text:
    Jane Doe v. Seymour Manheimer et al.
    (13628)
    Peters, C. J., Shea, Glass, Covello and Hull, Js.
    Argued June 14
    decision released August 22, 1989

      Wesley W. Horton, with whom were Kimberly A. Knox and Chester W. Fairlie, for the appellant (plaintiff).

      Joseph A. Hourihan, with whom, on the brief, were Leslie S. Sheppard and Joan Keating-McKeon and Thomas Noguerola, legal interns, for the appellee (named defendant).
   Glass, J.

The difficult issue in this case is whether a landowner may be liable in tort for damages arising from the rape of a pedestrian committed on the landowner’s property behind brush and trees that shielded the area from view from the nearby public sidewalk and street.

I

The plaintiff, Jane Doe, worked as a meter reader for the Connecticut Light and Power Company in New London. On July 30,1984, her employers assigned her to work in the Green Street area. At approximately 8 a.m., as she walked along Green Street, she observed a man on the opposite sidewalk who appeared to be looking for directions. She crossed the street to offer assistance. As she came near, the man, a stranger, reached into a satchel, removed a gun, and held it against her. He forced her from the sidewalk through a paved vacant lot that abutted the street. The man then forced her onto adjacent property owned by the named defendant (hereinafter defendant) some fifty to seventy feet from the sidewalk. The defendant’s property extended approximately six and three-quarter feet from the side of his building to the lot boundary parallel to the building. The area into which the plaintiff was forced was bounded by the defendant’s building on one side and a retaining wall in the rear. On the other side, overgrown sumac bushes and tall grass shielded the area from view from the sidewalk and street.

Behind the sumac bushes, the abductor viciously assaulted and raped the plaintiff for thirty minutes. In the commission of the assault, the abductor used various items, including a rope and rubber gloves, which he had carried with him in his satchel. His possession of these items suggested that the sexual assault had been planned. The assailant fled after committing the crime and has never been identified or caught. The effect of the sexual assault upon the plaintiff has been severe. She has attempted suicide on several occasions. Her emotional and psychiatric problems have required and continue to require hospital confinement.

The plaintiff brought an action against the defendant for personal injuries sustained in the assault. The complaint alleged causes of action based on common law negligence, statutory negligence and public nuisance. In essence, she claimed that the defendant had failed to remove the overgrown vegetation although he knew or should have known that, because the neighborhood was a high crime area, third persons might use the overgrowth to conceal the perpetration of crimes against pedestrians. She asserted that, had the overgrowth not been present, the area in which the assault occurred would have been visible to passing motorists and pedestrians. Consequently, she alleged, the overgrowth caused and contributed to the assault and the duration of the assault.

The action was tried to a jury before the court, Walsh, J. Several witnesses described the neighborhood where the sexual assault had been committed as a high crime area. Another rape had occurred in a neighborhood building about three months prior to the sexual assault against the plaintiff. Approximately fourteen months prior to the assault, Clara Manheimer, the defendant’s ninety year old mother, had been bound, gagged and robbed in the package store at the front of the huilding on the defendant’s property. Prostitution and drug dealing were more prevalent in that section of New London than in other sections. Further, derelicts and homeless people frequented the site where the assault occurred and the adjacent vacant lot through which the plaintiff had been forced from the sidewalk. Various debris littered the area, including liquor and wine bottles and cans. Street people had scattered cardboard boxes, mattresses and blankets that they used when they slept there at night. There was also evidence that on occasion, some of those people had been compensated with free liquor for cleaning the vacant lot. The police frequently had removed from the area people too drunk to care for themselves.

In addition to testimony concerning the assault and the condition of the site, the plaintiff presented George Rand, an environmental psychologist. Rand testified that he personally examined the location of the assault, the surrounding neighborhood, and, for lack of a better term, the cultural activities and history of the area. He testified that, in his opinion, the physical configuration of the specific site increased the risk of violent crimes between strangers by creating a “protective” zone that reduced or eliminated visibility and, hence, served as an inducement for crime. He summarized the results of his study by testifying that “I’ve analyzed the local site, the sub area, the presence of adult entertainment, activities, sexually oriented businesses. I’ve looked at prior crimes. . . . The fact that it is an area of the city with a relatively high incidence of crime. And I . . . assumed as a result of those observations that there was a persistent and inappropriate use of that site based on the evidence that it was periodically and frequently used by drunks .... There was fighting. Police came. A history of complaints. All those things indicate a condition of environmental disorder that I would contend is potentially related to increasing the risk of crime.”

Melvin Jetmore, a building official for the city of New London and one of the authors of the housing code, testified for the plaintiff that the site of the defendant’s property where the rape had occurred violated the housing code due to the presence of an “obnoxious” overgrowth of sumac trees and brush, and various debris including papers, shingles and broken glass. Jetmore testified that prior to the assault, New London had notified the defendant in March, 1983, and again in February, 1984, of the housing code violations, and that Jetmore had specifically told the defendant to remove all the debris and broken glass and “cut all the bushes and trees down.” The defendant, however, did not correct the violations.

The plaintiff also presented conflicting testimony concerning the “purpose” of the pertinent housing code provisions. Jetmore testified that the relevant provisions of the city housing code were designed to prevent deterioration and “blight” and to keep property clear of “nuisances and hazards to the safety of occupants, pedestrians and so forth.” Further, Robert Finn, a housing code officer for the town of Plainville, testified initially that in his opinion, it was a function of the housing code to eliminate such hazards as “possible places for concealment of criminal activity.” On recross-examination, however, Finn contradicted himself, and testified that it was not a purpose of the housing code to prevent the concealment of persons who intend to commit criminal activity. He concluded, “I can’t say that those trees should be removed because of an anticipated crime. But, they should be removed because they violate the code.”

At the close of the plaintiff’s case, the defendant rested without presenting evidence and moved for a directed verdict. The trial court reserved a decision on the defendant’s motion. Thereafter, the jury returned a general verdict in favor of the plaintiff, and awarded her $540,000 in damages. The parties did not seek separate verdicts on either count, or request the submission of interrogatories to the jury. Subsequently, however, the trial court set aside the verdict on the defendant’s motion. In setting aside the verdict, the trial court first observed that “ [without the shielding [of the overgrowth], the rape most probably would not have occurred [on the defendant’s property].” The court implicitly found that the defendant owed the plaintiff a duty of reasonable care, stating that, “[i]n the neighborhood described in the present case, a trier of fact may . . . find the occurrence of violence reasonably foreseeable in such a sheltered location to be perpetrated by someone lying in ambush or by someone also using the public right of way who harbors an intent to drag into concealment and out of public view some other party also using the public right of way to inflict harm.” It also found that the “breach of duty whether common law or statutory or the creating or permitting of a public nuisance was the position of the sumac bush.”

Despite finding a legally cognizable duty and a breach of that duty, the trial court nevertheless ruled that “the shielded bushing did not cause the injury. The rape and assault caused the injury and damages.” “That shielding [which was described as the building, a retaining wall and sumac trees and/or bushes] could have been provided in that same place and time by some other validly positioned or placed apurtenance.” The court concluded, therefore, that as a matter of law, the jury could not find that the defendant’s maintenance of overgrowth on his property was a “substantial factor” in producing the plaintiff’s injuries and, hence, the plaintiff had failed to establish proximate cause.

II

The plaintiff appealed to the Appellate Court from the judgment of the trial court granting the defendant’s motion to set aside the verdict. We transferred the case to ourselves pursuant to Practice Book § 4023. On appeal, the plaintiff claims that the trial court erred in setting aside the verdict on the ground that the plaintiff had not established proximate cause as a matter of law. She asserts that evidence pertaining to the condition of the defendant’s property, in connection with evidence that the neighborhood was a high crime area and that the specific site was frequented by trespassing street people and derelicts, created a question of fact for the jury whether the harm the plaintiff had suffered was reasonably foreseeable to the defendant. She avers, therefore, that the trial court erred in concluding that the criminal act of the unknown assailant was the supervening cause of the plaintiffs injuries as a matter of law. Further, she argues that the trial court’s conclusion that the condition of the defendant’s property was not a “substantial factor” in causing the plaintiff’s injuries was inconsistent with its prior finding that “the occurrence of violence [was] reasonably foreseeable in such a sheltered location” and that “[without the shielding, the rape most probably would not have occurred there.” Consequently, she claims, the court erred in setting aside the jury’s verdict in her favor on the ground that she had failed to prove proximate cause. We are not persuaded.

A

“Proximate cause” is an element of proof of all three causes of action asserted by the plaintiff. See, e.g., Catz v. Rubenstein, 201 Conn. 39, 44, 513 A.2d 98 (1986) (elements of negligence are duty, breach, causation and damages); Madenford v. Interstate Lumber & Mill Corporation, 153 Conn. 62, 64, 212 A.2d 588 (1965) (to be actionable, violation of statute must proximately cause injury); State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 183, 527 A.2d 688 (1987) (actionable nuisance must proximately cause injuries). The plaintiff has not argued that a different proximate cause analysis may or should apply to the different causes of action alleged. Therefore, although the jury’s general verdict requires us to “presume that the jury found every issue in favor of the prevailing party”; Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 202, 520 A.2d 208 (1987); Stone v. Bastarache, 188 Conn. 201, 204, 449 A.2d 142 (1982); Collucci v. Pinette, 185 Conn. 483, 489, 441 A.2d 574 (1981); our analysis of the proximate cause issue embraces the plaintiff’s separate claims of common law negligence, statutory negligence and public nuisance.

