author: Covello, J.

text:
    Southport Manor Convalescent Center, Inc., et al. v. Brian J. Foley
    (13869)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.
    Argued May 10—
    decision released July 31, 1990

      Dion Moore, with whom were James T. Shearin and, on the brief, Dwight F. Fanton, for the appellants (plaintiffs).

      Jeanine M. Dumont, with whom, on the brief, were Louis R. Pepe and James G. Green, Jr., for the appellee (defendant).
   Covello, J.

The issue presented in this case is whether the dismissal of an earlier action for failure to file a timely memorandum in opposition to a motion to dismiss constitutes a final judgment to which the principles of res judicata thereafter attach. We conclude that, under the circumstances presented here, the issues raised in the earlier action have not been disposed of on their merits and are not res judicata, and that the trial court therefore should not have granted a motion to dismiss the subsequent, identical action.

Examination of the record discloses that on September 25,1987, the plaintiffs, Southport Manor Convalescent Center, Inc., and Albert A. Garofalo, brought an action in the Stamford-Norwalk judicial district against the defendant, Brian J. Foley, seeking a declaratory judgment determining the rights and obligations of the parties under a contract. On October 23, 1987, the defendant filed a motion to dismiss the action alleging: (1) that there was no basis for venue in the Stamford-Norwalk judicial district; and (2) that there was a prior action pending between the parties in the Litchfield judicial district. On November 17,1987, the trial court granted the motion to dismiss because the plaintiffs had failed to file a timely opposing memorandum required by Practice Book § 143.

On November 18, 1987, the plaintiffs reinstituted their action (the matter now before this court), in the Fairfield judicial district. On April 18,1988, the defendant filed a motion to dismiss the second action alleging that an earlier, identical action between the parties had been dismissed for failure to file a timely memorandum pursuant to Practice Book § 143 and that under this court’s holding in Hughes v. Bemer, 206 Conn. 491, 538 A.2d 703 (1988), this constituted a final judgment whose issues were thereafter res judicata as between the parties. The trial court accepted the defendant’s argument and granted the motion. The plaintiffs appealed to the Appellate Court, which affirmed the trial court’s decision for the same reason. We thereafter granted certification on the issue of whether the earlier dismissal for failure to file the required memorandum resulted in a judgment having the same effect as if the case had been tried on its merits.

In Hughes v. Bemer, 200 Conn. 400, 510 A.2d 992 (1986) (Hughes I), a negligence action, the trial court granted the defendants’ motion to strike the complaint for failure to state a cause of action. Upon the plaintiffs’ failure to plead over, the trial court rendered judgment for the defendants. Upon appeal, we concluded that the plaintiffs’ failure to file a memorandum of law in opposition to the motion to strike required the trial court to grant the motion to strike as Practice Book § 155 then provided that the failure to file such a memorandum constituted a consent to the granting of the motion.

The plaintiffs in Hughes I then reinstituted their action relying on the accidental failure of suit statute. General Statutes § 52-592. The defendants moved to dismiss the second action arguing that § 52-592 was not available to reinitiate actions that had been heard on their merits. The trial court agreed and granted the motion. In Hughes v. Bemer, 206 Conn. 491, 495, 538 A.2d 703 (1988) (Hughes II), we affirmed the trial court’s conclusion holding that a judgment that followed “a consent to the granting of the motion to strike . . . though not necessarily a determination on the merits, is nevertheless a final judgment whose issues are thereafter res judicata as between the parties.” (Emphasis in original.)

In the instant case, the Appellate Court concluded that the judgment of dismissal for failure to file a timely opposing memorandum amount[ed] to a judgment on the merits that bars relitigation because of res judicata.” Southport Manor Convalescent Center, Inc. v. Foley, 20 Conn. App. 223, 226, 565 A.2d 878 (1989). The Appellate Court reasoned that while “Hughes II determined the effect of a judgment rendered pursuant to Practice Book § 155, governing motions to strike . . . Burton v. Planning Commission, [209 Conn. 609, 553 A.2d 161 (1989)], has extended the Hughes II analysis to Practice Book § 143.” Id. We disagree that the Hughes II analysis is in all events applicable to a motion to dismiss filed pursuant to Practice Book § 143.

In Burton v. Planning Commission, supra, the plaintiff failed to file a timely memorandum of law in opposition to the defendant’s motion to dismiss. The trial court granted the motion, relying on the language of Practice Book § 143 that required the timely filing of an opposing memorandum. The plaintiff appealed. Because Practice Book §§ 143 and 155 contained identical language, i.e., that ££[a]n adverse party who fails timely to file such a memorandum pursuant to this section shall be deemed by the court to have consented to the granting of the motion,” we relied upon our earlier holding in Hughes I and concluded that the trial court properly granted the motion. Burton, however, did not address at all whether a cause of action would survive the granting of the motion to dismiss.

In Hughes I, the defendants’ motion to strike the complaint in its entirety challenged the most fundamental aspect of the plaintiffs’ cause of action, i.e., whether its allegations set forth a claim upon which relief could be granted. The motion alleged that, as pleaded, no cause of action was stated. If no cause of action was stated and the complaint could not be amended to correct this deficiency, judgment necessarily would be rendered for the defendants. See Practice Book § 157. By-reason of the operation of Practice Book § 155, the plaintiffs in Hughes I were deemed to have consented to such an assertion, an assertion that was pivotal to their claim. “ ‘Since the decision on the ; . . [motion to strike] determined that no right of action existed, the judgment [following a failure to plead over] was as final and complete as a judgment following a trial on the merits. Brennan v. Berlin Iron Bridge Co., 71 Conn. 479, 490, 42 A. 625 [1899].’ ” Hughes II, supra, 494.

In the present case, however, by reason of the operation of Practice Book § 143, the plaintiffs’ consent amounted to no more than a concession that either: (1) the venue was improper; or (2) a prior action was pending elsewhere. While the latter defect may serve as a basis for abating the action; see Halpern v. Board of Education, 196 Conn. 647, 652, 495 A.2d 264 (1985); there is nothing in the plaintiffs’ concession of the judgment rendered thereafter that directly or tangentially implicates the merits of the underlying controversy.

“In determining whether [to grant a motion to dismiss], the inquiry usually does not extend to the merits of the case. GHK Exploration Co. v. Tenneco Oil Co., 857 F.2d 1388, 1392 (10th Cir. 1988); State v. S & R Sanitation Services, Inc., 202 Conn. 300, 301, 521 A.2d 1017 (1987); Rhodes v. Hartford, 201 Conn. 89, 92, 513 A.2d 124 (1986); Davis v. Board of Education, 3 Conn. App. 317, 320, 487 A.2d 1114 (1985).” Lampasona v. Jacobs, 209 Conn. 724, 728, 553 A.2d 175, cert. denied, 492 U.S. 919, 109 S. Ct. 3244,106 L. Ed. 2d 590 (1989); see also Assn. of Data Processing Service Organizations v. Camp, 397 U.S. 150, 153, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970); Ducharme v. Putnam, 161 Conn. 135, 139, 285 A.2d 318 (1971). “The decision [granting a motion to dismiss] is rendered in the form of a final judgment dismissing the action. . . . [H]owever, only the present action has been terminated and no decision on the merits has been made. In some situations the plaintiff by amendment may cure the defect and have the case reinstated. In others, the plaintiff can proceed only by initiating a new action.” (Emphasis added.) 1 E. Stephenson, Connecticut Civil Procedure (1971 & Cum. Sup. 1982) § 153, pp. 615, 616. Other procedural avenues being unavailable, General Statutes § 52-592 (a) specifically authorizes the plaintiff to commence a new action in the event that “the action has been dismissed for want of jurisdiction.” We therefore conclude that the motion to dismiss in the second action should not have been granted.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the trial court’s judgment.

In this opinion the other justices concurred.

       Practice Book § 143 provided in relevant part: “The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter . . . (3) improper venue. . . .
      “If an adverse party objects to this motion he shall, at least five days before the motion is to be considered on the short calendar, file and serve in accordance with Sec. 120 a memorandum of law and, where appropriate, supporting affidavits as to facts not apparent on the record. An adverse party who fails timely to file such a memorandum pursuant to this section shall be deemed by the court to have consented to the granting of the motion.”
      Practice Book §§ 143 and 155 have been amended so that a party who files an untimely memorandum is no longer deemed to consent to the granting of a motion made under either section. The amendments took effect on October 1,1989. The earlier judgment in this case became final on December 7, 1987.

