text:
    Sharon Moore v. Howard McNamara
    (12732)
    Peters, C. J., Healey, Shea, Dannehy and Santaniello, Js.
    Argued May 6—
    decision released August 12, 1986

      Michele R. Celentano, for the appellant (defendant).

      Stephen J. McGovern, assistant attorney general, with whom were Charles Constanzo and, on the brief, Joseph I. Lieberman, attorney general, for the appellee (state).
   Shea, J.

This is an appeal from the judgment of the Superior Court finding that the defendant, Howard McNamara, is the father of the named plaintiffs child, and ordering the defendant to pay weekly support until that child’s eighteenth birthday, as well as arrearages to the state of Connecticut. On appeal, the defendant claims the trial court erred in concluding: (1) that the three year limitation upon the initiation of paternity actions prescribed by General Statutes § 46b-160, in effect at the time of the trial court’s judgment, is unconstitutional; and (2) that blood grouping and human leukocyte antigen (HLA) test results are admissible to establish paternity. Because § 46b-160 has been amended to eliminate the three year statute of limitations, we need not reach the constitutional issue. Further, we hold that the trial court correctly construed § 46b-168 not to bar the inclusive use of blood grouping and HLA test results.

On June 15,1982, Sharon Moore brought a paternity action against Howard McNamara alleging that he was the father of the child born to her on December 10, 1978. The defendant pleaded in a special defense that General Statutes § 46b-160 barred the action because the child was more than three years old when the suit was filed. The state, having assumed its party status pursuant to § 46b-160, because it had been paying lying-in expenses for the mother and child as well as support and maintenance for the child; see Lavertue v. Niman, 196 Conn. 403, 406, 493 A.2d 213 (1985); replied that the three year limitation on paternity actions violated the equal protection clause of the fourteenth amendment to the United States constitution. On April 25,1984, the court, Jackaway, J., denied the defendant’s motion for summary judgment and held that Connecticut’s three year statute of limitations was unconstitutional.

On May 7, 1984, the defendant moved for a court order pursuant to General Statutes § 46b-168 requiring that he, the mother, and the child submit to blood tests. At trial the plaintiff sought to admit in evidence as an exhibit the results of the HLA and other blood tests prepared by Herbert Silver, a physician. These results were offered to show the statistical likelihood of the defendant being the father of the child. The defendant objected to the admission of the results, claiming them to be inadmissible because § 46b-168 states that the results of blood grouping tests “shall be admissible in evidence only in cases where such results establish definite exclusion of the putative father . . . The trial court, Reilly, J., overruled the defendant’s objection.

On the basis of the testimony, the blood test results, and a visual comparison of the child with the defendant, the trial court found that the defendant is the father of the child. The court ordered the defendant to pay $15 per week in child support, an additional $10 per week to the state toward an arrearage of $11,687.93, and an additional $5 per week to the plaintiff’s attorney until the sum of $2187.50 is paid in full.

I

We need not address the defendant’s first claim that the trial court erred in concluding that the three year limitation upon the initiation of paternity actions prescribed by General Statutes § 46b-160 is unconstitutional. This court has a basic judicial duty to avoid deciding a constitutional issue if a nonconstitutional ground exists that will dispose of the case. See generally Rescue Army v. Municipal Court, 331 U.S. 549, 568-74, 67 S. Ct. 1409, 91 L. Ed. 1666 (1947); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-47, 56 S. Ct. 466, 80 L. Ed. 688 (1936) (Brandeis, J., concurring); Negron v. Warden, 180 Conn. 153, 166, 429 A.2d 841 (1980). “The best teaching of this Court’s experience admonishes us not to entertain constitutional questions in advance of the strictest necessity.” Parker v. Los Angeles, 338 U.S. 327, 333, 70 S. Ct. 161, 94 L. Ed. 144 (1949). “Appropriate deference to a coordinate branch of government exercising its essential functions demands that we refrain from deciding constitutional challenges to its enactments until the need to do so is plainly evident.” State v. Madera, 198 Conn. 92, 105, 503 A.2d 136 (1985). Effective October 1,1985, the state legislature amended § 46b-160 to increase the statute of limitations for asserting paternity claims from three years to eighteen years. Public Acts 1985, No. 85-548, § 3. It would be inappropriate for this court to resolve the constitutional issue the parties have briefed without first deciding whether the new eighteen year statute of limitations contained in Public Acts 1985, No. 85-548 is applicable to this case, thus making unnecessary a determination of the validity of the former three year statute. The issue then becomes whether the new eighteen year statute of limitations is to be applied retroactively to the defendant.

It is a rule of construction that legislation is to be applied prospectively unless the legislature clearly expresses an intention to the contrary. See Enfield Federal Savings & Loan Assn. v. Bissell, 184 Conn. 569, 571, 440 A.2d 220 (1981). The rule is rooted in the notion that it would be unfair to impose a substantive amendment that changes the grounds upon which an action may be maintained on parties who have already transacted or who are already committed to litigation. See Lavieri v. Ulysses, 149 Conn. 396, 401, 180 A.2d 632 (1962); E.M. Loew’s Enterprises, Inc. v. International Alliance, 127 Conn. 415, 418, 17 A.2d 525 (1941). In civil cases, however, unless considerations of good sense and justice dictate otherwise, it is presumed that procedural statutes will be applied retrospectively. See State v. Paradise, 189 Conn. 346, 351, 456 A.2d 305 (1983); Lavieri v. Ulysses, supra. Procedural statutes have been traditionally viewed as affecting remedies, not substantive rights, and therefore leave the preexisting scheme intact. See, e.g., Sherry H. v. Probate Court, 177 Conn. 93, 100-102, 411 A.2d 931 (1979).

“A statute of limitations is generally considered to be procedural, especially where the statute contains only a limitation as to time with respect to a right of action and does not itself create the right of action. Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 195, 286 A.2d 308 (1971).” Collucci v. Sears, Roebuck & Co., 585 F. Sup. 529, 532 (D. Conn. 1984). This is so because it is considered that the limitation merely acts as a bar to a remedy otherwise available. Lewis v. Rosen, 149 Conn. 734, 735, 181 A.2d 592 (1962). Where a statute of limitations is procedural, it is subject to waiver; unless specifically pleaded it is deemed waived and the remedy continues beyond the prescribed period. See Orticelli v. Powers, 197 Conn. 9, 15, 495 A.2d 1023 (1985). Where, however, a specific limitation is contained in the statute that creates the right of action and establishes the remedy, the remedy exists only during the prescribed period and not thereafter. In this situation, the statute of limitations is considered substantive or jurisdictional rather than procedural or personal, and therefore may not be waived. Id.; L.G. DeFelice & Son, Inc. v. Wethersfield, 167 Conn. 509, 511, 356 A.2d 144 (1975).

