text:
    PATRICK BOVAT v. CITY OF WATERBURY ET AL.
    (SC 16482)
    Borden, Norcott, Katz, Palmer and Zarella, Js.

      Argued September 13
    officially released November 20, 2001

      Charles E. Oman III, with whom, on the brief, was Bethany K. Karas, for the appellant (named defendant).

      Robert S. Kolesnik, with whom, on the brief, was Maureen E. Norris, for the appellee (plaintiff).
   Opinion

KATZ, J.

The named defendant, the city of Waterbury (defendant), appeals from the judgment of the trial court, rendered after a jury trial, in favor of the plaintiff, Patrick Bovat, in his action to recover damages for personal injuries he sustained in an automobile accident that resulted from the defendant’s breach of its duties under the municipal defective highway statute, General Statutes § 13a-149. On appeal, the defendant claims that the trial court improperly denied both its motion to set aside the verdict and its motion for remittitur. The defendant’s motion to set aside the verdict had been predicated on the following claimed improprieties: (1) the jury’s responses to written interrogatories finding liability, based on both design defect and defect in repair or maintenance, demonstrated a misapprehension of applicable legal principles; (2) the plaintiff failed to produce evidence that the defects were present from the time the road was built; (3) no reasonable jury could have found that the defendant had been the sole proximate cause of the plaintiffs injuries; (4) the jury was instructed on principles of causation that were applicable to a claim of ordinary negligence; and (5) the trial court precluded the defendant from introducing evidence of a settlement between the plaintiff and the operator of the vehicle in which the plaintiff was riding to contradict the plaintiffs denial that he had made a previous claim against the operator. With respect to the motion for remittitur, the defendant asks this court to reconsider the rule, as articulated in Peck v. Jacquemin, 196 Conn. 53, 491 A.2d 1043 (1985), applied by the trial court that barred it from automatically reducing the plaintiffs award of damages by amounts received by way of settlements from third parties. We reject the defendant’s claims and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of October 4, 1993, the plaintiff, his friend Steven D. Sylvester and two others, drove from the plaintiffs house to meet friends for dinner at the Pontelandolfo Club on Farmwood Road in Waterbury. Farmwood Road is a city highway, owned and maintained by the defendant. Sylvester drove his car, with the plaintiff seated in the front passenger’s seat and the other two individuals seated in the rear. It was dusk as the car approached Farmwood Road. As Sylvester drove in the eastbound lane on Farmwood Road, one of the passengers warned him that he should slow down because the road ahead was narrow and curvy. As the car approached a sharp curve in the road at the top of a hill, Sylvester slowed the car from thirty miles per hour to approximately fifteen to twenty miles per hour. At that moment, an oncoming vehicle came over the hill from the westbound lane. The lights of that vehicle temporarily blinded Sylvester, and both he and the plaintiff thought that the oncoming vehicle was crossing into their lane. While the oncoming vehicle never left its travel lane, Sylvester braked and veered his car to the right. His car skidded partly off the road and the car’s right front side struck a utility pole owned by Connecticut Light and Power Company (power company) that weis located a short distance from the edge of the road.

As a result of the accident, the plaintiff required surgery to repair a “shattered” elbow, which involved the insertion of two metal plates and screws to hold the bone together. The plaintiff was hospitalized for six days and received physical therapy for one and one-half months. As a consequence of the accident, the plaintiff has a 15 percent permanent partial disability of his right arm.

The plaintiff filed this action, alleging negligence against the power company and a violation of the defendant’s obligations under § 13a-149. See footnote 2 of this opinion. Prior to trial, the plaintiff withdrew his claim against the power company after receiving a $10,000 settlement. In his subsequent amended complaint, the plaintiff alleged that the defendant’s defective design and maintenance of the highway caused his injuries in that: (1) the defendant maintained the road without proper lighting; (2) the road was not reasonably safe for the uses or purposes intended; (3) the defendant maintained the road in a state of disrepair, causing it to be dangerous and hazardous; (4) the layout, grade or design of the road was improper; (5) the road was designed with an extremely sharp curve with a utility pole placed at the apex of the curve at the edge of the roadway, thereby creating a dangerous and hazardous condition; (6) the defendant failed to remedy the stated conditions when it was aware or should have been aware of them in the performance of routine inspections; and (7) the defendant failed to warn travelers of the dangerous and hazardous conditions.

Shortly after testimony began, the trial court conducted a hearing on the plaintiffs motion in limine to preclude the defendant from eliciting testimony regarding settlements with, or sums paid by, both the power company and Sylvester’s insurance company, Liberty Mutual Insurance Company (Liberty Mutual), as well as evidence regarding claims against either of those parties. The defendant sought to introduce this evidence to rebut the plaintiffs contention that the defendant was the sole proximate cause of the plaintiffs injuries. In particular, the defendant contended that a claim by the plaintiff against Liberty Mutual was admissible to prove that the plaintiff initially had asserted that Sylvester’s negligence had caused the accident.

The trial court denied, in part, the plaintiffs motion regarding the evidence related to the power company, ruling that the original complaint, the power company’s answer, and the plaintiffs withdrawal of his action against the power company were evidentiary admissions relevant to whether a claim had been made against the power company. The trial court, however, precluded the defendant from eliciting testimony regarding a settlement or release between the plaintiff and the power company. Before ruling on the motion with respect to evidence from Liberty Mutual, the trial court inquired whether the defendant had any evidence of a claim against Sylvester or Liberty Mutual, such as a claim letter from the plaintiff or his counsel. The defendant responded that it had no such evidence. The trial court subsequently granted the plaintiffs motion to exclude evidence regarding any settlement with, any funds paid by, or a release obtained by Liberty Mutual. The trial court did, however, permit the defendant to cross-examine the plaintiff about whether he had made a claim against Liberty Mutual. The plaintiff denied that either he or anyone on his behalf, to the best of his knowledge, had made a claim against any party other than the defendant and the power company.

The plaintiff presented expert witness testimony from John Fitzgerald, a licensed professional engineer and land surveyor, on the condition of Farmwood Road at the site of the accident. Fitzgerald testified to the following information. Farmwood Road was constructed running east to west on a hill sloping down from north to south. There was a 260 foot curvature in the road where the accident occurred, which Fitzgerald characterized as “very sharp . . . .’’At this curve, vehicles traveling in either direction would be ascending a 6 percent grade. The two grades meet in a parabolic curve that blends in at the point of the crest. Due to these factors, an operator traveling eastbound would be affected more adversely than one traveling westbound because a westbound vehicle’s lights would shine upward as it ascended the grade. As the westbound vehicle traveled over the crest, the vehicle’s lights would fan across the front of an oncoming eastbound vehicle, shining its lights directly into that vehicle. In addition, as the eastbound operator approaches the curve, the lane narrows from a width of eight feet to five feet eight inches at the site of the accident. At the time of Fitzgerald’s examination of the site, the eastbound lane was partly covered with dirt that had accumulated over time. The utility pole at the apex of this curve was situated three feet four inches from the edge of the dirt-paclced portion of the road, as compared to a distance of five feet for another utility pole that was situated at the wider portion of the road. There were no signs warning drivers of the upcoming curve or any other traffic control signs posted on the road. Fitzgerald concluded that Farmwood Road was not reasonably safe at the site of the accident due to its curvature, narrow lanes, sight obstruction, pitch and grade. When asked whether the road had been constructed in the aforementioned manner, Fitzgerald responded: “Yes. It certainly was .... [It] did not exhibit any new construction.”

At the conclusion of the plaintiffs case-in-chief, the defendant asked the court to consider the testimony of Michael DeStefano, a team manager in the claims department for Liberty Mutual, on the disputed issue of whether there had been a claim by the plaintiff against Sylvester. By agreement of the parties, DeStefano’s testimony was heard outside the presence of the jury as an offer of proof. Specifically, the defendant sought to use DeStefano to introduce documents contained in Liberty Mutual’s file regarding Sylvester as well as computer generated records pertaining to his file. DeStefano had not obtained the documents directly from the pertinent file; rather, he had received them from the defendant’s counsel, who had procured them from counsel for the power company.

The plaintiff objected to the evidence as lacking proper foundation and as inadmissible settlement evidence. The trial court ruled that the records were inadmissible through the particular witness offered by the defendant but ácknowledged the possibility that the documents could be admitted if offered in another manner.

After the plaintiff rested his case, the defendant moved for a directed verdict. The trial court denied the defendant’s motion and, thereafter, submitted the case to the jury. The jury found in favor of the plaintiff, and indicated in its responses to written interrogatories that the plaintiff had proven the existence of both a defect in the design of the road as well as a defect in the maintenance or repair of the road. The jury awarded the plaintiff $33,000 in economic damages and $47,000 in noneconomic damages, for a total award of $80,000. The defendant filed a motion to set aside the verdict, a motion for remittitur, and a motion to reduce the verdict due to collateral source payments received by the plaintiff. The trial court denied both the defendant’s motion to set aside the verdict and its motion for remittitur, but granted the defendant’s motion to reduce the verdict and reduced the award of economic damages by $14,370.97 in accordance with a stipulation by the parties. Thereafter, the trial court rendered judgment for the plaintiff in the amount of $65,629.03. This appeal followed. We affirm the judgment of the trial court.