       We also raised the question of whether a motion to dismiss is the appropriate vehicle to raise the defense of res judicata when Practice Book § 164 expressly requires that such a defense be specially pleaded. In view of our determination of the first issue in the plaintiffs’ favor, we need not address this second issue.

       Practice Book § 157 provides: “Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading; provided that in those instances where an entire complaint, counterclaim or cross complaint has been stricken, and the party whose pleading has been so stricken fails to file a new pleading within that fifteen-day period, the court may upon motion enter judgment against said party on said stricken complaint, counterclaim or cross complaint.”

       Practice Book § 155 then provided in part: “If an adverse party objects to this motion he shall, at least five days before the date the motion is to be considered on the short calendar, file and serve ... a memorandum of law. An adverse party who fails timely to file such a memorandum pursuant to this section shall be deemed by the court to have consented to the granting of the motion.”

       General Statutes § 52-592 provides: “(a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because . . . the action has been otherwise avoided or defeated ... for any matter of form . . . the plaintiff . . . may commence a new action ... for the same cause at any time within one year after the determination of the original action . . . .”


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    Plasticrete Block and Supply Corporation v. Commissioner of Revenue Services
    (13931)
    Peters, C. J., Callahan, Covello, Hull and Borden, Js.

      Argued May 29—
    decision released July 31, 1990

      Emily N. Roisman, with whom was Michael E. Satti, for the appellant (plaintiff).

      Jonathon L. Ensign, assistant attorney general, with whom was Clarine Nardi Riddle, attorney general, for the appellee (defendant).
   Borden, J.

The dispositive issue in this appeal is whether the trial court properly allocated to the plaintiff taxpayer the burden of overcoming a presumption of taxability, as “gross receipts” under General Statutes § 12-407 (9), of certain delivery charges collected by the plaintiff. The defendant commissioner levied a deficiency assessment against the plaintiff for delivery charges collected in conjunction with the sale of the plaintiffs custom-made concrete blocks for the period October 1,1980, to September 30, 1983. The plaintiff appealed to the Superior Court. Thereafter, the plaintiff brought a declaratory judgment action against the com-missioner challenging his declaratory ruling that certain language that the plaintiff added to its invoices and delivery forms in July, 1984, did not operate to exclude those charges from future taxes. The trial court dismissed the appeal, and rendered a declaratory judgment that the delivery charges were subject to taxation. The plaintiff filed a consolidated appeal to the Appellate Court, and we transferred the case to ourselves pursuant to Practice Book § 4023. We reverse the judgments of the trial court, and remand for a new trial.

The facts are either stipulated or undisputed. The plaintiff, a Connecticut corporation with its principal place of business in North Haven, engages in the manufacture and sale of custom masonry products for construction, including the production of blocks specially manufactured according to customer order. Once the plaintiff begins production of custom orders, a purchaser is responsible for payment, and may not cancel an order or return a portion for credit. Additionally, as soon as an order is completed, the plaintiff stacks the blocks in its yard on individual pallets labeled by customer name until pick-up or delivery. As part of its business practice, the plaintiff maintains nine trucks to transport the blocks to customers who want delivery for an additional price calculated separately from the cost of the blocks. This separate delivery charge is specified on the plaintiff’s quotation/acceptance form and order form, and, since 1984, language on invoices and delivery tickets states that “purchase and sales of goods shall be deemed to have taken place at time of loading upon the carrier; purchaser shall thereafter have the sole responsibility for payment thereof and the risk of any loss thereof.” The quotation/acceptance form also quotes prices for the blocks “F.O.B. North Haven yard.” Approximately 75 percent of purchasers of custom-made blocks request that the plaintiff deliver the blocks, while the remaining 25 percent transport the blocks themselves. The sales tax in issue in this case is applicable, if at all, only to the charges for delivery of custom-made concrete blocks by the plaintiff to its customers.

In order to clarify the controversy, some background to the sales tax statutes is required. A tax is imposed upon a taxpayer for the sale of goods or services at retail. General Statutes § 12-408. A “sale” is defined, in relevant part, as “[a]ny transfer of title, exchange or barter, conditional or otherwise, in any manner or by any means whatsoever, of tangible personal property for a consideration . . . . ” (Emphasis added.) General Statutes § 12-407 (2). The “sales price” is “the total amount for which tangible personal property is sold . . . . ” General Statutes § 12-407 (8). The amount of sales tax that is required to be paid, however, is not based upon the sales price alone, but rather upon “gross receipts.” General Statutes § 12-407 (9); see footnote 1, supra.

“Gross receipts,” as defined in § 12-407 (9), includes some, but not necessarily all, of the total charges received by the seller. Under § 12-407 (9) (c), “ ‘[g]ross receipts’ means the total amount of the sales price. . . without any deduction on account of any of the following . . . (c) the cost of transportation of the property prior to its sale to the purchaser.” (Emphasis added.) Under § 12-407 (9) (d), however, “ ‘[g]ross receipts’ do not include any of the following . . . (d) transportation charges separately stated, if the transportation occurs after the sale of the property is made to the purchaser.” (Emphasis added.) A sales tax is thereafter imposed upon the “gross receipts” figure. General Statutes § 12-408 (1).

The legal issue presented to the trial court, therefore, was whether the plaintiff’s delivery charges represented fees for transportation prior to its sale under § 12-407 (9) (c), and thus were includable in “gross receipts,” or whether the delivery charges represented transportation costs after sale under § 12-407 (9) (d), so that the costs would not be includable in “gross receipts.” That issue distilled into the question of whether title to the blocks passed to the plaintiff’s customers upon delivery to them, as the commissioner claimed, or prior to delivery, as the plaintiff claimed. The question of passage of title turns on the factual determination of the intent of the parties, as disclosed by the objective factual evidence of their contractual arrangements. New England Petroleum Corporation v. Groppo, 214 Conn. 444, 450, 572 A.2d 970 (1990); New England Yacht Sales, Inc. v. Commissioner, 198 Conn. 624, 632, 504 A.2d 506 (1986).

The trial court resolved this factual issue in the defendant’s favor. The court, in determining the question of whether title to the blocks passed prior or subsequent to delivery, followed the test set forth in the Uniform Commercial Code, which provides that title passes from the seller to the buyer “in any manner and on any conditions explicitly agreed on by the parties.” General Statutes § 42a-2-401 (1). In evaluating the evidence presented on passage of title, the court relied on the provision in General Statutes § 12-410 (1) that “all gross receipts are subject to the [sales] tax until the contrary is established.” The court also applied the rule of construction that “statutes which exempt from taxation are to be strictly construed against the party claiming an exemption.” The court, therefore, in determining the issue of when title passed, imposed on the plaintiff the burden of these presumptions in order for it to prevail. The court concluded that “[t]he legal presumptions against the plaintiff have not been overcome by virtue of the evidence and stipulation of facts presented to the court.” Accordingly, the court dismissed the plaintiff’s appeal, and rendered a declaratory judgment that the plaintiff’s transportation charges were includable in the definition of “gross receipts,” and, therefore, taxable.

The plaintiff claims that: (1) the trial court incorrectly imposed upon it the presumption of taxability applicable under § 12-410 (1), and the rule of law regarding tax exemptions; and (2) the court was required as a matter of law to conclude, based upon its findings, that title to the plaintiff’s custom-made blocks had passed to the purchasers prior to delivery due to the plaintiff’s manner of conducting business and due to the language added to its forms in July, 1984. We agree with the first claim, but not with the second.

In reviewing trial court proceedings, we may reverse or modify the decision of the trial court only if we determine that “the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law.” Practice Book § 4061; New England Petroleum Corporation v. Groppo, supra, 450. A trial court’s factual conclusion is “reviewable and may be successfully attacked if the record reasonably discloses that the court applied an erroneous principle of law in evaluating the evidence . . . as a basis for its conclusions.” Velsmid v. Nelson, 175 Conn. 221, 224, 397 A.2d 113 (1978).