At common law there was no remedy to compel a putative father to contribute to the support of his illegitimate offspring. One commentator explained: “At Common Law neither the mother nor putative father is liable to maintain a natural child. The right of custody being absent, the correlative duty of maintenance was absent also. The child of nobody was as regards its support the child of the people, and the people in the shape of the overseers had to undertake its suc-cour.” W. Hooper, The Law of Illegitimacy (1911), pp. 135-36. In an early legislative rejection of the common law rule that an illegitimate child was nullius filius, Connecticut enacted its “statute of bastardy.” In Hinman v. Taylor, 2 Conn. 357 (1817), the court stated: “A suit for the maintenance of a bastard child is a statutory process sui generis .... The statute creates a right to commence and prosecute a civil suit . . . .” Id., 360.

Because paternity statutes derogated from the common law and thus created the right of action, statutes of limitations within them were considered substantive and jurisdictional. It can no longer be said, however, that the right of action in Connecticut in paternity suits does not derive from the common law. The common law is generally described as “those principles, usage, and rules of action applicable to the government and security of persons and property which do not rest for their authority upon any express and positive declaration of the will of the legislature.” Bishop v. United States, 334 F. Sup. 415, 418 (S.D. Tex. 1971); see State v. Muolo, 118 Conn. 373, 378, 172 A. 875 (1934); Beardsley v. Hartford, 50 Conn. 529, 541 (1883). The United States Supreme Court in Gomez v. Perez, 409 U.S. 535, 93 S. Ct. 872, 35 L. Ed.2d 56 (1973), added to the common law its holding that “once a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers there is no constitutionally sufficient justification for denying such an essential right to a child simply because its natural father has not married its mother.” Id.-, 538. Thus, because the father’s obligation to support his minor legitimate child is created at common law; White v. White, 138 Conn. 1, 5, 81 A.2d 450 (1951); Bohun v. Kinasz, 124 Conn. 543, 546, 200 A. 1015 (1938); his similar obligation after Gomez to support his minor illegitimate child is now derivatively based upon common law.

Because our paternity statute no longer is the sole basis for a paternity action, the statute of limitations it contains is not substantive or jurisdictional, but rather procedural or personal. It follows that such a statute of limitations may properly be applied retrospectively absent the clear expression of a contrary legislative intent, unless considerations of good sense and justice dictate otherwise. No such contrary intent appears either in the wording of the amended statute, or in the proceedings that disclose its legislative history. Nor does it appear that retroactive application of the new statute of limitations would work an injustice on the defendant. If we were to hold that the amendment was inapplicable to this action, which was pending at the time of the enactment; see General Statutes § 1-1 (u); the plaintiff would not be barred from commencing a new paternity action until 1996, when her child will reach his eighteenth birthday. Accordingly, we hold that the new eighteen year limitation upon the initiation of paternity actions prescribed by Public Acts 1985, No. 85-548, § 3, is to be applied retroactively to the defendant.

II

The defendant’s second claim is that the trial court erred in concluding that blood grouping and HLA test results are admissible to establish paternity. General Statutes § 46b-168 states that the results of blood grouping tests “shall be admissible in evidence only in cases where such results establish definite exclusion of the putative father . . . .” When the state offered in evidence the report of the laboratory that had performed the tests upon the defendant, the mother and the child, the defendant objected that, since the report did not exclude his paternity, the statute barred the admission of the test results. The court overruled the objection and an exception was noted. We must, therefore, address the issue of whether HLA tests are blood grouping tests within the meaning of § 46b-168. A preliminary discussion of some of the scientific principles and procedures involved in paternity testing is necessary to explain our legal conclusions.

Gregor Mendel, the nineteenth century anchorite who crossed peas, discovered that hereditary particles from each parent, which are members of pairs, segregate in forming reproductive cells and then recombine in the offspring. Blood types are inherited according to the Mendelian laws that genes determine inherited characteristics, occur in pairs on chromosomes, and that one gene of the pair is inherited from the father while the other is inherited from the mother. See Peterson, “A New Things You Should Know About Paternity Tests (But Were Afraid To Ask),” 22 Santa Clara L. Rev. 667, 669-70 (1982). If one knows the blood group (the phenotype) of a child, mother, and alleged father, one can infer the genes giving rise to that blood group (the genotype) and say whether a child with the observed phenotype could have been born to the mother and putative father. For example, a child having the phenotype A could not have been born to parents who are homozygous for the gene B (i.e., both parents have the genotype BB). See Lee, “Current Status of Paternity Testing,” 9 Fam. L.Q. 615, 616-21 (1975). In such a case, the nonpaternity of the putative father having the genotype BB is established.

Courts have allowed the use of blood tests in paternity litigation for the last half century. Exclusion of paternity has traditionally been the primary consideration. See, e.g., Beach v. Beach, 114 F.2d 479, 480 (D.C. Cir. 1940) (“[t]he value of blood grouping tests as proof of non-paternity is well known”); Cortese v. Cortese, 10 N.J. Super. 152, 157, 76 A.2d 717 (1950) (“[b]lood tests can now disprove paternity in over one-half of the paternity cases involving innocent men”). The use of blood test results had been necessarily restricted in this way because at one time only a few antigens, which are molecules that are genetic markers and that can be detected on the surface of cells, were known. Consequently, only a few basic blood group systems, all being red cell antigen systems, could be tested. For example, a positive test result under the early ABO system would mean merely that the accused was one of the 87 percent of the male population not excluded as the potential father. Positive test results under the ABO, Rh, and MNSs systems cumulatively, which tests are commonly referred to as the Landsteimer series of red cell blood grouping tests, would mean that the alleged father was one of the 45.5 percent of the male population having the requisite genotypes. See generally “Joint AMA-ABA Guidelines: Present Status of Serologic Testing in Problems of Disputed Parentage,” 10 Fam. L.Q. 247 (1976); McCormick, Evidence (3d Ed. 1984), pp. 617-22.

Genetic technology has advanced substantially in recent years. The probability of exclusion of parenthood on the basis of the combined use of several red cell antigen systems has increased to 65 percent and 73 percent for black and white individuals, respectively. P. Tishler, “Genetic Technology and the Solution of Crime,” in Genetics and the Law II (A. Milunsky, G. Annas eds. 1979), pp. 284-85. In addition, the recent discovery of the HLA system, present in cells throughout the body, has given rise to HLA testing for tissue compatibility in the context of organ transplants. Because of the “extreme diversity” of HLA types in humans, from which it follows that “the HLA types of virtually all individuals are rare”; id., 286; the impetus arose to use HLA data as evidence for paternity. See id., 286-87; Terasaki, “Resolution By HLA Testing of 1000 Paternity Cases Not Excluded By ABO Testing,” 16 J. Fam. L. 543 (1978).

Despite the name “leucocyte antigen,” the factors expressed by the HLA genes are present in most cells. J. Barrett, Textbook of Immunology (3d Ed. 1978), pp. 386-87. Blood cells are the easiest cells to obtain for HLA testing. “The HLA antigens occur in the white blood cells as well as in the tissue cells. Therefore, tissue typing for these antigens is done in the membranes of lymphocytes that have been separated from the person’s blood.” A. Guyton, Textbook of Medical Physiology (7th Ed. 1986), p. 75. However, an individual’s HLA type is not related to his blood type. “HLA testing can be thought of as tissue typing rather than blood group typing.” Ellman & Kaye, “Probabilities and Proof: Can HLA and Blood Group Testing Prove Paternity?,” 54 N.Y.U. L. Rev. 1131, 1139 (1979).