We begin by setting forth the standard of review that governs the review of a trial court’s denial of a motion to set aside the verdict. Such review “involves a determination of whether the trial court abused its discretion, according great weight to the action of the trial court and indulging every reasonable presumption in favor of its correctness; Labatt v. Grunewald, 182 Conn. 236, 240-41, 438 A.2d 85 (1980); Levitz v. Jewish Home for the Aged, Inc., 156 Conn. 193, 198, 239 A.2d 490 (1968); since the trial judge has had the same opportunity as the jury to view the witnesses, to assess their credibility and to determine the weight that should be given to their evidence. Loomis v. Perkins, 70 Conn. 444, 447, 39 A. 797 (1898).”Palomba v. Gray, 208 Conn. 21,24-25, 543 A.2d 1331 (1988); accord Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 32, 761 A.2d 1268 (2000); Cadle Co. of Connecticut, Inc. v. C.F.D. Development Corp., 243 Conn. 667, 673, 706 A.2d 975 (1998). “[A trial court may] set aside a verdict where it finds it has made, in its instructions, rulings on evidence, or otherwise in the course of the trial, a palpable error which was harmful to the proper disposition of the case and probably brought about a different result in the verdict.” Munson v. Atwood, 108 Conn. 285, 288, 142 A. 737 (1928).

Before considering the defendant’s claims under this standard of review, we briefly set out the legal parameters of a claim against a municipality under § 13a-149. “To prove a breach of statutory duty under this state’s defective highway statutes, the plaintiff must prove by a preponderance of the evidence: (1) that the highway was defective as claimed; (2) that the defendant actually knew of the particular defect or that, in the exercise of its supervision of highways in the city, it should have known of that defect; (3) that the defendant, having actual or constructive knowledge of this defect, failed to remedy it having had a reasonable time, under all the circumstances, to do so; and (4) that the defect must have been the sole proximate cause of the injuries and damages claimed . . . .” (Internal quotation marks omitted.) Ormsby v. Frankel, 255 Conn. 670, 675-76, 768 A.2d 441 (2001); accord Prato v. New Haven, 246 Conn. 638, 642, 717 A.2d 1216 (1998); Lukas v. New Haven, 184 Conn. 205, 207, 439 A.2d 949 (1981). With these principles in mind, we turn to the defendant’s claims.

I

We first address the defendant’s claim that the jury’s responses to written interrogatories, finding both a design defect and a defect in repair or maintenance, were legally inconsistent. The defendant also claims that the plaintiff failed to prove a design defect, because he presented no evidence that the defect was present since the time the road was constructed. Because we find the resolution of the first claim implicates that of the second claim, we consider them in turn.

A

Written interrogatories were submitted to the jury. Upon responding affirmatively to the question of whether the plaintiff had proved that the highway was defective, the jury was asked the following interrogatories: “3. Is the defect that you find: (a) A defect in the design of the roadway? If your answer is yes, proceed to question four, (b) A defect in repair or maintenance of the roadway? If your answer is yes, proceed to question five .... 5. Do you find that the defect in the roadway was the sole proximate cause of the plaintiffs injuries?” The jury responded affirmatively to each interrogatory. Because the jury found both types of defects, the defendant contends its responses are either inconsistent or an indication that the jury misunderstood the relevant legal principles. This contention is premised on the notion that a successful claim under § 13a-149 must fall into the category of either a design defect or a defect in repair or maintenance, but not both. We disagree with the premise underlying the defendant’s contention.

This court has defined a “defect” pursuant to § 13a-149 as u[a]ny object in . . . the traveled path, which would necessarily obstruct or hinder one in the use of the road ... or which, from its nature and position, would be likely to produce that result . . . .” (Emphasis added; internal quotation marks omitted.) Hall v. Burns, 213 Conn. 446, 461-62, 569 A.2d 10 (1990); Hay v. Hill, 137 Conn. 285, 288, 76 A.2d 924 (1950); Hewison v. New Haven, 34 Conn. 136, 141 (1867). Although § 13a-149 expressly refers only to liability for defects in repair or maintenance; see footnote 2 of this opinion; this court has long recognized that liability could also be predicated on a design defect. See Donnelly v. Ives, 159 Conn. 163, 167-68, 268 A.2d 406 (1970); Perrotti v. Bennett, 94 Conn. 533, 541-42, 109 A. 890 (1920); Hoyt v. Danbury, 69 Conn. 341, 351-52, 37 A. 1051 (1897). Nothing in our case law suggests that the plaintiffs allegation of a design defect precludes him from also establishing a defect in repair or maintenance. In the present case, the plaintiff alleged both theories in his complaint and submitted evidence in support of each theory at trial. The defendant cites no authority for the proposition that these theories may be pleaded and proved only in the alternative.

The defendant further argues that the jury’s responses constitute a finding that both defects were the sole proximate cause of the plaintiffs injuries, a finding that, according to the defendant, is inherently impossible. The defendant misinterprets the plaintiffs burden with respect to sole proximate cause under § 13a-149. This court first articulated the sole proximate cause standard for liability under the defective highway statute in Bartram v. Sharon, 71 Conn. 686, 43 A. 143 (1899). In Bartram, the plaintiff was a passenger who was injured when the driver of her horse-drawn carriage, who himself had been found guilty of negligence, operated the wagon so that it overturned upon striking a defect in the highway that the defendant town had failed to repair. Id., 687. This court reversed the trial court’s judgment in favor of the plaintiff, stating that “a traveler on a highway cannot be injured through a defect in the highway, within the meaning of our statute, when the culpable negligence of a fellow-traveler is a proximate cause of his injury.” Id., 697. “[A]n injury caused by the culpable negligence of a traveler, whether to himself or to another, does not happen by means of or through a defect in the highway, even if such defect were a concurring cause. One reason why a person injured through his own carelessness cannot maintain an action against the town is, that the injury caused by his own carelessness is not through or by means of the defect. This reason applies with equal force when the injury is caused through the carelessness of a third person.” Id., 695. Thus, the focus with respect to the element of sole proximate cause is whether any factors other than the municipality’s breach of its statutory duty caused the plaintiffs injuries. In the present case, the jury found that both defects resulted from the municipality’s breach of that duty.

The plaintiff points out that, in practice, the defendant’s position would lead to an untenable result. We agree. A municipality could, under the defendant’s reasoning, assert a concurrent design defect as a defense to a claim for a defect in repair or maintenance. Likewise, a municipality could prevail if it established two different defects of repair or maintenance that concurrently produced injuries to a highway traveler by claiming that neither was the sole proximate cause of the injuries. Thus, under the defendant’s interpretation of the sole proximate cause doctrine embodied in § 13a-149, the more culpable the conduct of the municipality, the less likely its liability under the statute. That would be, in our view, a bizarre result. “We ordinarily read statutes with common sense and so as not to yield bizarre results.” Southington v. Commercial Union Ins. Co., 254 Conn. 348, 360, 757 A.2d 549 (2000); accord Commission on Human Rights & Opportunities v. Sullivan Associates, 250 Conn. 763, 778, 739 A.2d 238 (1999); Maciejewski v. West Hartford, 194 Conn. 139, 151-52, 480 A.2d 519 (1984).

Finally, the defendant argues that because the jury did not follow the court’s directions to skip over interrogatory 3 (b) if it answered “yes” to question 3 (a), it did not understand the relevant legal principles. Because we have concluded previously that findings of both a design defect and a defect in the maintenance or repair of the road are not legally inconsistent, there is no merit to this argument. Furthermore, “[i]t is not the function of a court to search the record for conflicting answers in order to take the case away from the jury on a theory that gives equal support to inconsistent and uncertain inferences. When a claim is made that the jury’s answers to interrogatories in returning a verdict are inconsistent, the court has the duty to attempt to harmonize the answers.” (Internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 270, 698 A.2d 838 (1997); Norrie v. Heil Co., 203 Conn. 594, 606, 525 A.2d 1332 (1987). We conclude that the trial court did not abuse its discretion in denying the defendant’s motion to set aside the verdict with respect to the jury’s responses to the written interrogatories.

B

The defendant also argues that the plaintiff did not establish a design defect because he failed to present evidence that the defect was present from the time the road was constructed. In support of this position, the defendant relies on language this court used in Hoyt v. Danbury, supra, 69 Conn. 352, when it first articulated the circumstances in which a claimant could prevail under the defective highway statute where the defect was one of design. In Hoyt, this court explained that “[i]f ... a defect in the plan of construction should be so great as soon to require repairs in order to make the highway safe for travel, a neglect to make these repairs might found an action; but the plaintiffs case would be no stronger than if the road had been originally built in the best manner. So, were the plan of construction adopted one which was totally inadmissible . . . the highway would have been in such a defective condition as to have been out of repair from the beginning.” (Emphasis added.) Id.