The plaintiff first claims that the court, in determining whether the plaintiff’s delivery charges were taxable as gross receipts, incorrectly imposed upon it the presumption of taxability under § 12-410 (1), as well as the rule of law that claims of tax exemptions must be strictly construed against the taxpayer. We agree. At trial, the plaintiff asserted that its delivery charges were incurred after title to the custom-made blocks passed to the purchasers due to the “F.O.B. North Haven yard” provision in its forms, the identification of the goods to the customer during and after production, and its practice of providing delivery only where requested and for a separately calculated price. The plaintiff claimed that, under the provisions of § 12-407 (9), its charges were not part of its “gross receipts.” We conclude that these claims involve an objection to the imposition of a tax, and do not seek a tax exemption.

The amount of sales tax required to be paid by a taxpayer may be reduced by exemptions to the tax statutes set forth in General Statutes § 12-412 (1) through (62). An exemption is deducted from the total gross receipts of the seller, and “ ‘ “is the equivalent of an appropriation of public funds, because the burden of the tax is lifted from the back of the potential taxpayer who is exempted and shifted to the backs of others.” ’ ” United Church of Christ v. West Hartford, 9 Conn. App. 448, 453, 519 A.2d 1217 (1987), aff'd, 206 Conn. 711, 539 A.2d 523 (1988); Lyman v. Adorno, 133 Conn. 511, 516, 52 A.2d 702 (1947). “[Statutes that provide exemptions from taxation are a matter of legislative grace that must be strictly construed against the taxpayer.” Plastic Tooling Aids Laboratory, Inc. v. Commissioner, 213 Conn. 365, 369, 567 A.2d 1218 (1990). “[A]ny ambiguity in the statutory formulation of an exemption must be resolved against the taxpayer . . . [and] the taxpayer must bear the burden of proving the error in an adverse assessment concerning an exemption.” Id. On the other hand, when a taxpayer’s claim “concerns the imposition of a tax rather than a claimed right to an exemption or a deduction, the issue must be resolved by strictly construing the statute against the taxing authority and in favor of the taxpayer.” Texaco, Inc. v. Groppo, 215 Conn. 134, 137, 574 A.2d 1293 (1990); Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 588, 522 A.2d 731 (1987); Schlumberger Technology Corporation v. Dubno, 202 Conn. 412, 421, 521 A.2d 569 (1987).

Section § 12-412 (1) through (62) sets forth explicitly allowable exemptions, and the plaintiff’s claim does not fall within any of the delineated categories. Furthermore, the plaintiff’s claim is based upon the language of § 12-407 (9) (d), which clearly states that “ ‘[gjross receipts’ do not include . . . transportation charges separately stated, if the transportation occurs after the sale of property is made to the purchaser.” This language is definitional in nature, and serves to determine whether certain charges are taxable, not whether certain charges that are ordinarily taxable should be exempt from taxation as a matter of legislative grace.

The plaintiff was entitled, therefore, to have the evidence evaluated in accordance with the rule that where the claim involves “the imposition of a tax rather than a claimed right to an exemption or a deduction, the issue must be resolved by strictly construing the statute against the taxing authority and in favor of the taxpayer.” Texaco, Inc. v. Groppo, supra, 137; Texaco Refining & Marketing Co. v. Commissioner, supra, 588; Schlumberger Technology Corporation v. Dubno, supra, 421; The B.F. Goodrich Co. v. Dubno, 196 Conn. 1, 8-9, 490 A.2d 991 (1985). By applying to the evidence concerning the passage of title to the blocks the rule of construction regarding tax exemptions, the court applied an erroneous principle of law. Velsmid v. Nelson, supra, 224.

The defendant argues that the court properly placed the burden of rebutting the presumption of taxability on the plaintiff because the first sentence of § 12-410 (1) provides that “it shall be presumed that all gross receipts are subject to the tax until the contrary is established.” The commissioner asserts that because § 12-410 (1) clearly refers to “all gross receipts,” and § 12-407 (9) defines only “gross receipts,” the definition of “gross receipts” is inapplicable to the term “all gross receipts.” We disagree.

The first sentence of § 12-410 does no more than restate the fundamental rule that a taxpayer who challenges the assessment of a tax bears the general burden of proof. See Stop ‘N Save, Inc. v. Department of Revenue Services, 212 Conn. 454, 462, 562 A.2d 512 (1989); New England Yacht Sales, Inc. v. Commissioner, supra, 634. In that sense, it is “presumed that all gross receipts are subject to the tax until the contrary is established.” But that general proposition does not alter the requirement that it must first be determined whether certain charges are within the statutory definition of “gross receipts” under § 12-407 (9).

The defendant’s argument demonstrates a strained reading of an unambiguous statute. Where “the legislation itself contains a specific definition, the courts are bound to accept that definition.” Greenwich v. Liquor Control Commission, 191 Conn. 528, 536-37, 469 A.2d 382 (1983); Danbury v. Corbett, 139 Conn. 379, 384, 94 A.2d 6 (1953). The term “gross receipts” is specifically set forth under the “Definitions” section of the sales and use tax provisions; General Statutes § 12-407; which requires that the reader resort to that definition “[w]henever used in this chapter . . . . ” (Emphasis added.) “It is basic, of course, that a statute is to be construed as a whole and that the words used therein must be interpreted in their plain and ordinary meaning ‘unless the context indicates that a different one was intended.’ Caldor, Inc. v. Heffernan, 183 Conn. 566, 570, 440 A.2d 767 (1981).” Johnson v. Manson, 196 Conn. 309, 316, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787, reh. denied, 475 U.S. 1061, 106 S. Ct. 1290, 89 L. Ed. 2d 597 (1986). Furthermore, “ ‘the principle of construction everywhere applied . . . [is] that when a statute uses a word in a certain sense, it is to be presumed to have been used in the same sense in all other parts of the statute wherever it occurs.’ Beacon Falls v. Seymour, 44 Conn. 210, 217 (1876).” In re Juvenile Appeal (85-AB), 195 Conn. 303, 324, 488 A.2d 778 (1985). Clearly, merely by the addition of “all,” the legislature did not intend a meaning to attach to “all gross receipts” in § 12-410 different from the statutorily defined meaning in § 12-407.

The plaintiff also claims that the trial court should have concluded as a matter of law, based upon the evidence presented, that its manner of conducting business and the language added to its forms in 1984 were sufficient to pass title prior to delivery, thereby removing these charges from the definition of “gross receipts” and rendering them not subject to tax. We are not persuaded.

In determining whether title has passed, the court should examine the entire contractual transaction between the parties for their objective factual intent. New England Petroleum Corporation v. Groppo, supra; New England Yacht Sales, Inc. v. Commissioner, supra, 632. “The intention of the parties is, in turn, a question of fact.” A. Dubreuil & Sons, Inc. v. Lisbon, 215 Conn. 604, 1609, 577 A.2d 709 (1990); Thompson & Peck, Inc. v. Harbor Marine Contracting Corporation, 203 Conn. 123, 130, 523 A.2d 1266 (1987); Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 199, 520 A.2d 508 (1987). It is therefore a question of fact in this instance whether the plaintiffs manner of conducting business and the terms added to the plaintiffs forms in 1984 were sufficient to transfer title of the blocks prior to delivery.

We do not mean to suggest, however, that an inference concerning the passage of title in favor of the plaintiff must be drawn on rehearing. In this case, there was evidence that supported both the plaintiffs assertion that title passed prior to delivery and the defendant’s assertion that title passed after delivery. The inference of when title passed is one of fact to be drawn by the trial court pursuant to the appropriate rules and unburdened by inapplicable presumptions.

The judgments are reversed and the case is remanded to the trial court for a new trial.

In this opinion the other justices concurred.

