author: Per Curiam.

text:
    Board of Education of the Town of Bozrah v. State Board of Education et al.
    (14775)
    Peters, C. J., Borden, Norcott, Katz and Palmer, Js.
    Argued January 5—
    decision released February 1, 1994

      William R. Connon, for the appellant (plaintiff).

      NinaF. Elgo, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellees (named defendant et al.).

      Linda L. Yoder, with whom, on the brief, were Saranne P. Murray and Gregory T. DAuria, for the appellee (defendant Norwich board of education).

      Lawrence W. Berliner filed a brief for the Office of Protection and Advocacy for Persons with Disabilities as amicus curiae.
   Per Curiam.

The sole issue in this administrative appeal is whether the named defendant, the state board of education, properly required the plaintiff, the Bozrah board of education, to provide funding for the schooling needs of a special education student whose only surviving parent resides in a nursing care facility in Bozrah. In Board ofEducationv. State Board of Education, 30 Conn. App. 720, 622 A.2d 614 (1993), the Appellate Court affirmed the judgment of the trial court dismissing the plaintiff’s appeal from this adverse administrative decision. The Appellate Court agreed with the defendants’ contention that the plaintiff must provide the funding because General Statutes § 10-76d (e) (2), rather than General Statutes § 10-253 (d), governs the allocation of fiscal responsibility for the educational costs of a special education student. Id., 723-27. We granted the plaintiffs petition for certification to appeal this question of statutory construction.

After examining the record on appeal, and after considering the briefs and arguments of the parties, we conclude that the judgment of the Appellate Court must be affirmed. The issue on which we granted certification was properly resolved in the thoughtful and comprehensive opinion of the Appellate Court. It would serve no useful purpose for us to repeat the discussion therein contained. Cf. Stankiewicz v. Zoning Board Of Appeals, 211 Conn. 76, 78, 556 A.2d 1024 (1989); State v. Leonard, 210 Conn. 480, 481, 556 A.2d 611 (1989).

The judgment of the Appellate Court is affirmed.

       In addition to the named defendant, the Norwich board of education, the commissioner of the department of children and youth services and the Connecticut Disability Law Clinic are also defendants in this appeal.

       General Statutes § 10-76d provides in relevant part: “duties and POWERS OF BOARDS OF EDUCATION TO PROVIDE SPECIAL EDUCATION PROGRAMS AND SERVICES. DETERMINATION OF ELIGIBILITY FOR MEDICAID. STATE AGENCY PLACEMENTS; APPORTIONMENT OF COSTS. RELATIONSHIP OF INSURANCE TO SPECIAL EDUCATION COSTS. . . .
      “(e) (1) Any local or regional board of education which provides special education pursuant to any mandates in this section shall provide transportation, to and from, but not beyond the curb of, the residence of the child, unless otherwise agreed upon by the board and the parent or guardian of the child, tuition, room and board and other items as are necessary to the provision of such special education except for children who are placed in a residential facility because of the need for services other than educational services, in which case the financial responsibility of the school district and payment to such district shall be limited to the reasonable costs of special education instruction as defined in the regulations of the state board of education. . . .
      “(2) Notwithstanding any other provisions of the general statutes, for the fiscal year ending June 30,1987, and each fiscal year thereafter, whenever a public agency, other than a local or regional board of education, the state board of education or the superior court acting pursuant to section 10-76h, places a child in a foster home, group home, hospital, state institution, receiving home, custodial institution or any other residential or day treatment facility, and such child requires special education, the local or regional board of education under whose jurisdiction the child would otherwise be attending school or, if no such board can be identified, the local or regional board of education of the town where the child is placed, shall: (A) Provide the requisite identification and evaluation of such child in accordance with the provisions of this section; and (B) be financially responsible for the reasonable costs of special education instruction, as defined in the regulations of the state board of education, in an amount equal to the lesser of one hundred per cent of the costs of such education or two and one-half times the average per pupil educational costs of such board of education for the prior fiscal year, determined in accordance with the provisions of subsection (a) of section 10-76Í. . . .”

       General Statutes § 10-253 provides in relevant part: “SCHOOL PRIVILEGES FOR CHILDREN IN CERTAIN PLACEMENTS, NONRESIDENT CHILDREN and children in temporary shelters, (a) Children placed out by the commissioner of children and youth services or by other agencies or persons, including private child-caring or child-placing agencies licensed by the department of children and youth services, and eligible residents of facilities operated by the department of mental health or by the Connecticut alcohol and drug abuse commission who are eighteen to twenty-one years of age, shall be entitled to all free school privileges of the school district where they then reside as a result of such placement. Except as provided in subsection (d) of this section and subdivision (4) of subsection (e) of section 10-76d, payment for such education shall be made by the board of education of the school district under whose jurisdiction such child would otherwise be attending school where such a school district is identified. . . .
      “(d) Children residing with relatives or nonrelatives, when it is the intention of such relatives or nonrelatives and of the children or their parents or guardians that such residence is to be permanent, provided without pay and not for the sole purpose of obtaining school accommodations, and, for the fiscal year commencing July 1, 1981, and each fiscal year thereafter, children not requiring special education who are residing in any facility or home as a result of a placement by a public agency, other than a local or regional board of education, and except as provided by subsection (b) of this section, shall be entitled to all free school privileges accorded to resident children of the school district in which they then reside. . . .”

       We granted the plaintiffs petition for certification to appeal limited to the following issue: “Was the Appellate Court correct in construing General Statutes §§ 10-253 (d) and 10-76d (e) to require the Bozrah board of education to provide school accommodations?” Board of Education v. State Board of Education, 226 Conn. 902, 625 A.2d 1374 (1993).


source: Caselaw Access Project

license: Public Domain

text:
    Nedra F. Wynn v. Metropolitan Property and Casualty Insurance Company
    (14788)
    Peters, C. J., Borden, Katz, Palmer and Ment, Js.
    Argued January 6—
    decision released February 1, 1994

      David C. Pite, for the appellant (plaintiff).

      Frederick L. Murolo, for the appellee (defendant).
   Per Curiam.

In this action pursuant to General Statutes § 52-410 to compel arbitration of an underinsured motorist insurance claim, the principal issue is whether a defense alleging the expiration of the statute of limitations raises a threshold issue of arbitrability to be determined by the court, or a coverage issue to be determined by the arbitrator. Holding that the applicable statute of limitations had run, the trial court denied the application of the plaintiff, Nedra F. Wynn, to compel the defendant, Metropolitan Property and Casualty Insurance Company, to arbitrate her claim for compensation.

In Wynn v. Metropolitan Property & Casualty Ins. Co., 30 Conn. App. 803, 623 A.2d 66 (1993), the Appellate Court affirmed the judgment of the trial court. The Appellate Court concluded that the distinction between an issue of arbitrability and an issue of coverage is whether the issue is one that is governed wholly by the language of the insurance policy. Id., 806-807. Applying this test, the Appellate Court concluded that the applicability of a statute of limitations was an issue of arbitrability for the court and that the trial court had, therefore, correctly undertaken to determine, as a threshold matter, whether the statute of limitations had expired in this case. Id., 808. The Appellate Court further concluded that the trial court had properly held the plaintiffs demand for arbitration to be time-barred because she had failed to demand arbitration before the six year limitation period provided in General Statutes § 52-576 had run. Id., 807-809. We granted the plaintiffs petition for certification to appeal.

After examining the record on appeal, and after considering the briefs and arguments of the parties, we conclude that the judgment of the Appellate Court must be affirmed. The issues on which we granted certification were properly resolved in the thoughtful and comprehensive opinion of the Appellate Court. It would serve no useful purpose for us to repeat the discussion therein contained. Cf. Stankiewicz v. Zoning Board of Appeals, 211 Conn. 76, 78, 556 A.2d 1024 (1989); State v. Leonard, 210 Conn. 480, 481, 556 A.2d 611 (1989).

The judgment of the Appellate Court is affirmed.

       General Statutes § 52-410 provides in relevant part: “application for COURT ORDER TO PROCEED WITH ARBITRATION, (a) A party to a written agreement for arbitration claiming the neglect or refusal of another to proceed with an arbitration thereunder may make application to the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, to any judge thereof, for an order directing the parties to proceed with the arbitration in compliance with their agreement. The application shall be by writ of summons and complaint, served in the manner provided by law.”