The defendant argues that the phrase “from the beginning” requires that a plaintiff submit evidence of the exact age of the road, and evidence that the present defect has existed since its original construction. In the present case, however, the jury’s verdict was not predicated solely on a design defect. We previously have concluded that the jury’s findings of liability on both design defect and defect in the repair or maintenance of the road were both legally supportable. Consequently, this court need not reach the issue of whether our case law using the phrase “from the beginning” requires a plaintiff to produce such evidence. See Bortner v. Woodbridge, 250 Conn. 241, 251 n.13, 736 A.2d 104 (1999) (court does not decide issue unnecessary to resolution of case); Duni v. United Technologies Corp., 239 Conn. 19, 23 n.5, 682 A.2d 99 (1996) (same).

II

The defendant’s next claim is that the trial court improperly instructed the jury on both ordinary negligence causation and the more stringent sole proximate cause standard applicable to § 13a-149. The defendant contends that the charge is likely to have confused the jury, permitting it to find liability where the defendant had been only a substantial factor in causing the plaintiffs injuries. We disagree that the charge failed adequately to inform the jury as to the plaintiffs burden of proof with respect to sole proximate cause.

We analyze the defendant’s claim in light of the firmly established rule that “jury instructions are to be read as a whole, and instructions claimed to be improper are read in the context of the entire charge. . . . A jury charge is to be considered from the standpoint of its effect on the jury in guiding it to a correct verdict. . . . The test to determine if a jury charge is proper is whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Jury instructions need not be exhaustive, perfect or technically accurate, so long as they are correct in law, adapted to the issues and sufficient for the guidance of the jury.” (Internal quotation marks omitted.) Scanlon v. Connecticut Light & Power Co., 258 Conn. 436, 446, 782 A.2d 87 (2001); see Hall v. Burns, supra, 213 Conn. 475; State v. Rouleau, 204 Conn. 240, 252, 528 A.2d 343 (1987).

The trial court began its charge to the jury by admonishing it to consider the instructions as a whole and not to isolate or ignore any one part. The court then explained that, before instructing the jury on the elements of a cause of action under the defective highway statute, it was going to discuss the law of negligence generally. This discussion included an explanation of proximate cause in which the court stated: “In order for you to find the defendant negligent you must also find that there was proximate cause, and proximate cause will be described as follows .... [I]f an act or omission of a party is found to have been a substantial factor in bringing about an injury or a loss, then that act or omission is a proximate cause of the injury or loss.”

The defendant argues that this explanation may have communicated to the jury that the defendant could be found liable if it had been merely a substantial factor in causing the plaintiffs injuries, rather than the sole proximate cause of those injuries. This argument is without merit, given the context of the trial court’s reference. The court merely contrasted the general law of negligence with its subsequent discussion of § 13a-149, and in the latter discussion, underscored several times the plaintiffs burden of proving sole proximate cause. Moreover, the court explained that its earlier discussion of the general negligence standard of proximate cause was given only to help the jury to discern whether any third person had been a proximate cause of the plaintiffs injuries. Previously, this court has found similar instructions to be an accurate statement of the burden of proof as long as “[t]he charge upon the question of negligence was in proper co-ordination with and subordination to the main rule of liability under the statute.” Parker v. Hartford, 122 Conn. 500, 506, 190 A. 866 (1937); compare Gustafson v. Meriden, 103 Conn. 598, 603, 604, 131 A. 437 (1925) (jury charge improper in defective highway action where jury instructed on negligence generally but not sole proximate cause) with Sullivan v. Norwalk, 28 Conn. App. 449, 457, 612 A.2d 114 (1992) (jury properly charged in § 13a-149 action with respect to negligence). We conclude that the jury charge regarding negligence in the present case likewise was given in the appropriate context.

The defendant also argues that the trial court improperly failed to give the jury instructions it had requested, which incorporated language from a jury charge that this court approved in Williamson v. Commissioner of Transportation, 209 Conn. 310, 551 A.2d 704 (1988). In Williamson, the jury charge included the instruction that “if there is any negligence by the [plaintiff], even one percent, [he] may not recover.” (Internal quotation marks omitted.) Id., 321. The defendant contends that an explanation of sole proximate cause in these concise, mathematical percentages would have aided the jury in understanding the plaintiffs burden with respect to causation. We acknowledge that the charge requested was a correct statement of law and may, indeed, have aided the jury’s deliberations. We do not consider, however, the trial court’s failure to use this precise language to have been a fatal flaw.

“A request to charge which is relevant to the issues of [a] case and which is an accurate statement of the law must be given. A refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance. State v. Gabriel, 192 Conn. 405, 418, 473 A.2d 300 (1984); State v. Cooper, 182 Conn. 207, 211, 438 A.2d 418 (1980). State v. Casey, 201 Conn. 174, 178, 513 A.2d 1183 (1986).” (Internal quotation marks omitted.) State v. Gant, 231 Conn. 43, 47-48, 646 A.2d 835 (1994), cert. denied, 514 U.S. 1038, 115 S. Ct. 1404, 131 L. Ed. 2d 291 (1995). The substance of the charge given in this case was consistent with the charge that the defendant requested. See footnotes 12 and 13 of this opinion. We conclude, therefore, that the charge did not mislead the jury into finding the defendant liable under a theory of simple negligence. Consequently, the trial court’s denial of the defendant’s motion to set aside the verdict on its claim regarding the jury charge was not an abuse of discretion.

Ill

We next address the defendant’s claim that there was insufficient evidence from which the jury could have concluded that the defendant was the sole proximate cause of the plaintiffs injuries. Specifically, the defendant claims that the jury could not have reasonably concluded that Sylvester, the driver of the car in which the plaintiff was a passenger, was free from fault. We disagree.

When reviewing the sufficiency of evidence pursuant to a denial of a motion for a directed verdict, we limit our inquiry to whether the jury reasonably could have concluded, upon the facts found and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established the necessary element. See, e.g., State v. Calonico, 256 Conn. 135, 139-40, 770 A.2d 454 (2001); Douglass v. 95 Pearl Street Corp., 157 Conn. 73, 77, 245 A.2d 129 (1968); Rickert v. Fraser, 152 Conn. 678, 682, 211 A.2d 702 (1965). If there was evidence upon which the jury reasonably could have found liability in accordance with the plaintiffs allegations, the court should not direct the verdict for the defendant. See Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 534, 733 A.2d 197 (1999); Purzycki v. Fairfield, 244 Conn. 101, 112-13, 708 A.2d 937 (1998).

The defendant argues that Sylvester’s testimony was not credible and, therefore, that the jury only could have concluded that he was negligent. In support of this argument, the defendant points to Sylvester’s testimony that he was blinded by the oncoming vehicle’s lights but also that the oncoming vehicle never left its own travel lane. The defendant also contends that the jury should have concluded that Sylvester was speeding at the time of the accident, despite both his and the plaintiffs testimony to the contrary. According to the defendant, the jury should have inferred that Sylvester was speeding from a photograph offered by the plaintiff of the accident scene that indicated that Sylvester’s car left skid marks leading from the road to the utility pole.

Jury determinations with respect to witness credibility should not be disturbed absent compelling evidence to the contrary. See Gaudio v. Griffin Health Services Corp., supra, 249 Conn. 534; Lopez v. Price, 145 Conn. 560, 564, 145 A.2d 127 (1958). We conclude that the jury’s finding of sole proximate cause was reasonable in light of the evidence before it.

IV

The defendant’s last claim with respect to the trial court’s denial of its motion to set aside the verdict is that the trial court improperly precluded the defendant from introducing certain documentary evidence of a settlement between the plaintiff and Liberty Mutual, Sylvester’s insurer. The defendant claims that this evidence was critical to impeaching the plaintiffs testimony that he had not made a claim against Sylvester. We agree that the trial court abused its discretion by excluding the settlement documents. We conclude, however, that the error was harmless.

Trial courts have broad discretion in determining the relevancy and admissibility of evidence. State v. Cruz, 212 Conn. 351, 361, 562 A.2d 1071 (1989); State v. Bryant, 202 Conn. 676, 688, 523 A.2d 451 (1987); State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985). In order to establish reversible error, the defendant must prove both an abuse of discretion and a harm that resulted from such abuse. Bauer v. Waste Management of Connecticut, Inc., 239 Conn. 515, 526, 686 A.2d 481 (1996); State v. Hamilton, 228 Conn. 234, 244, 636 A.2d 760 (1994); see also C. Tait, Connecticut Evidence (3d Ed. 2001) § 1.33.1, p. 95. In connection with its attempt to impeach the plaintiff, the defendant sought to introduce two exhibits. One of the exhibits consisted of several documents that had been contained in Liberty Mutual’s file regarding Sylvester. Included in the file documents were both a letter from Liberty Mutual to Sylvester notifying him of its intention to pay the plaintiff $25,000 in consideration for a release of claims and a release signed by the plaintiff. The other exhibit consisted of computer generated records pertaining to the Sylvester file, which indicated that a check for $25,000 had been issued by Liberty Mutual to the plaintiff for a loss occurring on October 4, 1993, the date of the accident. Both the letter to Sylvester and the computer records referred to the plaintiff as the “claimant.” The defendant conceded during the evidentiary healing that nothing contained in either exhibit was direct evidence of a claim. Its intention, however, was to use the evidence to impeach the plaintiffs statement that he had not made a claim against Sylvester by having the jury infer that the settlement must have been preceded by a claim from the plaintiff.

