commissioner to reconsider and then to grant his request for permission to sue the state. We conclude that the rejection of the recommendation that no award be made did not authorize further consideration by the commissioner of the request for permission to sue and that the special act was essential for that purpose.

The claims commissioner is authorized to “approve immediate payment of just claims not exceeding seven thousand five hundred dollars.” General Statutes § 4-158 (a).* ****** The commissioner, however, “shall make his recommendations to the general assembly for payment or rejection of amounts exceeding seven thousand five hundred dollars. . . . The general assembly may accept, alter or reject any such recommendation and shall not be required to hold public hearings thereon.” General Statutes § 4-159. In rejecting the commissioner’s recommendation for disapproval of any award to the plaintiff, the legislature was clearly performing its function as authorized by § 4-159.

With respect to permission to sue the state, however, “[w]hen the claims commissioner deems it just and equitable, he may authorize suit against the state on any claim which, in his opinion, presents an issue of law or fact under which the state, were it a private person, could be liable.” General Statutes § 4-160 (a). There is no statutory provision requiring legislative approval of the commissioner’s action in granting or denying permission to sue the state. The plaintiff’s “notice of claim” filed with the commissioner contained not only a request for permission to sue the state, but also “a statement of the amount requested,” in accordance with General Statutes § 4-147 (3).* The order of the commissioner in dismissing the claim, in which the amount requested was specified to be $5 million was twofold: “No award can be granted and permission to sue is denied.” In submitting to the legislature his recommendation that no award be granted, the commissioner must be deemed to have acted pursuant to § 4-159, which requires that he seek approval of his rejection of claims exceeding $7500.

The action of the legislature in rejecting the commissioner’s recommendation that no award be made on the plaintiff’s claim, therefore, does not also imply a legislative grant of authority to sue the state or to present the request for such permission once more to the commissioner. The commissioner never submitted his denial of permission to sue to the general assembly for its consideration, nor was he required to do so. The rejection of the recommendation denying any award in no way detracted from the effectiveness of the commissioner’s denial of permission to sue. Indeed, the legislature itself recognized that rejection of the recommendation standing alone would not help the plaintiff and for that reason proceeded thereafter to enact the special act allowing the claim to be pursued despite the bar of § 4-148 (a). Accordingly, we reject the plaintiff’s claim that the special act is a mere superfluity and that the rejection of the commissioner’s recommendation denying any award implicitly accomplished the same result.

IV

The plaintiff maintains that judicial review of the constitutionality of the special act is precluded by General Statutes § 4-164 (b), which provides that “[t]he action of the claims commissioner in approving or rejecting payment of any claim or part thereof shall be final and conclusive on all questions of law and fact and shall not be subject to review except by the General Assembly.” This statute, however, applies only to the commissioner’s action “in approving or rejecting payment of any claim or part thereof” and corresponds to the provision of § 4-159 requiring the commissioner to recommend to the General Assembly the “payment or rejection” of claims exceeding $7500. As we have previously explained, there is no requirement that the commissioner’s grant or denial of permission to sue the state be submitted to the legislature for approval. Section 4-164 (b), therefore, by its very terms is inapplicable to the grant of permission to sue that the commissioner made pursuant to the special act. Having concluded that there is no statutory bar to the state’s challenge of this action of the commissioner, we need not address the issue of whether, if such a bar existed, it would be constitutional thus to insulate from judicial review an enactment claimed to violate article first, § 1.

V

We have construed the provision of article first, § 1 prohibiting “exclusive public emoluments or privileges” to apply to legislation preferring certain individuals over others when wholly unrelated to the public interest. “No enactment creating a preference can withstand constitutional attack if the sole objective of the General Assembly is to grant personal gain or advantage to an individual. Its validity is contingent, at least in part, upon its furthering a public purpose; if enacted with that end in view, legislation can be sustained even though it may incidentally confer a direct benefit upon an individual or a class.” State ex rel. Higgins v. Civil Service Commission, 139 Conn. 102,106, 90 A.2d 862 (1952). “Only if an act serves some public purpose can it be constitutionally sufficient.” Tough v. Ives, supra, 292.