       General Statutes § 12-407 (9) provides: “ ‘Gross receipts’ means the total amount of the sales price, of the retail sales of retailers, or the total amount of the rent received for occupancy or the total amount received for any service rendered on or after July 1, 1975, or the total amount of payment or periodic payments received for leasing or rental of tangible personal property for the term or any such lease or rental occurring on or after July 1, 1975, valued in money, whether received in money or otherwise, without any deduction on account of any of the following: (a) The cost of the property sold; however, in accordance with such regulations as the commissioner of revenue services may prescribe, a deduction may be taken if the retailer has purchased property for some other purpose than resale, has reimbursed his vendor for tax which the vendor is required to pay to the state or has paid the use tax with respect to the property, and has resold the property prior to making any use of the property other than retention, demonstration or display while holding it for sale in the regular course of business. If such a deduction is taken by the retailer, no refund or credit will be allowed to his vendor with respect to the sale of the property; (b) the cost of the materials used, labor or service cost, interest paid, losses or any other expense; (c) the cost of transportation of the property prior to its sale to the purchaser. The total amount of the sales price includes all of the following: (a) Any services that are a part of the sale; (b) all receipts, cash, credits and property of any kind; (c) any amount for which credit is allowed by the seller to the purchaser. ‘Gross receipts’ do not include any of the following: (a) Cash discounts allowed and taken on sales; (b) any portion of the sales price of property returned by customers, which upon rescission of the contract of sale is refunded either in cash or credit, provided the property is returned within ninety days from the date of sale; (c) the amount of any tax, not including any manufacturers’ or importers’ excise tax, imposed by the United States upon or with respect to retail sales whether imposed upon the retailer or the consumer; (d) transportation charges separately stated, if the transportation occurs after the sale of the property is made to the purchaser; (e) the amount charged for labor rendered in installing or applying the property sold, provided such charge is separately stated and exclusive of such charge for any service rendered within the purview of subparagraph (K) of subsection (2) of this section.” This statute has been amended, effective October 1,1989, by Public Acts 1989, No. 89-123, § 2.

       The court consolidated the two actions for trial. In the first action, the plaintiff appealed the deficiency tax assessment of the then present tax commissioner, Orest T. Dubno. In the second action, the plaintiff requested a declaratory judgment reversing the adverse declaratory ruling of the subsequent tax commissioner, Timothy F. Bannon.

       Although the trial court stated that the plaintiff “usually delivers the finished bricks” and “[occasionally . . . uses a common carrier for delivery and occasionally the customer picks them up,” the undisputed testimony at trial indicated that, in fact, one quarter of all custom-made blocks were typically picked up by customers, and three quarters were typically delivered.

       General Statutes § 12-407 (2) provides in pertinent part: “(2) ‘Sale’ and ‘selling’ mean and include: (a) Any transfer of title, exchange or barter, conditional or otherwise, in any manner or by any means whatsoever, of tangible personal property for a consideration . . . .”

       General Statutes § 12-407 (8) provides in pertinent part: “ ‘Sales price’ means the total amount for which tangible personal property is sold.”

       General Statutes § 12-410 provides in pertinent part: “presumptions AND RESALE CERTIFICATES. (1) PRESUMPTION OF TAXABILITY; RESALE CERTIFICATE. For the purpose of the proper administration of this chapter and to prevent evasion of the sales tax it shall be presumed that all gross receipts are subject to the tax until the contrary is established. The burden of proving that a sale of tangible personal property or service is not a sale at retail is upon the person who makes the sale unless he takes from the purchaser a certificate to the effect that the property is purchased for resale.”

       In a motion to reargue, the plaintiff claimed, inter alia, that the trial court incorrectly relied upon preprinted paragraphs in the plaintiff’s forms that applied to noncustomized blocks, and that the trial court incorrectly failed to conclude that the F.O.B. language in its forms required a finding that title passed at the plaintiff’s yard. Although the court amended its decision to exclude the references to the preprinted paragraphs dealing with the noncustomized blocks, it reaffirmed its conclusion that title did not pass prior to delivery and that the F.O.B. language was “by no means conclusively determinative” of passage of title.

       The defendant also claims the benefit of the second sentence of General Statutes § 12-410 (1). The second sentence in § 12-410 (1), however, deals with whether a particular sale is a sale at retail. It does not help the defendant because the question of whether the sale of the blocks was at retail is not at issue in this case. Therefore, a straightforward reading of § 12-410 (1) in conjunction with the chapter definition provided in General Statutes § 12-407 (9) refutes the defendant’s argument that the trial court properly placed the burden of the presumption of taxability upon the plaintiff.


author: Peters, C. J.

text:
    Edward T. Kaminski, Administrator (Estate of Joseph J. Kaminski), et al. v. Town of Fairfield et al.
    (13910)
    Peters, C. J., Shea, Glass, Covello and Borden, Js.
    Argued June 6—
    decision released July 31, 1990

      Paul E. Burns, with whom, on the brief, was Barbara J. O’Brien, for the appellant (defendant Ronald Thompson).

      Frank A. Bailey, for the appellees (plaintiffs).
   Peters, C. J.

The sole issue in this appeal is whether a request for mental health assistance to control the behavior of an adult son supports the imposition of tort liability on his parents for injuries inflicted by the son on a police officer accompanying the requested mental health workers to the parents’ home. The appeal arises out of a counterclaim to a wrongful death action brought by the plaintiffs, Edward L. and Leokadja Kaminski and Edward T. Kaminski, administrator of the estate of Joseph J. Kaminski, against the named defendant, the town of Fairfield, and the defendant Ronald Thompson (defendant). The wrongful death action sought damages for the fatal shooting of Joseph J. Kaminski by the defendant. The defendant’s counterclaim sought damages from the plaintiffs for injuries that he sustained when Joseph struck him with an axe before being shot. The trial court, Thim, J., granted the plaintiffs’ motion to strike the counterclaim. The court, Bollen, J., thereafter granted the defendant’s motion for judgment on his counterclaim. The defendant filed an appeal, pursuant to Practice Book § 4002 (b), which we transferred here. Practice Book § 4023. We affirm.

In an appeal from a judgment following the granting of a motion to strike a counterclaim, we take the facts to be those alleged in the counterclaim and construe the counterclaim in the manner most favorable to sustaining its legal sufficiency. Warner v. Konover, 210 Conn. 150, 152, 553 A.2d 1138 (1989); Michaud v. Wawruck, 209 Conn. 407, 408, 551 A.2d 738 (1988); Blancato v. Feldspar Corporation, 203 Conn. 34, 36, 522 A.2d 1235 (1987). Accordingly, we assume the following factual circumstances concerning the injury sustained by the defendant.

Joseph J. Kaminski, the adult son of the plaintiffs, lived at the Kaminski family home after his discharge from the Fairfield Hills Mental Hospital, where he had been diagnosed as a paranoid schizophrenic. Concerned that Joseph might need to be rehospitalized, his mother called the Greater Bridgeport Community Mental Health Center, where Joseph was an outpatient, to request a community visit to evaluate his mental status. In making her request, his mother informed the mental health center that Joseph had been acting in an increasingly bizarre, agitated and aggressive fashion, that he had allegedly broken a neighbor’s car windshield the night before, that he was carrying an axe around with him, and that he had asked his sister whether she was suicidal.

The crisis team of the mental health center responded by having one of its nurses contact the Fairfield police department to obtain an escort for the community evaluation visit. Accordingly, the defendant and Officer Joseph Peddle accompanied nurses Geraldine January and Lowri Jones to the Kaminski home. When the nurses attempted to interview Joseph, he became increasingly agitated and ran upstairs to his bedroom. The nurses, together with Joseph’s mother and the defendant, followed Joseph up to his bedroom and persuaded him to return downstairs. Nonetheless, Joseph’s agitation not only continued but was exacerbated by the suggestion that the crisis team would take him to see a doctor at the mental health center. Resisting this suggestion, Joseph again retreated upstairs to his bedroom. When the defendant, in the course of his professional duties, followed Joseph there, Joseph attacked and struck the defendant with an axe, causing severe and permanent injuries to the defendant. The defendant in turn shot and killed Joseph.

The defendant’s counterclaim alleged that the plaintiffs had, through their negligence, proximately caused his injuries in three ways. The defendant claimed that the plaintiffs had failed properly to care for and supervise Joseph in permitting him to keep axes when they knew or should have known of his dangerous propensities. The defendant also claimed that the plaintiffs had failed to warn him of Joseph’s dangerous and violent propensities and of his possession of several axes. Finally, the defendant claimed that the plaintiffs had failed to take steps to restrain and control Joseph prior to the arrival of the crisis team, when they knew or should have known of his dangerous and violent propensities and should have anticipated that these propensities would be aggravated by the crisis team’s visit.