In accordance with these considerations, we conclude that HLA tests are not blood grouping tests within the meaning of General Statutes § 46b-168. See also Commonwealth v. Beausoleil, 397 Mass. 206, 213, 490 N.E.2d 788 (1986) (“[w]e are Convinced by our review of the case law from other jurisdictions as well as the available scientific and medicolegal commentary that the HLA system is not a blood grouping test, but is a tissue typing system”); Cutchember v. Payne, 466 A.2d 1240, 1241-42 (D.C. 1983) (HLA test is not a blood test within the statutory meaning, but a tissue test for which blood is merely a convenient testing medium). Nor do we believe that the combination of HLA tests and red cell tests, which may increase the probability of excluding a wrongly accused father to over 99 percent; see Peterson, supra, 671; falls within § 46b-168’s ambit. “The results, produced by combining HLA tests with the Landsteimer test or series of tests, are no longer those of blood grouping but rather a hybrid not specifically excluded by the plain and unambiguous language of § 46b-168.” Miller v. Miller, 40 Conn. Sup. 66, 69, 481 A.2d 428 (1984); see also Commonwealth v. Beausoleil, supra, 213 n.10.

Our conclusion that HLA tests are not blood grouping tests within the meaning of the statute is supported by the legislative history of the adoption of § 46b-168. The legislative records indicate that the relatively low exclusion capability of the Landsteimer series strongly influenced the legislature to include the prohibition against using the test results affirmatively. Norman Solanch, a serologist, speaking at the hearings in 1957, said that the reason for the restriction upon the admissibility of blood grouping tests “is very simple. At the present time, we cannot prove that an individual is the father, but in cases where an individual is wrongly accused we can exclude him with the groupings here that are presently available in a little over 50 percent of the cases.” General Law Committee, Hearing on Public Acts 1957, No. 367, April 4,1957, p. 724. From this testimony, it appears unlikely that the 1957 legislature intended its statute to prohibit the admission in evidence of test results obtained by then unknown techniques such as HLA testing capable of achieving a decidedly higher probability of exclusion.

Because the defendant’s objection to the introduction of the laboratory report was solely upon the ground we have rejected that § 46b-168 prohibited admission of the test results for the purpose of establishing paternity, we need not consider whether the report was admissible under general common law rules pertaining to the use of evidence derived from recently developed scientific techniques. A party is limited to the ground of his objection in claiming error in a ruling on evidence. Salvatore v. Hayden, 144 Conn. 437, 443,133 A.2d 622 (1957); see Brown v. Connecticut Light & Power Co., 145 Conn. 290, 141 A.2d 634 (1958). The prevailing standard for judicial recognition of the probative value of scientific evidence has been carefully delineated in Frye v. United States, 293 F. 1013 (D.C. App. 1923): “Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts, will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” Id., 1014. This court has used the Frye standard in appraising the admissibility of evidence derived from innovative scientific techniques. See, e.g., State v. Tomanelli, 153 Conn. 365, 370, 216 A.2d 625 (1966) (“general scientific acceptance of the Doppler-shift principle upon which police radar operates”); cf. Molino v. Board of Public Safety, 154 Conn. 368, 376, 225 A.2d 805 (1966) (“unreliability of the polygraph test has resulted in its universal rejection”).

We note that combined blood grouping and HLA testing has attained general acceptance in the scientific community as a means of testing for paternity. See, e.g., J. Barrett, supra; Joint AMA-ABA Guidelines: Present Status of Serologic Testing in Problems of Disputed Parentage, supra; Lee, supra; Peterson, supra; Terasaki, supra; P. Tishler, supra. “The American Medical Association, the American Association of Blood Banking, and the American Association of Histocompatibility have all approved HLA testing to determine paternity. See Haines v. Shanholtz, 57 Md. App. 92, 100 [468 A.2d 1365] (1984). Moreover, while there is some disagreement among medicolegal commentators as to how inculpatory HLA test results should be presented to the fact finder in paternity cases, nearly all agree that such evidence is reliable and should be admitted in one form or another.” Commonwealth v. Beausoleil, supra, 215-16. It also appears that the decided trend in other jurisdictions is toward admission of HLA test results as evidence of paternity. See, e.g., Cramer v. Morrison, 88 Cal. App. 3d 873, 153 Cal. Rptr. 865 (1979); Carlyon v. Weeks, 387 So. 2d 455, 467 (Fla. App. 1980); Crain v. Crain, 104 Idaho 666, 662 P.2d 538 (1983); Commonwealth v. Beausoleil, supra; Hennepin County Welfare Board v. Ayers, 304 N.W.2d 879 (Minn. 1981); Owens v. Bell, 6 Ohio St. 3d 46, 53, 451 N.E.2d 241 (1983).

The state did produce an expert witness who testified concerning the scientific principles supporting the reliability of the test results and who had supervised the testing procedures used in this case. The defendant produced no expert witnesses. His cross-examination of the state’s expert did touch upon some of the deficiencies in the assumptions used in the probability theorem employed to calculate the 99.6 percent likelihood of paternity that the laboratory report indicated. We cannot conclude, however, from reviewing the trial transcript that the issue of judicial acceptance of the results of combined blood grouping and HLA testing as establishing the probability of paternity was fully litigated in the trial court, presumably because of the absence of an objection to such evidence on that ground. This case also presents no occa^ sion for discussion of some of the problems related to the manner of presentation of statistical probability of paternity that may arise, especially in jury cases. See Commonwealth v. Beausoleil, supra, 220. Accordingly, we limit our holding on this aspect of the case to the conclusion that the admissibility of the results from the combined blood grouping and HLA testing is not precluded by § 46b-168.

Although we hold that the trial court correctly construed General Statutes § 46b-168 not to bar the inclusive use of blood grouping and HLA test results, we address two final concerns. First, a possible reading of the trial court’s memorandum of decision is that it used the results of the HLA and blood grouping tests to find that the named parties had sexual intercourse. That memorandum states in part: “The Court after having heard all of the testimony, and after a review of the exhibits, finds that the Plaintiff has proven that, during the period in question, the Petitioner Sharon Moore was a single woman and that the child in question was conceived on March 4, 1978 at the Defendant’s apartment when the Petitioner and the Defendant engaged in sexual relations.” (Emphasis added.) The plaintiff’s Exhibit A was Dr.. Silver’s report, in which he calculated that the likelihood of the defendant’s paternity is 99.6 percent. Because this probability calculation was based upon an assumption of sexual intercourse during the period of conception, its use in proving intercourse would be incorrect. In the present case, however, the defendant admitted on examination by the court that he and the plaintiff mother had engaged in sexual intercourse on the date in question. Because this admission was sufficient evidence of intercourse, such an impermissible use of the test results is not at issue today.