Under circumstances like those in the present case, where a special act has allowed a person named therein to bring a suit based upon a statutory cause of action that would otherwise be barred for failure to comply with a time limit specified in the statute, we have ordinarily been unable to discern any public purpose sufficient to sustain the enactment. Vecchio v. Sewer Authority, 176 Conn. 497, 503-507,408 A.2d 254 (1979) (special act validating an appeal from a sewer assessment commenced after expiration of the time for taking such an appeal held unconstitutional); Hillier v. East Hartford, supra (special act validating notice of sidewalk defect given to municipality after time allowed held unconstitutional). We have also found no public purpose in a special act, which we held invalid, allowing a plaintiff to sue the highway commissioner in negligence and removing the concurring negligence of anyone but the plaintiff and her father as a defense. Tough v. Ives, supra, 292-94.

The plaintiff maintains, nevertheless, that the special act he relies upon may be sustained as serving some public purpose because the legislature could reasonably have concluded that various state officials were at least partly responsible for the delay in presenting the claim. He cites Sanger v. Bridgeport, supra, where this court upheld a special act validating notice of an injury caused by a sidewalk defect that failed to comply with the statutory requirements. The notice had been prepared by an assistant city clerk, upon whom the plaintiff had relied for its preparation and to whom she had given all necessary information. We concluded that the plaintiff had presented “a situation which would afford strong equitable grounds for legislative interference” and that these reasons presumably had motivated passage of the special act. “Municipalities may be compelled not only to recognize their legal obligations but also to discharge those of an equitable and moral nature.” Id., 189. In relying upon Sanger, the plaintiff claims that the state’s delay in preparing the autopsy report and in making the hospital records available was a significant factor in the delay.

The plaintiff, however, is unable to explain how any action of a state employee impeded the decedent’s family in discovering the basis for a wrongful death action and caused them to make no effort to prosecute their claim until almost six months beyond the period for its presentation allowed by § 4-148 (a). There are no circumstances in this case comparable to the situation in Sanger, where the municipal clerk had been responsible for the deficiencies in the statutory notice. The inaction of the decedent’s family here was not induced by any agency of the state and cannot serve as the basis for implying any equitable or moral obligation on the part of the state.

The plaintiff also relies upon two additional grounds, recognized in Tough v. Ives, supra, 294, as a basis for sustaining the validity of a special act creating a privilege for a particular individual: (1) “where at most the remedy, rather than the grounds of the action, was affected”; and (2) “where no right of the opposing party was affected.” The first ground we have held not to be applicable to a statutory cause of action, such as a claim against the state, because in such an action “the very existence of the right in the first instance depends upon the giving of the required statutory notice.” Hillier v. East Hartford, supra, 105. The second ground also we have held to be inapplicable where the notice is a condition precedent to a statutory cause of action, because the absence of such notice is a defense that constitutes a property right vested in the defendant. Id., 109.

We conclude, therefore, that the special act, which benefits only the estate of the decedent who is named therein, does constitute the award of an exclusive public emolument or privilege not available to other persons and without a public purpose in violation of article first, § 1. We agree with the trial court that the act is unconstitutional.

There is no error.

In this opinion the other justices concurred.

       Special Acts 1984, No. 21 provides: “an act validating the piling OP THE NOTICE OP THE CLAIM OP THE ESTATE OP ALBERTO OCASIO WITH the claims commissioner .... Section 1. The claim of the estate of Alberto Ocasio, filed against the state of Connecticut with the claims commissioner, otherwise valid except that proper notice of said claim was not filed with the clerk of the office of the claims commissioner as required by section 4-147 of the general statutes1 and within the time specified by section 4-148 of the general statutes, is validated and declared sufficient to permit the estate of Alberto Ocasio to maintain and prosecute its claim against the state notwithstanding the lack of proper notice. The state shall be barred from setting up the failure to comply with the provisions of sections 4-147 and 4-148 of the general statutes with respect to the claim and shall also be barred from denying that notice of the claim Was properly and timely given pursuant to sections 4-147 and 4-148 of the general statutes.”

       ‘[General Statutes] Sec. 4-148. limitation on presentation of claim. (a) No claim shall be presented under this chapter but within one year after it accrues. Claims for injury to person or damage to property shall be deemed to accrue on the date when the damage or injury is sustained or discovered or in the exercise of reasonable care should have been discovered, provided no claim shall be presented more than three years from the date of the act or event complained of.”

       Article first, § 1 of our state constitution provides: “All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community.”