Ordinarily, “the decision to set aside a verdict involves the exercise of a broad legal discretion by the trial court which, in the absence of a clear abuse, will not be disturbed; Lee v. Lee, [171 Conn. 1, 3, 368 A.2d 11 (1976)]; and further, that in reviewing the exercise of that discretion every reasonable presumption should be indulged in favor of its correctness. Angelica v. Fernandes, 174 Conn. 534, 535, 391 A.2d 167 (1978); Ardoline v. Keegan, 140 Conn. 552, 555, 102 A.2d 352 (1954).” Jacobs v. Goodspeed, 180 Conn. 415, 416, 429 A.2d 915 (1980). The trial court’s discretion, however, is circumscribed by our recognition that the “issue of proximate cause is ordinarily a question of fact for the trier. Tetro v. Stratford, 189 Conn. 601, 605, 485 A.2d 5 (1983). ‘Conclusions of proximate cause are to be drawn by the jury and not by the court.’ Fox v. Mason, 189 Conn. 484, 489, 546 A.2d 1196 (1983). ‘ “It becomes a conclusion of law only when the mind of a fair and reasonable man could reach only one conclusion; if there is room for a reasonable disagreement the question is one to be determined by the trier of fact.” . . . ’ ” Trzcinski v. Richey, 190 Conn. 285, 295, 460 A.2d 1269 (1983). Thus, the trial court’s judgment setting aside the jury’s verdict may stand only if there was no “room for a reasonable disagreement” on the question of proximate cause.

B

To prevail on a negligence claim, a plaintiff must establish that the defendant’s conduct “legally caused” the injuries. Wu v. Fairfield, 204 Conn. 435, 438, 528 A.2d 364 (1987); Hearl v. Waterbary YMCA, 187 Conn. 1, 4, 444 A.2d 211 (1982); W. Prosser & W. Keeton, Torts (5th Ed.) § 41, p. 263. As we observed in Kowal v. Hofher, 181 Conn. 355, 359, 436 A.2d 1 (1980), “[l]egal cause is a hybrid construct, the result of balancing philosophic, pragmatic and moral approaches to causation.” The first component of “legal cause” is “causation in fact.” “ ‘Causation in fact’ is the purest legal application of . . . legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor’s conduct.” Id.

The second component of “legal cause” is proximate cause, which we have defined as “ ‘[a]n actual cause that is a substantial factor in the resulting harm . . . .’ Coburn v. Lenox Homes, Inc., 186 Conn. 370, 383, 441 A.2d 620 (1982).” Boehm v. Kish, 201 Conn. 385, 391, 517 A.2d 624 (1986). The “proximate cause” requirement tempers the “expansive view of causation [in fact] ... by the pragmatic . . . shaping [of] rules which are feasible to administer, and yield a workable degree of certainty. 2 Harper & James, Torts § 20.4, p. 1133. Remote or trivial [actual] causes are generally rejected because the determination of the responsibility for another’s injury is much too important to be distracted by explorations for obscure consequences or inconsequential causes.”Kowal v.Hofher, supra, 359-60. “In determining proximate cause, the point beyond which the law declines to trace a series of events that exist along a chain signifying actual causation is a matter of fair judgment and a rough sense of justice. See generally Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 352, 354-56,162 N.E. 99 (1928) (Andrews, J., dissenting).” Boehm v. Kish, supra, 391-92.

This court has often stated that the “test” of proximate cause is whether the defendant’s conduct is a “substantial factor” in producing the plaintiff’s injury. Wu v. Fairfield, supra, 438; Boehm v. Kish, supra; Tetro v. Stratford, supra; see also Ferndale Dairy, Inc. v. Geiger, 167 Conn. 533, 538, 356 A.2d 91 (1975) (defining “substantial factor” as one which “must have continued down to the moment of the damage or, at least, down to the setting in motion of the final active injurious force which immediately produced or preceded the damage”); but see W. Prosser & W. Keeton, supra, p. 278. That negligent conduct is a “cause in fact,” however, obviously does not mean that it is also a “substantial factor” for the purposes of a proximate cause inquiry. The “substantial factor” test, in truth, reflects the inquiry fundamental to all proximate cause questions; that is, “ ‘whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant’s negligence.’ Merhi v. Becker, [164 Conn. 516, 521, 325 A.2d 270 (1973)]; see Palsgraf v. Long Island R.[R.] Co., [supra, 354].” Coburn v. Lenox Homes Inc., supra, 384. In applying this test, we look “ ‘from the injury to the negligent act complained of for the necessary causal connection. Collins v. City National Bank & Trust Co., 131 Conn. 167, 171, 38 A.2d 582 [1944].’ ” Peterson v. Oxford, 189 Conn. 740, 749, 459 A.2d 100 (1983).

The “scope of the risk” analysis of “proximate cause” similarly applies where, as here, the risk of harm created by the defendant’s negligence allegedly extends to an intervening criminal act by a third party. See Tetro v. Stratford, supra, 605; Coburn v. Lenox Homes, Inc., supra. “We have consistently adhered to the standard of 2 Restatement (Second), Torts § 442B (1965) that a negligent defendant, whose conduct creates or increases the risk of a particular harm and is a substantial factor in causing that harm, is not relieved from liability by the intervention of another person, except where the harm is intentionally caused by the third person and is not within the scope of the risk created by the defendant’s conduct. Kiniry v. Danbury Hospital, 183 Conn. 448, 455, 439 A.2d 408 (1981); Merhi v. Becker, [supra, 522]; Miranti v. Brookside Shopping Center, Inc., 159 Conn. 24, 28, 266 A.2d 370 (1969).” (Emphasis added.) Tetro v. Stratford, supra. “The reason [for the general rule precluding liability where the intervening act is intentional or criminal] is that in such a case the third person has deliberately assumed control of the situation, and all responsibility for the consequences of his act is shifted to him.” 2 Restatement (Second), Torts § 442B, comment c. “Such tortious or criminal acts may in themselves be foreseeable, [however,] and so within the scope of the created risk . . . .’’Id.; see also 2 Restatement (Second), Torts §§ 448 and 449.

c

Applying these principles, we first note that the defendant has not argued that his conduct was not a “cause in fact” of the plaintiff’s injuries. The trial court found that the sexual assault most probably would not have occurred where it actually occurred had the overgrown vegetation not been present. The court also found that the jury could have found from the evidence that the rapist “by design and plan premeditated that the sexual assault would occur in that exact location.” Further, there was evidence from which the jury could reasonably have found that the assault would not have lasted thirty minutes absent the shielding provided by the overgrowth. “The conception of causation in fact extends not only to positive acts and active physical forces, but also to pre-existing passive conditions which have played a . . . part in bringing about the event.” W. Prosser & W. Keeton, supra, p. 265. Under the circumstances, we have no reason to question the trial court’s finding that the injury would not have occurred, where it actually occurred, were it not for the shielding created by the overgrowth. Boehm v. Kish, supra; Kowal v. Hofher, supra.

We disagree with the plaintiff, however, that there was room for reasonable disagreement over the question whether the condition on the defendant’s property proximately caused her injuries. Trzcinski v. Richey, supra. The plaintiff argues that there was sufficient evidence for the jury to find that the impaired visibility created by the overgrowth, in conjunction with the manner in which the defendant’s property was used and the unseemly character of the neighborhood, increased the risk of violent crime between strangers. She claims, therefore, that under § 442B of the Restatement, the assailant’s act was within the “scope of the risk” created by the condition of the defendant’s property. We are persuaded, however, that the plaintiff’s application of § 442B of the Restatement is unduly broad. Contrary to her assertion, the harm she suffered cannot reasonably be understood as within the scope of the risk created by the defendant’s conduct. We reach this conclusion on the basis of the applicable standards established in our cases as well as by reference to factually analogous precedents.

First, we decline to accept the plaintiff’s argument suggesting that it was within the “scope of the risk” that the condition of the defendant’s land might catalyze a criminal assault. The plaintiff presented expert testimony that conditions of “environmental disorder,” such as those present on the defendant’s property and within the surrounding neighborhood, stood in a direct and positive relationship with an increased risk of violent crimes between strangers. She also presented evidence tending to indicate that the assailant had planned the crime around the site. Thus, the plaintiff’s theory of liability turns in part on the argument that because the overgrowth was instrumental, in a psychological and sociological sense, in fostering the criminal act, the defendant should be held liable!

This argument envisages the rapist’s conduct as a “dependent intervening force”; that is, a predictable response or “reaction to the stimulus of a situation for which the actor has made himself responsible by his negligent conduct.” 2 Restatement (Second), Torts § 441, comment c. This position is untenable. First, it is clear that § 442B contemplates reasonably foreseeable intervening misconduct, rather than all conduct that actually proceeds from a situation created by the defendant. Coburn v. Lenox Homes, Inc., supra, 375, 384. We are not persuaded that a landowner should reasonably foresee that a condition on his property such as overgrown vegetation might provide a substantial incentive or inducement for the commission of a violent criminal assault between strangers. This is true although once such an incident does occur, it necessarily “could” have occurred. Violent crimes are actuated by a host of social and psychological factors. Although, as a matter of fact, it may be true that one of those actuating factors is mere opportunity for concealment, common experience informs us that such a factor is at most incidental. A prudent person who owns land abutting a public way would not, in our opinion, infer from his ordinary experience the possibility that overgrown vegetation will prompt or catalyze a violent criminal act. This theory ascribes far too much speculative imagination to a “reasonable” or “prudent” person. A person of ordinary caution is not required to be accomplished at making such recondite associations.