Our final concern is whether applying the results of the HLA and blood grouping tests to show paternity may be unfair with respect to this defendant. The defendant moved for a court order pursuant to General Statutes § 46b-168 requiring that he, the mother, and the child submit to blood tests. Probably, the defendant believed that the results of these tests would be admissible in evidence only to establish that he was not the father. Nevertheless, even were we to find the defendant’s interpretation of the statute reasonable, the fact that § 46b-168 allows the court to order blood tests on motion of any party would render futile a decision not to apply the test results to the defendant. At the next trial, the plaintiff would be able to move for a further round of blood tests, and then to have the results admitted into evidence. Therefore, the court did not err in applying the results of the HLA and blood grouping tests to this defendant.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Revised to See. 46b-160. (Formerly Sec. 52-435a). PETITION BY MOTHER OR EXPECTANT MOTHER. VENUE. CONTINUANCE OF CASE. EVIDENCE. Proceedings to establish paternity of a child bom or conceived out of lawful wedlock, including one born to, or conceived by, a married woman but begotten by a man other than her husband, shall be instituted by a verified petition of the mother or expectant mother, with summons and order, filed in the superior court for the geographical area in which either she or the putative father resides. For trial purposes, jurors shall be selected from the judicial district in which such geographical area is located. In cases involving public assistance recipients the petition shall also be served upon the attorney general who shall be and remain a party to any paternity proceeding and to any proceedings after judgment in such action. Upon the filing of such petition, said court or any judge assigned to said court shall cause a summons, signed by him or by the clerk or assistant clerk of said court, to be issued, requiring the putative father to appear in court at a time and place named therein to show cause, if any he has, why the prayer of such petition should not be granted. Such petition, summons and order shall be in a form approved by the judges of the superior court. In the case of a child or expectant mother being supported wholly or in part by the state, service of such petition may be made by any investigator employed by the department of human resources or the department of income maintenance. No such petition shall be brought after three years from the birth of such child, or after three years from cessation of contribution toward support of the child by the putative father, whichever is later, provided the provisions of section 52-590 shall be applicable to this section. If such putative father fails to appear in court at such time and place, the court may hear the petitioner and enter such judgment and order as the facts may warrant. Such court may order continuance of such hearing and if such mother or expectant mother continues constant in her accusation, it shall be evidence that the respondent is the father of such child.”
      Public Acts 1985, No. 85-548, § 3, effective October 1, 1985, amends § 46b-160 to permit paternity actions to be brought any time prior to the child’s eighteenth birthday: “Sec. 3. Section 46b-160 of the general statutes is repealed and the following is substituted in lieu thereof:
      “Proceedings to establish paternity of a child born or conceived out of lawful wedlock, including one bom to, or conceived by, a married woman but begotten by a man other than her husband, shall be instituted by a verified petition of the mother or expectant mother, with summons and order, filed in the superior court for the geographical area in which either she or the putative father resides. For trial purposes, jurors shall be selected from the judicial district in which such geographical area is located. In cases involving public assistance recipients the petition shall also be served upon the attorney general who shall be and remain a party to any paternity proceeding and to any proceedings after judgment in such action. Upon the filing of such petition, said court or any judge assigned to said court shall cause a summons, signed by him or by the clerk or assistant clerk of said court, to be issued, requiring the putative father to appear in court at a time and place named therein to show cause, if any he has, why the prayer of such petition should not be granted. Such petition, summons and order shall be in a form approved by the judges of the superior court. In the case of a child or expectant mother being supported wholly or in part by the state, service of such petition may be made by any investigator employed by the department of human resources or the department of income maintenance. [No such petition shall be brought after three years from the birth of such child, or after three years from cessation of contribution toward support of the child by the putative father, whichever is later; provided the provisions of section 52-590 shall be applicable to this section.] SUCH PETITION MAY BE BROUGHT AT ANY TIME PRIOR TO THE CHILD’S EIGHTEENTH BIRTHDAY, PROVIDED LIABILITY FOR PAST SUPPORT SHALL BE LIMITED TO THE THREE YEARS NEXT PRECEDING THE GRANTING OF ANY SUCH PETITION. If [such] THE putative father fails to appear in court at such time and place, the court may hear the petitioner and enter such judgment and order as the facts may warrant. Such court may order continuance of such hearing; and if such mother or expectant mother continues constant in her accusation, it shall be evidence that the respondent is the father of such child.”

       “[General Statutes] Sec. 46b-168. (Formerly Sec. 52-184). blood tests WHEN PATERNITY IS IN DISPUTE. ASSESSMENT OF costs. In any proceeding in which a question of paternity is an issue, the court, on motion of any party, may order the mother, her child and the putative father or the husband of the mother to submit to one or more blood grouping tests, to be made by a qualified physician or other qualified person, designated by the court, to determine whether or not the putative father or the husband of the mother can be excluded as being the father of the child. The results of such tests shall be admissible in evidence only in cases where such results establish definite exclusion of the putative father or such husband as such father. The costs of making such tests shall be chargeable against the party making the motion, provided if the court finds that such party is indigent and unable to pay such costs, such costs shall be paid by the state. If the costs of making such tests are paid by the state and the party making the motion is subsequently adjudicated to be the father of the child, such party shall be liable to the state for the amount of such costs.”

       The trial court in its memorandum of decision, filed June 6,1985, stated its finding of evidentiary facts that relate to the sexual relations of and between the named parties: “The Court after having heard all of the testimony, and after a review of the exhibits, finds that the Plaintiff has proven that, during the period in question, the Petitioner Sharon Moore was a single woman and that the child in question was conceived on March 4, 1978, at the Defendant’s apartment when the Petitioner and the Defendant engaged in sexual relations. The Court further finds that the child in question was born on December 10,1978. The court further finds that during this period when the child was conceived the Petitioner Sharon Moore did not have sexual relations with any other man. The Court further finds that the Defendant acknowledged the paternity of said child to his daughter Linda. It is further found that the child bears a striking resemblance to the Defendant.”

       See footnote 1, supra.

       The brief of the plaintiff-appellee mentions the enactment of Public Acts 1985, No. 85-548, allowing a paternity action to be brought “at any time prior to a child’s eighteenth birthday.” The brief also declares that “the act, effective October 1, 1985, will relieve the Connecticut trial courts of the responsibility of determining what time limit would meet the Mills criteria.” It thus appears that the defendant was alerted to the existence of the new statute of limitations and the claim of the plaintiff that in any subsequent proceeding in the trial court involving the paternity of the child that a remand might necessitate, the eighteen year statute of limitations would control. Obviously, if the new statute now controls the ultimate disposition of the paternity claim against the defendant, as we conclude, it would serve no useful purpose to determine whether our former three year statute is subject to the infirmities that have resulted in invalidating the one year statute in Mills v. Habluetzel, 456 U.S. 91, 102 S. Ct. 1549, 71 L. Ed. 2d 770 (1982), or the two year statute in Pickett v. Brown, 462 U.S. 1, 103 S. Ct. 2199, 76 L. Ed. 2d 372 (1983).