       General Statutes § 52-576 provides in relevant part: “actions for ACCOUNT OR ON SIMPLE OR IMPLIED CONTRACTS, (a) No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues, except as provided in subsection (b) of this section.”
      The underlying facts relating to the applicability of the statute of limitations are undisputed. On January 3,1985, the plaintiff signed a release that settled her claim against the third party tortfeasor. More than six years later, on January 28, 1991, she wrote the defendant a letter demanding arbitration of her underinsured motorist claim. On February 25,1991, the defendant notified the plaintiff that her request for arbitration had been denied. The plaintiff brought her action to compel arbitration on December 17, 1991.

       We granted the plaintiff’s petition for certification to appeal limited to the following issues:
      “1. Did the Appellate Court properly conclude that the statute of limitations defense was a threshold issue which the trial court could decide without referring the same to the arbitrators in light of the positive assurance test for arbitrability and General Statutes § 52-410?
      “2. Did the Appellate Court properly conclude that the statute of limitations had run prior to the filing of the plaintiffs application to compel arbitration?” Wynn v. Metropolitan Property & Casualty Ins. Co., 226 Conn. 907, 625 A.2d 1379 (1993).


text:
    Appeal from Probate of Girolamo Bencivenga et al.
    (14743)
    Peters, C. J., Borden, Berdon, Katz and Palmer, Js.
    Argued January 6—
    decision released February 1, 1994

      Cynthia C. Anger, assistant city attorney, for the appellant (defendant city of Milford).

      Steven F. Rogers, for the appellee (plaintiff Girolamo Bencivenga).
   Per Curiam.

The principal issue in this appeal is whether persons who have been designated in a decedent’s will as successor executors and beneficiaries are aggrieved by the action of the Probate Court appointing another person as executor after removal of the named executrix for cause. Finding a lack of aggrievement, the trial court dismissed the appeal of the plaintiffs, Girolamo Bencivenga and Ciro P. Bencivenga, Jr., challenging the Probate Court’s appointment of Peter Stark as administrator cum testamento annexo of their father’s estate.

The Appellate Court reversed and remanded the case for further proceedings to consider the merits of the plaintiffs’ claim. Appeal from Probate of Bencivenga, 30 Conn. App. 334, 620 A.2d 195 (1993). The Appellate Court concluded that the plaintiffs were aggrieved and thus had standing to appeal because General Statutes § 45a-290 (c) confers upon them a statutory right of appointment as successor executors upon the removal for cause of a court-appointed executor. Id., 338-39. The Appellate Court further concluded that the plaintiffs’ standing to contest the appointment of another person as executor was not impaired by the provisions of General Statutes § 45a-331 (a), which confers discretion upon the Probate Court to proceed with the settlement of an estate that has been pending for more than ten years. Id., 339. We granted the petition for certification to appeal filed by the defendant, the city of Milford.

After examining the record on appeal, and after considering the briefs and arguments of the parties, we conclude that the judgment of the Appellate Court must be affirmed. The issues on which we granted certification were properly resolved in the thoughtful and comprehensive opinion of the Appellate Court. It would serve no useful purpose for us to repeat the discussion therein contained. Cf. Stankiewicz v. Zoning Board of Appeals, 211 Conn. 76, 78, 556 A.2d 1024 (1989); State v. Leonard, 210 Conn. 480, 481, 556 A.2d 611 (1989).

The judgment of the Appellate Court is affirmed.

       General Statutes § 45a-186, formerly § 45-288.

       General Statutes § 45a-290, formerly § 45-168, provides in relevant part: “administration with the will annexed and de bonis non. . . .
      “(e) If the person designated in the will to be executor has died or refuses to accept or is incapable of accepting such trust, or if during the settlement of the estate, the executor appointed by the court dies, or resigns or is removed from such trust, and the will names an alternate or a successor, the court shall appoint such alternate or successor executor named in said will as executor, who shall have all the powers and duties as provided in the will. Such appointment shall be subject to the same provisions as to hearing, notice, waiver of or order dispensing with notice, and bond, as are stated in this section and sections 45a-286 and 45a-289.”

       General Statutes § 45a-331, formerly § 45-257e, provides in relevant part: “settlement of estate after ten years, closure of estate for dormancy, (a) Whenever for any cause the settlement of any decedent’s estate after the appointment of a fiduciary has been delayed or not completed, the court of probate before which the same is pending may at its discretion proceed with the settlement of such estate, although more than ten years have elapsed since any proceedings have been taken, and in such case may make all such orders as might have been proper if such settlement had not been delayed. . . .”

       The city of Milford is a defendant in its capacity as a creditor of the decedent’s estate by virtue of certain delinquent taxes assessed on property owned by the estate. We granted the defendant’s petition for certification to appeal, limited to the following issues:
      “1. Where an executrix is removed for cause, did the Appellate Court correctly hold that the named successor executors are aggrieved by a Probate Court’s appointment of an administrator, c.t.a.?
      “2. Where more than ten years have elapsed since the appointment of an executor, did the Appellate Court correctly hold that General Statutes § 45a-290 (c) requires the appointment of the named successor executors, despite the provisions of General Statutes § 45a-331 which vests the Probate Court with discretion to settle a decedent’s estate?” Appeal from Probate of Beneivenga, 225 Conn. 919, 625 A.2d 821 (1993).


author: Katz, J.

text:
    Louise Giles v. City of New Haven et al.
    (14709)
    Peters, C. J., Borden, Berdon, Katz and Palmer, Js.

      Argued December 1, 1993—
    decision released February 8, 1994

      Constance L. Epstein, with whom, on the brief, were Richard J. Kenny and Ruth A. Tower, for the appellant (defendant Otis Elevator Company).

      Steven J. DeFrank, with whom, on the brief, was Beatriz C. Cosculluela, law intern, for the appellee (plaintiff).
   Katz, J.

The defendant Otis Elevator Company (defendant) appeals from the Appellate Court’s determination that the trial court should not have granted the defendant’s motion for a directed verdict in an action by the plaintiff, an elevator operator, to recover for the defendant’s negligent failure to inspect, maintain and repair an elevator compensation chain that caused the plaintiff to sustain personal injuries. The Appellate Court concluded that the plaintiff had presented sufficient evidence to warrant presentation of the question of negligence under the doctrine of res ipsa loquitur to the jury. We affirm the judgment of the Appellate Court.

As a preliminary matter, we note that this appeal is before us pursuant to the granting of a directed verdict. “ ‘Directed verdicts are not favored and should be granted only when the jury could not reasonably and legally reach any other conclusion. . . .’ ” Puro v. Henry, 188 Conn. 301, 303, 449 A.2d 176 (1982). Thus, in the context of a res ipsa loquitur case, “[i]f the defendant seeks a directed verdict in his [or her] favor, he [or she] must produce evidence which will destroy any reasonable inference of negligence, or so completely contradict it that reasonable persons could no longer accept it. The evidence necessary to do this will vary with the strength of the inference. It takes more of an explanation to justify a falling elephant than a falling brick, more to account for a hundred defective bottles than for one. If the defendant shows definitely that the occurrence was caused by some outside agency over which the defendant had no control, that it was of a kind which commonly occurs without negligence on the part of anyone, or that it could not have been avoided by the exercise of all reasonable care, the inference of negligence is no longer permissible, and the verdiet is directed for the defendant.” W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 40, p. 261.

The court may withdraw a case from the jury only when there is no question as to the existence of the facts necessary to invoke the doctrine of res ipsa loquitur. “Phrased differently, the question of negligence is one of law for the court only when the facts are not in any event or in any view of the case susceptible to the inference of negligence sought to be deduced therefrom . . . .” (Emphasis added.) 57B Am. Jur. 2d 598, Negligence § 1931 (1989). Accordingly, in reviewing the trial court’s decision to direct a verdict in favor of a defendant, we must consider the evidence in the light most favorable to the plaintiff and then must determine whether the jury could reasonably and legally have reached a conclusion other than one in the moving party’s favor. Petyan v. Ellis, 200 Conn. 243, 244, 510 A.2d 1337 (1986); Pinto v. Spigner, 163 Conn. 191, 193, 302 A.2d 266 (1972).