The trial court excluded the exhibits on the ground that evidence of a settlement could not be introduced without direct evidence of a claim, such as a claim letter from the plaintiff or his attorney. We read this rationale as an assessment by the trial court that evidence of a settlement is not sufficiently probative evidence that a claim in fact had been made. We disagree with this assessment.

The proffering witness, Liberty Mutual’s claims manager, DeStefano, testified, outside the presence of the jury, that Liberty Mutual would not have entered into a settlement and issued a check in exchange for a release of claims without a party having initiated a claim. On cross-examination by the plaintiff, DeStefano conceded that Liberty Mutual might make a payment for a “nuisance” suit—a claim in which it knows there is no value—just to avoid litigating the claim. This concession, however, supports rather than undermines the likelihood that the settlement was precipitated by a claim, albeit a potentially meritless one.

The defendant claims that had the jury known of the settlement, it could have inferred that a claim preceded the settlement and that, therefore, the plaintiff was lying when he said he had not made a claim against Sylvester. The fact that the jury would have had to rely on inferences to make that determination does not preclude the admission of such evidence. See State v. Wargo, 255 Conn. 113, 132, 763 A.2d 1 (2000) (witness’ statement admissible as long as inference drawn therefrom is reasonable one); State v. Carter, 196 Conn. 36, 44-45, 490 A.2d 1000 (1985) (even successive inferences permissible if justified by facts). The trial court properly could have excluded such evidence where the connection between the inference and the fact sought to be established was so tenuous as to require the jury to engage in sheer speculation. State v. Boles, 223 Conn. 535, 549, 613 A.2d 770 (1992); State v. Duntz, 223 Conn. 207, 233, 613 A.2d 224 (1992). The evidence in the present case was not so speculative, however, in light of the supporting testimony. Therefore, the evidence was probative of the fact that a claim may have been made. See Conn. Code Evid. § 4-1. Consequently, the jury should have been given the opportunity to consider the evidence in assessing the plaintiffs credibility.

The defendant’s burden, however, requires that he prove that the error was such that it likely would have affected the outcome of the case. Danko v. Redway Enterprises, Inc., 254 Conn. 369, 383, 757 A.2d 1064 (2000); Pontos v. Pfizer, Inc., 244 Conn. 598, 614, 711 A.2d 688 (1998). The defendant’s sole claim of harm appears to be his contention that the settlement evidence was relevant to the ultimate issue of sole proximate cause. We conclude that the defendant has not proved that the exclusion of the settlement evidence likely would have affected the jury’s determination on this issue.

In order to prove such harm, the defendant would have to demonstrate the likelihood of two things: first, that the jury would have concluded that the plaintiff had lied when he denied making a claim against Sylvester; and second, that the jury would have inferred from that fact that Sylvester was a joint tortfeasor. The likelihood of the jury reaching these conclusions is doubtful in light of other evidence submitted at trial. Sylvester also had testified that the plaintiff had never made a claim against him. Even had the jury disbelieved both the plaintiff and Sylvester, and, thus, concluded that a claim had been made, we are not persuaded that the jury then would have concluded that the defendant was not the sole proximate cause of the plaintiffs injuries. The defendant neither submitted any evidence nor elicited any testimony to prove that Sylvester had been negligent. Liberty Mutual’s records contained no evidence of an investigation into the cause of the accident. Moreover, as noted previously, DeStefano admitted that Liberty Mutual might pay a meritless claim just to avoid litigation. Furthermore, the jury had been presented with evidence of the plaintiffs claim against the power company and was not convinced that another party was a joint tortfeasor solely by virtue of the fact that the plaintiff had asserted that claim. Consequently, we conclude that any abuse of discretion in excluding the settlement evidence was harmless.

V

The defendant’s final claim is that the trial court improperly denied its motion for remittitur. The defendant had sought to reduce the jury verdict by the amounts the plaintiff had received in settlement with the power company and Liberty Mutual. The defendant concedes that the trial court, in ruling on its motion, was bound to follow this court’s decision in Peck v. Jacquemin, supra, 196 Conn. 53. In Peck, the court considered General Statutes § 52-216a, which bars the reduction of jury verdicts by amounts received from pretrial settlements unless the trial court finds the verdict excessive as a matter of law. On appeal, the defendant asks this court to reconsider Peck and, instead, to apply the common-law rule, which permits a trial court to deduct such settlements so as to preclude the plaintiff from a windfall of double recovery. Although we disagree with the trial court’s reliance on Peck in the present case, we agree with its decision to deny the defendant’s motion for remittitur for the reasons stated herein.

The issue before the court in Peck was the constitutionality of § 52-216a in light of this court’s earlier decision in Seals v. Hickey, 186 Conn. 337, 441 A.2d 604 (1982). The statute provides in relevant part that “[a]n agreement with any tortfeasor not to bring legal action or a release of a tortfeasor in any cause of action shall not be . . . introduced in evidence by either party . . . during the trial of the cause of action against any other joint tortfeasors . . . .” (Emphasis added.) General Statutes § 52-216a. The express language of § 52-216a suggests that the statute applies solely to actions in which there are, or could be, joint tortfeasors. As such, it is inapplicable to an action brought pursuant to the defective highway statute in which the municipality is the sole tortfeasor. Consequently, Peck does not control the disposition of a motion for remittitur in a defective highway action and, therefore, we need not reconsider it.

The defendant concedes that the jury verdict was not excessive as a matter of law. It argues, however, that the common-law rule allowing for a verdict reduction to prevent a plaintiffs double recovery is particularly appropriate in a defective highway action, wherein the defendant theoretically is not entitled to apportionment as a sole tortfeasor. The defendant’s reasoning, however, leads to the opposite conclusion.

As we previously have stated, a plaintiff may prevail under § 13a-149 only if the jury determines that the highway defect was the sole proximate cause of the plaintiffs injuries. We recently addressed the related issue of whether the sole proximate cause requirement contained in § 13a-149 precludes an action for indemnification. See Smith v. New Haven, 258 Conn. 56, 779 A.2d 104 (2001). In Smith, the defendant city sought to implead a third party whom it claimed actively and negligently had caused the plaintiffs injuries. Id., 58. We affirmed the trial court’s judgment rendering summary judgment in favor of the third party, noting that two tortfeasors are a prerequisite for a viable claim of indemnity. Id., 66. As such, we concluded that “[a] finding of two culpable tortfeasors ... is logically inconsistent with our definition of sole proximate cause because a determination that the defect in question is the sole proximate cause of the plaintiffs injuries implicitly relieves any third parties from liability. . . . Put another way, the presence of third party negligence necessarily results in a finding that the defect was not the sole proximate cause of a plaintiffs injuries. Such a determination would relieve the municipality of all liability, thereby vitiating the basis for indemnification. Because § 13a-149 either renders the municipality, and the municipality alone, liable to the plaintiff, or exculpates the municipality entirely, the equitable obligation to indemnify a municipality . . . does not exist in actions brought under § 13a-149.” Id., 66-67. The same rationale applicable in Smith that precluded the municipality from seeking indemnity likewise precludes the defendant in the present case from being entitled, as a matter of law, to a reduction for the settlement amounts received by the plaintiff.

Moreover, our case law on apportionment, which, like indemnity, requires joint tortfeasors, supports a similar conclusion. Where a joint tortfeasor is entitled to apportionment, settlements are not deducted dollar for dollar from the jury verdict. Collins v. Colonial Penn Ins. Co., 257 Conn. 718, 734-35, 778 A.2d 899 (2001) (discussing effect of settlement in uninsured motorist claim in relation to subsequent award of damages). Instead, “the award against the remaining tortfeasor is reduced by the percentage of negligence attributable to the settling tortfeasor.” Id., 735. In the present case, the jury determined that, as the sole proximate cause of the plaintiffs injuries, the defendant was the only party to whom negligence is attributable.

Furthermore, we find it persuasive that settlements expressly have been excluded from the statutory definition of “collateral sources” for purposes of civil actions, either in tort or in contract, in which a plaintiff seeks to recover damages for personal injuries. See General Statutes §§ 52-225a and 52-225b. Although a highway defect claim is a statutory cause of action in which a plaintiff may seek relief for either personal injury or property damage, it is nonetheless a civil tort action. In light of the foregoing reasons, we conclude that the trial court properly denied the defendant’s motion for remittitur for a reduction due to settlement amounts received by the plaintiff.