Moreover, in the present case, there was no evidence tending to demonstrate that the defendant had had any past experience that might reasonably have led him to perceive and act on the atypical association between “natural shields” such as overgrown vegetation and violent criminal activity. Indeed, the evidence showed that the prior “criminal activity” occurring in the vacant lot abutting his property and the scene of the crime generally was nonviolent, involving vagrancy and the public consumption of alcohol. The plaintiff has not directed our attention to evidence that any of the individuals who frequented the vacant lot threatened or assaulted any passersby or local residents, except to the extent that their mere presence and appearance was “threatening.” Moreover, evidence that the defendant’s mother had been robbed in the liquor store on the defendant’s premises, and that a rape had occurred in a nearby building more than two months prior to the assault on the plaintiff, does not require a different conclusion. Both incidents occurred indoors. The fact that criminals will rob liquor stores is an unfortunate, but not extraordinary, fact of contemporary life, and cannot reasonably be seen as exciting the imagination of a prudent person to suppose that a violent sexual crime will occur behind nearby overgrown vegetation in the area of a vacant lot. Further, even if it is assumed that the defendant knew or should have known of the rape in the nearby building, the plaintiff has not presented evidence demonstrating anything distinctive about that inherently atrocious incident that might be reasonably understood as eliciting the type of sensitivity for which she would now hold the defendant accountable. In addition, that experts in environmental psychology such as George Rand are attuned to the association between conditions of “environmental disorder,” such as overgrown vegetation in a poor neighborhood, and crime is surely a product of special training, knowledge, interest and, especially, perspective.

Further, the theory of “catalyst” liability suggested by the plaintiff is far too ambitious. We are persuaded that such a principle would eliminate the role of “proximate cause” in “shaping rules which are feasible to administer, and yield a workable degree of certainty.” Kowal v. Hofher, supra, 359-60. Indeed, under this principle, for example, parents of a violent adult child might well be held liable to third persons injured by that child’s crime if the victim only establishes a positive relationship between the parents’ poor parenting skills and the child’s violence. We have little doubt that, in any particular case, such a victim could establish a “cause in fact” in such a case. This hypothetical illustrates the fundamental weakness of the plaintiff’s position: it renders “proximate cause” coextensive with “cause in fact.” “Proximate cause,” however, deals with liability, not physics. W. Prosser & W. Keeton, supra, p. 302.

No different result ensues from the plaintiffs less dramatic argument that the condition on the defendant’s property, in connection with the “socio-chemistry” of the area, created a foreseeable “opportunity” for the commission of a violent crime and, hence, the harm inflicted on the plaintiff was within the “scope of the risk.” Our cases make it clear that, to be within the “scope of the risk,” the harm actually suffered must be of the same “general type” as that which makes the defendant’s conduct negligent in the first instance. Coburn v. Lenox Homes, Inc., supra. It is unexceptional to impose upon a landowner liability resulting from injuries caused directly and without intervening criminal conduct by “dangerous conditions” on the land. Thus, where the plaintiff stumbles on accumulated debris on the defendant7 s land, and injures himself, the defendant may be liable. Miranti v. Brookside Shopping Center, Inc., supra. We are not prepared, however, to extend the scope of the foreseeable risk presented by “obnoxious overgrowth” or accumulated debris beyond injury produced by physical contact with such conditions. Thus, the harm suffered by the plaintiff in this case was not of the same general type that allegedly made the defendant negligent.

Even if liability could extend beyond injury caused by physical contact with “dangerous conditions” on a defendant’s property, the relationship between the “opportunity” of shielding and the plaintiff’s harm in this case was accidental. As the trial court found, there could have been any number of natural or nonnatural conditions on the defendant’s property that would have shielded the assault. We do not understand the plaintiff to contend that every conceivable item that could have shielded the occurrence of a violent crime should be deemed a basis for negligence because of the potential for crime endemic in an urban neighborhood. Indeed, although there was evidence that the “overgrowth” violated the New London housing code because it created the appearance of “blight,” the plaintiff does not bring to our attention any testimony, or any provision of the housing code, that demonstrates that the code would prohibit the maintenance of neatly trimmed vegetation, such as a hedge, that also could serve to screen the commission of a violent crime. Further, we would be offending common sense if we failed to recognize that the objects in the world behind which a criminal act may be concealed are manifold. The plaintiff, therefore, has not established a necessary relationship between the defendant’s negligence—that is, the maintenance of overgrown vegetation—and the “causative force” or shielding. Thus, she has failed to remove the issue of causation from the realm of speculation and conjecture. Cf. Pisel v. Stamford Hospital, 180 Conn. 314, 341-42, 430 A.2d 1 (1980).

Our conclusion is supported by many cases in which we have declined to hold that the defendant’s conduct in contributing to the harm, principally caused “in fact” by another person or force, was a “proximate cause” of the harm. In Nolan v. Morelli, 154 Conn. 432, 436, 226 A.2d 383 (1967), we recognized the common law rule that “no tort cause of action lay against one who furnished, whether by sale or gift, intoxicating liquor to a person who thereby voluntarily became intoxicated and in consequence of his intoxication injured the person or property either of himself or of another.” We held that “[t]he reason generally given for the rule was that the proximate cause of the intoxication was not the furnishing of the liquor, but the consumption of it by the purchaser or the donee. The rule was based on the obvious fact that one could not become intoxicated by reason of liquor furnished him if he did not drink it.” Id., 436-37; see also Boehm v. Kish, supra, 389; Kowal v. Hofher, supra, 357-58; Slicer v. Quigley, 180 Conn. 252, 255, 429 A.2d 855 (1980) (all reaffirming Nolan). Similarly, in Vastola v. Connecticut Protective System, Inc., 133 Conn. 18, 21, 47 A.2d 844 (1946), we reversed the trial court’s judgment for the plaintiff on the ground that the plaintiff did not prove that the nonactivation of a burglar alarm installed in the plaintiff’s premises was a proximate cause of a burglary. In reasoning directly applicable to the present case, we observed that whether the ringing of the alarm would have prevented the loss was “pure speculation.” “ ‘Whether that would have been the result had the apparatus been in working order can never be known. It would depend upon contingencies without number, any one of which would have been sufficient to disappoint it.’ ” Id., 22; see also Robinson v. Southern New England Telephone Co., 140 Conn. 414, 418, 420, 101 A.2d 491 (1953) (under common law principles, a telephone company operator’s negligence in placing emergency fire call to remote rather than nearby fire department not proximate cause of extent of fire damage).

Our subsequent adoption of § 442B of the Restatement in Miranti v. Brookside Shopping Center, Inc., supra, does not undermine the value of these prior precedents. In Cardona v. Valentin, 160 Conn. 18, 20-21, 273 A.2d 697 (1970), decided after Miranti, the defendant was the owner of a pool hall. The pool hall manager, Morales, got into a fist fight with the plaintiff’s decedent, Cardona, a customer who refused to pay. The owner interceded and broke up the fight. As the owner escorted Cardona out of the pool hall, however, Cardona’s brother Angel and his friends entered the pool room and began to throw various objects. In the ensuing fight, Morales stabbed and killed Cardona. The decedent’s father brought an action against the pool hall owner, alleging, inter alia, negligence in his failure to hire adequate security. Id., 23. The trial court found, however, that even if the defendant had been negligent, his negligence was not the proximate cause of Cardona’s death. On appeal, we applied § 442B of the Restatement, and held that “the court could reasonably conclude that the actions of Angel Cardona and his friends were the proximate cause of the death rather than any alleged negligence on the part of the defendant . . . .” Id., 25. Thus, in Cardona, we assumed that the defendant had been negligent in creating a condition that constituted a “cause in fact” of Cardona’s death, and yet we nevertheless upheld the trial court’s determination that the intervening intentional misconduct of Angel Cardona, who instigated the second brawl, superseded the defendant’s negligence. Cardona reflects, therefore, that our “fair judgment and . . . sense of justice”; Boehm v. Kish, supra; in applying § 442B requires a fairly strong degree of certainty that a criminal or intentional intervening act is within the “scope of the risk” of a negligent actor’s conduct. See also 2 Restatement (Second), Torts § 442B, comment c, illus. 7.

Miranti v. Brookside Shopping Center, Inc., supra, on which the plaintiff places much reliance, is factually dissimilar to the present case. In Miranti, the plaintiff, a fifteen year old boy, was chased and knocked down by a dog, and fell over an accumulation of trash and debris on property alleged to be under the control of the defendants. The trial court, concluding that the proximate cause of the fall and resulting injury was solely the action of the dog in knocking the plaintiff down rather than the accumulation of trash and debris, rendered judgment for the defendants on their motion for summary judgment. We reversed, holding that the pleadings raised contested issues as to whether an accumulation of trash and debris did, in fact, exist, and, if it did, as to whether it created a condition productive of a foreseeable harm of the general nature of that suffered by the plaintiff, and as to which the defendants could be held legally responsible for the condition in any one or more of the ways claimed by the plaintiff. Unlike Miranti, where the plaintiff was injured when he fell over the trash and debris on the defendants’ property, in this case the plaintiff was injured by the criminal act of her abductor. The sumac trees, the bushes, debris or litter on the defendant’s property did not injure the plaintiff. Nor, unlike Miranti, does the “scope of the risk” presented by the “dangerous” condition on the defendant’s property extend to the harm of the general nature suffered by the plaintiff.