The plaintiffs responded to the counterclaim with a motion to strike, in which they relied on the absence of an allegation citing a common law or statutory basis for holding parents liable for the torts of their child. The defendant’s objection to the motion to strike claimed that his counterclaim was legally sufficient because it properly alleged a duty as set forth in the Restatement (Second) of Torts § 319. The trial court, Thim, J., granted the motion to strike without issuing a memorandum of decision. Thereafter, by agreement of the parties, judgment was rendered for the plaintiffs on the counterclaim in order to enable the defendant to pursue the present appeal.

In his appeal, the defendant has recast the basis for his claim of negligence into two principal contentions. He argues that the plaintiffs are liable in accordance with the rule of law contained in the Restatement (Second) of Torts § 319, which he urges us to adopt as the law of Connecticut in the factual circumstances alleged in this case. Alternatively, he argues that the plaintiffs are liable on the theory of a common law duty to warn of known impending danger. We are persuaded by neither argument.

I

The defendant relies on the Restatement (Second) of Torts § 319 as the foundation for his claim that the plaintiffs owed him a duty of care because, in permitting their adult but schizophrenic son Joseph to live with them, they undertook a custodial relationship that encompassed responsibility for controlling his behavior. Section 319 provides: “One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.” This court has not previously considered whether to adopt § 319 as an exception to the common law rule that, absent a special relationship of custody or control, there is no duty to protect a third person from the conduct of another. See 2 Restatement (Second), Torts § 315 (1965); F. Harper, F. James & O. Gray, The Law of Torts (2d Ed. 1986) § 18.7; W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 56.

Before addressing the merits of the defendant’s contention, we must clarify the precise contours of his claim. Correctly, he does not assert that the plaintiffs’ alleged duty of care arises directly out of their parental relationship between the plaintiffs and Joseph. At common law, the torts of children do not impose vicarious liability upon parents qua parents, although parental liability may be created by statute; see General Statutes § 52-572; or by independently negligent behavior on the part of parents. LaBonte v. Federal Mutual Ins. Co., 159 Conn. 252, 256, 268 A.2d 663 (1970). The defendant alleges, therefore, that the plaintiffs are liable to him not because they are vicariously responsible for Joseph’s assault but because they are independently responsible for not having prevented Joseph’s assault.

The circumstances under which § 319 has been held to impose a duty to control the conduct of another are far removed from the facts of this case. Both of the official illustrations to § 319 deal with the liability of institutions, such as hospitals, that have formal custodial responsibility for those in their charge. Similarly, the reported cases that have recognized a duty to control have generally done so in the context of professional custodians with special competence to control the behavior of those in their charge. Citing § 319, courts have found that third parties have stated a cause of action in negligence against: a prison warden; Frett v. Government of Virgin Islands, 839 F.2d 968, 975 (3d Cir. 1988); security guards; Karbel v. Francis, 103 N. Mex. 468, 471, 709 P.2d 190 (1985); a mental hospital and its personnel; White v. United States, 780 F.2d 97, 103 (D.C. Cir. 1986); Johnson v. Village of Libertyville, 146 Ill. App. 3d 834, 839, 496 N.E.2d 1219 (1986); Allentown State Hospital v. Gill, 88 Pa. Commw. 331, 488 A.2d 1211, 1213 (1985); a children’s center; Nova University, Inc. v. Wagner, 491 So. 2d 1116, 1118 (Fla. 1986); and a retirement home. Garrison Retirement Home Corporation v. Hancock, 484 So. 2d 1257, 1261 (Fla. App. 1985).

These cases suggest that, in the proper factual circumstances, this court may want to consider whether to recognize the principles of § 319 insofar as they impose a special duty upon custodians to control the behavior of their wards. Some custodians already have a statutory tort duty to protect their wards from the wards’ self-destructive behavior. See, e.g., Mahoney v. Lensink, 213 Conn. 548, 563, 569 A.2d 518 (1990). Arguably, legally designated custodians may also have a common law duty to protect foreseeable third parties from their wards’ aggressive behavior.

The present circumstances are, however, markedly different. Neither the defendant nor our own research has disclosed any case in which a parent, merely by making a home for an adult child who is a mental patient, has been held to be “[o]ne who takes charge of a third person” for the purposes of § 319. It would be anomalous, to say the least, to hold that the plaintiffs in this case had “take[n] charge” of Joseph at the very moment when, acknowledging their limited ability and opportunity to control his behavior, they had called the mental health center crisis team for assistance. That call for help distinguishes this case from Estate of Mathes v. Ireland, 419 N.E.2d 782, 784 (Ind. App. 1981), in which family members were held to have a duty to prevent a deranged and dangerous twenty year old man from abducting and drowning a member of the general public. A familial relationship does not, per se, establish the capacity to control that § 319 envisages as a basis for liability. Poncher v. Brackett, 246 Cal. App. 2d 769, 771-73, 55 Cal. Rptr. 59 (1966).

On the facts alleged in this case, therefore, § 319 would not furnish a basis for the defendant’s counterclaim. Lacking an appropriate factual predicate, we will postpone further inquiry into the adoption of § 319 to another day. We affirm the judgment of the trial court striking the defendant’s counterclaim insofar as that counterclaim rested on § 319.

II

The defendant’s counterclaim alternately alleges that the plaintiffs were negligent in failing to warn him of Joseph’s “dangerous and violent propensities and that [he] had possession of several axes.” Relying on the rule of law stated in Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (1976), the defendant maintains that, like the psychotherapist in Tarasojf, the plaintiffs in this case had a duty to warn him, as a foreseeable vie-tim, of Joseph’s potential for violent and bizarre behavior. We disagree.

The duty to warn arose, in Tarasoff, out of a psychotherapist’s knowledge of a patient’s specific threats against a specific victim, whom the patient subsequently killed. Id., 431; see Thompson v. County of Alameda, 27 Cal. 3d 741, 752-53, 614 P.2d 728, 167 Cal. Rptr. 70 (1980). Tarasoff is distinguishable both because the plaintiffs did not have a professional relationship with Joseph; Nally v. Grace Community Church of the Valley, 47 Cal. 3d 278, 293-96, 298, 763 P.2d 948, 253 Cal. Rptr. 97 (1988); Rozycki v. Peley, 199 N.J. Super. 571, 578, 489 A.2d 1272 (1984); and because the defendant was not a specifically identifiable victim. See Brady v. Hopper, 570 F. Sup. 1333, 1338 (D. Colo. 1983), aff’d, 751 F.2d 329 (10th Cir. 1984); Leedy v. Hartnett, 510 F. Sup. 1125, 1130 (M.D. Pa. 1981); see also Lipari v. Sears, Roebuck & Co., 497 F. Sup. 185, 191, 195 (D. Neb. 1980) (foreseeable victims may include members of a class). Whatever the merits of Tarasoff, the principles it establishes have no applicability in this case.

The circumstances of this case, furthermore, do not provide any other basis to conclude that the plaintiffs failed in their duty to warn the defendant about Joseph’s dangerous propensities. We note two significant uncontroverted facts: (1) the plaintiffs disclosed Joseph’s excitable condition to the crisis team when they asked for its intervention; and (2) the defendant, an armed police officer, came to the plaintiffs’ home in the course of his professional responsibilities to assist in dealing with the crisis to which the team had been alerted.

With respect to the first consideration, the plaintiffs cannot be faulted for not having repeated their observations of Joseph’s behavior to the defendant, when they had described his symptoms and his possession of axes to other members of the crisis team. The defendant’s counterclaim does not allege that the crisis team withheld from him the information about Joseph’s condition that was the precipitating factor for the visit to the plaintiffs’ home. Having asked for the mental health workers’ assistance, the plaintiffs were entitled to assume that the members of the crisis team would take reasonable precautions to discharge their responsibilities. 2 Restatement (Second), Torts § 452. “The failure to warn an invitee of something he already knows is without legal significance.” Warren v. Stancliff, 157 Conn. 216, 220, 251 A.2d 74 (1968); see also Cairl v. State, 323 N.W.2d 20, 26 (Minn. 1982). Any imperfection in the manner of the plaintiffs’ disclosure would be actionable only if their conduct could reasonably be construed to have induced the defendant to rely on a tacit assurance of safety. See Rubenstein v. United States, 488 F.2d 1071 (9th Cir. 1973); W. Prosser & W. Keeton, supra, p. 207. This is not such a case.