The judgment is affirmed.

In this opinion the other justices concurred.

       The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c).

       General Statutes § 13a-149 provides: “Damages for injuries by means of defective roads and bridges. Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor. No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby.”

       Connecticut Light and Power Company originally was a defendant in this action but is not involved in this appeal.

       The plaintiff was diagnosed with a “severe unstable supracondylar fracture of the right distal humerus with anterocondylar involvement.”

       The defendant does not challenge that ruling in this appeal.

       Fitzgerald testified that most highway lanes today are constructed at a width of twelve feet. The plaintiff and Sylvester both testified, however, that, despite the narrow width of the eastbound lane, there would have been sufficient room for Sylvester to negotiate the curve if the oncoming vehicle had remained in i1s travel lane.

       Apparently, counsel for the power company had subpoenaed the documents in preparation for a deposition when it was still a party to the case.

       In its motion, the defendant claimed that the plaintiff had failed to meet his statutory burden of proof under § 13a-149 in that: (1) there was no evidence from which a jury could determine that a design defect was present from the time the road was constructed; (2) there was insufficient evidence as to the defendant’s actual or constructive notice of the defect; and (3) there was insufficient evidence that the alleged road defect was the sole proximate cause of the plaintiffs injuries.

       It appears from the parties’ stipulation that this reduction was based on the amount that had been paid by the plaintiffs health insurance coverage for his medical costs ($23,745.97) less the amount that had been paid by the plaintiff and his employer for monthly insurance premiums ($375) for the twenty-five months he received treatments related to his iitjuiy-

       The statutory language interpreted by this court in Hoyt mirrors the current statutory language. See Smith v. New Haven, 258 Conn. 56, 61, 779 A.2d 104 (2001) (noting that defective highway statute of 1672 was “similar in both language and import to its progeny, § 13a-149”).

       In its reply brief, the defendant raises for the first time the issue of whether the plaintiff submitted sufficient evidence to prove that there was a defect in the defendant’s repair or maintenance of the road. We do not address this issue on appeal. “It is a well established principle that arguments cannot be raised for the first time in a reply brief.” (Internal quotation marks omitted.) Ramos v. Vernon, 254 Conn. 799, 843-44, 761 A.2d 705 (2000); State v. Garvin, 242 Conn. 296, 312, 699 A.2d 921 (1997); State v. Hill, 237 Conn. 81, 97 n.23, 675 A.2d 866 (1996). “Claims of error by an appellant must be raised in his original brief ... so that the issue as framed by him can be fully responded to by the appellee in its brief, and so that [an appellate court] can have the full benefit of that written argument.” (Internal quotation marks omitted.) State v. Floyd, 253 Conn. 700, 713 n.12, 756 A.2d 799 (2000). Although the defendant did raise this issue in its motion to set aside the verdict, that action permits the trial court to review its own decision but does not provide a basis for this court’s review. See Salaman v. Waterbury, 246 Conn. 298, 309, 717 A.2d 161 (1998) (“[t]he purpose of the motion for directed verdict with respect to the motions to set aside and for judgment notwithstanding the verdict is to give notice to the trial court”).

       The jury charge provided in relevant part: “If you find that any act or omission other than the [defendant’s] was aproxímate cause of the plaintiffs injuries, you must return a verdict for the [defendant], because the [defendant's] breach of its duties cannot be the sole proximate cause if there were any additional cause, which is why I explained the law of negligence before in general. ... [It is] incumbent upon the plaintiff to prove that the alleged defect was the only cause of his accident. He must prove to you that he was in the exercise of due care at the time of the accident and that he — that his injuries . . . were not due to any negligence on his part or on the part of a third party or any other cause. ... If you find that the plaintiff or another failed to exercise due care at the time of the accident, then your deliberations should end here, and you should return a verdict in favor of the defendant, because the plaintiff would have failed to prove . . . that the accident and the damages were caused solely or exclusively by the claimed breach of the statutory duty of the defendant. If you attribute any fault to any person or any other causes other than the alleged defects, then you must find for the defendant.”

       The defendant’s charge request used the following language that this court approved in Williamson: “If there has been an injury caused by a defect in the highway, and all other elements have been proven, the plaintiff may still not recover unless he shows that there is no negligence, carelessness or inattention by himself or a third person which contributed to such injury. That is to say that even if the road were defective, if there is any negligence by the [plaintiff], even one percent, he may not recover. Likewise, if a third person was careless, and that carelessness caused in any way the plaintiffs injuries, he is not entitled to recover, which likewise, if a third person were careless, negligent, and that caused in any way the plaintiffs injuries, he is not entitled to recover.” See Williamson v. Commissioner of Transportation, supra, 209 Conn. 321. Although the state defective highway statute, General Statutes § 13a-144, not its municipal counterpart, § 13a-149, was at issue in Williamson, we have treated cases arising under either statute as persuasive authority for the other. See Smith v. New Haven, 258 Conn. 56, 64 n.6, 779 A.2d 104 (2001).

       The letter provided in relevant part: '“[The plaintiffs] claim is in excess of the [$25,000 per person] minimum [limit] of the insurance which you carry. [The plaintiff] will thus be attempting to pursue an Under Insured Motorist Claim against the policies in his household.” The letter further indicated that, after Sylvester signed an attached affidavit that was to be forwarded to the plaintiff s attorney, he would be released from all liability upon Liberty Mutual’s payment of $25,000.

       The plaintiff testified, outside the presence of the jury, that the signature on the release was his.

       Section 4-1 of the Code of Connecticut Evidence defines evidence as relevant, and thus probative, if it has “any tendency to make the existence of any fact that is material to the determination . . . more probable or less probable than it would be without the evidence.”

       DeStefano testified, out of the presence of the jury, that Liberty Mutual would have investigated a claim to determine whether its insured was negligent. He offered no testimony or documents, however, to show that any such investigation was performed in the present case.

       The defendant contends for the first time in his reply brief that the evidence should have been admitted under the business records exception to the hearsay rule. As we previously noted; see footnote 11 of this opinion; this court will not address a claim made for the first time in a reply brief. Furthermore, as we already have concluded that the exclusion of the evidence was harmless, this argument would not affect our decision.

       General Statutes § 52-216a provides: “Reading of agreements or releases to jury prohibited. Adjustments for excessive and inadequate verdicts permitted. An agreement with any tortfeasor not to bring legal action or a release of a tortfeasor in any cause of action shall not be read to a jury or in any other way introduced in evidence by either party at any time during the trial of the cause of action against any other joint tortfeasors, nor shall any other agreement not to sue or release of claim among any plaintiffs or defendants in the action be read or in any other way introduced to a jury. If the court at the conclusion of the trial concludes that the verdict is excessive as a matter of law, it shall order a remittitur and, upon failure of the party so ordered to remit the amount ordered by the court, it shall set aside the verdict and order a new trial. If the court concludes that the verdict is inadequate as a matter of la.w, it shall order an additur, and upon failure of the party so ordered to add the amount ordered by the court, it shall set aside the verdict and order a new trial. This section shall not prohibit the introduction of such agreement or release in a trial to the court.”

       The trial court actually cited Mauro v. Yale-New Haven Hospital, 31 Conn. App. 584, 627 A.2d 443 (1993), as its authority. Mauro, however, simply reaffirmed that Peck reflects the current interpretation of § 52-216a. See id., 588-90.

       General Statutes § 52-225a provides: “Reduction in economic damages in personal injury and wrongful death actions for collateral source payments, (a) In any civil action, whether in tort or in contract, wherein the claimant seeks to recover damages resulting from (1) personal injury or wrongful death occurring on or after October 1,1987, or (2) personal injury or wrongful death, arising out of the rendition of professional services by a health care provider, occurring on or after October 1, 1985, and prior to October 1, 1986, if the action was filed on or after October 1,1987, and wherein liability is admitted or is determined by the trier of fact and damages are awarded to compensate the claimant, the court shall reduce the amount of such award which represents economic damages, as defined in subdivision (1) of subsection (a) of section 52-572h, by an amount equal to the total of amounts determined to have been paid under subsection (b) of this section less the total of amounts determined to have been paid under subsection (c) of this section, except that there shall be no reduction for (1) a collateral source for which a right of subrogation exists and (2) that amount of collateral sources equal to the reduction in the claimant’s economic damages attributable to his percentage of negligence pursuant to section 52-572h.
      “(b) Upon a finding of liability and an awarding of damages by the trier of fact and before the court enters judgment, the court shall receive evidence from the claimant and other appropriate persons concerning the total amount of collateral sources which have been paid for the benefit of the claimant as of the date the court enters judgment.
      “(c) The court shall receive evidence from the claimant and any other appropriate person concerning any amount which has been paid, contributed, or forfeited, as of the date the court enters judgment, by, or on behalf of, the claimant or members of his immediate family to secure his right to any collateral source benefit which he has received as a result of such injury or death.”