       But cf. Humphrys v. Polak & Wife, 2 K.B. 385, 85 L.T. 103 (1901), reported in Cockle & Hibbert’s Leading Cases in Common Law—With Notes, Explanatory and Connective—Presenting a Systematic View of the Whole Subject (2d Ed. 1929), p. 161: “I am inclined to think that there was at common law a duty on the part of the mother towards such child, and that the series of legislative enactments on the subject, such as the Poor Law Amendment Act, 1834 (4 & 5 Will. 4, c. 76), s. 71, did not create that duty, but merely recognised and defined it . . . .”

       See Public Statute Laws (Rev. of 1821), tit. 8 n.l, explaining: “In the revision of 1672, an act appears, subjecting the father of a bastard child to the maintenance of it, with the assistance of the mother, as the court shall order, and providing that the person charged by the mother to be the father, shall be adjudged to be the reputed father, upon her continuing constant in the charge, especially being put upon the discovery of the truth, in the time of her travail . . . .”

       Illustrative of this point is the case of Staples v. Staples, 41 L.T. 347 (1879), discussed in A. Lieck, Lushington’s Law of Affiliation and Bastardy—With Statutes, Notes, Forms, etc. (5th Ed. 1928), p. 9, wherein the English court addressed an issue involving the twelve month statute of limitations within the Bastardy Laws Amendment Act, 1872: “A bastard child having been bom on November 3rd, 1877, application for an affiliation order was made by the mother .on October 11th, 1878, and the summons was heard and dismissed for want of corroborative evidence on October 25th, 1878. On the same October 25th, after the justices had left the court-house, the mother applied to justices’ clerk at his office for a second summons, alleging that further corroborative evidence was forthcoming .... [B]ut in consequence of the justice to whom such original application was made not attending the court, a second summons was not issued till November 6th, 1878. [The court held] that the respondent’s second application not having been made to the justice himself until November 6th, 1878, it was too late, and the justice had no jurisdiction in the matter.”

       The ABO, Rh, and MNSs systems were the basic blood group systems used for testing in Connecticut in 1957, when General Statutes § 46b-168 was enacted. See General Law Committee, Hearing Conn. Joint Standing Committee Hearings, General Law Pt. 2 1957 Sess., p. 724.

       That the Committee on Judiciary of the General Assembly earlier this year discussed and allowed to die without a vote a proposed bill that would have, inter alia, allowed blood grouping and tissue typing test results into evidence in certain circumstances does not dissuade us from our conclusions. See Committee on Judiciary, Hearings on Raised Committee Bill No. 6054, “An Act Concerning Proof of Paternity,” March 24, 1986. The reasons for the proposed bill’s demise are not pellucid, and therefore such demise cannot be seen as the basis for a clear inference on the question of legislative intent. Further, the Committee’s distinction between blood grouping tests and tissue typing tests bolsters our own interpretation of the current statute, namely, that the restriction it places on the use of blood grouping tests does not also restrict the use of tissue typing tests.

       See footnote 3, supra.

       The probability of paternity was calculated by the use of Bayes’ Theorem which is a basic formula of probability theory. The formula makes two assumptions: (1) that the mother of the child had intercourse with the defendant during the possible period of conception and (2) that the mother also had intercourse with another male during that period. It then describes the way test results would influence a completely rational decisionmaker’s evaluation of the probability of paternity. See Lempert, “Modeling Relevance,” 75 Mich. L. Rev. 1021, 1022-25 (1977). The formula postulates that the prior probability of paternity should be revised according to a fraction whose denominator is the likelihood of positive test results if the defendant is the father (100 percent), and whose numerator is the probability of positive results if the alleged father is not the biological father. Ellman & Kaye, “Probabilities and Proof: Can HLA and Blood Group Testing Prove Paternity,” 54 N.Y.U. L. Rev. 1131, 1148 (1979).

       The relevant examination by the court went as follows:
      “The Court: Mr. McNamara, on the stand [Miss Moore] indicated that you had sex with her.
      “The Witness: Yes.
      “The Court: She also indicated that you had sex with her on March 4th at a mortgage burning party?
      “The Witness: Yes.
      “The Court: Did you have sex with her on March 4th?
      “The Witness: Yes.”

       In the recent case Commonwealth v. Beausoleil, 397 Mass. 206, 490 N.E.2d 788 (1986), the Massachusetts Supreme Judicial Court ruled that HLA test results are admissible to establish paternity, notwithstanding an exclusionary statute closely paralleling our General Statutes § 46b-168. The Beausoleil court declined to apply its decision retroactively to the defendant, who had requested that the HLA blood test be performed. Beausoleil, supra, 222. Unlike our statute, however, the Massachusetts statute mandates that the court shall order blood tests on the motion of the alleged father only. See Beausoleil, supra, 211 (quoting Mass. Gen. Laws. ch. 273, § 12A).


source: Caselaw Access Project

author: Dannehy, J.

license: Public Domain

text:
    State of Connecticut v. Gregory Bond State of Connecticut v. Ronald Bostick
    (11732)
    (11778)
    Healey, Shea, Dannehy, Callahan and Ment, Js.
    Argued June 12
    decision released August 12, 1986

      Michael O. Sheehan, for the appellant (defendant in the first case).

      James V. Guarino, special public defender, with whom, on the brief, was Patricia C. Farrell, for the appellant (defendant in the second case).

      Enrico Vaccaro, special assistant state’s attorney, with whom, on the brief, were John T. Redway, state’s attorney, Timothy J. Liston and JohnM. Massameno, assistant state’s attorneys, and James G. Clark, deputy assistant state’s attorney, for the appellee (state).
   Dannehy, J.

The defendants, Gregory Bond and Ronald Bostick, were severally indicted for the murder of Peter Taylor. The defendants were tried together and both were found guilty by a jury of felony murder in violation of General Statutes § 53a-54c. Each defendant was ordered to serve a term of imprisonment of seventeen years to life. Represented by separate counsel both defendants have appealed and their appeals have been combined in this court. On appeal the defendants claim that the trial court erred: (1) in refusing their requests that the jury be instructed on the lesser included offenses of robbery and assault; and (2) in refusing the jury’s request for clarifying instructions. We agree with the defendants’ first contention and remand this case for a new trial. It is, therefore, unnecessary to consider the defendants’ second claim of error.

The jury could reasonably have found that on the evening of May 29, 1981, the defendants, along with one Kasto Mayberry, were driving around Middletown in Mayberry’s van. At approximately 10 p.m. they noticed the victim walking in an unsteady or staggering manner, as if intoxicated, in a parking lot. The victim, Peter Taylor, was legally blind, mentally retarded, had epilepsy, and walked with an ataxic gait as the result of a childhood brain tumor. Taylor apparently had been returning to the home where he resided under the supervision of the state department of mental retardation.