With respect to the second consideration, the plaintiffs cannot be held liable to the defendant for risks that inhered in his presence, as a police officer acting as a trained escort for a mental health team on a visit to a disturbed patient known to be agitated and to have access to axes. “[FJundamental concepts of justice prohibit a police officer from complaining of negligence in the creation of the very occasion for his engagement. . . . This fundamental concept rests on the assumption that governmental entities employ fíre-

fighters and police officers, at least in part, to deal with the hazards that may result from their taxpayers’ own future acts of negligence. Exposing the negligent taxpayer to liability for having summoned the police would impose upon him multiple burdens for that protection.” Berko v. Freda, 93 N.J. 81, 87, 459 A.2d 663 (1983) (a police officer injured in the pursuit of a stolen car cannot sue the car owner for negligence in leaving the car with keys in the ignition). In accordance with this principle, a police officer has been precluded from suing parents for negligence when he was assaulted by intoxicated guests at a party after having been summoned to quell the disturbance. Walters v. Sloan, 20 Cal. 3d 199, 202-205, 571 P.2d 609, 142 Cal. Rptr. 152 (1977). Similarly, a police officer struck by another car while assisting a truck driver to gather fallen cargo was not allowed to sue the truck driver for having negligently secured his freight. Steelman v. Lind, 97 Nev. 425, 427-28, 634 P.2d 666 (1981); see also Flowers v. Rock Creek Terrace Limited Partnership, 308 Md. 432, 447, 520 A.2d 361 (1987); Turner v. Northwest General Hospital, 97 Mich. App. 1, 3-4, 293 N.W.2d 713 (1980); F. Harper, F. James & O. Gray, supra, § 27.14 (2); W. Prosser & W. Keeton, supra, §§ 60-61, pp. 413, 431.

For all the reasons stated, the defendant’s counterclaim did not allege an actionable breach of a duty to warn on the part of the plaintiffs. The trial court’s judgment on the plaintiffs’ motion to strike was therefore entirely correct on this ground as well.

The judgment is affirmed.

In this opinion the other justices concurred.

       None of the parties ever asked the trial court to articulate the grounds for its decision. A written memorandum of decision in response to a motion to strike is required, under Practice Book § 156, only if “more than one ground of decision is set up [in the motion to strike].”

       General Statutes § 52-572 provides in relevant part: “(a) The parent or parents or guardian of any unemancipated minor or minors, which minor or minors wilfully or maliciously cause damage to any property or injury to any person, or, having taken a motor vehicle without the permission of the owner thereof, cause damage to the motor vehicle, shall be jointly and severally liable with the minor or minors for the damage or injury to an amount not exceeding three thousand dollars, if the minor or minors would have been liable for the damage or injury if they had been adults.”

       The two illustrations to the Kestatement (Second) of Torts § 319 provide: “1. A operates a private hospital for contagious diseases. Through the negligence of the medical staff, B, who is suffering from scarlet fever, is permitted to leave the hospital with the assurance that he is entirely recovered, although his disease is still in an infectious stage. Through the negligence of a guard employed by A, C, a delirious smallpox patient, is permitted to escape. B and C communicate the scarlet fever and smallpox to D and E respectively. A is subject to liability to D and E.
      “2. A operates a private sanitarium for the insane. Through the negligence of the guards employed by A, B, a homicidal maniac, is permitted to escape. B attacks and causes harm to C. A is subject to liability to C.”

       The pleadings disclose the defendant Thompson’s professional status. In its counterclaim, the defendant town of Fairfield asserts that the employment of the defendant Thompson “was within the scope of the Workers’ Compensation Act, and his injuries arose out of and in the course of said employment.” It is further alleged that, “[a]s a result of said injuries, the Town of Fairfield has paid and may be required to pay sums of money for said injuries and for medical care under the terms of the Workers’ Compensation Act.”

       A different rule may obtain, as the Restatement (Second) of Torts § 345, comment (c), Illustration (2) suggests, when a police officer, as an invitee, encounters an unforeseen hazard because of a condition in an area of the landowner’s property that is held open for the use of the general public. See Brady v. Consolidated Rail Corporation, 35 Ohio St. 3d 161, 519 N.E.2d 387 (1988).


author: Hull, J.

text:
    Roberta Ford v. Blue Cross and Blue Shield of Connecticut, Inc.
    (13667)
    Peters, C. J., Shea, Callahan, Glass and Hull, Js.

      Argued April 5—
    decision released July 31, 1990

      Charles L. Howard, with whom were Linda L. Yoder and, on the brief, Paul W. Orth, for the appellant-appellee (defendant).

      Jonathan L. Gould, with whom were Susan Price-Livingston and, on the brief, Anne Goldstein, for the appellee-appellant (plaintiff).
   Hull, J.

The dispositive issue in this appeal is whether the trial court properly instructed the jury concerning the allocation of burdens of proof in an action brought by an employee pursuant to General Statutes § 31-290a, alleging wrongful termination of employment. The plaintiff, Roberta Ford, instituted this action pursuant to § 31-290a, claiming that the defendant, Blue Cross and Blue Shield of Connecticut, Inc., had terminated her employment because she had filed a claim for workers’ compensation benefits. The case was tried before a jury that found in favor of the plaintiff and awarded damages as follows: $95,270 for payment of back wages; $3703 for loss of employee benefits; $50,000 for other damages; $49,657.66 for attorney’s fees; and $962.50 for other costs. The trial court rendered judgment in accordance with the verdict and additionally ordered that the plaintiff be reinstated to her previous employment position. From this judgment the defendant appealed and the plaintiff cross appealed to the Appellate Court; we subsequently transferred this case to ourselves pursuant to Practice Book § 4023. We reverse the judgment of the trial court and remand the case for a new trial.

Evidence was presented at trial from which the jury could reasonably have found the following facts. In 1971, the defendant hired the plaintiff, a 1946 nursing school graduate, as a manager in its medical review department. The plaintiff subsequently held several other positions in this department, and in January, 1983, became a senior medical records examiner. In these capacities, the plaintiff received satisfactory performance appraisals. Following an appraisal in December, 1984, the plaintiff was recommended by her supervisor, Toni Jackson Starrs, for a promotion to the higher salaried position of utilization review specialist. This new position entailed more complex duties than did the position of records examiner. In particular, the utilization review specialist was responsible for on-site audits of home health agencies and the compilation of periodic statistical reports for the Health Care Financing Administration, the federal agency that oversees the medicare program. Although the plaintiff had been suffering for several months from anxiety due to the pressure of her job as senior medical records examiner, she decided to accept the promotion.

Upon taking the position of utilization review specialist, the plaintiff was required to perform certain of the functions of her former position as well as the duties of the new position. The plaintiff received negligible formal training regarding her new responsibilities and soon began having difficulty performing all of the functions of her job. Because of this difficulty, the plaintiff sought guidance and assistance from Starrs, but received little instruction.

On January 30, 1985, the plaintiff was having difficulty completing an audit that was due the following day. She was eventually reduced to tears and left work. The following day she consulted Gerald Flamm, a psychiatrist, who diagnosed her as suffering from depression and anxiety. Flamm sent a letter to the defendant in which he stated that due to the plaintiffs condition, she was unable to work. Flamm did not clear the plaintiff to return to work until February 25, 1985. On February 26,1985, after returning to work, the plaintiff filed a notice of claim for workers’ compensation benefits, claiming that her disability had been caused by work-related stress.

During the plaintiffs absence from work, Starrs reassigned the plaintiff’s work to other members of the department who discovered numerous errors in the reports on which the plaintiff had been working. When the plaintiff returned to work, however, little was said about either her absence or the problems with her work. Upon her return to work, the plaintiff assumed a reduced workload that resulted in a reduction of her anxiety and depression. Nevertheless, errors in her work continued to occur.