Applying these principles, the Appellate Court reviewed the record and concluded that the trial court could reasonably have considered the following facts in deciding whether the doctrine of res ipsa loquitur applied. “For fourteen years, the plaintiff was an elevator operator for one of the three elevators in the Powell Building in New Haven. On the date her injuries were sustained, the elevator she was operating was ascending from the first floor to the twelfth floor when its compensation chain became hooked on a rail bracket located on the wall of the elevator shaft. The plaintiff was not able to control the movement of the chain from the interior of the cab. Once hooked, the chain then tightened up and broke free from two bolts securing it to the underside of the cab. The cab began to shudder and shake, and the plaintiff struck her head and shoulder against the walls of the cab. The chain then fell to the bottom of the elevator shaft with a loud crash, which frightened the plaintiff. Upon hearing the crash, the plaintiff, fearing for her safety, reversed the direction of the elevator as it was approaching the twelfth floor. She directed the elevator to the nearest floor, the eleventh, where she jumped from the cab sustaining additional injuries. At the time the plaintiff received her injuries, the defendant had a longstanding exclusive contract with the building owner to maintain and inspect the elevator and its component parts. The elevator was installed by the defendant approximately sixty-one years before the accident. William Hendry, the defendant’s district maintenance supervisor, testified that the accident was caused by the compensation chain’s becoming hooked on a rail bracket in the elevator shaft due to excessive sway of the chain. Hen-dry further testified that the elevators were routinely inspected, but that neither inspection nor testing of the compensation chain was part of that routine inspection. The bolts that held the compensation chain to the underside of the elevator cab were never changed, and no one other than the defendant company touched the compensation chain or the bolts.

“On cross-examination, Hendry testified that the normal sway of a compensation chain is approximately one to two inches, and in order for the chain to get hooked on a rail bracket it must sway at least eighteen inches. He further testified that for the chain to sway eighteen inches there must be some misoperation of the elevator, such as rapid reversals of direction. He had never before seen a compensation chain pulled free of an elevator cab in his thirty-seven years of employment by the defendant. He further stated that on one occasion he had seen the plaintiff make rapid reversals of direction of the elevator.

“The plaintiff, however, testified that her ascension from the first to the twelfth floor was routine until she approached the twelfth floor, and that the cab began to shake and sway before she reversed its direction to the eleventh floor. She further testified that the crash of the compensation chain as it hit the bottom of the elevator shaft occurred before she reversed the direction of the cab.” Giles v. New Haven, 30 Conn. App. 148, 152-53, 619 A.2d 476 (1993).

The plaintiff argued in the Appellate Court that she had offered sufficient evidence at trial from which the jury reasonably could have inferred that the defendant had been negligent in failing to inspect, maintain and repair the compensation chain. In so arguing, the plaintiff presented no direct evidence of the elevator malfunctioning, nor of any defect in the compensation chain. In support of her claim that the question of the defendant’s negligence be submitted to the jury, she relied, however, on the doctrine of res ipsa loquitur which, when properly invoked, allows the jury to infer negligence based on the circumstances of the incident even though no direct evidence of negligence has been introduced. Malvicini v. Stratfield Motor Hotel, Inc., 206 Conn. 439, 441-42, 538 A.2d 690 (1988). This “rule of common sense ... is but a specific application of the general principle that negligence can be proved by circumstantial evidence.” (Internal quotation marks omitted.) Id., 442. The doctrine of res ipsa loquitur applies when three conditions are satisfied: “ ‘(1) [t]he situation, condition, or apparatus causing the injury must be such that in the ordinary course of events no injury would result unless from a careless construction, inspection or user[;] (2) [b]oth inspection and user must have been at the time of the injury in the control of the party charged with neglect[;] (3) [t]he injurious occurrence or condition must have happened irrespective of any voluntary action at the time by the party injured.’ Schurgast v. Schumann, [156 Conn. 471, 479, 242 A.2d 695 (1968)]; Briganti v. Connecticut Co., 119 Conn. 316, 320, 175 A. 679 (1934); Stebel v. Connecti cut Co., [90 Conn. 24, 26, 96 A. 171 (1915)]; 4 F. Harper, F. James & O. Gray, [Torts (2d Ed. 1986) §§ 19.5 through 19.12]. Whether the doctrine applies in a given case is a question of law for the court.” Malvicini v. Stratfield Motor Hotel, Inc., supra, 443.

Before the Appellate Court the parties agreed that the first condition had been met: the accident would not have occurred unless someone had been negligent. Giles v. New Haven, supra, 154. The parties were, however, in disagreement about whether the plaintiff had made a case for the jury with respect to the second and third conditions of the doctrine, namely, control of the elevator by the defendant and the absence of responsibility for the accident on the part of the plaintiff. Malvicini v. Stratfield Motor Hotel, Inc., supra.

The defendant challenges the application of the res ipsa loquitur doctrine to this case because in its view the plaintiff failed to demonstrate that the defendant had exclusive control over the elevator. Specifically, the defendant argues that because the plaintiff operated the elevator and controlled its movement and its chain’s sway, she could not benefit from the doctrine notwithstanding the defendant’s own duty to maintain and inspect the elevator and to warn of any dangerous propensity. We disagree and take this opportunity to clarify some of the confusion in our earlier cases regarding the present scope of the doctrine of res ipsa loquitur.

At the outset, we note that the plaintiff’s evidence of the defendant’s responsibility need not be irrefutable; rather, the plaintiff need only establish enough evidence that, if credited, presents the defendant’s negligence as the most plausible explanation. Sedlitsky v. Pareso, 400 Pa. Super. 1, 5, 582 A.2d 1314 (1990); 2 Restatement (Second), Torts § 328 D, comment (e). In other words, “ ‘[t]he plaintiff need not . . . conclusively exclude all other possible explanations, and so prove his [or her] case beyond a reasonable doubt. . . . It is enough that the facts proved reasonably permit the conclusion that [the defendant’s] negligence is the more probable explanation.’ ” 2 Restatement (Second), Torts § 328D, comment (e). Whether res ipsa loquitur applies depends upon whether the defendant’s negligence was the most plausible explanation for the plaintiff’s injury; the doctrine does not apply if there are other reasonable explanations for the plaintiff’s accidental injury. Sedlitsky v. Pareso, supra.

To avail herself of the inference afforded by the res ipsa loquitur doctrine, the plaintiff must demonstrate that the defendant was responsible for the specific instrumentality that caused the event. Malvicini v. Stratfield Motor Hotel, Inc., supra, 443. Proof of the defendant’s control over the instrumentality demonstrates its responsibility in satisfaction of the second condition of the res ipsa loquitur doctrine. Although the term “exclusive” control does not explicitly appear in the original articulation of that condition, the term has found its way into this court’s previous discussions of the issue. Id., 445, and cases cited therein dating back to 1915. Nevertheless, in describing the extent of the defendant’s control of the use of the instrumentality, we have never held that any use whatsoever of the instrumentality by the plaintiff would automatically preclude application of res ipsa loquitur. Bluett v. Eli Skating Club, 133 Conn. 99, 103, 48 A.2d 557 (1946). So restrictive an interpretation would substantially undermine the efficacy of the doctrine. Rather, our previous discussions of use were meant to reflect the idea of management and control, factors that help to limit the application of the res ipsa loquitur doctrine to those situations in which the defendant’s negligence was more probably than not the cause of the plaintiffs injuries. Schurgast v. Schumann, supra, 479. The plaintiff’s actual use of the instrument, therefore, does not, in and of itself, bar application of the doctrine. See Killian v. Logan, 115 Conn. 437, 440-42,162 A. 30 (1932) (doctrine applied to action for injuries caused by negligent maintenance of fire escape used by plaintiff when injury occurred); Firszt v. Capitol Park Realty Co., 98 Conn. 627, 641-46, 120 A. 300 (1923) (doctrine applicable where plaintiff and her child were injured while riding amusement park ride despite fact that plaintiff was using ride at time of her injuries and could have been engaging in conduct which affected steel cable).

The growing trend in res ipsa loquitur jurisprudence is not to apply the “control” condition in such a way that renders it “a fixed, mechanical and rigid rule. ‘Control,’ if it is not to be pernicious and misleading, must be a very flexible term. It may be enough that the defendant has the right or power of control, and the opportunity to exercise it .... It is enough that the defendant is under a duty which he cannot delegate to another .... There is now quite general agreement that the fact that the plaintiff is . . . using an appliance, which the defendant has manufactured or maintained, will not prevent the application of res ipsa loquitur when the evidence reasonably eliminates other explanations than the defendant’s negligence.” W. Prosser & W. Keeton, supra, § 39, p. 250.