       General Statutes § 52-225b provides: “ ‘Collateral sources’ defined. For purposes of sections 52-225ato 52-225c, inclusive: ‘Collateral sources’ means any payments made to the claimant, or on his behalf, by or pursuant to: (1) Any health or sickness insurance, automobile accident insurance that provides health benefits, and any other similar insurance benefits, except life insurance benefits available to the claimant, whether purchased by him or provided by others; or (2) any contract or agreement of any group, organization, partnership or corporation to provide, pay for or reimburse the costs of hospital, medical, dental or other health care services. ‘Collateral sources’ do not include amounts received by a claimant as a settlement." (Emphasis added.)


source: Caselaw Access Project

author: ZARELLA, J.

license: Public Domain

text:
    JOSEPH GOMES ET AL. v. COMMERCIAL UNION INSURANCE COMPANY ET AL.
    (SC 16457)
    Sullivan, C. J., and Norcott, Katz, Vertefeuille and Zarella, Js.

      Argued March 14
    officially released November 20, 2001

      Leonard M. Isaac, with whom were Louis A. High-mark, Jr., and, on the brief, James P. Brennan, for the appellants (plaintiffs).

      John W. Lemega, with whom, on the brief, were Stephen H. Broer, John B. Farley and Bruce H. Raymond, for the appellees (defendants).
   Opinion

ZARELLA, J.

The primary issue in this appeal is whether, under the circumstances of this case, the defendants owed a duty to the plaintiffs to refrain from preventing a third person from rendering aid to prevent damage to the plaintiffs’ property. The plaintiffs, Joseph Gomes, Marguerite Gomes, Vic’s Automotive Service, Inc., and Victor Mathieu brought an action in five counts against the defendants, Arnold Chase, Lawrence Perl, Michael Perl, Roger Freedman and West Hartford Motel Associates (hotel defendants), and Commercial Union Insurance Company (Commercial Union). The plaintiffs alleged in the first count that Lanita Carter, who was employed by the hotel defendants and allegedly acting within the scope of her employment as a desk clerk, negligently prevented a hotel guest from “rendering aid to the plaintiffs . . . .” In the second count, the plaintiffs alleged that the desk clerk, acting within the scope of her employment with the hotel defendants, intentionally prevented that guest from “rendering . . . aid to the plaintiffs . . . .” The plaintiffs alleged in the third count that, as a result of the desk clerk’s acts or omissions, the hotel defendants violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. In the fourth count of their complaint, the plaintiffs alleged negligent infliction of emotional distress on the part of all defendants owing to a letter sent to the plaintiffs by Commercial Union. In the fifth and final count, the plaintiffs alleged a violation of CUTPA on the part of all defendants as a result of the letter that formed the basis for the fourth count.

The defendants moved for summary judgment on all counts. The trial court granted the defendants’ motions and rendered judgment in favor of the defendants, from which the plaintiffs appealed to the Appellate Court. We transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

On appeal, the plaintiffs press only their claims of intentional and negligent prevention of the rendering of aid as to the hotel defendants and their negligent infliction of emotional distress and CUTPA claims as to Commercial Union. We reject the plaintiffs’ claims and, accordingly, affirm the judgment of the trial court.

The following undisputed facts are relevant to this appeal. At or about 11:30 p.m. on Sunday, May 21, 1995, a guest at the West Hartford Inn (hotel) heard the sound of breaking glass and went to the window in her room to see what had caused the noise. The guest believed that she had observed someone breaking into the plaintiffs’ gas station located immediately adjacent to the hotel. Thereafter, the guest contacted the desk clerk at the hotel so that the police would be notified. The desk clerk informed the guest she would “take care of it,” and that the gas station was equipped with an alarm system through which the police would be notified of any attempted break-in. The guest believed that she had done all that she needed to do for the police to be contacted and returned to bed. Contrary to the desk clerk’s statement, however, the plaintiffs’ gas station was not equipped with an alarm system. Subsequently, other hotel guests smelled smoke, and they also notified the desk clerk, who did not notify the police or fire department. The plaintiffs’ property sustained damage as a result of the break-in and a fire, which later was determined to be caused by arson. The hotel also was damaged by smoke from the fire on the plaintiffs’ property.

On July 13, 1995, Commercial Union, the hotel’s insurer, sent a letter addressed to the plaintiffs’ gas station seeking reimbursement from the plaintiffs for an insurance claim that it had paid as a result of damage to the hotel caused by the smoke from the fire on the plaintiffs’ property. Additional facts will be provided as necessary.

I

Prior to considering the plaintiffs’ substantive claims, we address the standard of review governing each of those claims. Pursuant to Practice Book § 17-49, summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” On appeal, the plaintiffs do not challenge the trial court’s conclusion that there are no material facts in dispute. Thus, each of the plaintiffs’ claims raises only questions of law. This court subjects questions of law on appeal to plenary review. See, e.g., Hartford, Electric Supply Co. v. Allen-Bradley Co., 250 Conn. 334, 367, 736 A.2d 824 (1999); United Technologies Corp. v. Groppo, 238 Conn. 761, 767, 680 A.2d 1297 (1996).

The plaintiffs first claim that the trial court improperly rendered summary judgment in favor of the hotel defendants on the first and second counts of the plaintiffs’ complaint “because the [court] misfocused its attention on the lack of a special relationship between the plaintiffs and the defendants . . . .” The plaintiffs argue that the trial court improperly concluded that Connecticut law does not provide a remedy to a plaintiff whose property sustains damage as a result of a defendant’s prevention of a third party from aiding the plaintiff. We disagree.

The plaintiffs urge us to adopt §§ 326 and 327 of the Restatement (Second) of Torts, made applicable to claims involving property damage through the operation of § 497 of the Restatement (Second) of Torts, as bases upon which to impose liability for interfering with a person attempting to render aid. The plaintiffs acknowledge that these sections of the Restatement (Second) of Torts previously have not been adopted in Connecticut.

The defendants argue that there is no public policy in Connecticut supporting the imposition of liability under §§ 326 and 327. Alternatively, the defendants argue that, even if we were to adopt §§ 326 and 327, these sections would not apply to this case because the desk clerk’s actions did not prevent the guest from rendering aid to the plaintiffs.

A

We first address the plaintiffs’ claim that, pursuant to § 326 of the Restatement (Second) of Torts, the hotel defendants should be held liable for the damage to the plaintiffs’ property on the basis of the desk clerk’s intentional prevention of the hotel guest from rendering assistance to the plaintiffs. We begin our analysis by considering the issue of whether the desk clerk prevented the hotel guest from rendering aid as that term is used in the Restatement. We conclude that the desk clerk did not prevent the guest from rendering aid.

Because the Restatement does not define the word “prevents,” we first look to the scope note, illustration and comment accompanying § 326 for guidance. A scope note introduces each topic of the Restatement (Second) of Torts and purports to define the parameters of the sections covered by the topic that it accompanies. The scope note introducing the topic of prevention of assistance by third persons, of which § 326 is a part, provides that “[t]he actor can prevent a third person from rendering aid to another in many ways including the following: first, by so injuring the third person as to make him incapable of giving aid; second, by interfering with his efforts to give aid; third, by injuring or destroying the usefulness of a thing which the third person is using to give aid or by otherwise preventing him from using it; [and] fourth, by obstructing the third person’s access to the other.” 2 Restatement (Second), Torts p. 145 (1965) (scope note accompanying §§ 326 through 328). These examples define prevention by attempting, in general terms, to show ways in which prevention can be accomplished. The first, third and fourth examples contemplate that the actor physically stops the third person from rendering aid or compromises the efficacy of an item used in rendering aid. The second example contemplates interference with a person’s efforts to render aid. This example appears to require active intervention on the part of the actor to prevent aid from being rendered.

We look next to the illustration accompanying § 326. It provides: “A prevents the fire department from using a fireplug in front of A’s premises for the purpose of putting out a fire in B’s house. This A does under an unfounded claim that he is entitled to the entire supply of water from the plug. In consequence, the fire department is unable to put out the fire and B, while carefully attempting to rescue from his house some valuable chattels, is injured. A is subject to liability to B.” Id., § 326, p. 146, illustration (1). This illustration does not focus on the meaning of the word “prevents” in § 326 and thus offers little help in determining the scope or nature of the word “prevents” as contemplated by the drafters of the Restatement. The illustration contains no facts revealing how A prevented the fire department from using the fire hydrant. Finally, the comment accompanying § 326 offers no guidance as to the drafters’ contemplation of the meaning of the word “prevents.” See generally id., § 326, p. 146, comment (a). Having examined the Restatement and its supportive and explanatory materials, we next look at other sources for guidance.

Merriam-Webster’s Dictionary defines “prevent” as “to deprive of power or hope of acting or succeeding . . . to keep from happening or existing . . . [or] to hold or keep back . . . .” Merriam-Webster’s Collegiate Dictionary (10th Ed. 1993). These definitions suggest that the word “prevent” means to cause an inability to accomplish or succeed at a task attempted.