On May 8, 1985, Starrs informed the plaintiff that she had received a call from the defendant’s insurance carrier inquiring about the plaintiff’s stress-related medical problems. The plaintiff explained that the call concerned her workers’ compensation claim. Starrs thereafter called Norma Ginter, an employee then in charge of administering the defendant’s disciplinary procedures, to discuss the plaintiff’s situation. Ginter’s notes and testimony regarding that conversation indicated that Starrs initiated discussion about the plaintiff’s workers’ compensation claim and Starrs’ concern about the insurance carrier’s investigation of her department. Starrs also discussed with Ginter the problems with the plaintiff’s job performance. On May 9, 1985, Starrs and Ginter again discussed the plaintiff, a conversation that resulted in their agreement to offer the plaintiff an early retirement option. Starrs and Ginter agreed that, if the plaintiff refused this option, they would then initiate formal disciplinary procedures.

Starrs met with the plaintiff on May 10,1985, a meeting that commenced with Starrs’ mention of the fact that the plaintiff had filed a workers’ compensation claim. Starrs then informed the plaintiff that she had detected problems with the plaintiffs job performance, particularly her inability to perform the audits and compile the statistical records. The discussion thereafter turned to options available to the plaintiff such as early retirement, part-time work, and transfer to another department. The meeting then ended as it had begun with Starrs’ mention of the plaintiff’s pending workers’ compensation claim.

Starrs’ treatment of the plaintiff at this meeting resulted in the recurrence of the plaintiff’s symptoms of anxiety. The plaintiff, nonetheless, decided against early retirement. When the plaintiff informed Starrs of her decision, Starrs instituted the first step in the defendant’s formal discipline process by placing the plaintiff on a forty-five day warning, commencing June 13,1985. Starrs told the plaintiff that if her work did not improve during that time further discipline would result. The plaintiff requested that Starrs show her the errors that she had made in her work, a request that Starrs refused.

The plaintiff thereafter returned to Flamm for further treatment for her stress. Flamm found that the plaintiff’s renewed stress took the form more of anxiety than of depression for which he prescribed medication and recommended further consultative therapy. He felt that the increased anxiety from which the plaintiff suffered during the period May to August, 1985, was caused by the defendant’s disciplinary action.

During mid-June, 1985, the plaintiff consulted with an attorney concerning the events that had transpired at work. On June 20,1985, the attorney sent a letter to the defendant’s director of human resources, Nicholas Reuter, claiming that the defendant’s recent discipline of the plaintiff was in retaliation for the plaintiffs workers’ compensation claim. Reuter referred the letter to Joan Hartley, the manager of communications and equal employment within the department. Hart-ley thereafter became involved in the plaintiff’s disciplinary process in an effort to ensure that the discipline imposed was based upon errors made during the relevant warning period.

On July 28, 1985, the plaintiff wrote a rebuttal to Starrs’ June 13 warning that ultimately had been reduced to writing in early July. Upon Starrs’ receipt of the rebuttal, she slammed her office door in the plaintiff’s presence, commenting that the plaintiff had now made things impossible. Starrs met again with the plaintiff on July 31,1985, to discuss the plaintiffs work product. Starrs identified errors in the plaintiffs work, some of which had been made by the plaintiff prior to the first verbal warning issued in June. At this meeting, Starrs issued the plaintiff a second warning. Upon issuing this warning, Starrs indicated that if the plaintiff did not improve her performance within thirty days, her employment would be terminated.

Other members of the department in which the plaintiff was working during the summer of 1985 were also suffering from job-related stress that resulted in mistakes in their work product. The plaintiff, however, was the only member of the department that had filed a workers’ compensation claim; the plaintiff was also the only member against whom Starrs had initiated formal disciplinary procedures.

The plaintiff’s workload was reduced during the month of August. An employee to whom Starrs had delegated the job of checking the plaintiff’s work indicated that the plaintiff’s performance was improving. During this time, the plaintiff continued to receive treatment from Flamm for her anxiety. On the basis of his contact with the plaintiff, Flamm determined that it was not healthy for the plaintiff to remain in Starrs’ department. As a result, on August 26, 1985, Flamm requested in a letter to the defendant that the plaintiff be transferred to a different department.

Flamm’s letter was reviewed by Hartley, Starrs and Starrs’ direct supervisor, James Buecheri. Starrs indicated to the others that the plaintiff’s performance had not improved, although she admitted that she was not sure that the work she had reviewed in August had actually been completed during that month. Starrs then recommended that the plaintiff’s employment be terminated immediately. Hartley, however, did not take Starrs’ recommendation. In consideration of the plaintiff’s seniority and the letter from Flamm, Hartley decided to give the plaintiff until January 17,1986, to find other permanent employment with the defendant through its placement pool. The employee placement pool assists employees whose jobs have been eliminated or who are unable to perform their jobs due to health reasons to find other positions within the defendant company.

In early September, 1985, Buecheri temporarily placed the plaintiff in another department. Buecheri failed to inform the supervisor of that department, however, that the plaintiff was in the employment pool and was looking for work within the company. Rather, Buc-cheri merely stated that the plaintiff would be in the department temporarily because she would be leaving the company within four months.

On September 13,1985, the plaintiff wrote to Hart-ley indicating her desire to be notified of and considered for every job opening within the defendant company. Although she stated that she wished to review all of these openings with Hartley, Hartley did not meet with the plaintiff until the day of her termination. Likewise, Hartley’s subordinates assigned to the plaintiff’s case never met with the plaintiff to review her employment goals, conduct in violation of the defendant’s written employee pool placement policies.

The plaintiff interviewed for three positions within the defendant that paid salaries comparable to the salary she had received for the utilization review specialist position, but was not offered any of the positions. On January 16, 1986, the plaintiff wrote to Buccheri asking that she be allowed to stay on in any position within the company rather than being terminated on January 17,1986. The plaintiff further expressed her desire to be considered for any position that might become available after January 17. Although Buccheri received the plaintiffs correspondence prior to the close of business on January 17, 1986, he took no action to retain the plaintiff. This inaction occurred despite the fact that the department in which the plaintiff was working had sufficient work for the plaintiff to do and the fact that other jobs were to become available within the defendant company soon after January 17. Buc-cheri and Starrs had signed the plaintiff’s termination papers on January 15,1986. The plaintiffs employment was accordingly terminated on January 17, 1986.

On appeal, the defendant claims that the trial court improperly: (1) submitted the plaintiffs § 31-290a claim to a jury; (2) instructed the jury regarding the allocation of burdens of proof; (3) refused to set aside the verdict and to render judgment for the defendant notwithstanding the verdict; (4) admitted into evidence testimony concerning the plaintiffs fee arrangement with her attorney; (5) denied the defendant’s motion to strike the plaintiff’s claim for humiliation, anxiety and emotional distress; (6) admitted into evidence irrelevant and unfairly prejudicial evidence; (7) misled the jury regarding the calculation of damages and attorney’s fees; (8) refused to set aside the verdict as excessive or to order a remittitur; and (9) ordered that the plaintiff be reinstated. The plaintiff claims on her cross appeal that the court improperly failed to award her attorney’s fees as required by § 31-290a.

We conclude that the trial court improperly instructed the jury concerning the allocation of burdens of proof in an action brought pursuant to § 31-290a, and accordingly, reverse the judgment of the trial court and remand the case for a new trial. We, therefore, do not reach the last four issues raised in this appeal and address the defendant’s other claims only to the extent necessary for the retrial. Given our disposition of the defendant’s appeal, we dismiss the plaintiff’s cross appeal.

I

We turn first to the defendant’s claim that the trial court improperly permitted the plaintiff’s action to be tried to a jury. The gravamen of this claim is that because the plaintiff’s cause of action was purely statutory, she did not have a right to a jury trial. We do not agree.

The standards used to determine whether a party is entitled to a trial by jury are well established. “Under article first, § 19, of the Connecticut constitution, as amended, ‘[t]he right of trial by jury shall remain inviolate.’ We have consistently held that the scope of article first, § 19, is defined by applying a historical test. The right to a jury trial may not be abrogated for causes of action that were triable to the jury prior to the constitution of 1818, and extant at the time of its adoption. Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O’Neill, 203 Conn. 63, 76, 523 A.2d 486 (1987); Seals v. Hickey, [186 Conn. 337, 349-50, 441 A.2d 604 (1982)]; Gentile v. Altermatt, 169 Conn. 267, 298, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S. Ct. 763, 46 L. Ed. 2d 631 (1976); Swanson v. Boschen, 143 Conn. 159, 165, 120 A.2d 546 (1956). Consequently, statutory actions established since the adoption of the constitution of 1818 ordinarily fall outside the scope of the provision, ‘unless, perhaps, the new remedy constitutes “a modification of existing remedies, so vital as to unduly limit and violate the right of trial by jury.” ’ United States Fidelity & Guaranty Co. v. Spring Brook Dairy, Inc., 135 Conn. 294, 297, 64 A.2d 39 (1949), quoting Meigs v. Theis, 102 Conn. 579, 592, 129 A. 551 (1925).” Bishop v. Kelly, 206 Conn. 608, 618, 539 A.2d 108 (1988).