“The point of requiring control by the defendant is, as indicated by Prosser, to provide the basis for an inference that whatever negligence was involved may properly be charged to the defendant. Hoven v. Kelble, 79 Wis. 2d 444, 454, 256 N.W.2d 379 (1977); see W. Prosser, [Torts (4th Ed. 1971)] § 39, pp. 219-21. [Thus, f]or the control condition of the res ipsa loquitur doctrine to apply, the plaintiff must adduce evidence from which the court, as a matter of law, can properly determine that a jury could reasonably draw an inference that it is more probable than not that the person whose negligence caused the injury was the defendant and not some other party or agency.” (Internal quotation marks omitted.) Malvicini v. Stratfield Motor Hotel, Inc., supra, 446.

In many jurisdictions, courts now deemphasize the role of exclusive control as a condition of res ipsa loquitur, even though their earlier decisions included such a requirement. See, e.g., Tompkins v. Northwestern Union Trust Co., 198 Mont. 170, 177, 645 P.2d 402 (1982) (proof of exclusive control merely assists the plaintiff in establishing probable cause in a res ipsa loquitur case; concurrent causes may exist and yet not foreclose reliance on the doctrine); Pattle v. Wildish Construction Co., 270 Or. 792, 797, 529 P.2d 924 (1974) (requirement of exclusive control does not mean that defendant’s control must have been exclusive in terms of physical possession, but only that “ ‘it must appear that the negligence of which the thing speaks is probably that of defendant and not of another’ ”). “Exclusive control is merely one way of proving a defendant’s responsibility. ‘He may be responsible, and the inference may be drawn against him, where he shares the control with another.’ Restatement (Second) of Torts, § 328D, comment g. Thus, the inference may be drawn jointly against the owner of an elevator and the elevator company which maintains the same. Johnson v. Otis Elevator Co., 225 Pa. Super. 500, 502, 311 A.2d 656, 657 (1973). See also: Carney v. Otis Elevator Co., [370 Pa. Super. 394, 536 A.2d 804 (1988)]; Williams v. Eastern Elevator Co., 254 Pa. Super. 393, 386 A.2d 7 (1978).” Williams v. Otis Elevator Co., 409 Pa. Super. 486, 493, 598 A.2d 302 (1991). If the jury could reasonably find that the defendant’s control was sufficient to warrant an inference that the defendant was more likely responsible for the incident than someone else, even in the absence of proof of absolute exclusivity and control over the instrumentality by the defendant, the trial court must allow the jury to draw that inference. Wilson v. Honeywell, Inc., 409 Mass. 803, 807, 569 N.E.2d 1011 (1991).

The Restatement (Second) of Torts also rejects the requirement of exclusive control. A party’s negligence may be inferred when “other responsible causes . . . are sufficiently eliminated by the evidence . . . .” 2 Restatement (Second), Torts § 328 (D) (1) (b). While exclusivity may eliminate other causes, the critical inquiry is not whether the defendant’s control was exclusive, but whether that defendant was responsible for the injury. Id., § 328 (D), comment (g). “[T]here is no necessity for a plaintiff to eliminate all other possible causes of the accident. All that is required is that the plaintiff produce sufficient evidence from which a reasonable [person] could say that, on the whole, it was more likely than not that there was negligence on the part of the defendant. . . . [T]he possibility of other causes does not have to be eliminated completely, but their likelihood must be so reduced that the jury can reasonably find that the negligence, if any, lies at the defendant’s door.” Parrillo v. Giroux Co., 426 A.2d 1313, 1319 (R.I. 1981); W. Prosser, supra, § 39; 2 F. Harper & F. James, Torts (1956) § 19.7.

In this case, the parties agree that the defendant was in control of the maintenance and repair of the elevator and its parts, and that the operation of the elevator by the plaintiff was tantamount to its use. The defendant, however, seeks to distinguish the components of the elevator from their mechanical function by arguing that, although it controlled the elevator chain, it did not control the chain’s sway. We reject such a view of control. Although by operating the elevator the plaintiff may have diminished the exclusivity of the defendant’s control, a jury could find that her conduct did not strip the defendant of control or responsibility for the chain and its condition, which resulted in the excessive sway. We also reject the defendant’s suggestion that someone else could have operated the elevator in such a fashion as to cause the excessive sway. Such a suggestion amounts to speculation that the plaintiff need not dispositively refute. See Sedlitsky v. Pareso, supra, 5.

Hendry, the defendant’s maintenance supervisor, testified that the compensation chain was located under the cab and, consequently, was inaccessible to an operator inside the cab. He testified that the bolts and brackets to which the chain was fastened—which had been'broken—likewise were located under the cab and could not have been touched by an elevator operator inside the cab. He added that the defendant’s mechanic had not been trained or instructed to inspect the compensation chain to determine whether it had been loose or swayed so that it might catch on the rail brackets. Hendry further testified that no part of the compensation mechanism, including the compensation chain and the U-bolts that held it in place, had been repaired or replaced for several years. He testified that his inspection after the incident revealed that the U-bolts had been broken, the counterweight bracket had been pulled out of place and the traveling cable had been broken.

Although Hendry explained that there was no reason to inspect the compensation chain and that he believed the accident had been caused by multiple rapid direction reversals, the plaintiff was not required to prove the absence of such reversals in order to avail herself of the res ipsa loquitur inference. The plaintiff testified that she had been using the elevator in a normal manner on the day of the accident and the trial court was required to view that testimony in a light most favorable to the plaintiff. Petyan v. Ellis, supra, 244. As in this case, “[o]nce a plaintiff has presented sufficient evidence to bring himself [or herself] within the operation of the doctrine, the burden of going forward with evidence to explain the accident is cast upon the defendant. . . Bituminous Fire & Marine Ins. Co. v. Culligan Fyrprotexion, Inc., 437 N.E.2d 1360, 1365 (Ind. App. 1982). The burden of proof, however, does not shift, and the plaintiff must prove her case by a preponderance of the evidence. Ryan v. George L. Lilley Co., 121 Conn. 26, 30, 183 A. 2 (1936). Accordingly, the defendant is free to rebut the inference provided by the doctrine; nevertheless, “even though the defendant comes forward with an explanation of the accident, the inference of negligence does not disappear from the case, but remains and is placed upon the scales to be weighed by the trier of facts with any and all explanations and other evidence.” Bituminous Fire & Marine Ins. Co. v. Culligan Fyrprotexion, Inc., supra. We agree with the Appellate Court that the evidence established an evidentiary basis from which the jury could find that the plaintiff’s injuries resulted from the defendant’s negligence.

Finally, with regard to the third condition of the res ipsa loquitur doctrine, we recently suggested in dictum that “in a jurisdiction that utilizes the doctrine of comparative negligence, such as Connecticut, the emerging rule is that any negligence by the plaintiff should not bar liability but should merely reduce damages. . . . Commentators have suggested that the doctrine of res ipsa loquitur should survive under Connecticut’s comparative negligence law. See G. Saden, ‘Comparative Negligence Adopted in Connecticut,’ 47 Conn. B.J. 416, 426 (1973); F. James, ‘Connecticut’s Comparative Negligence Statute: An Analysis of Some Problems,’ 6 Conn. L. Rev. 207, 215 (1973-74).” Malvicini v. Stratfield Motor Hotel, Inc., supra, 444-45. We now consider this dictum directly and specifically adopt it.

Negligence, if any, by a plaintiff is not a part of the “control” element of the doctrine. The purpose of comparative negligence is to ameliorate the harshness of the complete bar to liability resulting from the common law defense of contributory negligence. W. Prosser, supra, § 67. This change in policy was accomplished by mandating a comparison by the fact finder of the relative degrees of negligence of the plaintiff and the defendant. General Statutes § 52-572h (6) provides that “contributory negligence shall not bar recovery in an action by any person ... to recover damages resulting from personal injury . . . if the negligence was not greater than the combined negligence of the person or persons against whom recovery is sought . . . .” The purpose of the comparative negligence statute was to replace the former rule, under which contributory negligence acted as a complete defense, with a rule under which contributory negligence would operate merely to diminish recovery of damages based upon the degree of the plaintiffs own negligence. Gomeau v. Forrest, 176 Conn. 523, 525, 409 A.2d 1006 (1979); see W. Prosser, supra, § 67. We would contravene this manifest legislative purpose if we were to continue to require a plaintiff to be free from contributory negligence as an element of the res ipsa loquitur doctrine. Because of the advent of comparative negligence, res ipsa loquitur now applies even if the plaintiff’s fault contributed to the injury. Cramer v. Mengerhausen, 275 Or. 223, 229, 550 P.2d 740 (1976).