We note here that the courts of other jurisdictions have not exhibited any unanimity in dealing with the question of liability under these circumstances. Compare Parker v. D/U Realty Co., 141 App. Div. 2d 301, 530 N.Y.S.2d 137 (1988) (where decedent taken from street to defendant’s parking lot and murdered, no liability where no. connection between decedent and premises independent of crime itself), Waters v. New York City Housing Authority, 116 App. Div. 2d 384, 501 N.Y.S.2d 385 (1986), aff’d, 69 N.Y.2d 225, 505 N.E.2d 922, 513 N.Y.S.2d 356 (1987) (no liability where passerby forced from street to nearby building of defendant), and Goldberg v. Housing Authority, 38 N.J. 578, 186 A.2d 291 (1962) (holding no duty of housing authority to police housing project and, therefore, no liability for plaintiff’s injuries sustained in robbery), with Copithorne v. Framingham Union Hospital, 401 Mass. 860, 520 N.E.2d 139 (1988) (whether hospital’s negligence proximate cause question of fact where it had actual notice of visiting staff physician’s past sexual misconduct and physician drugged and raped employee in employee’s apartment), and Daniel v. Days Inn of America, Inc., 292 S.C. App. 291, 356 S.E.2d 129 (1987) (holding that hotel’s failure to provide security was proximate cause of rape of invitee of hotel guests). We have examined the cases from other jurisdictions upon which the plaintiff relies, however, and find them to be factually distinguishable. See, e.g., Phillips v. Chicago Housing Authority, 91 Ill. App. 3d 544, 414 N.E.2d 1133 (1980), aff’d, 89 Ill. 2d 122, 431 N.E.2d 1038 (1982) (question of fact whether defendant liable where it negligently sealed vacant floor in area in which rapes were frequent, and tenant subsequently raped and murdered); Loeser v. Nathan Hale Gardens, Inc., 73 App. Div. 2d 187, 425 N.Y.S.2d 104 (1980) (where tenant was raped in landlord’s unlighted parking lot, proximate cause established since evidence documenting relationship between crime and absence of light “emphatically confirmed by common experience”); Nixon v. Mr. Property Management Co., 690 S.W.2d 546 (Tex. 1985) (rape of plaintiff in defendant’s vacant apartment building). Thus, this is not a case in which it is apparent that a significant number of other jurisdictions would support the plaintiff’s arguments. Cf. Tetro v. Stratford, supra, 606-607 (where vehicle pursued by police collides with plaintiff, court follows “emergent majority view” of other jurisdictions that intervening negligent or reckless driving of automobile pursued by police will not relieve town of liability as a matter of law).

Finally, we disagree with the plaintiffs assertion that the trial court’s conclusion that the occurrence of violence in such a sheltered location was reasonably foreseeable, and that the rape would not have occurred where it did absent the overgrowth, undermined its conclusion that the condition of the defendant’s property was not a “substantial factor” of the plaintiff’s harm. A review of the trial court’s memorandum indicates that the court’s prior remarks addressed the issues of duty and factual cause rather than proximate cause. We condude, therefore, that there was no “room for a reasonable disagreement” that the plaintiff did not establish that the condition on the defendant’s land was a proximate cause of the sexual assault. Trzcinski v. Richey, supra. Accordingly, the trial court did not err in setting aside the jury’s verdict in favor of the plaintiff. See Magarian v. Bessoni, 160 Conn. 442, 280 A.2d 357 (1971); Robinson v. Southern New England Telephone Co., supra.

There is no error.

In this opinion the other justices concurred.

       Section 411 of the New London housing code in effect at the time of the incident provided in pertinent part: “All exterior property areas shall be maintained in a clean and sanitary condition free from any accumulation of rubbish or garbage. The exterior property areas . . . shall be kept free of all nuisances, and any hazards to the safety of occupants, pedestrians and other persons . . . and any of the foregoing shall be promptly removed and abated by the owner or operator. It shall be the duty of the owner ... to keep the premises free of hazards which include but are not limited to the following:
      “411.1 refuse Brush, weeds, broken glass, stumps, roots, obnoxious growth, filth, garbage, trash, refuse, debris, and junk motor vehicles.
      “411.2 natural growth Dead and dying trees and limbs or other natural growth which by reason of rotting or deteriorating condition or storm damage, constitute a hazard to persons in the vicinity thereof. Trees shall be kept pruned and trimmed to prevent such condition.
      “411.3 landscaping Premises shall be kept landscaped and lawns, hedges and bushes shall be kept trimmed and from becoming overgrown and unsightly where exposed to public view and where the same constitutes a blighting factor depreciating adjoining property and impairing the good residential character of the neighborhood.”

       The defendant in the alternative argues that the trial court’s decision to set aside the verdict can be supported on the ground that the defendant owed the plaintiff no “duty” to exercise reasonable care. Because we dispose of this case in the defendant’s favor on the issue presented by the plaintiff, we do not address the issue of “duty.”

       “In order to establish liability as a result of a statutory violation, a plaintiff must satisfy two conditions. ‘First, the plaintiff must be within the class of persons protected by statute. [Coughlin v. Peters, 153 Conn. 99, 101, 214 A.2d 127 (1965)]; Hassett v. Palmer, 126 Conn. 468, 473, 12 A.2d 646 [1940]; Monroe v. Hartford Street Ry. Co., 76 Conn. 201, 207, 56 A. 498 [1903]. Second, the injury must be of the type which the statute was intended to prevent. Toomey v. Danaher, 161 Conn. 204, 212, 286 A.2d 293 [1971]; Longstean v. McCaffrey’s Sons, 95 Conn. 486, 493, 111 A. 788 [1920], See Prosser, Torts (4th Ed.) § 36; Restatement (Second), 2 Torts §§ 286, 288.’ Wright v. Brown, 167 Conn. 464, 468-69, 356 A.2d 176 (1975).” Berchtold v. Maggi, 191 Conn. 266, 274-75, 464 A.2d 1 (1983).

       “Our prior decisions have established that in order to prevail on a claim of nuisance, a plaintiff must prove that: ‘(1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was a proximate cause of the plaintiffs’ injuries and damages.’ Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 35-36, 404 A.2d 889 (1978); Kostyal v. Cass, 163 Conn. 92, 99-100, 302 A.2d 121 (1972); Heilig v. LeQuire, 4 Conn. App. 125, 127, 492 A.2d 542 (1985). . . . [W]here . . . public nuisance is alleged, the plaintiff’s burden [also] includes ... (1) that the condition or conduct complained of interfered with a right common to the general public; Higgins v. Connecticut Light & Power Co., 129 Conn. 606, 611, 30 A.2d 388 (1943); Nolan v. New Britain, 69 Conn. 668, 678, 38 A. 703 (1897); 4 Restatement (Second), Torts § 821B . . . State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 183, 527 A.2d 688 (1987).

       The Restatement (Second) of Torts, § 448 provides: “The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.” Section 449 provides: “If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.”


source: Caselaw Access Project

license: Public Domain

text:
    Town of Groton v. Peter R. Johnl

      Peter R. Johl, pro se, in support of the petition.
    Decided May 25, 1989
   The defendant’s petition for certification for appeal from the Appellate Court is denied.


text:
    Joyce R. Breen v. Thomas Breen, Jr.

      Lloyd Frauenglass, in support of the petition

      Timothy J. Fitzgerald, in opposition.
    Decided May 25, 1989
   The plaintiff’s petition for certification for appeal from the Appellate Court, 18 Conn. App. 166, is denied.


text:
    Richard J. Bonelli v. Sandra A. Bonelli

      Terence S. Ward, in support of the petition.

      M. Jane Christensen, in opposition.
    Decided May 25, 1989
   The plaintiffs petition for certification for appeal from the Appellate Court, 18 Conn. App. 207, is granted, limited to the following issue:

“Did the Appellate Court err in concluding that ‘the undisputed facts on the record are sufficient to require the disqualification of the trial judge’ and the setting aside of the judgment based upon the relationship between the judge, his former law firm and the attorney for the plaintiff as co-counsel in an unrelated case?”


text:
    Skyler Limited Partnership v. S.P. Douthett and Company, Inc., et al.

      Robert L. Genuario, in support of the petition.

      Frederic S. TJry, in opposition.
    Decided May 25, 1989
   The named defendant Alan Fishman’s petition for certification for appeal from the Appellate Court, 18 Conn. App. 245, is denied.


text:
    Anise T. Farhoud v. Commission on Human Rights and Opportunities et al.

      George P. Birnbaum, in support of the petition.

      Matthew D. Newman, in opposition.
    Decided June 6, 1989
   The defendant Bic Corporation’s petition for certification for appeal from the Appellate Court is denied.


text:
    Anise T. Farhoud v. Commission on Human Rights and Opportunities et al.

      Philip A. Murphy, Jr., commission counsel, -and Charles Krich, staff attorney, in support of the petition.

      Matthew D. Newman, in opposition.
    Decided June 6, 1989
   The defendant Commission on Human Rights and Opportunities’ petition for certification for appeal from the Appellate Court is denied.


text:
    People’s Securities, Inc. v. Richard Rizzardi et al.

      Wesley W. Horton and Alexandra Davis, in support of the petition.

      Thomas W. Witherington, in opposition.
    Decided June 6, 1989
   The defendants’ petition for certification for appeal from the Appellate Court is denied.


text:
    Henry F. Healy, Jr., High Sheriff of the County of New Haven v. Freedom of Information Commission et al.

      Victor R. Perpetua, commission counsel, in support of the petition.

      Henri Alexandre, assistant attorney general, in opposition.
    Decided June 6, 1989
   The defendant Freedom of Information Commission’s petition for certification for appeal from the Appellate Court, 18 Conn. App. 212, is denied.


text:
    State of Connecticut v. Richard Boutwell

      Arthur Meisler and Pamala J. Favreau, law student intern, in support of the petition.

      Carolyn K. Longstreth, deputy assistant state’s attorney, in opposition.
    Decided June 6, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 18 Conn. App. 273, is denied.


text:
    Herbert C. Hallas et al. v. Freedom of Information Commission et al.

      Mary Katz Moule, in support of the petition.