       Claims commissioner John B. Fay had dismissed the claim of the estate on July 15,1983, after it had first been presented on April 16,1981. James P. McLoughlin was serving as claims commissioner when, after another hearing, permission to sue the state was granted on September 18, 1986.

       “[General Statutes] Sec. 4-160. authorization of actions against the state, (a) When the claims commissioner deems it just and equitable, he may authorize suit against the state on any claim which, in his opinion, presents an issue of law or fact under which the state, were it a private person, could be liable. In each such action the claimant shall allege such authorization and the date on which it was granted. The state waives its immunity from liability and from suit in each such action and waives all defenses which might arise from the eleemosynary or governmental nature of the activity complained of. The rights and liability of the state in each such action shall be coextensive with and shall equal the rights and liability of private persons in like circumstances.”

       “[General Statutes] Sec. 52-584. limitation of action for injury to PERSON OR property. No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanitorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”

       The commissioner submitted House Joint Resolution No. 21 to the February 1984 session of the General Assembly, providing as follows: “resolution ACCEPTING THE RECOMMENDATION OF THE COMMISSIONER OF CLAIMS WITH REGARD TO THE CLAIM OF THE ESTATE OF ALBERTO OCASIO.
      “Resolved by this Assembly:
      “That the recommendation of the commissioner of claims, file number 6323 of said commissioner, that no award be granted to the estate of Alberto Ocasio on its claim against the state in excess of five thousand dollars, is accepted.”
      This resolution was rejected by the adoption of Substitute House Joint Resolution No. 21, providing as follows:
      “RESOLUTION REJECTING THE RECOMMENDATION OF THE COMMISSIONER OF CLAIMS WITH REGARD TO THE CLAIM OF THE ESTATE OP ALBERTO OCASIO.
      “Resolved by this Assembly:
      “That the recommendation of the commissioner of claims, file number 6823 of said commissioner, that no award be granted to the estate of Alberto Ocasio on its claim against the state in excess of five thousand dollars, is rejected.”

       “[General Statutes] Sec. 4-158. jurisdiction of commissioner, payment OF CLAIM. REPORT TO ASSEMBLY. WAIVER OF PAYMENT ON PROTEST to assembly, (a) The claims commissioner may approve immediate payment of just claims not exceeding seven thousand five hundred dollars. The clerk of the office of the claims commissioner shall deliver to the comptroller a certified copy of the claims commissioner’s order and the comptroller shall make payment from such appropriation as the general assembly may have made for the payment of claims or, in the case of contractual claims for goods or services furnished or for property leased, from the appropriation of the agency which received such goods or services or occupied such property. Within five days after the convening of each regular session, the claims commissioner shall report to the general assembly on all claims decided pursuant to this section.”

       “[General Statutes] Sec. 4-159. recommendations for payments in EXCESS OF SEVEN THOUSAND five hundred dollars. After hearing, the claims commissioner shall make his recommendations to the general assembly for the payment or rejection of amounts exceeding seven thousand five hundred dollars. Within five days after the convening of each regular session and at such other times as the speaker of the house of representatives and president pro tempore of the senate may desire, the claims commissioner shall submit such recommendations to the general assembly, together with a copy of his findings and of the hearing record of each claim so reported. The general assembly may accept, alter or reject any such recommendation and shall not be required to hold public hearings thereon.”

       See footnote 5, supra.

       General Statutes § 4-147 provides in part: “Any person wishing to present a claim against the state shall file with the clerk of the office of the claims commissioner a notice of claim, in duplicate, containing the following information: (1) The name and address of the claimant; the name and address of his principal, if the claimant is acting in a representative capacity, and the name and address of his attorney, if the claimant is so represented; (2) a concise statement of the basis of the claim, including the date, time, place and circumstances of the act or event complained of; (3) a statement of the amount requested, and (4) a request for permission to sue the state, if such permission is sought.”

       It should be noted that, except where new evidence has been discovered, a claimant may not, at least without the benefit of a special act, seek reconsideration of a claim by the commissioner after his initial determination. “Except as provided in section 4-156, no claim once considered by the claims commissioner, by the general assembly or in a judicial proceeding shall again be presented against the state in any manner.” General Statutes § 4-148 (b). The exception referred to is as follows: “Upon the discovery of new evidence, any claimant aggrieved by an order of the claims commissioner rejecting or recommending the rejection of his claim, in whole or in part, may apply for rehearing.” General Statutes § 4-156.