Insofar as the third condition of res ipsa loquitur relates to contributory negligence, the enactment of § 52-572h requires a modification. We conclude that whenever a court can reasonably find that the event is one that ordinarily would not have occurred in the absence of someone’s negligence, and that the defendant’s inferred negligence was more probably than not a cause of the injury, the doctrine of res ipsa loquitur applies even though the plaintiffs negligence may also have contributed to the injury. If a trial court determines that the doctrine of res ipsa loquitur is applicable, it should thereafter instruct the jury to compare the negligence of the plaintiff, if any, with that of the defendant to decide what percentages to attribute to each party consistent with the comparative negligence statute.

The Appellate Court properly upheld the plaintiffs claim that the trial court should not have granted the defendant’s motion for a directed verdict. Pursuant to the doctrine of res ipsa loquitur as we have refined its conditions in this opinion, the plaintiff was entitled to have a jury consider her claim that the defendant’s negligence was the cause of her personal injuries.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       The Appellate Court’s opinion is found in Giles v. New Haven, 30 Conn. App. 148, 619 A.2d 476 (1993). We certified the following issue: “In the circumstances of this case, did the Appellate Court properly apply the doctrine of res ipsa loquitur?” Giles v. New Haven, 225 Conn. 911, 623 A.2d 1021 (1993).

       Numerous courts have disavowed any requirement that the plaintiff eliminate completely the possibility of other causes for the injuries sustained. See, e.g., Zimmer v. Celebrities, Inc., 44 Colo. App. 515, 518, 615 P.2d 76 (1980); Quin v. George Washington University, 407 A.2d 580, 584 (D.C. 1979); Bias v. Montgomery Elevator Co., 216 Kan. 341, 344, 532 P.2d 1053 (1975); Harford v. Lloyd E. Mitchell, Inc., 269 Md. 64, 71, 304 A.2d 234 (1973); Walsh v. Phillips, 399 S.W.2d 123,128 (Mo. 1966); American Elevator Co. v. Briscoe, 93 Nev. 665, 669, 572 P.2d 534 (1977); Dillon v. William S. Scull Co., 164 Pa. Super. 365, 369, 64 A.2d 525 (1949); Mobil Chemical Co. v. Bell, 517 S.W.2d 245, 261 (Tex. 1974); Joly v. Coca-Cola Bottling Co., 115 Vt. 174, 180, 55 A.2d 181 (1947); Hoven v. Kelble, 79 Wis. 2d 444, 451, 256 N.W.2d 379 (1977). Other courts have held that there is nothing in the doctrine’s rationale that makes the defendant’s physical control an essential element. Jacksvn, v. H. H. Robertson Co., 118 Ariz. 29, 32, 574 P.2d 822 (1978); Metz v. Central Illinois Electric & Gas Co., 32 Ill. 2d 446, 450, 207 N.E.2d 305 (1965); Oak Leaf Country Club, Inc. v. Wilson, 257 N.W.2d 739, 744 (Iowa 1977); Mets v. Granrud, 186 Mont. 265, 269, 606 P.2d 1384 (1980); Gierach v. Snap-On Tools Corp., 79 Wis. 2d 53, 56, 255 N.W.2d 465 (1977).

       The defendant argues that because Hendry’s testimony indicated that no amount of maintenance could have prevented the accident, application of the res ipsa loquitur doctrine would have been improper. This argument reflects a misunderstanding of the purpose of the doctrine, which is to relieve the plaintiff of the burden of proving a specific act of negligence. The jury is as free to accept or reject the defendant’s defense as it is to draw or not draw the permissive inference afforded by the doctrine.

       At least seven other comparative fault jurisdictions agree with this position. See Emerick v. Raleigh Hills Hospital, 133 Cal. App. 3d 575, 184 Cal. Rptr. 92 (1982); Montgomery Elevator Co. v. Gordon, 619 P.2d 66 (Colo.
        1980);Dyback v. Weber, 114 Ill. 2d 232, 500 N.E.2d 8 (1986); Tipton v. Texaco, Inc., 103 N.M. 689, 712 P.2d 1351 (1985); Watzig v. Tobin, 292 Or. 645, 642 P.2d 651 (1982); Cyr v. Green Mountain Power Corp., 145 Vt. 231, 485 A.2d 1265 (1984); Turtenwald v. Aetna Casualty & Surety Co., 55 Wis. 2d 659, 201 N.W.2d 1 (1972).


author: Borden, J. Berdon, J.,

text:
    State of Connecticut v . Charles F. Christiano, Sr.
    (14692)
    Peters, C. J., Callahan, Borden, Berdon and Katz, Js.

      Argued September 29, 1993—
    decision released February 8, 1994

      Lawrence S. Dressier, with whom, on the brief, were W. Paul Flynn and Howard Lawrence, for the appellant (defendant).

      John A. East III, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and CaraF. Eschuk, assistant state’s attorney, for the appellee (state).
   Borden, J.

The defendant, Charles Christiano, Sr., was convicted after a jury trial of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70. He appealed from the judgment of conviction to the Appellate Court, which affirmed the judgment of conviction. State v. Christiano, 29 Conn. App. 642, 617 A.2d 470 (1992). We granted the defendant’s petition for certification to appeal limited to four issues involving the admissibility of expert testimony and of evidence of the victim’s prior sexual conduct. We affirm the judgment of the Appellate Court.

The defendant was charged with two counts of sexual assault in the first degree: one count for forcible fellatio; and the other for forcible vaginal intercourse. Both of these assaults were alleged to have occurred between September 30,1986, and May 31,1989. At the beginning of this period, the victim was eighteen years and eleven months old.

The jury could have reasonably found the following facts. The victim, who is mildly retarded, was placed in the defendant’s home as a foster child when she was eight years old. She continued to reside there until she was twenty-one when, in June, 1989, she went to the Wolcott police and made a statement accusing the defendant, her foster father, of having sexually abused her during the previous four years.

These assaults occurred approximately twice per week during the four year period from September, 1985, until May, 1989. There was a similar pattern to the assaults. Each occurred in the family home when the defendant and the victim were the only ones at home, and each involved both forcible fellatio and forcible vaginal intercourse.

The two specific incidents that were the basis of the conviction occurred approximately thirty days apart in March and April, 1989. These assaults began when the defendant pulled the victim into his bedroom. Once there, the defendant prevented the victim from escaping by means of his superior size and strength, and forced her to perform fellatio and to engage in vaginal intercourse. The defendant threatened to eject the victim from the family home if she disclosed the assaults to anyone. The victim was twenty-one years old when these incidents occurred.

I

We first address the certified question of the admissibility of certain expert testimony introduced by the state. The defendant claims that the Appellate Court incorrectly determined that his right to confrontation under the sixth amendment of the United States constitution, as applied to the states through the due process clause of the fourteenth amendment, was not violated when the trial court admitted expert testimony on child sexual abuse accommodation syndrome (CSAAS). He argues that the expert testimony at trial specifically identified the victim as suffering from CSAAS. This testimony, the defendant asserts, improperly: (1) enhanced the credibility of the victim; (2) identified the defendant as fitting a particular criminal profile; and (3) evidenced crimes with which the defendant had not been charged. We disagree.

The following facts are relevant to this claim. During the defendant’s cross-examination of the victim, he sought to impeach her credibility by questioning her prolonged delay in bringing charges against him. In response to this impeachment, the state offered the testimony of Sidney Horowitz, a clinical psychologist who specializes in treating sexually abused children and adolescents. The state asked Horowitz hypothetical questions concerning delays by victims in disclosing sexual abuse. Horowitz testified that victims of sexual abuse are often reluctant to disclose such abuse to authorities. Horowitz also answered several questions about delay in disclosure by hypothetical victims in situations similar to that of the victim. These questions made no specific reference to the victim. Horowitz also indicated that he had not examined the victim, and was not testifying as to the specifics of her case. Horowitz testified to the effects upon the disclosure of sexual abuse of such factors as the age and mental capacity of typical victims, as well as the effects of the existence of a parental or quasi-parental relationship between perpetrators and victims of abuse.