Mayberry pleaded guilty to the crime of felony murder and testified for the state. Mayberry testified that he and the defendants observed Taylor and decided to rob him. The three men then exited from the van, accosted Taylor and demanded money. Mayberry further testified that he and the defendants punched and slapped Taylor, and that he, Mayberry, pulled out a knife and held it to the back of Taylor’s head. According to Mayberry, either Bond or Bostick slapped Taylor, causing his head to jerk backward into the knife. Taylor then slumped to the ground, someone took his wallet, the three assailants ran back to the van, and drove away. The chief medical examiner testified that Taylor had died of a stab wound to the base of the neck with penetration of the brain stem.

Both defendants testified at trial that they had nothing to do with Taylor’s robbery and murder. They testified that Mayberry exited the van, committed the robbery, stabbed the victim, took his wallet, and then returned to the van. The defendants further testified that they did not discuss the robbery with Mayberry; that they did not know what he was going to do; and that they did not know that he possessed a knife. In short, the defendants claimed to be innocent bystanders.

It is not the function of this court to decide what actually happened on the evening of May 29, 1981. State v. Wilson, 199 Conn. 417, 438-39, 507 A.2d 1367 (1986). It is enough to say that the jury could reasonably have believed some, none or all of the defendants’ testimony. In particular, the jury could reasonably have found that the defendants, along with Mayberry, participated in the robbery, but did not know or have reason to believe that Mayberry possessed a knife. Under such a scenario, the jury would have been justified in finding the defendants not guilty of felony murder but guilty of robbery in the first degree. Such a result is possible under the affirmative defense to felony murder provided in General Statutes § 53a-54c. That section provides that “it shall be an affirmative defense that the defendant: (A) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (D) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.” The trial court, pursuant to the defendants’ joint request, instructed the jury on the affirmative defense to felony murder provided in General Statutes § 53a-54c.

A defendant accused of felony murder who does not claim the benefit of the statutory affirmative defense is generally not entitled to an instruction on the lesser offense which underlies the charge of felony murder. This is so because, assuming the element of causation is not in dispute, guilt of the lesser offense constitutes guilt of felony murder. State v. Morin, 180 Conn. 599, 604-10, 430 A.2d 1297 (1980). A defendant who claims the benefit of the affirmative defense, however, says, in effect, that “although I may have participated in the underlying crime, I did not cause the homicidal act or know that any of my fellow participants was armed with a deadly weapon.” Should the jury find satisfied the four requirements of the affirmative defense, then they would be justified in finding the defendant not guilty of felony murder, but guilty of the underlying offense.

We recognize that in theory the jury should have acquitted the defendants of felony murder had it found that the four requirements of the affirmative defense were satisfied. “But a defendant is entitled to a lesser offense instruction in this context . . . precisely because he should not be exposed to the substantial risk that the jury’s practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.” (Emphasis added). Keeble v. United States, 412 U.S. 205, 212-13, 93 S. Ct. 1993, 36 L. Ed. 2d 844 (1973); see State v. Rodriguez, 180 Conn. 382, 404, 429 A.2d 919 (1980). By refusing to instruct the jury on the lesser included offense of robbery in the first degree in violation of General Statutes § 53a-134 (a) (1) or (2), the trial court left the jury with the extreme alternatives of finding the defendants guilty of felony murder or acquitting them outright. We think the evidence in this case clearly warranted lesser included offense instructions on the crimes of robbery and assault in varying degrees. The trial court erred in refusing the defendants’ requests.

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

In this opinion the other justices concurred.

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

       “[General Statutes] Sec. 53a-134. robbery in the first degree: class b felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime; or (2) is armed with a deadly weapon. ...”


author: Callahan, J.

text:
    Harold Catz, Executor (Estate of Elaine S. Foster), et al. v. Stephen R. Rubenstein
    (12737)
    Healey, Shea, Dannehy, Santaniello and Callahan, Js.
    Argued May 8
    decision released August 12, 1986

      Donald McPartland, with whom, on the brief, was William J. Secor, Jr., for the appellants (plaintiffs).

      Peter J. Ottomano, with whom, on the brief, was Thomas L. Brayton, for the appellee (defendant).
   Callahan, J.

This is a medical malpractice action commenced June 11, 1982, in which the trial court granted the defendant’s motion for summary judgment on the ground that, as a matter of law, the plaintiffs’ suit was barred by the two year statute of limitations provided by General Statutes § 52-584. The plaintiffs have appealed, claiming that, even if the defendant’s affidavit and the other documents submitted in support of his motion were credited, there still existed a genuine issue of material fact as to when the plaintiffs’ decedent discovered or in the exercise of reasonable care should have discovered her “injury.” The plaintiffs did not file a counteraffidavit.

The documentation submitted in connection with the defendant’s motion for summary judgment established the following facts which are essentially undisputed: After she had discovered a lump in her left breast in late July, 1979, the plaintiffs’ decedent, Elaine S. Foster, consulted the defendant, Stephen R. Rubenstein, a physician who practiced general internal medicine. The defendant examined Foster, palpated the lump and ordered a mammogram. In early August, 1979, the defendant informed Foster that the mammogram was negative for cancer, that she merely had a tendency toward cysts, and that it was nothing to worry about. In January, 1980, after she discovered another lump, this time in the area of the left axilla, Foster spoke to the defendant on the telephone concerning her condition. On that occasion the defendant told her that she had a propensity to fatty tissue, that he did not think it was anything serious, and that there was no cause for concern. The lump grew larger, however, and in April, 1980, Foster again contacted the defendant. On April 21, 1980, he examined her for the second time and ordered another mammogram. This mammogram indicated a malignancy which was confirmed on May 1, 1980, when Massoud Marjani, a surgeon to whom Foster had been referred, performed a left modified radical mastectomy. Despite further treatment, the cancer spread to other parts of her body and Foster died of the disease on July 27, 1984. This action was commenced on June 11, 1982, and the present plaintiffs, coexecutors of her estate, were substituted as plaintiffs on October 22, 1984. The plaintiffs concede that Foster was aware that she had cancer no later than May 1, 1980.

The plaintiffs claim that, during the period of July, 1979, through April, 1980, the defendant negligently failed to prescribe or recommend further diagnostic tests or treatment for Foster and negligently failed to obtain the opinion of or refer her to a physician who specialized in the recognition and treatment of potential malignancies. The defendant contends that, even if that is so, Foster discovered her “injury,” which he maintains was her cancerous condition, by May 1, 1980, and that her suit, which was not commenced until June 11,1982, is barred by General Statutes § 52-584.

The plaintiffs maintain, however, that all of the information available to Foster in May, 1980, indicated and led her to believe that the cancer, confirmed by the operation on May 1,1980, was a new growth or mass, not related to the condition for which she had previously been examined and diagnosed by Rubenstein in July and August of 1979. The plaintiffs claim that Foster was justified in her belief because the defendant told her, in August, 1979, that there was no evidence of cancer; because Marjani stated in his discharge summary, dated May 11,1980, that the lump in her left breast “was a rather rapidly growing tumor, since a year ago, or last August, the examination was completely negative”; and because Stephen Stein, a radiologist, who took the second mammogram, stated in his report dated April 22, 1980, that the growth discovered was a “[n]ew dominant mass.”