      Timothy S. Fisher, in opposition.
    Decided June 6, 1989
   The plaintiffs’, petition for certification for appeal from the Appellate Court, 18 Conn. App. 291, is denied.


text:
    Alexanderina Clarke v. Bridgeport Roman Catholic Diocesan Corporation

      John T. Bochanis, in support of the petition.

      Michael T. Ryan, in opposition.
    Decided June 6, 1989
   The plaintiffs petition for certification for appeal from the Appellate Court, 18 Conn. App.'818, is denied.


text:
    Roger S. Manchester et al. v. Zoning Board of Appeals of the Town of Weston et al.

      Benjamin Gershberg, in support of the petition.

      Walter A. Flynn, Jr., in opposition.
    Decided June 21, 1989
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 18 Conn. App. 69, is denied.


text:
    State of Connecticut v. Christopher P. Bruens

      CarlD. Eisenman, public defender, in support of the petition.

      Mitchell S. Brody, deputy assistant state’s attorney in opposition.
    Decided June 21, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 18 Conn. App. 459, is denied.


text:
    Philip E. Sullivan v. American Cellophane, Inc. (formerly L.G., Inc.), et al.

      Philip E. Sullivan, pro se, in support of the petition.

      Susan L. Miller and William 0. Riiska, in opposition.
    Decided June 21, 1989
   The plaintiffs petition for certification for appeal from the Appellate Court, 18 Conn. App. 814, is denied.


text:
    Carmen Stumpo v. Ralph De Ponte et al.

      Trudie R. Hamilton, in support of the petition.

      Richard A. Fuchs, in opposition.
    Decided June 27, 1989
   The defendant Hospital of St. Raphael’s petition for certification for appeal from the Appellate Court is denied.


text:
    CCH Computax, Inc. v. Orest T. Dubno, Commissioner of Revenue Services

      Scott P. Moser and Antonio B. Braz, in support of the petition.

      Jane D. Comerford, assistant attorney general, in opposition.
    Decided June 27, 1989
   The plaintiffs petition for certification for appeal from the Appellate Court, 18 Conn. App. 434, is denied.


text:
    John P. Moffett, Jr. v. J. William Burns, Commissioner of Transportation

      James K. Smith, in support of the petition.

      Louis B. Blumenfeld, Richard A. Ferris and Joseph A. LaBella, in opposition.
    Decided June 27, 1989
   The plaintiffs petition for certification for appeal from the Appellate Court, 18 Conn. App. 821, is denied.


text:
    Craftsmen, Inc. v. Lorraine Young

      Todd R. Bainer, in support of the petition.
    Decided June 27, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 18 Conn. App. 463, is denied.


text:
    Commissioner of Health Services v. Harold Kadish

      R. Bartley Halloran, in support of the petition.

      Richard J. Lynch and Andrea B. Gaines, assistant attorneys general, in opposition.
    Decided April 13, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 17 Conn. App. 577, is denied.


text:
    Frank Jacobs v. Harold Thomas

      Charles W. Bauer, in support of the petition.

      Kerry M. Wisser, in opposition.
    Decided July 6, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 18 Conn. App. 218, is denied.


text:
    State of Connecticut v. Edward DeMayo

      Richard Emanuel, in support of the petition.

      Harry Weller, deputy assistant state’s attorney, in opposition.
    Decided July 10, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 18 Conn. App. 297, is denied.


text:
    Michael Ruotolo v. Inland Wetlands Agency of the Town of Madison

      Kenneth G. Bartlett, in support of the petition.

      Gail S. Kotowski, in opposition.
    Decided July 13, 1989
   The plaintiff’s petition for certification for appeal from the Appellate Court, 18 Conn. App. 440, is denied.


text:
    Town of Killingly v. Ralph W. Wells

      John D. Boland, in support of the petition.

      Wesley W. Horton, in opposition.
    Decided July 13, 1989
   The plaintiff’s petition for certification for appeal from the Appellate Court, 18 Conn. App. 508, is denied.


text:
    Mac’s Car City, Inc. v. Nicholas E. DeNigris et al.

      Joseph F. Skelley, Jr., in support of the petition.

      Alexandra Davis, in opposition.
    Decided July 13, 1989
   The defendants’ petition for certification for appeal from the Appellate Court, 18 Conn. App. 525, is denied.


text:
    Anita Pettengill et al. v. Dennis Pettengill

      Geoffrey S. Brandner, in support of the petition.

      Paul E. Pollock, in opposition.
    Decided July 13, 1989
   The plaintiffs petition for certification for appeal from the Appellate Court, 18 Conn. App. 557, is denied.


text:
    Eldridge McClendon v. Paul Soos

      Bruce L. Levin, in support of the petition.

      Ernest L. Jos&m, in opposition.
    Decided July 13, 1989
   The proposed intervenor Shelby Mutual Insurance Company’s petition for certification for appeal from the Appellate Court, 18 Conn. App. 614, is denied.


text:
    Edward M. Kenney et al. v. Planning and Zoning Board of the Town of Greenwich et al.

      William H. Narwold, in support of the petition.

      Eugene J. Ricdo mdKariA. Pederson, in opposition.
    Decided August 1, 1989
   The defendants Daniel and Janet Barber’s petition for certification for appeal from the Appellate Court, 18 Conn. App. 549, is granted. It is further ordered that the matter be remanded to the Appellate Court for reconsideration in light of this court’s decision in Spicer v. Zoning Commission, 212 Conn. 875.


text:
    State of Connecticut v. Ronald A. Leroux

      Wesley W. Horton and Christopher Bromson, in support of the petition.

      Mitchell S. Brody, assistant state’s attorney, in opposition.
    Decided September 27, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 18 Conn. App. 223, is denied.


text:
    State of Connecticut v. Stanley Williams

      Vincent Turley, in support of the petition.

      Vincent J. Dooley, deputy assistant state’s attorney, in opposition.
    Decided September 27, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 18 Conn. App. 477, is denied.


text:
    New Haven Tobacco Company, Inc. v. Frank P. Perrelli

      Paul M. Sabetta, in support of the petition.
    Decided September 27, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 18 Conn. App. 531, is denied.


text:
    Gary V. Sink et al. v. Meadow Wood Country Estates, Inc.

      Dominic J. Caciopoli, in support of the petition.
    Decided September 27, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 18 Conn. App. 569, is denied.


text:
    Judith Sidney et al. v. Philip N. DeVries et al.

      Robert L. Fisher, Jr., in support of the petition.

      John F. Febbroriello, in opposition.
    Decided September 27, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 18 Conn. App. 581, is granted, limited to the following issue:

“Does Connecticut General Statutes § 20-429 bar a home improvement contractor from recovering against a homeowner under a claim of quantum meruit arising out of an oral contract?”


text:
    Marion Swenson v. Thomas Sawoska

      Zbigniew S. Rozbieki, in support of the petition.

      James P. Brennan, in opposition.
    Decided September 27, 1989
   The plaintiff’s petition for certification for appeal from the Appellate Court, 18 Conn. App. 597, is granted, limited to the following issues:

“1. Did the Appellate Court err in concluding that the admission of the officer’s narrative of how the accident occurred contained in the police report was harmless error?

“2. Was the standard of harmless error used by the Appellate Court, ‘sufficient other evidence to support the verdict,’ erroneous?

“3. Does the other evidence properly admitted, including the diagram, render harmless any error in the admission of the officer’s narrative?”


text:
    State of Connecticut v. Naphtali E. Brown

      Kent Drager, assistant public defender, in support of the petition.

      Frederick W. Fawcett, assistant state’s attorney, in opposition.
    Decided September 27, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 18 Conn. App. 716, is denied.


text:
    City of Bristol v. Charles Condon, Jr., et al.

      I. Milton Widem, in support of the petition.
    Decided September 27, 1989
   The plaintiff’s petition for certification for appeal from the Appellate Court is dismissed.


text:
    City of Bristol v. David Vogelsonger et al.
    I. Milton Widem, in support of the petition.
    Decided September 27, 1989
   The plaintiff’s petition for certification for appeal from the Appellate Court is dismissed.


text:
    State of Connecticut v. Willie Carter

      Sue L. Wise, in support of the petition.

      Judith Rossi, assistant state’s attorney, in opposition.
    Decided September 27, 1989
   The defendant’s petition for certification for appeal from the Appellate Court is dismissed.


text:
    State of Connecticut v. Alfonso Gonzalez

      Erskine D. McIntosh, assistant public defender, in support of the petition.

      Frederick W. Fawcett, assistant state’s attorney, in opposition.
    Decided October 2, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 18 Conn. App. 643, is denied.


text:
    Diana M. Lathrop v. Board of Tax Review of the Town of Lyme

      William J. Willetts, Jr., in support of the petition.

      Scott W. Jezek, in opposition..
    Decided September 27, 1989
   The plaintiff’s petition for certification for appeal from the Appellate Court, 18 Conn. App. 608, is denied.


text:
    Alfred Trumpold et al. v. Robert J. Besch et al.

      Richard L. Jacobs, in support of the petition.

      William F. Gallagher, in opposition.
    Decided September 27, 1989
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 19 Conn. App. 22, is denied.


text:
    William Silverman et al. v. City of New Haven

      Benson A. Snaider, in support of the petition.
    Decided September 27, 1989
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 19 Conn. App. 360, is denied.


text:
    Lucille R. Hart v. Wilbur Hart, Jr.

      Richard A. Johnson, in support of the petition.

      Howard A. Jacobs, in opposition.
    Decided September 27, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 19 Conn. App. 91, is denied.


text:
    Pamela Barone Speed, Executrix (Estate of Mildred F. Barone) v. Anthony F. DeLibero et al.