Although the defendant claims that Horowitz’ testimony concerning the delay by sexual abuse victims in reporting abuse was based on CSAAS, the defendant did not object to Horowitz’ testimony on those grounds at trial. Further, Horowitz did not claim that his testimony was based on CSAAS; indeed, he never specifically mentioned CSAAS during his testimony. The Appellate Court noted that the only reference to CSAAS by Horowitz was “an oblique remark by Horowitz to research by David Finkelhor, an expert in that area.” State v. Christiano, supra, 652.

A defendant’s right to confront witnesses is not absolute and is subject to reasonable limitation. See State v. Thompson, 191 Conn. 146, 148, 463 A.2d 611 (1983). The admissibility of opinion testimony of expert witnesses is a matter within the discretion of the trial court. State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986). “Generally, expert testimony is admissible if (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.” (Internal quotation marks omitted.) State v. Borrelli, 227 Conn. 153, 165, 629 A.2d 1105 (1993); State v. Spigarolo, 210 Conn. 359, 376, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989).

Horowitz’ testimony was offered to rehabilitate the victim’s credibility, which had been impeached by cross-examination regarding her delay in disclosing the conduct of the defendant. On the basis of Horowitz’ testimony, the jury could reasonably have found that the victim’s delay in disclosure was consistent with the rest of her testimony of sexual abuse. Horowitz’ testimony enabled the jury to find that, if the victim had been subjected to sexual abuse, such a finding was not necessarily inconsistent with the delay by the victim in complaining of that abuse.

Reviewing this claim in its entirety, the Appellate Court concluded that Horowitz had not testified about CSAAS. It concluded further that the trial court could reasonably have found that Horowitz possessed special knowledge concerning delay in disclosure by sexual abuse victims in family settings, that this special knowledge was not generally known by the average person, and that it was relevant and material to the performance of the jury’s function of gauging the credibility of the victim.

In an analogous context, we held that expert testimony concerning battered woman’s syndrome is admissible to explain deviations between a victim’s statement to the police and a subsequent recantation of that statement by the victim. State v. Borrelli, supra, 172-74. The Appellate Court concluded that it was within the discretion of the trial court to admit Horowitz’ testimony. State v. Borrelli, supra, supports that conclusion, and our review of the record indicates no reason to disturb it.

II

We next consider the three certified questions concerning the admissibility of evidence of prior sexual conduct of the victim. The defendant claims that the Appellate Court incorrectly concluded that certain evidence of the victim’s prior sexual conduct was inadmissible at trial. He argues that this conclusion was incorrect because evidence of sexual conduct was: (1) admissible pursuant to General Statutes § 54-86f (l) in order to show that the defendant was not the source of the psychological disease from which the victim was suffering; (2) so relevant and material that its exclusion violated his right to confrontation under the sixth amendment as applied to the states though the due process clause of the fourteenth amendment of the United States constitution and was therefore admissible under § 54-86f (4); and (3) admissible pursuant to § 54-86f (4) in order to rebut the testimony of Horowitz because it would have shown other possible causes of the delay by the victim in reporting the abuse. We disagree with the defendant. Each of these issues will be treated seriatim.

A

We first address the issue of the admissibility of evidence of certain prior sexual conduct of the victim under the “source of . . . disease” exception of § 54-86f, commonly known as the “rape shield” statute. See footnote 7. The defendant argues that the victim was suffering from CSAAS, and that CSAAS is a “disease” within the meaning of subdivision (1) of the rape shield statute. He argues that the exclusion of this evidence was reversible error. We disagree.

The defendant failed to object to the exclusion of the evidence of prior sexual conduct of the victim on these grounds. Appellate review of evidentiary rulings is ordinarily limited to the specific legal issue raised by the objection, of trial counsel. See State v. Rothenberg, 195 Conn. 253, 263, 487 A.2d 545 (1985). The purpose of requiring trial counsel to object properly is not merely formal: it serves to alert the trial court to purported error while there is time to correct it without ordering a retrial. Id. By failing to object on these grounds, the defendant has failed to preserve this claim. State v. Couture, 194 Conn. 530, 553-54, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985); see also Practice Book §§ 288 and 4185. We, therefore, decline to review it.

B

We next address the defendant’s claim that the Appellate Court improperly upheld the trial court’s exclusion of evidence of certain prior sexual conduct of the victim in violation of the defendant’s right to confrontation. He argues that the excluded evidence was so relevant and probative as to be essential to his defense, and, therefore, its exclusion violated his right of confrontation. under the sixth amendment to the United States constitution as made applicable to the states by the due process clause of the fourteenth amendment, by denying him the constitutionally irreducible minimum of cross-examination into matters affecting the reliability and credibility of the state’s witnesses. We disagree.

The following facts are relevant to this claim. During trial, Kathleen Christiano, the wife of a first cousin of the defendant, testified for the state that she had arranged a meeting among members of the defendant’s family at St. Vincent Ferrer Church in Naugatuck. At this meeting, the victim confronted the defendant with charges of sexual abuse. Kathleen Christiano testified that, although the defendant denied the accusations of the victim at this meeting, at one point he stated to his wife: “[Y]ou forgave Norman for a sexual act with [the victim] and why can’t you forgive me?”

The defendant sought to introduce evidence of the victim’s prior sexual conduct to explain this admission. The defendant claimed that evidence of consensual sexual relations between the victim and others was relevant and material to a critical issue in the case, namely, consent by the victim to sexual intercourse with the defendant. Specifically, during a hearing outside the presence of the jury, the defendant made an offer of proof as to three distinct episodes of alleged sexual conduct by the victim. These episodes were: (1) consensual sexual intercourse and fellatio between the victim and her foster brothers, Norman Christiano and Charles Christiano, Jr., when the victim was approximately eleven or twelve years old; (2) sexual abuse of the victim by her natural brothers when she was eight years old or younger; and (8) various sexual encounters between the victim and workers at her place of employment.

The defendant’s offer of proof consisted of testimony from four persons. Norman Christiano, the defendant’s son, testified that when he was thirteen or fourteen years old he had engaged in consensual sexual intercourse and consensual fellatio with the victim on approximately twelve occasions. He testified that, on one occasion, his sister, Stacey Christiano, discovered the victim and him engaged in sexual relations. He also testified that the victim had engaged in sexual intercourse with his older brother, Charles Christiano, Jr. These episodes of sexual activity occurred when the victim was eleven or twelve years old.

Doris Christiano, the wife of the defendant, testified that the victim told her that she had been sexually abused by her natural brothers prior to having been placed in the Christianos’ home by the department of children and youth services. This period of sexual abuse occurred when the victim was eight years old or younger. Doris Christiano further testified that Stacey Christiano had informed her of the incident between the victim and Norman Christiano. She also testified that the victim had told her that she was dating and having sexual intercourse with a married man. At the time of this statement, the victim was approximately twenty years old.

Stacey Christiano, an adopted daughter of the defendant, testified that she had seen the victim having sexual intercourse with Norman Christiano when the victim was eleven years old. She also testified that the victim had a reputation for being promiscuous and had engaged in sexual intercourse or flirtatious behavior with many men. Specifically, Stacey Christiano testified that: (1) she had witnessed the victim engaged in sexual conduct with a boy named Tyler when the victim was approximately eleven; (2) she had witnessed the victim engaged in sexual conduct during working hours with an employee of the restaurant at which they both worked when the victim was approximately nineteen years old; (3) others had told her that the victim was promiscuous; and (4) the victim had the reputation of dating older and divorced men.

During this hearing outside the presence of the jury, the defendant testified that he had never had sexual relations of any kind with the victim. He also indicated that he did not remember asking his wife for forgiveness at the church meeting. The defendant did not testify before the jury.

The trial court ruled that all of the proffered evidence was inadmissible. It determined that this evidence was not relevant and was barred by the rape shield statute. The Appellate Court affirmed, reasoning that “[t]he defendant did not establish how the victim’s prior sexual history was ‘so relevant and material’ to the critical issue of whether the defendant sexually assaulted the victim that it should constitute an exception to the inadmissibility of evidence of prior sexual conduct as provided in General Statutes § 54-86f (4).” State v. Christiano, 29 Conn. App. 642, 649, 617 A.2d 470 (1992).