The plaintiffs argue that there was no evidence submitted with the defendant’s motion for summary judgment and no facts established that showed when Foster discovered or in the exercise of reasonable care should have discovered that she had cancer in her left breast when she was initially examined and diagnosed by Rubenstein or that her condition at that time was related to the cancer discovered on May 1, 1980. The plaintiffs claim, on appeal, that Foster first became aware of that possibility when she was advised to that effect by Horace Stansel of the Yale Medical School in April, 1982, and that she did not therefore discover her “injury” until that date.

The trial court, Gaffney, J., found that the plaintiffs’ decedent discovered her “injury” no later than May 1, 1980, and granted the defendant’s motion for summary judgment. In its memorandum of decision the trial court stated: “The plaintiffs’ action was brought more than two years from the date when the injury was sustained or discovered. It was, therefore, on the date of suit a stale claim. Prevention of such claims is a legitimate purpose of a statute of limitations.”

General Statutes § 52-584 provides in pertinent part as follows: “No action to recover damages for injury to the person . . . caused by . . . malpractice of a physician . . . 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 . . . .”

The defendant claims that, on the facts established by the documents submitted in support of his motion for summary judgment, § 52-584 bars the plaintiffs’ action. He asserts that Foster’s “injury” was the allegedly misdiagnosed cancer and that the documentation showed that Foster admitted she discovered that “injury” no later than May 1, 1980, when she underwent the left modified radical mastectomy. The defendant argues that, since § 52-584 mandates that an action for malpractice by a physician be brought within two years from the date an “injury” is first discovered, the plaintiffs’ decedent was required to bring suit no later than May 1,1982. He asserts, therefore, that, since suit was not brought until June 11,1982, there was no genuine issue of material fact and that the plaintiffs’ cause of action was barred as a matter of law by the two year provision of § 52-584 as determined by the trial court. We disagree and conclude that the defendant did not meet his burden on his motion for summary judgment of demonstrating that there was no genuine issue as to the time when Foster discovered or in the exercise of reasonable care should have discovered her “injury,” a material fact necessary to determine the commencement of the running of the statute of limitations.

This court has previously stated that § 52-584 “requires that the injured party bring suit within two years of discovering the injury. ... In this context injury occurs when a party suffers some form of ‘actionable harm. ’ ” (Emphasis added.) Burns v. Hartford Hospital, 192 Conn. 451, 460, 472 A.2d 1257 (1984). A breach of duty by the defendant and a causal connection between the defendant’s breach of duty and the resulting harm to the plaintiff are essential elements of a cause of action in negligence. Prosser & Keeton, Torts, (5th Ed.) § 30, pp. 164-65; Calderwood v. Bender, 189 Conn. 580, 584, 457 A.2d 313 (1983); Coburn v. Lenox Homes, Inc., 186 Conn. 370, 375, 441 A.2d 620 (1982); Busko v. DeFilippo, 162 Conn. 462, 466, 294 A.2d 510 (1972); Moore v. Bunk, 154 Conn. 644, 649, 228 A.2d 510 (1967). They are therefore necessary ingredients for “actionable harm.” Consequently, the plaintiffs’ decedent did not have an “injury” as contemplated by the statute until she discovered or in the exercise of reasonable care should have discovered a causal relationship between the defendant’s allegedly negligent diagnosis of August, 1979, and subsequent lack of treatment, and the metastasis of her cancer which she discovered on May 1, 1980. Only then did she sustain “actionable harm.” Burns v. Hartford Hospital, supra.

The defendant’s affidavit and the other documents submitted in support of his motion for summary judgment pinpoint when the defendant examined Foster and initially diagnosed her condition and when she became aware that she had cancer. They do not, however, disclose when Foster discovered or in the exercise of reasonable care should have discovered that the defendant was negligent in his examination, diagnosis, and treatment and the causal nexus, if any, between his alleged negligence and the metastasis of her cancer. There was, therefore, remaining a genuine issue of material fact which was not resolved and the trial court erred in granting the defendant’s motion for summary judgment.

In Burns v. Hartford Hospital, supra, cited as authority for our position, we nonetheless affirmed the decision of the trial court which held, on a motion for summary judgment, that § 52-584 was a bar to the plaintiffs’ malpractice action. The result in Burns is readily distinguishable from that in the present case, however. In Bums, the plaintiff knew on November 10, 1975, of the causal relation between the defendant’s alleged negligence, the insertion of contaminated intravenous tubes into her infant son’s leg, and the resulting harm, yet did not commence an action until almost three years later, on November 1,1978, after her son’s condition had worsened. The plaintiff in that case was therefore aware of “actionable harm” or “injury” as contemplated by § 52-584 more than two years prior to starting suit and we held that “[t]he harm need not have reached its fullest manifestation before the statute begins to run.” Id., 460.

In Barnes v. Schlein, 192 Conn. 732, 473 A.2d 1221 (1984), we also indicated that the time when a plaintiff discovers or in the exercise of reasonable care should have discovered “actionable harm” is the time used in determining when the two year period of limitation of § 52-584 begins to run. Id., 738-39. Again, however, we affirmed the ruling of the trial court on a motion for summary judgment that the statute was a bar to the plaintiff’s cause of action because the plaintiff was aware of the causal connection between the defendant’s negligence and her injury and thus knew that she had suffered “ ‘some form of actionable harm’; Burns v. Hartford Hospital, supra”; more than two and one-half years prior to commencing suit. Id., 739.

The legislative history of § 52-584, while neither extensive nor conclusive, supports the position that the term “injury” in the statute should be interpreted as “actionable harm.” “ ‘In determining the true meaning of a statute when there is genuine uncertainty as to how it should apply, identifying the problem in society to which the legislature addressed itself by examining the legislative history of the statute under litigation is helpful.’ State v. Campbell [180 Conn. 557, 561, 429 A.2d 960 (1980)].” State v. Belton, 190 Conn. 496, 506, 461 A.2d 973 (1983). The formulation of § 52-584 which used the term “injury” was adopted by the legislature in 1957. The language in the statute in effect prior to that time provided that an action could be brought only within one year “from the date of the act or omission complained of.” General Statutes (Rev. to 1949) § 8324; see McDonald v. Haynes Medical Laboratory, Inc., 192 Conn. 327, 334, 471 A.2d 646 (1984). The testimony in 1957 before the General Law Committee of the legislature, which considered the predecessor to our present § 52-584, indicates that the use of the term “injury” was a conscious reaction to, and an attempt to alleviate the draconian effect of two cases, Dincher v. Marlin Firearms Co., 198 F.2d 821 (2d Cir. 1952), and Vilcinskas v. Sears, Roebuck & Co., 144 Conn. 170, 174, 127 A.2d 814 (1956). In those cases the United States Second Circuit Court of Appeals and this court concluded that the language “act or omission complained of” in § 8324 required a holding that the statute of limitations began running on the date of the defendant’s negligence and that a plaintiff’s cause of action could be barred before the plaintiff suffered any harm and therefore before a cause of action had accrued. The use by the legislature of the word “injury” rather than “act or omission” in the initial part of § 52-584 was obviously a deliberate choice, as the words “act or omission” were used in the second portion of the statute pertaining to the three year period of limitation.