      Arnold J. Bai and Garie J. Mulcahey, in support of the petition.

      Christopher D. Bernard, in opposition.
    Decided September 27, 1989
   The defendants’ petition for certification for appeal from the Appellate Court, 19 Conn. App. 95, is granted, limited to the following issue:

“Did the Appellate Court err in concluding that the plaintiffs had demonstrated as a matter of law that juror misconduct had probably prejudiced them and that a new trial was necessary?”


text:
    Richard L. Albrecht v. Katherine Albrecht

      Richard G. Kent, in support of the petition.

      Thomas M. Shanley, in opposition.
    Decided September 27, 1989
   The plaintiff’s petition for certification for appeal from the Appellate Court, 19 Conn. App. 146, is denied.


text:
    John Ross v. City of New Haven

      Richard A. Roberts, in support of the petition.

      W. Martyn Philpot, Jr., assistant corporation counsel, in opposition.
    Decided September 27, 1989
   The plaintiffs petition for certification for appeal from the Appellate Court, 19 Conn. App. 169, is granted, limited to the following issues:

“1. Is a municipal self-insurer obliged to provide uninsured motorist benefits for its police patrol cars?

“2. Does the exclusivity provision on Connecticut General Statutes § 31-284 of the Workers’ Compensation Act bar an officer from recovering such benefits against a municipal employer?”


text:
    State of Connecticut v. Richard A. Harris

      JohnF. Kavanewsky, Jr., in support of the petition.

      Vincent J. Dooley, deputy assistant state’s attorney, in opposition.
    Decided September 27, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 19 Conn. App. 174, is denied.


text:
    Maureen C. Tovish et al. v. Gerber Electronics et al.

      Gerard S. Spiegel, in support of the petition.
    Decided September 27, 1989
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 19 Conn. App. 273, is denied.


text:
    Josephine Rametta v. Conrad A. Stella et al.

      RobertM. Shields, Jr., and Wesley W. Horton, in support of the petition.
    Decided September 27, 1989
   The defendants’ petition for certification for appeal from the Appellate Court, 19 Conn. App. 223, is granted, limited to the following issues:

“1. In a tort action,, does the collateral source rule apply to proceeds received by the plaintiff which are not payments in compensation for the plaintiff’s injury or loss?

“2. In a contract action, must the calculation of the plaintiff’s damages consider the effect of a third party agreement, subsequent to the breach, which would diminish the plaintiffs actual loss?”


text:
    State of Connecticut v. Michael Jennings

      Ronald D. Williams, Jr., special public defender, in support of the petition.

      Donald A. Browne, state’s attorney, in opposition.
    Decided September 27, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 19 Conn. App. 265, is denied.


text:
    Gregory Hughes et al. v. Town of Glastonbury

      Snow Gene Munford, in support of the petition.

      Andrew J. O’Keefe, in opposition.
    Decided September 27, 1989
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 19 Conn. App. 411, is denied.


text:
    Gerald E. Fengler et al. v. Northwest Connecticut Homes, Inc., et al.

      Benson A. Snaider, in support of the petition.
    Decided September 27, 1989
   The defendants’ petition for certification for appeal from the Appellate Court, 19 Conn. App. 280, is granted, limited to. the following issues:

“1. Did the Appellate Court err in concluding that the trial court had no authority to condition the allowance of an amendment to a complaint adding a second count for breach of implied warranties in violation of Connecticut General Statutes § 47-118 and § 47-119 upon the payment by the plaintiff of additional expenses occasioned by the late amendment and interruption of the trial?

“2. Did the Appellate Court err in concluding that the absence of such an amendment was so prejudicial as to require that the judgment upon the original complaint be set aside?”


text:
    Linda Blau v. State Board of Education et al.

      Edward J. Peters, Jr., in support of the petition.

      Diane M. Whitney, assistant attorney general, and Victor Schoen, in opposition.
    Decided September 27, 1989
   The plaintiff’s petition for certification for appeal from the Appellate Court, 19 Conn. App. 428, is denied.


text:
    Glenn N. Bowers v. Warden, Connecticut Correctional Institution, Somers

      Michael 0. Sheehan, in support of the petition.

      James M. Ralls, deputy assistant state’s attorney, in opposition.
    Decided September 27, 1989
   The petitioner Glenn N. Bowers’ petition for certification for appeal from the Appellate Court, 19 Conn. App. 440, is denied.


text:
    Paul Kinderman v. Kathy Kinderman

      Joseph T. O’Connor, in support of the petition.

      Wesley W. Horton and Alexandra Davis, in opposition.
    Decided September 27, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 19 Conn. App. 534, is denied.


text:
    State of Connecticut v. Lonnie Mebane

      James L. Radda, special public defender, in support of the petition.

      Richard F. Jacobson, assistant state’s attorney, in opposition.
    Decided September 27, 1989
   The defendant's petition for certification for appeal from the Appellate Court, 19 Conn. App. 618, is denied.


text:
    Patrick R. Gil v. Inland Wetlands and Watercourses Agency of the Town of Greenwich

      Patrick R. Gil, pro se, in support of the petition.

      John H. Reilly, in opposition.
    Decided September 27, 1989
   The plaintiff’s petition for certification for appeal from the Appellate Court, 19 Conn. App. 801, is denied.


text:
    Sandra Peralli v. Woodrow Pitkat

      I. David Marder, in support of the petition.

      Margaret E. Moriarty, in opposition.
    Decided September 27, 1989
   The plaintiff’s petition for certification for appeal from the Appellate Court, 19 Conn. App. 803, is denied.


text:
    U.S. Fidelity and Guaranty Company v. K.J. Enterprises, Inc., et al.

      Frank X. Lo Sacco, pro se, in support of the petition.

      James J. Tancredi, KirkD. Tavtigian, Jr., and Susan J. Barnes, in opposition.
    Decided September 27, 1989
   The defendant Frank X. Lo Sacco’s petition for certification for appeal from the Appellate Court, 19 Conn. App. 806, is denied.


text:
    Frank E. Fonsworth, Jr., et al. v. Steven B. Sudol et al.

      Susan K. Smith, in support of the petition.

      Grant H. Miller, Jr., in opposition.
    Decided October 12, 1989
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 19 Conn. App. 368, is denied.


text:
    Myron Chomko v. Ira Patmon et al.

      Laurence V. Parnoff, in support of the petition.
    Decided October 12, 1989
   The plaintiff’s petition for certification for appeal from the Appellate Court, 19 Conn. App. 483, is denied.


text:
    Walter A. Hansted v. Safeco Insurance Company of America

      Matthew E. Frechette, in support of the petition.
    Decided October 12, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 19 Conn. App. 515, is denied.


text:
    Board of Pardons v. Freedom of Information Commission et al.

      Victor R. Perpetua, commission counsel, in support of the petition.

      Henri Alexandre, assistant attorney general, in opposition.
    Decided October 12, 1989
   The defendant Freedom of Information Commission’s petition for certification for appeal from the Appellate Court, 19 Conn. App. 539, is denied.


text:
    Stanislaw Geryk v. Atlantic Richfield Company et al. Edmund Lulewicz v. Thomas P. Roy et al.

      William F. Gallagher, in support of the petition.

      Joseph B. Curran, in opposition.
    Decided October 12, 1989
   The plaintiff Edmund Lulewicz’s petition for certification for appeal from the Appellate Court, 19 Conn. App. 585, is denied.


text:
    State of Connecticut v. Richard Lamme

      James J. Ruane, in support of the petition.

      James M. Ralls, deputy assistant state’s attorney, in opposition.
    Decided October 12, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 19 Conn. App. 594, is granted, limited to the following issue:

“What standard governs the determination of whether the detention of a criminal defendant is ‘clearly warranted’ under article first, § 9, of the Connecticut constitution?”


text:
    State of Connecticut v. Anthony Hawkins

      Jacqueline J. Footman, deputy assistant state’s attorney, in support of the petition.

      Christopher M. Cosgrove, assistant public defender, in opposition.
    Decided October 12, 1989
   The state of Connecticut’s petition for certification for appeal from the Appellate Court, 19 Conn. App. 609, is denied.


text:
    State of Connecticut v. Darryl Bryant

      JohnF. Kavanewski, Jr., in support of the petition.

      Geoffrey E. Marion, deputy assistant state’s attorney, in opposition.
    Decided October 12, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 19 Conn. App. 626, is denied.


text:
    State of Connecticut v. Naphtali Brown

      Kent Drager, assistant public defender, in support of the petition.

      Frederick W. Fawcett, assistant state’s attorney, in opposition.
    Decided October 12, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 19 Conn. App. 640, is denied.


text:
    State of Connecticut v. James Morrissey

      Steven D. Ecker, in support of the petition.

      Geoffrey E. Marion, deputy assistant state’s attorney, in opposition.
    Decided October 12, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 18 Conn. App. 658, is granted, limited to the following issue:

“Did the Appellate Court err in remanding this case for a factual determination concerning the reasonableness of the police officer’s search in reliance upon its decision in State v. Brown, 14 Conn. App. 605, holding that there is a good faith exception to the exclusionary rule under article first, § 7, of the Connecticut constitution?”


author: Peters, C. J.

text:
    Edward Serrano v. Nancy E. Serrano
    (13685)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued October 4
    decision released November 21, 1989

      Shirley Pripstein, for the appellant (defendant).

      Theodore Poulos, for the appellee (plaintiff).
   Peters, C. J.