The defendant argues that this evidence was admissible because it was relevant and material to a critical issue in the case: consent by the victim to sexual intercourse with the defendant. He argues that evidence of consensual sexual intercourse by the victim with others was admissible to explain the context of his admission to his wife and to show a pattern of consensual sexual relations between the victim and family members. Had the jury heard evidence that the victim had engaged in consensual sexual intercourse with other family members, he argues, it could have inferred that sexual intercourse between himself and the victim had also been consensual. Thus, although the defendant acknowledges that, during his offer of proof, he expressly and repeatedly denied having had sexual intercourse with the victim, he asserts that consent was a critical issue in the case, because lack of consent is embodied within the proof of force or threat of force required under § 53a-70 (a), the statute under which he was charged, and is therefore always a critical issue in any prosecution thereunder. His argument, therefore, reduces to the following syllogism: § 53a-70 (a) (1) requires proof of force or threat of force; such proof necessarily implies the element of lack of consent in the charged sexual conduct between the defendant and the victim; ergo, lack of such consent is always a “critical issue” within the meaning of § 54-86f (4). This argument is without merit in a prosecution under § 53a-70 (a) (1).

The rape shield statute excludes evidence of prior sexual conduct of the victim of a sexual assault, unless one of the statutory exceptions is satisfied. State v. Rinaldi, 220 Conn. 345, 354, 599 A.2d 1 (1991); State v. Rothenberg, supra, 259-60; State v. Williams, 20 Conn. App. 263, 268, 565 A.2d 1365 (1989). The statute was “enacted specifically to bar or limit the use of prior sexual conduct of an alleged victim of a sexual assault because it is such highly prejudicial material. Berger, ‘Man’s Trial, Woman’s Tribulation: Rape Cases in the Courtroom,’ 77 Colum. L. Rev. 1, 56-57 (1977). Our legislature has determined that, except in specific instances, and taking the defendant’s constitutional rights into account, evidence of prior sexual conduct is to be excluded for policy purposes. Some of these policies include protecting the victim’s sexual privacy and shielding her from undue harassment, encouraging reports of sexual assault, and enabling the victim to testify in court with less fear of embarrassment. See id., 54. Other policies promoted by the law include avoiding prejudice to the victim, jury confusion and waste of time on collateral matters. Id., 56.” State v. Cassidy, 3 Conn. App. 374, 379, 489 A.2d 386, cert. denied, 196 Conn. 803, 492 A.2d 1239 (1985).

Although the state’s interests in limiting the admissibility of this type of evidence are substantial, they cannot by themselves outweigh the defendant’s competing constitutional interests. Id.; see also Davis v. Alaska, 415 U.S. 308, 320, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974). The determination of whether the state’s interests in excluding evidence must yield to those interests of the defendant is determined by the facts and circumstances of the particular case. See, e.g., Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973); State v. Mastropetre, 175 Conn. 512, 521, 400 A.2d 276 (1978). “[T]he right to confront and cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” Chambers v. Mississippi, supra, 295; see also State v. Vitale, 197 Conn. 396, 401, 497 A.2d 956 (1985). Such an interest includes the trial court’s “right, indeed, duty, to exclude irrelevant evidence.” State v. Mastropetre, supra; State v. Taiton, 197 Conn. 280, 283-85, 497 A.2d 35 (1985).

Subdivision (3) of § 54-86f governs the admissibility of evidence of prior sexual conduct of a victim in connection with the defense of consent. It provides in relevant part: “In any prosecution for sexual assault under sections 53a-70, 53a-70a, and 53a-71 to 53a-73a, inclusive, no evidence of the sexual conduct of the victim may be admissible unless such evidence is . . . (3) any evidence of sexual conduct with the defendant offered by the defendant on the issue of consent by the victim, when consent is raised as a defense by the defendant . . . .” (Emphasis added.)

Subdivision (4) of the rape shield statute codifies constitutional principles. It provides in relevant part: “In any prosecution for sexual assault under sections 53a-70, 53a-70a, and 53a-71 to 53a-73a, inclusive, no evidence of the sexual conduct of the victim may be admissible unless such evidence is . . . (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights.” General Statutes § 54-86f (4).

The defendant’s argument relies on an acrobatic leap in statutory interpretation, namely, a leap over subdivision (3) to subdivision (4), as if subdivision (3) did not exist. He acknowledges that he did not raise consent as a defense at trial. The plain language of subdivision (3) of the rape shield statute requires that the defendant raise the defense of consent before evidence of sexual conduct of the victim is admissible. Even then, it is only “evidence of sexual conduct with the defendant,” not with others, that is admissible under subdivision (3). (Emphasis added.)

The defendant’s argument that consensual sexual conduct with others is always admissible under subdivision (4) when the charge involves nonconsensual sexual intercourse would render superfluous the limitations of subdivision (3). Under the defendant’s argument, whenever nonconsensual sexual conduct is part of the state’s proof, the defendant would be entitled to introduce consensual sexual conduct of the victim with others, not with the defendant, and irrespective of whether the defendant claimed that the charged conduct was consensual rather than forceful. Moreover, under the defendant’s argument, the limitations embodied in subdivision (3)—prior sexual conduct with the defendant, and consent raised as a defense—would have no application whatsoever. This result follows because in a case involving a sexual assault charge that did not involve nonconsensual conduct as an element; see, e.g., General Statutes § 53a-70 (a) (2); consent could not be raised by the defendant as a defense, and, according to the defendant, in a case involving a sexual assault charge that did involve nonconsensual conduct, consensual conduct with others would always be admissible. Thus, were we to accept the reasoning of the defendant, subdivision (3) of the rape shield statute would be swallowed by subdivision (4). As a general rule of statutory interpretation, we will not read a statute in such a way as to render a portion of it superfluous. Peck v. Jacquemin, 196 Conn. 53, 66, 491 A.2d 1043 (1985); see also Gifford v. Freedom of Information Commission, 227 Conn. 641, 661, 631 A.2d 252 (1993).

The defendant’s argument would also run contrary to the purposes of and policies advanced by the statute. See State v. Cassidy, supra, 379. If, as the defendant posits, admissibility of evidence of the victim’s consensual sexual conduct with others is constitutionally required pursuant to subdivision (4), there would be little, if anything, left of those policies. We decline to read the statute so as to render meaningless the purposes and policies that prompted the legislature to enact it.

As the Appellate Court noted, moreover, the defendant had available to him other means to question the victim’s credibility. The defendant cross-examined the victim extensively as to her possible motives for accusing him. The defendant also presented witnesses who testified that the victim had ulterior motives in bringing charges against him. The Appellate Court concluded that the trial court acted within its proper discretion when it excluded evidence of prior sexual conduct of the victim offered by the defendant. Further, it properly concluded that it did not prejudice the defendant or deny him his constitutional rights to confront the witnesses against him and to present witnesses in his own behalf. We see no reason to disturb those conclusions.

C

The final claim raised by the defendant is that certain evidence of prior sexual conduct of the victim with family members was admissible to rebut the testimony of Horowitz. He argues that such evidence was admissible under subdivision (4) of the rape shield statute because it would have provided an alternate explanation for the delay by the victim in reporting the abuse, consistent with Horowitz’ testimony. Specifically, he argues that the behavioral characteristics identified by Horowitz that could cause victims to delay reporting sexual abuse could have been caused by sexual abuse by persons other than a parent. He argues that the evidence of the victim’s sexual abuse by her natural brothers when she was approximately eight years old, and evidence of the sexual relations between the victim and her foster brothers when she was approximately eleven years old, provided an alternative explanation of the victim’s delay in reporting that abuse. He therefore argues that the failure to admit that evidence to rebut Horowitz’ testimony violated his confrontation rights. We disagree.