Finally, we look to the case law of other jurisdictions that have considered adopting § 326. The plaintiffs rely on Leek v. Brasfield, 226 Ark. 316, 290 S.W.2d 632 (1956), and Commonwealth v. Marcelli, 14 Mass. App. 567, 441 N.E.2d 270 (1982), in support of their claim that we should adopt § 326 under the facts of the present case. These cases would seem to support the adoption of § 326 and also serve to define further the meaning of the word “prevents” as it is used in § 326.

In Leek, a dam was damaged, and a third party— supposedly an owner of land adjacent to that of the plaintiff—engaged a contractor to repair the damage so that excess storm water runoff would flow into an established drainage system. Leek v. Brasfield, supra, 226 Ark. 317-18. The defendant, an upstream landowner, prevented the contractor from entering his land to repair the dam by threatening to sue the contractor and “tie up [the contractor’s] expensive equipment in a court proceeding if [the contractor] went forward with the project.” Id., 318. The contractor “yielded to the defendant’s threats and abandoned the work.” Id. Approximately one month later, there was heavy rain, and storm water runoff from that rain did not flow into the drainage system, but through the breach in the dam. Id. As a result, flooding caused damage to the plaintiffs land, and the defendant was held liable for that damage because his threat of legal proceedings prevented the contractor from repairing the dam. See id., 319-20.

In Marcelli, the defendant physically prevented the victim’s girlfriend from obtaining aid for the victim who, as a result of ingesting drugs, “was lying on the floor [and] breathing erratically . . . .” Commonwealth v. Marcelli, supra, 14 Mass. App. 568. The victim’s girlfriend attempted to call for an ambulance, but the defendant physically pushed her away from the telephone and threatened to kill her if she made any further attempts to obtain aid. Id. The defendant stated to the victim’s girlfriend that he would take care of the victim and that he did not want the police to intervene because of his substantial police record of involvement with narcotics and his possession of drugs and drug paraphernalia. Id. In response to the defendant’s threat, the victim’s girlfriend left the apartment, came back the next day and discovered that the victim had died. Id. Relying in part on § 326 of the Restatement (Second) of Torts, the court in Marcelli characterized the defendant’s conduct in preventing aid as wanton and reckless. Id., 568-69.

Finally, in Keesee v. Freeman, 772 S.W.2d 663 (Mo. App. 1989), security officers at a professional baseball game ejected the plaintiff, who was intoxicated, from the ballpark. Id., 665. One of the plaintiffs companions “sought the permission of the officers to call a cab for [the plaintiff], but that [request] was refused because the officers told [the companion] that [the plaintiff] was under arrest.” Id., 667-68. The plaintiff ended up in the parking lot area outside the ballpark and, subsequently, was abducted and sexually assaulted. Id., 665. The plaintiff sought to recover pursuant to § 326 of the Restatement (Second) of Torts, alleging that the officers intentionally interfered with her companion’s efforts to render assistance. Id., 667-68. Missouri courts had not before recognized a cause of action pursuant to § 326; id., 668; and the court held that, even if it were to do so, “[the plaintiffs] proof did not satisfy the minimum requisites for presentation of a cause of action under [§ 326].” Id. The court reasoned that § 326 applies only when there is an “active intervention by the defendant to thwart the efforts of a rescuer”; id.; and the actions of the officers did not rise to that level. See id.

The foregoing sources suggest that the term “prevents,” as used in § 326, requires active intervention by Hie person allegedly interfering with the third party attempting to render aid, that has the effect of altering, impeding or completely thwarting the efforts of the third party. In Leek, the landowner’s threat of taking legal action to encumber the contractor’s equipment was sufficient to cause the contractor to abandon the project of repairing the dam. Leek v. Brasfield, supra, 226 Ark. 319. In Marcelli, the defendant’s physical intervention and death threat were sufficient to cause the victim’s girlfriend to cease any further attempts at aiding the victim. Commonwealth v. Marcelli, supra, 14 Mass. App. 568. In Keesee, the court concluded that the Restatement applies “only when there is a real and immediate threat of bodily harm and active intervention by the defendant to thwart the efforts of a rescuer.” Keesee v. Freeman, supra, 772 S.W.2d 668.

In the present case, the desk clerk informed the guest that she would “take care of’ things and that the gas station was equipped with an alarm system through which the police would be notified in the event that a break-in was occurring. The actions of the desk clerk did not rise to the level of the actions of the persons who were found to have prevented a third party from rendering aid in the cases cited by the plaintiffs and in the illustration accompanying § 326 of the Restatement (Second) of Torts. The desk clerk did not physically prevent the guest from using the telephone in her room and did not threaten the guest with bodily harm or a lawsuit if she persisted in her efforts to contact the police. There was no active intervention on the part of the desk clerk that prevented the guest from calling the police. Consistent with the common definition of the term “prevent,” the guest was not unable to succeed in her attempt to summon aid for the plaintiffs. In fact, the guest stated in her affidavit that she eventually called the police department directly. This fact belies the argument that the desk clerk prevented the guest from rendering aid.

We conclude that, under the particular facts of this case, the desk clerk’s statements to the guest did not satisfy the minimum requirements necessary to sustain a cause of action under § 326 of the Restatement (Second) of Torts for intentionally preventing a third party from rendering aid. Thus, the application of § 326 to the facts of the present case is unavailing to the plaintiffs.

B

We next consider the plaintiffs’ claim that we should recognize a cause of action for the negligent prevention or disabling of a person from rendering aid. In support of this claim, the plaintiffs urge the adoption of § 327 of the Restatement (Second) of Torts.

This claim requires us to determine whether a duty exists to use care to avoid negligently preventing a person from rendering aid to another. The existence of a duty of care is a prerequisite to a finding of negligence. E.g., Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 566, 707 A.2d 15 (1998) (“[t]he essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury” [internal quotation marks omitted]). “The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant [breached] that duty in the particular situation at hand.” (Internal quotation marks omitted.) Mendillo v. Board of Education, 246 Conn. 456, 483, 717 A.2d 1177 (1998). “If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant.” RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384-85,650 A.2d 153 (1994).

“Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual. . . . Although it has been said that no universal test for [duty] ever has been formulated . . . our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised. ... By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant’s position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result? . . .

“A simple conclusion that the harm to the plaintiff was foreseeable, however, cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed. ... A further inquiry must be made, for we recognize that duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection. . . . While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. . . . The problem for the law is to limit the legal consequences of wrongs to a controllable degree.” (Internal quotation marks omitted.) Lowbard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 632-33, 749 A.2d 630 (2000), quoting Clohessy v. Bachelor, 237 Conn. 31, 45-46, 675 A.2d 852 (1996).

“We have stated that the test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant’s position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant’s responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case.” (Internal quotation marks omitted.) Lodge v. Arett Sales Corp., 246 Conn. 563, 572, 717 A.2d 215 (1998).

In RK Constructors, Inc. v. Fusco Corp., supra, 231 Conn. 381, we concluded that, “[i]n the absence of a controlling statute or overriding public policy consideration . . . the economic harm to the plaintiff . . . was simply too remote to be chargeable to the defendant third party tortfeasor . . . .” Id., 388. In so concluding, we also relied on “the measure of attenuation between [the third party tortfeasor’s] conduct, on the one hand, and the consequences to and the identity of the plaintiff, on the other hand.” Id., 387.

As in RK Constructors, Inc., there is no overriding public policy or statute that compels this court to extend liability based on the facts of the present case. We find no statute or articulated policy reason to hold the defendants liable on the basis of the desk clerk’s statements to the hotel guest and subsequent inaction when the guest informed the desk clerk that she had heard breaking glass. The damage to the plaintiffs’ property was caused by the conduct of the person or persons who perpetrated the criminal activity, not by the action or inaction of the desk clerk. The attenuation between the hotel defendants’ conduct and the plaintiffs’ harm is too remote, as a matter of public policy, to impose a duty. See, e.g., First Federal Savings & Loan Assn. of Rochester v. Charter Appraisal Co., 247 Conn. 597, 607, 724 A.2d 497 (1999) (nexus between appraisal and general decline in market value too attenuated); Waters v. Autuori, 236 Conn. 820, 836, 676 A.2d 357 (1996) (nexus between accounting standards promulgated by professional regulatory body and investor’s economic loss insufficient to impose duty of care).

Our determination that no duty exists in the present case also is consistent with our decision in Lodge v. Arett Sales Corp., supra, 246 Conn. 578-81, in which we declined to extend liability on the basis of public policy reasons. We noted that the defendant was not the primary cause of the accident and cautioned that “[i]mposing liability for consequential damages often creates significant risks of affecting conduct in ways that are undesirable as a matter of [public] policy.” (Internal quotation marks omitted.) Id., 579. Moreover, we emphasized that the “policy [goals] of the tort compensation system . . . [namely] compensation of innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities, and deterrence of wrongful conduct”; id., 578-79; would not be met by imposing liability in that case. See id., 579.