The principal issue in this appeal is whether the 1984 amendments to § 152 (e) of the Internal Revenue Code, 26 U.S.C. § 152 (e),* 2divested state courts of the authority to designate which party in actions for dissolution of marriage may claim the dependent child exemption for federal income tax purposes. After finding that the marriage between the plaintiff husband and the defendant wife had irretrievably broken down, the trial court rendered judgment dissolving the marriage and establishing the custodial and financial responsibilities of the parties. The judgment provided that the sole child of the marriage, although committed to the joint custody of the parties, would reside with the defendant, subject to the plaintiffs visitation rights. The judgment also obligated the plaintiff to pay $95 per week in child support and one dollar per year in alimony, and ordered him to provide medical insurance for the child and to pay one half of any unreimbursed medical expenses. In return, the trial court allocated the federal income tax exemption for the child to the plaintiff. 4******(ii)It is this last provision of the judgment that the defendant challenges on appeal. We transferred this case here pursuant to Practice Book § 4023, and find no error.

The trial court implemented its decision to allocate the dependent child exemption to the plaintiff by ordering the defendant annually to execute a written declaration that she would not claim the exemption.* ** The function of this order was to enable the plaintiff to comply with § 152 (e) (2), which requires that a noncustodial parent claiming the exemption attach to the income tax return such a waiver from the custodial parent.

The defendant attacks the validity of this order on two grounds. First, she argues that, as a matter of federal law, the allocation is invalid because Congress, by enacting the 1984 amendments to § 152 (e), preempted state law from allocating the exemption to a noncustodial parent. Second, she argues that, as a matter of state law, the order requiring her to execute the documentation to enable the plaintiff to claim the exemption invoked an equitable remedy that was inappropriate because of the availability of a less intrusive remedy.

I

The defendant’s first and central contention is that the 1984 amendments to § 152 (e) divest state courts of the authority to allocate the dependent child exemption. In support of this position, she argues that the amendments manifest a congressional intent to confer a tax benefit upon custodial parents that can be tranferred to noncustodial parents only upon the voluntary consent of a custodial parent. According to this analysis, the trial court’s order allocating the exemption to the plaintiff is invalid since it is inconsistent with the objectives of § 152 (e). We are not persuaded.

The question of preemption is one of federal law, arising under the supremacy clause of the United States constitution. U.S. Const., art. VI. Determining whether Congress has exercised its power to preempt state law is a question of legislative intent. Northwest Central Pipeline Corporation v. State Corporation Commission of Kansas, 489 U.S. , 109 S. Ct. 1262, 1273, 103 L. Ed. 2d 509 (1989). The United States Supreme Court has instructed us that, absent an explicit statement that Congress intends to preempt state law, courts should “infer such intent where Congress has legislated comprehensively to occupy an entire field of regulation, leaving no room for the States to supplement federal law, Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67 S. Ct. 1146, 91 L. Ed. 1447 (1947), or where the state law at issue conflicts with federal law, either because it is impossible to comply with both, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143, 83 S. Ct. 1210, 1217-18, 10 L. Ed. 2d 248 [reh. denied, 374 U.S. 858, 83 S. Ct. 1861, 10 L. Ed. 2d 1082] (1963), or because the state law stands as an obstacle to the accomplishment and execution of congressional objectives, Hines v. Davidowitz, 312 U.S. 52, 67, 61 S. Ct. 399, 404, 85 L. Ed. 581 (1941).” Northwest Central Pipeline Corporation v. State Corporation Commission of Kansas, supra, 1273; see also Times Mirror Co. v. Division of Public Utility Control, 192 Conn. 506, 510-12, 473 A.2d 768 (1984).

The defendant concedes that the sole element of the preemption analysis at issue in this case is whether the trial court’s order stands as an obstacle to the objectives of the 1984 amendments to § 152 (e). Congress has not expressly prohibited state courts from allocating the dependent child exemption, since neither the statute nor the legislative history of the 1984 amendments makes any reference whatsoever to the practice. Likewise, Congress has manifested no intent to occupy the field of domestic relations. Finally, the defendant has alleged no inconsistency between the trial court’s order and the statute that would prevent the defendant from complying with both.

Our analysis of whether state law frustrates the purpose of § 152 (e) must start from certain well established principles of federal law. The United States Supreme Court has repeatedly held that, because the field of domestic relations has traditionally been regulated by the states, the standard for demonstrating a preempting conflict between federal law and a state domestic relations provision is high: “On the rare occasion when state family law has come into conflict with a federal statute, this Court has limited review under the Supremacy Clause to a determination whether Congress has ‘positively required by direct enactment’ that state law be preempted. Wetmore v. Markoe, 196 U.S. 68, 77, [25 S. Ct. 172, 49 L. Ed. 390] (1904). A mere conflict in words is not sufficient. State family and family-property law must do ‘major damage’ to ‘clear and substantial’ federal interests before the Supremacy Clause will demand that state law be overridden. United States v. Yazell, 382 U.S. 341, 352, [86 S. Ct. 500, 15 L. Ed. 2d 404] (1966).” Hisquierdo v. Hisquierdo, 439 U.S. 572, 581, 99 S. Ct. 802, 59 L. Ed. 2d 1 (1979); see also Mansell v. Mansell, U.S. , 109 S. Ct. 2023, 2027-28, 104 L. Ed. 2d 675 (1989); McCarty v. McCarty, 453 U.S. 210, 220, 101 S. Ct. 2728, 69 L. Ed. 2d 589 (1981).

The question before us is whether, in light of these precedents, the 1984 amendments to § 152 (e) manifest federal interests that would suffer “major damage” by enforcement of the trial court’s order in this case.* 12*** The amendments eliminated two of the exceptions to the general rule that the custodial parent is entitled to the dependent child exemption and substituted in their place the current provision allowing the noncustodial parent to claim the exemption only if the custodial parent executes a declaration promising not to claim the exemption. The first exception formerly allowed the noncustodial parent to claim the exemption if a divorce decree or written agreement allocated the exemption to the noncustodial parent, provided that the noncustodial parent paid at least $600 per year in child support. The second exception formerly allocated the exemption to the noncustodial parent in cases where the noncustodial parent paid child support in an amount exceeding the amount contributed by the custodial parent and not less than $1200 per year. The amendments did not modify an existing exception for multiple support agreements, but did establish an additional exception for cases in which a divorce decree entered prior to January 1, 1985, had allocated the exemption to a noncustodial parent.

The defendant urges us to interpret these amendments as evidencing a federal purpose to confer a tax benefit upon custodial parents that can be transferred to a noncustodial parent only if the custodial parent waives the right to claim it. The principal argument in support of the defendant’s position is that, since the

1984 amendments to § 152 (e) explicitly defined certain exceptions to the general rule that custodial parents may claim the exemption, state courts may not allocate the exemption to noncustodial parents under circumstances in which none of the defined exceptions are applicable. A number of state courts that have examined the issue have found this argument persuasive. Holley v. Holley, 547 So. 2d 192, 193 (Fla. App. 1989); In re Marriage of Davidson, 540 N.E.2d 641, 647 (Ind. App. 1989); Varga v. Varga, 173 Mich. App. 411, 417-19, 434 N.W.2d 152 (1988); Gerardy v. Gerardy, 406 N.W.2d 10, 13-14 (Minn. App. 1987); Gleason v. Michlitsch, 82 Or. App. 688, 692-93, 728 P.2d 965 (1986); Josey v. Josey, 291 S.C. 26, 33, 351 S.E.2d 891 (1986); Brandriet v. Larsen, 442 N.W.2d 455, 459-60 (S.D. 1989); Sarver v. Dathe, 439 N.W.2d 548, 551-52 (S.D. 1989); Davis v. Fair, 707 S.W.2d 711, 717-18 (Tex. App. 1986). This argument fails, however, to recognize the significance of the fact that state courts have been allocating the exemption for decades. Moreover, as the defendant concedes, state courts developed the practice long before the Internal Revenue Code made explicit reference to it by adopting the first version of § 152 (e) in 1967. In light of the great deference accorded to state courts in the area of domestic relations, we are persuaded, as the courts in a significant number of jurisdictions have held; Lincoln v. Lincoln, 155 Ariz. 272, 275-76, 746 P.2d 13 (Ariz. App. 1987); In re Marriage of Einhom, 178 Ill. App. 3d 212, 223-25, 533 N.E.2d 29 (1988); Hart v. Hart, 774 S.W.2d 455, 457 (Ky. App. 1989); Wassif v. Wassif, 77 Md. App. 750, 759-61, 551 A.2d 935 (1989); Bailey v. Bailey, 27 Mass. App. 502, 504-505, 540 N.E.2d 187 (1989); Corey v. Corey, 712 S.W.2d 708, 710-11 (Mo. App. 1986); In re Marriage of Milesnick, 765 P.2d 751, 753-54 (Mont. 1988); Gwodz v. Gwodz, 234 N.J. Super. 56, 60-61, 560 A.2d 85 (App. Div. 1989); Fleck v. Fleck, 427 N.W.2d 355, 359 (N.D. 1988); Hughes v. Hughes, 35 Ohio St. 3d 165, 166-68, 518 N.E.2d 1213 (1988); In re Marriage of Peacock, 54 Wash. App. 12, 16, 771 P.2d 767 (1989); Cross v. Cross, 363 S.E.2d 449, 457-59 (W.Va. 1987); Marriage of Pergolski v. Pergolski, 143 Wis. 2d 166, 172-73, 420 N.W.2d 414 (Wis. App. 1988); that Congress would have explicitly prohibited states from allocating the exemption if it had intended to do so.