In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury “facts from which the jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” Davis v. Alaska, supra, 318; State v. Lewis, 220 Conn. 602, 621, 600 A.2d 1330 (1991). When defense evidence is excluded, such exclusion may give rise to a claim of denial of the right to present a defense. Chambers v. Mississippi, supra, 289-90. A defendant is, however, bound by the rules of evidence in presenting a defense. State v. Kelly, 208 Conn. 365, 375-76, 545 A.2d 1048 (1988). Although exclusionary rules of evidence cannot be applied “mechanistically” to deprive a defendant of his rights, the constitution does not require that a defendant be permitted to present every piece of evidence he wishes. Chambers v. Mississippi, supra, 302. If the proffered evidence is not relevant, the defendant’s right to confrontation is not affected, and the evidence was properly excluded. State v. Mastropetre, supra, 517; State v. Cassidy, supra, 383. “As a general principle, evidence is relevant if it has a tendency to establish the existence of a material fact. One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable.” (Internal quotation marks omitted.) State v. Cassidy, supra.

In the present case, the Appellate Court correctly concluded that the trial court had properly excluded the proffered evidence of prior sexual conduct of the victim with family members to rebut Horowitz’ testimony. The substance of Horowitz’ testimony concerned factors that would cause a sexually abused child to delay reporting that abuse when the abuser was a parent or authority figure. He testified to the typical relationship between a foster father and a child. He testified that it is difficult for victims of sexual assault to combat an abuser when the abuser is a parent or a trusted adult in their environment. He also testified to feelings of helplessness on the part of a victim when the abuser is a father figure. Thus, the thrust of Horowitz’ testimony concerned the delay of disclosure of abuse of victims by parents or those in positions of parental authority.

The proffered evidence of sexual conduct between the victim and other family members concerned evidence of sexual abuse of the victim by her natural brothers when she was eight years old or younger, and sexual intercourse between the victim and her foster brothers when she was approximately eleven or twelve and they were slightly older. Horowitz’ testimony did not address these situations. A situation in which a very young girl is being sexually abused by her equally young brothers or foster brothers is not analogous to the situation described by Horowitz, in which a victim delays disclosing abuse because of the power exerted by an abuser who is a parent, or one who is exercising parental authority. The proffered evidence was properly excluded as irrelevant.

The judgment of the Appellate Court is affirmed.

In this opinion Peters, C. J., Callahan and Katz, Js., concurred.

Berdon, J.,

concurring.

I merely wish to point out that the defendant did not object to the hypothetical questions posed to the expert witness Sidney Horowitz by the state, and Horowitz repeatedly indicated that his opinion was based upon his personal clinical experience and not upon his observation of the victim.

       General Statutes § 53a-70 provides in relevant part: “sexual assault in the first degree: class b felony . . . . (a) A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . .

         We certified the following questions for review: “(1) Did the Appellate Court correctly decide that the defendant’s right to confrontation was not violated when the trial court refused to admit evidence of the complainant’s prior sexual conduct? (2) Did the Appellate Court correctly decide that evidence of the complainant’s prior sexual behavior was not admissible to show a pattern of conduct of a particular mode of consensual sexual relationships within family settings? (3) Did the Appellate Court correctly examine the record and determine that the testimony of Dr. Horowitz was not evidence of child sexual abuse accommodation syndrome that was being offered to identify the complainant as suffering from child sexual abuse accommodation syndrome, to bolster the credibility of the complainant, to identify the defendant as fitting a particular criminal profile, and as evidence of prior uncharged crimes? (4) Did the Appellate Court correctly decline to address the issue of whether the prior sexual conduct of the complainant should have been admitted to show that the defendant was not the source of the complainant’s psychological disease, i.e., child sexual abuse accommodation syndrome?” State v. Christiano, 225 Conn. 906, 621 A.2d 288 (1993).

       “In an appeal following certification, the focus of our review is not the actions of the trial court, but the actions of the Appellate Court.” (Internal quotation marks omitted.) Cahn v. Cahn, 225 Conn. 666, 671, 626 A.2d 296 (1993); Essex Leasing, Inc. v. Zoning Board of Appeals, 206 Conn. 595, 599, 539 A.2d 101 (1988).

       See Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965).

       We note, however, that in situations such as this, when an expert is testifying to hypothetical situations in which a victim has been sexually abused, it is advisable for the trial court to give a cautionary instruction to the effect that the expert testimony is not offered to prove that the defendant actually committed the specific abusive acts in question, but only to aid the jury in gauging the victim’s credibility, by showing that the victim’s delay in reporting the sexual abuse was not necessarily inconsistent with such abuse having taken place. Cf. State v. Harman, 198 Conn. 124, 137 n.9, 502 A.2d 381 (1985).

       Because Horowitz did not testify to the specifics of CSAAS, we do not decide under what circumstances testimony expressly premised on CSAAS might be admissible. The Appellate Court noted that many other jurisdictions permit testimony based on CSAAS to rehabilitate a witness. See State v. Christiano, 29 Conn. App. 642, 652-53 n.4, 617 A.2d 470 (1992), and cases cited therein.

       General Statutes § 54-86f provides: “admissibility of evidence of sexual conduct. In any prosecution for sexual assault under sections 53a-70, 53a-70a, and 53a-71 to 53a-73a, inclusive, no evidence of the sexual conduct of the victim may be admissible unless such evidence is (1) offered by the defendant on the issue of whether the defendant was, with respect to the victim, the source of semen, disease, pregnancy or injury, or (2) offered by the defendant on the issue of credibility of the victim, provided the victim has testified on direct examination as to his or her sexual conduct, or (3) any evidence of sexual conduct with the defendant offered by the defendant on the issue of consent by the victim, when consent is raised as a defense by the defendant, or (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights. Such evidence shall be admissible only after a hearing on a motion to offer such evidence containing an offer of proof. On motion of either party the court may order such hearing held in camera, subject to the provisions of section 51-164x. If the proceeding is a trial with a jury, such hearing shall be held in the absence of the jury. If, after hearing, the court finds that the evidence meets the requirements of this section and that the probative value of the evidence outweighs its prejudicial effect on the victim, the court may grant the motion. The testimony of the defendant during a hearing on a motion to offer evidence under this section may not be used against the defendant during the trial if such motion is denied, except that such testimony may be admissible to impeach the credibility of the defendant if the defendant elects to testify as part of the defense.”

       Practice Book § 288, as effective in 1991, provided: “Whenever an objection to the admission of evidence is made, counsel shall state the grounds upon which it is claimed or upon which objection is made, succinctly and in such form as he desires it to go upon the record, before any discussion or argument is had. Argument upon such objection shall not be made by either party unless the court requests it and, if made, must be brief and to the point. An exception to the ruling must be taken in order to make it a ground of appeal.”
      Practice Book § 288 has been amended, effective October 1, 1993, by eliminating the exception requirement contained in the final sentence quoted above.
      Practice Book § 4185 provides: “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court.
      “In jury trials, where there is a motion, argument, or offer of proof or evidence in the absence of the jury, whether during trial or before, pertaining to an issue that later arises in the presence of the jury, and counsel has fully complied with the requirements for preserving any objection or exception to the judge’s adverse ruling thereon in the absence of the jury, the matter shall be deemed to be distinctly raised at the trial for purposes of this rule without a further objection or exception provided that the grounds for such objection or exception, and the ruling thereon as previously articulated, remain the same.”

       The defendant argues that his right of confrontation was improperly restricted by the exclusion of evidence of the victim’s prior sexual conduct. The defendant did not seek to introduce evidence of the victim’s prior sexual conduct during his extensive cross-examination of her, preferring to introduce the evidence in rebuttal. His claim is more accurately characterized as one involving the right to present a defense under the due process clause of the fourteenth amendment, rather than a confrontation claim under the sixth amendment, which essentially secures the right to cross-examination of witnesses. Because our analysis in this particular fact-bound instance would be the same under either a confrontation or due process claim, we analyze his claim under the applicable law of confrontation. See State v. Cassidy, 3 Conn. App. 374, 380-81, 489 A.2d 386, cert. denied, 196 Conn. 803, 492 A.2d 1239 (1985).

       We note that the defendant made a single reference to his right to confrontation under both the federal and the state constitutions at one place in his brief. He has not provided any independent analysis of his state constitutional claim. We therefore decline to review it. State v. Joly, 219 Conn. 234, 258 n.16, 593 A.2d 96 (1991).

       General Statutes § 53a-70 (a) (2) provides: “sexual assault in the first degree: class b felony: one year not suspendable. (a) A person is guilty of sexual assault in the first degree when such person . . . (2) engages in sexual intercourse with a person under thirteen years of age