The plaintiffs rely heavily on Boston Fish Market Corp. v. Universal Ins. Co., 388 F.2d 773 (1st Cir. 1968), to support their claim that we should adopt § 327 of the Restatement (Second) of Torts. In Boston Fish Market Corp., a fishing vessel, which was located at a pier owned by the respondent, Boston Fish Market Corporation, caught fire. Id., 774. In a situation very similar to that described in illustration 3 of § 327; see 2 Restatement (Second), supra, § 327, p. 147, illustration (3); the respondent, which was responsible for maintaining several fire hydrants on its pier, turned off a fire hydrant located near the fishing vessel, rendering that hydrant inoperable at the time of the fire. Boston Fish Market Corp. v. Universal Ins. Co., supra, 774. The respondent had informed neither the vessel owners nor the fire department of its actions. Id. The inoperable fire hydrant prevented firefighters from delivering water to the fire in a timely manner. Id., 774-75. The court relied on § 327 in concluding that “one who knowingly interferes with fire-fighting operations” is liable for property damage caused thereby. Id., 777.

Boston Fish Market Corp. is distinguishable from the present case. In the present case, the desk clerk did not turn off, or render inoperable, the guest’s telephone and thus prevent the guest from rendering aid.

In the present case, overall tort law policy goals would not be served by imposing liability. If we were to shift the cost of the plaintiffs’ harm onto the defendants on the basis of the desk clerk’s statements to the hotel guest, we would be shifting the loss to parties who were not responsible for the plaintiffs’ property damage. We note that our determination that public policy reasons militate against imposing a duty of care on the hotel defendants is a fact-bound determination and pertains only to the specific facts of this case. See, e.g., Lodge v. Arett Sales Corp., supra, 246 Conn. 585 n.16.

II

The plaintiffs also claim that the trial court improperly rendered summary judgment as to their allegation of negligent infliction of emotional distress as a result of Commercial Union’s act of sending a letter to the plaintiffs demanding reimbursement for the cost of repairing the hotel as a result of damage caused by smoke from the fire at the plaintiffs’ gas station. Commercial Union argues that, as a matter of law, it owed no duty to the plaintiffs and, therefore, could not have breached a duty that did not exist. We agree with Commercial Union.

In order to recover on a claim of negligent infliction of emotional distress, the plaintiff must prove that “the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm.” (Internal quotation marks omitted.) Barrett v. Danbury Hospital, 232 Conn. 242, 260, 654 A.2d 748 (1995).

It is clear that, on the basis of the language of the plaintiffs’ complaint, the plaintiffs’ claim in this regar d is not that the letter itself was conduct giving rise to an unreasonable risk of harm, but, rather, that the plaintiffs were “particularly upset by the defendants’ false accusations and threat of legal action because the plaintiffs had already suffered large uninsured losses, and both the plaintiffs and the defendants knew that the fire resulted from earlier conduct by the defendants’ agent in preventing the [h]otel guest from rendering aid to the plaintiffs.” According to the plaintiffs, “[t]he defendants knew or should have known that [their] assertions, statements and conduct . . . under the circumstances of this case . . . involved an unreasonable risk of causing the plaintiffs to suffer emotional distress . . . .”

Our determination that the desk clerk did not, as a matter or law, intentionally or negligently prevent the hotel guest from rendering aid to the plaintiffs is fatal to the plaintiffs’ claim of negligent infliction of emotional distress. The plaintiffs recognize that the act of sending the letter itself was not unreasonable. They allege that the act of sending the letter, coupled with the knowledge of the intentional or negligent acts of the desk clerk, constituted the actionable conduct. Because the plaintiffs have failed to persuade us on the issues of intentional and negligent prevention, they cannot prevail on their claim of negligent infliction of emotional distress.

Ill

The plaintiffs’ final claim is that the trial court improperly rendered summary judgment in favor of Commercial Union as to the fifth count of the plaintiffs’ complaint, in which the plaintiffs alleged a violation of CUTPA. In count five of their complaint, the plaintiffs alleged, as they did in the previous count alleging negligent infliction of emotional distress, that the act of sending the letter, coupled with the knowledge that the desk clerk intentionally or negligently had prevented the hotel guest from rendering aid, constituted an unfair or deceptive trade practice.

Having determined that the conduct of the desk clerk was not actionable under either an intentional tort or negligence theory, we conclude that the plaintiffs’ CUTPA claim similarly must fail because the factual predicate of the claimed unfair or deceptive act or practice, as required by General Statutes § 42-110b (a), does not exist.

The judgment is affirmed.

In this opinion the other justices concurred.

       We hereinafter refer to Carter as the desk clerk.

       The hotel defendants and Commercial Union filed separate motions for summary judgment. Inasmuch as Commercial Union was implicated only in counts four and five of the plaintiffs’ complaint, its motion for summary judgment was limited to those counts.

       That letter provided in relevant part: “Our insured alleges that the damage to his building/property in a recent accident was solely a result of your negligence.
      “We have paid his claim for $21,140.89 and we are now coming to you for reimbursement of this cost. ($20,140.89 + $1,000 deductible).
      “If you are insured, we suggest that you send this letter to your insurance company. Please use the enclosed envelope to tell us your policy number and the name of your insurance company so that we too may contact them.
      “If you are not insured, please call [us] ... so that we can make the necessary arrangements without the expense or involvement of formal legal procedures. . . .”

       The plaintiffs alleged intentional misconduct on the part of the hotel defendants in the second count of their complaint, including an intentional decision “not to undertake steps required . . . [under the] Connecticut Fire Safety Code . . . .” This argument was not briefed by the plaintiffs and, therefore, we do not address it. See, e.g., Ham v. Greene, 248 Conn. 508, 528-29 n.11, 729 A.2d 740, cert. denied, 528 U.S. 929, 120 S. Ct. 326, 145 L. Ed. 2d 254 (1999).

       Section 326 of the Restatement (Second) of Torts provides: “One who intentionally prevents a third person from giving to another aid necessary to prevent physical harm to him, is subject to liability for physical harm caused to the other by the absence of the aid which he has prevented the third person from giving.” 2 Restatement (Second), Torts § 326, pp. 145-46 (1965).

       Section 327 of the Restatement (Second) of Torts provides: “One who knows or has reason to know that a third person is giving or is ready to give to another aid necessary to prevent physical harm to him, and negligently prevents or disables the third person from giving such aid, is subject to liability for physical harm caused to the other by the absence of the aid which he has prevented the third person from giving.” 2 Restatement (Second), Torts § 327, p. 146 (1965).

       Section 497 of the Restatement (Second) of Torts provides: “The rules which determine the negligence of conduct threatening harm to another’s interest in the physical condition of land and chattels are the same as those which determine the negligence of conduct which threatens bodily harm.” 2 Restatement (Second), Torts § 497, p. 582 (1965).

       There is some support for the proposition that § 326 of the Restatement (Second) of Torts, which, by its terms, is limited to claims involving bodily injury; see footnote 5 of this opinion; also applies to claims involving property damage by virtue of § 497 of the Restatement (Second) of Torts. Leek v. Brasfield, 226 Ark. 316, 320, 290 S.W.2d 632 (1956); see footnote 7 of this opinion and accompanying text. We need not decide for purposes of the present case, whether § 497 renders § 326 applicable to claims involving property damage, however. Even if we were to assume that it does, we conclude that the plaintiffs have failed to allege facts sufficient to sustain a cause of action under § 326.

       Although Leek was decided before the publication of the Restatement (Second) of Torts, the opinion cites to § 326 of the first Restatement of Torts, which restates essentially the same rule restated in § 326 of the Restatement (Second) of Torts. Leek v. Brasfield, supra, 226 Ark. 319-20; see 2 Restatement of Torts § 326, p. 884 (1934).

       We emphasize that we are neither rejecting nor accepting § 326 of the Restatement (Second) of Torts as part of Connecticut’s jurisprudence inasmuch as the facts of this case are not sufficient, as a matter of law, to sustain a cause of action under that section.

       Because we determine that no duty of care existed on the basis of our analysis of the public policy prong—the second prong—of the test for determining the existence of a duty; e.g., Lodge v. Arett Sales Corp., supra, 246 Conn. 572; we need not perform an analysis under the foreseeability prong—the first prong—of that test. E.g., Zamstein v. Marvasti, 240 Conn. 549, 564 n.7, 692 A.2d 781 (1997).

         See footnote 3 of this opinion.

       The plaintiffs claim that Commercial Union was negligent in sending out its standard subrogation letter prior to the completion of its investigation. They claim that, if Commercial Union had waited, it would have learned of the desk clerk’s intentional or negligent conduct. According to the plaintiffs, Commercial Union’s haste in sending the letter formed the basis of the negligent infliction of emotional distress and CUTPA counts.