The defendant attempts to refute this conclusion by placing great emphasis on the elimination of the explicit reference to state court decrees allocating the exemption. The legislative history of the amendments, however, does not support the defendant’s contention. Under the section entitled “Reasons for Change,” the House Report states: “The present rules governing the allocations of the dependency exemption are often subjective and present difficult problems of proof and substantiation. The Internal Revenue Service becomes involved in many disputes between parents who both claim the dependency exemption based on providing support over the applicable thresholds. The cost to the parties and the Government to resolve these disputes is relatively high and the Government generally has little tax revenue at stake in the outcome. The committee wishes to provide more certainty by allowing the custodial spouse the exemption unless that spouse waives his or her right to claim the exemption. Thus, dependency disputes between parents will be resolved without the involvement of the Internal Revenue Service.” H.R. Rep. No. 432, 98th Cong., 2d Sess., Pt. II, reprinted in 1984 U.S. Code Cong. & Admin. News 697, 1140. This statement makes it clear, and the defendant cites nothing to the contrary, that the purpose of the 1984 amendments was to extricate the Internal Revenue Service from the burdensome administrative function of determining the value of the child support contributions of the parties. The amendments accomplished this purpose by eliminating the exceptions that required a determination of how much the parties contributed. Thus, under the current version of § 152 (e), the Internal Revenue Service no longer need determine whether a noncustodial parent to whom a state court has allocated the exemption has made child support contributions worth at least $600. In addition, the amendments eased the administrative burden on the Internal Revenue Service by requiring that a noncustodial parent claiming the exemption attach a declaration from the custodial parent promising not to claim the exemption, thereby ensuring that both parents could not simultaneously claim the exemption.

The trial court’s order in no way frustrates the congressional objective of eliminating the involvement of the Internal Revenue Service in disputes concerning the allocation of the dependent child exemption. Under the order, the allocation is made without any involvement by the Internal Revenue Service. The trial court’s allocation imposes no cost on the federal government but rather facilitates the goal of administrative certainty by requiring that the defendant execute a declaration indicating that she will not claim the exemption. Since we find no conflict between § 152 (e) and the trial court’s order, we conclude that § 152 (e) is not preemptive of the practice of allocating the dependent child exemption.

II

The defendant also challenges the trial court’s order requiring her to execute the requisite documentation to enable the plaintiff to claim the dependent child exemption on the ground that the trial court could have fashioned an adequate legal remedy without resorting to equity. Specifically, she argues that the trial court could have achieved its objective by simply reducing the plaintiff’s child support obligation by an amount equivalent to the amount of tax savings that he would realize if he could claim the exemption. We note preliminarily that the defendant’s preference for a revised monetary allocation would also invoke the court’s equitable jurisdiction. On the merits, furthermore, we are not persuaded by the defendant’s argument.

As we have consistently reaffirmed, actions for dissolution of marriage are inherently equitable proceedings. Sunbury v. Sunbury, 210 Conn. 170, 174, 553 A.2d 612 (1989); Pasquariello v. Pasquariello, 168 Conn. 579, 584, 362 A.2d 835 (1975); German v. German, 122 Conn. 155, 161, 188 A. 429 (1936). As we stated in Pasquariello v. Pasquariello, supra, 585, “[t]he power to act equitably is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage. Without this wide discretion and broad equitable power, the courts in some cases might be unable fairly to resolve the parties’ dispute . . . .” The trial court therefore did not commit error by exercising its equity jurisdiction in an attempt to fashion a just remedy under the circumstances of this case.

The facts in the present case demonstrate that the court exercised its equitable discretion appropriately. The plaintiff derives an economic advantage from having the dependent child exemption since he earns income against which he can claim the exemption in calculating his federal tax liability. The defendant, on the other hand, currently has no taxable income against which she could apply the exemption. Although the defendant will suffer no loss in benefits from a reduction in the plaintiff’s support obligation, since the defendant is guaranteed a continuous level of welfare benefits, the state, which is reimbursed for those welfare payments out of the plaintiff’s support payments, will bear a greater burden. The trial court’s decision to allocate the exemption to the plaintiff has the further advantage of providing an incentive for the plaintiff to keep current in his support payments since the defendant can refuse to execute the declaration for any tax year during which the plaintiff has failed to make support payments. The trial court’s allocation of the exemption to the plaintiff was therefore not erroneous.

There is no error.

In this opinion the other justices concurred.

       Title 26 of the United States Code, § 152 (e), as amended by Pub. L. No. 98-369, § 423 (a), 98 Stat. 494, 799-800, 848 (1984), provides in pertinent part: “(e) support test in case of child of divorced parents, etc.
      (1) Custodial parent gets exemption
      Except as otherwise provided in this subsection, if—
      (A) a child (as defined in section 151 (c) (3)) receives over half of his support during the calendar year from his parents—
      (1) who are divorced or legally separated under a decree of divorce or separate maintenance,
      (ii) who are separated under a written separation agreement, or
      (iii) who live apart at all times during the last 6 months of the calendar year, and
      (B) such child is in the custody of one or both of his parents for more than one-half of the calendar year, such child shall be treated, for purposes of subsection (a), as receiving over half of his support during the calendar year from the parent having custody for a greater portion of the calendar year (hereinafter in this subsection referred to as the ‘custodial parent’).
      (2) Exception where custodial parent releases claim to exemption for the year
      A child of parents described in paragraph (1) shall be treated as having received over half of his support during a calendar year from the noncustodial parent if—
      (A) the custodial parent signs a written declaration (in such manner and form as the Secretary may by regulations prescribe) that such custodial parent will not claim such child as a dependent for any taxable year beginning in such calendar year, and
      (B) the noncustodial parent attaches such written declaration to the noncustodial parent’s return for the taxable year beginning during such calendar year. For puiposes of this subsection, the term ‘noncustodial parent’ means the parent who is not the custodial parent.

        (3) Exception for multiple-support agreement
      This subsection shall not apply in any case where over half of the support of the child is treated as having been received from a taxpayer under the provisions of subsection (c).
      (4) Exception for certain pre-1985 instruments
      (A) In General
      A child of parents described in paragraph (1) shall be treated as having received over half his support during a calendar year from the noncustodial parent if—
      (i) a qualified pre-1985 instrument between the parents applicable to the taxable year beginning in such calendar year provides that the noncustodial parent shall be entitled to any deduction allowable under section 151 for such child, and
      (ii) the noncustodial parent provides at least $600 for the support of such child during such calendar year. For purposes of this subparagraph, amounts expended for the support of a child or children shall be treated as received from the noncustodial parent to the extent that such parent provided amounts for such support.
      (B) Qualified pre-1985 instrument
      For purposes of this paragraph, the term ‘qualified pre-1985 instrument’ means any decree of divorce or separate maintenance or written agreement—
      (i) which is executed before January 1, 1985,
      (ii) which on such date contains the provision described in subparagraph (A) (i), and
      (iii) which is not modified on or after such date in a modification which expressly provides that this paragraph shall not apply to such decree or agreement.”

       The judgment also contained provisions, not relevant to this appeal, disposing of certain marital assets and liabilities.

       The authority of the trial court to make this order derives from General Statutes § 46b-84 (d), which provides in pertinent part: “After the granting of a decree annulling or dissolving the marriage . . . the court shall inquire into the child’s need of maintenance and the respective abilities of the parents to supply maintenance. The court shall make and enforce the decree for the maintenance of the child as it considers just . . . . ”

       At oral argument, the parties agreed that the trial court’s order would require the defendant to execute a separate declaration for each tax year, rather than a single permanent declaration.

       Article six, clause 2, of the constitution of the United States provides in pertinent part: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

       Prior to the 1984 amendments, 26 U.S.C. § 152 (e), Pub. L. No. 90-78, 81 Stat. 191-92 (1967), provided in pertinent part: “(e) SUPPORT test in CASE OF CHILD OF DIVORCED PARENTS, ETC.
      (1) General rule
      If-
      (A) a child (as defined in section 151 (e) (3)) receives over half of his support during the calendar year from his parents who are divorced or legally separated under a decree of divorce or separate maintenance, or who are separated under a written separation agreement, and
      (B) such child is in the custody of one or both of his parents for more than one-half of the calendar year, such child shall be treated, for purposes of subsection (a), as receiving over half of his support during the calendar year from the parent having custody for a greater portion of the calendar year unless he is treated, under the provisions of paragraph (2), as having received over half of his support for such year from the other parent (referred to in this subsection as the parent not having custody).
      (2) Special rule
      The child of parents described in paragraph (1) shall be treated as having received over half of his support during the calendar year from the parent not having custody if—
      (A) (i) the decree of divorce or of separate maintenance, or a written agreement between the parents applicable to the taxable year beginning in such calendar year, provides that the parent not having custody shall be entitled to any deduction allowable under section 151 for such child, and

        (ii) such parent not having custody provides at least $600 for the support of such child during the calendar year, or
      (B) (i) the parent not having custody provides $1,200 or more for the support of such child (or if there is more than one such child, $1,200 or more for each of such children) for the calendar year, and
      (ii) the parent having custody of such child does not clearly establish that he provided more for the support of such child during the calendar year than the parent not having custody. For the purposes of this paragraph, amounts expended for the support of a child or children shall be treated as received from the parent not having custody to the extent that such parent provided amounts for such support.
      (3) Itemized statements required
      If a taxpayer claims that paragraph (2) (B) applies with respect to a child for a calendar year and the other parent claims that paragraph (2) (B) (i) is not satisfied or claims to have provided more for the support of such child during such calendar year than the taxpayer, each parent shall be entitled to receive, under regulations to be prescribed by the Secretary, an itemized statement of the expenditures upon which the other parent’s claim of support is based.
      (4) Exception for multiple-support agreement
      The provisions of this subsection shall not apply in any case where over half of the support of the child is treated as having been received from a taxpayer under the provisions of subsection (e).”