Other jurisdictions have also held that a plaintiff must have discovered or in the exercise of reasonable care should have discovered the essential elements of a possible cause of action before the statute of limitations commences to run. “A cause of action will not accrue until the plaintiff discovers or in the exercise of reasonable diligence should have discovered not only that he has been injured but also that his injury may have been caused by the defendant’s wrongful conduct.” (Emphasis in original.) Brown v. Mary Hitchcock Memorial Hospital, 117 N.H. 739, 743, 378 A.2d 1138 (1977). “We hold that the statute of limitations begins to run when the claimant has knowledge of facts which would put a reasonable person on notice of the nature and extent of an injury and that the injury was caused by the wrongful conduct of another. The overwhelming majority of state appellate courts which have addressed the issue here have adopted the ‘legal injury’ construction of the word here ‘injury’ used in statutes of limitation governing medical malpractice actions. The focus is on the plaintiff’s knowledge of facts, rather than on discovery of applicable legal theories. Decisions by the appellate courts of California, Hawaii, Iowa, Nevada, New Hampshire, New Jersey, North Dakota, Ohio, Oregon, Utah and West Virginia support this interpretation of the word ‘injury.’ ” Mastro v. Brodie, 682 P.2d 1162, 1168 (Colo. 1984); see Graham v. Hansen, 128 Cal. App. 3d 965, 180 Cal. Rptr. 604 (1982); Yamaguchi v. Queens Medical Center, 648 P.2d 689 (Hawaii 1982); Baines v. Blenderman, 223 N.W.2d 199 (Iowa 1974); Massey v. Litton, 99 Nev. 723, 669 P.2d 248 (1983); Brown v. Mary Hitchcock Memorial Hospital, supra; Silverman v. Lathrop, 168 N.J. Super. 333, 403 A.2d 18 (1979); Iverson v. Lancaster, 158 N.W.2d 507 (N.D. 1968); Schiele v. Hobart Corporation, 284 Or. 483, 587 P.2d 1010 (1978); Berry v. Branner, 245 Or. 307, 421 P.2d 996 (1966); Foil v. Ballinger, 601 P.2d 144 (Utah 1979); Renner v. Asli, 280 S.E.2d 240 (W.Va. 1981); see also Lopez v. Swyer, 62 N.J. 267, 300 A.2d 563 (1973); Oliver v. Kaiser Community Health Foundation, 5 Ohio St. 3d 111, 449 N.E.2d 438 (1983); Brosse v. Cumming, 20 Ohio App. 3d 260, 485 N.E.2d 803 (1984); Wilkinson v. Harrington, 104 R.I. 224, 243 A.2d 745 (1968); Ohler v. Tacoma General Hospital, 92 Wash. 2d 507, 598 P.2d 1358 (1979); Wood v. Gibbons, 38 Wash. App. 343, 685 P.2d 619 (1984).

A trial court may appropriately grant a motion for summary judgment only when the affidavits and evidence submitted in support of the motion demonstrate that there is no genuine issue of material fact, remaining between the parties and that the moving party is entitled to judgment as a matter of law. Practice Book § 384; Barnes v. Schlein, supra, 738; Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11, 459 A.2d 115 (1983); Yanow v. Teal Industries, Inc., 178 Conn. 262, 268, 422 A.2d 311 (1979); United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 377-78, 260 A.2d 596 (1969). “A ‘material’ fact has been defined adequately and simply as a fact which will make a difference in the result of the case.” United Oil Co. v. Urban Redevelopment Commission, supra, 379. The factor which is dispositive of the present case for the purpose of the defendant’s motion for summary judgment is whether § 52-584 bars the plaintiffs’ suit. That in turn is determined by. when Foster discovered or in the exercise of reasonable care should have discovered her “injury”; that is when she discovered or in the exercise of reasonable care should have discovered that she had suffered some form of “actionable harm.” We are not persuaded that no genuine issue exists as to that material fact.

The defendant claims that the trial court was entitled to rely upon the facts set forth in his affidavit and other documents submitted in support of his motion and render judgment because the plaintiffs did not file a coun-teraffidavit. “When a motion for summary judgment is supported by affidavits and other documents, an adverse party, by affidavit or as otherwise provided by § 380, must set forth specific facts showing that there is a genuine issue for trial, and if he does not so respond, the court is entitled to rely upon the facts stated in the affidavit of the movant.” Bartha v. Waterbury House Wrecking Co., supra, 11-12. “Because the burden is on the movant, the evidence must be viewed in the light most favorable to the nonmovant and he is given the benefit of all favorable inferences that can be drawn. United Oil Co. v. Urban Redevelopment Commission, [supra, 380].” Evans Products Co. v. Clinton Building Supply, Inc., 174 Conn. 512, 516, 391 A.2d 157 (1978). Relying on and crediting the facts set forth in the material submitted in support of the defendant’s motion, we nevertheless conclude that there remains a genuine issue as to when Foster discovered or in the exercise of reasonable care should have discovered the causal nexus, if any, between the metastasis of her cancer and the allegedly negligent conduct of the defendant. A genuine issue of material fact exists, therefore, as to when she discovered or in the exercise of reasonable care should have discovered her “injury,” that is when she discovered she had suffered “actionable harm,” and the resolution of that question should be left to the trier of fact.

It is clear that the repose portion of § 52-584 which provides that “no action may be brought more than three years from the date of the act or omission complained of” bars the bringing of suit more than three years after the alleged negligent conduct of a defendant regardless of when a plaintiff discovers the proximate cause of his harm or any other essential element of a negligence cause of action. McDonald v. Haynes Medical Laboratory, Inc., supra, 334. Our holding in this case therefore will only affect causes of action not barred by the repose portion of § 52-584 which bars suit brought “more than three years from the act or omission complained of.”

There is error, the judgment is set aside and the case is remanded for further proceedings.

In this opinion the other justices concurred.

       ‘.‘[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 sanatorium, 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.”

       In the trial court, the plaintiffs claimed that the earliest indication that the plaintiff may have had cancer in her left breast in the period between July, 1979, and April, 1980, was July 21, 1980, the date of a Waterbury Hospital physician’s examination report which, for the first time, the plaintiffs contend, established the possible existence of cancer during that period. That date would also be within the two year period of limitation of § 52-584 and, in view of our decision, it is immaterial which date is used.

       “[General Statutes (Rev. to 1949)] Sec. 8324. 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, chiropodist, chiropractor, hospital or sanatorium, shall be brought but within one year from the date of the act or omission complained of, except that a counter-claim may be interposed in an action which has been brought within the year at any time before the pleadings in such action are finally closed.”

       General Law Committee, Pt. 1, 1957 Sess., pp. 142-155.