' We have held, therefore, that the right to a jury trial exists both in cases in which it existed at common law at the time of the adoption of the constitutional provisions preserving it and in cases substantially similar thereto. Skinner v. Angliker, 211 Conn. 370, 374, 559 A.2d 701 (1989); Swanson v. Boschen, supra; see also 47 Am. Jur. 2d, Jury § 17. “At common law, ‘legal claims [were] tried by a jury, [and] equitable claims [were] tried by a court . . . . ’ Miles v. Strong, 68 Conn. 273, 286, 36 A. 55 (1896); Dawson v. Orange, 78 Conn. 96, 100, 61 A. 101 (1905). Equitable actions, therefore, are not within the constitutional guarantee of trial by jury. Franchi v. Farmholme, Inc., 191 Conn. 201, 210, 464 A.2d 35 (1983); United States Fidelity & Guaranty Co. v. Spring Brook Dairy, Inc., supra.” Skinner v. Angliker, supra.

“General Statutes § 52-215, provides that as a matter of right ‘civil actions involving such an issue of fact as, prior to January 1,1880, would not present a question properly cognizable in equity’ should be entered on the docket as jury cases upon proper request. Section 52-215 goes on to state that certain enumerated actions and ‘all other special statutory proceedings, which, prior to January 1, 1880, were not triable by jury,’ shall be tried to the court without a jury. . . . [T]he term ‘ “special statutory proceedings” cannot be construed, under the constitutional provisions guaranteeing jury trials, [however,] to mean any cause of action whatsoever, simply because it is authorized by an enactment of the legislature. If it could, the legislature, by the process of giving legislative sanction to common-law causes of action, could, in the course of time, obviate the guarantee of jury trial completely. . . . The test is whether the issue raised in the action is substantially of the same nature or is such an issue as prior to 1818 would have been triable to a jury.’ [Swanson v. Boschen, supra, 164-65; s]ee also United States Fidelity & Guaranty Co. v. Spring Brook Dairy, Inc., supra, 297.” Skinner v. Angliker, supra, 374-75.

“Accordingly, in determining whether a party has a right to a trial by jury under the state constitution and § 52-215, the court must ascertain whether the action being tried is similar in nature to an action that could have been tried to a jury in 1818 when the state constitution was adopted. This test requires an inquiry as to whether the course of action has roots in the common law, and if so, whether the remedy involved was one in law or equity. If the action existed at common law and involved a legal remedy, the right to a jury trial exists and the legislature may not curtail that right either directly or indirectly. Franchi v. Farmholme, Inc., supra; Swanson v. Boschen, supra; United States Fidelity & Guaranty Co. v. Spring Brook Dairy, Inc., supra; Windham Community Memorial Hospital v. Windham, 32 Conn. Sup. 271, 273, 350 A.2d 785 (1975).” Skinner v. Angliker, supra, 375-76.

We note that it is undisputed that a § 31-290a action involves a legal remedy, and, therefore, we address only the question of whether this action has roots in the common law. We turn for guidance on this question to our decision in Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980), involving a claim for retaliatory discharge brought pursuant to the Uniform Food, Drug and Cosmetic Act. In Sheets we stated: “In the light of . . . recent cases, which evidence a growing judicial receptivity to the recognition of a tort claim for wrongful discharge, the trial court was in error in granting the defendant’s motion to strike. The plaintiff alleged that he had been dismissed in retaliation for his insistence that the defendant comply with the requirements of a state statute, the Food, Drug and Cosmetic Act. We need not decide whether violation of a state statute is invariably a prerequisite to the conclusion that a challenged discharge violates public policy. Certainly when there is a relevant state statute we should not ignore the statement of public policy that it represents.” Id., 480; see also Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 565, 479 A.2d 781 (1984).

These comments are applicable to the question presently before us because, as one trial court has so aptly noted, “[§] 31-290a is essentially a codification of the Sheets holding, in the context of workers’ compensation.” Robidoux v. United Parcel Service, Inc., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 296444 (September 12, 1985). A violation of § 31-290a, a statute obviously designed to protect claimants who file for benefits under one of this century’s most socially ameliorative statutory programs, is in essence a statutorily created tort deriving from the action for wrongful discharge set forth in Sheets. It should be recalled that our modern law of torts has its origins in the common law actions of trespass and trespass on the case. W. Pros-ser & W. Keeton, Torts (5th Ed. 1984) § 6, pp. 28-31. We conclude, therefore, that because the classical theory upon which recovery is based in actions brought pursuant to § 31-290a was redressable at common law, the plaintiffs action was properly tried to a jury.

II

We turn next to the defendant’s challenge to the trial court’s charge to the jury regarding the allocation of burdens of proof in a § 31-290a action. The defendant claims that the effect of the court’s instruction was to place improperly on the defendant the burden of disproving the plaintiff’s claim. We agree.

In setting forth the burden of proof requirements in a § 31-290a action, we look to federal law for guidance. See Wroblewski v. Lexington Gardens, Inc., 188 Conn. 44, 53, 448 A.2d 801 (1982) (court guided by federal law in sex discrimination action); Pik-Kwik Stores, Inc. v. Commission on Human Rights & Opportunities, 170 Conn. 327, 331, 365 A.2d 1210 (1976) (in sex discrimination action court guided by the case law surrounding federal fair employment legislation, 42 U.S.C. § 2000e et seq.); see also Twilley v. Daubert Coated Products, Inc., 536 So. 2d 1364, 1369 (Ala. 1988) (applied federal standards of proof to claims of retaliation in the workers’ compensation context).

In McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), the United States Supreme Court set forth the basic allocation of burdens and order of presentation of proof in cases involving claims of employment discrimination. The plaintiff bears the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination. Id., 802. In order to meet this burden, the plaintiff must present evidence that gives rise to an inference of unlawful discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). If the plaintiff meets this initial burden, the burden then shifts to the defendant to rebut the presumption of discrimination by producing evidence of a legitimate, nondiscriminatory reason for its actions. McDonnell Douglas Corporation v. Green, supra. “If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity.” Texas Department of Community Affairs v. Burdine, supra, 255. The plaintiff then must satisfy her burden of persuading the factfinder that she was the victim of discrimination “either directly by persuading the court [or jury] that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Id., 256; see McDonnell Douglas Corporation v. Green, supra, 804-805.

The defendant claims that the trial court’s charge to the jury regarding the burden of proof requirements in the case was incomplete in that the court did not clearly instruct the jury on the third step outlined above. The court instructed the jury as follows: “Now, it’s the plaintiff’s initial burden to produce some evidence from which you can reasonably infer that the defendant’s action occurred in substantial part because she had exercised her rights under the statute. . . . Now, if you determine that the plaintiff has produced enough evidence to create an inference of an improper motive on the part of [the defendant], the burden then shifts to [the defendant] to produce evidence that it terminated the plaintiff for some legitimate, nondiscriminatory reason.” The court thereafter did not delineate the third step requiring that the plaintiff then “demonstrate that the proffered reason was not the true reason for the employment decision.” Texas Department of Community Affairs v. Burdine, supra, 256.

The ultimate test to be applied to jury instructions “ ‘ “ ‘is whether, taken as a whole, they fairly and adequately present the case to a jury in such a way that injustice is not done to either party under the established rules of law.’ ” ’ ” Ellice v. INA Life Ins. Co. of New York, 208 Conn. 218, 226, 544 A.2d 623 (1988), quoting State v. Davis, 198 Conn. 680, 686, 504 A.2d 1372 (1986). “The adequacy of the instructions must be determined in the light of their overall impact on the jury. State v. Truppi, 182 Conn. 449, 458, 438 A.2d 712 (1980), cert. denied, 451 U.S. 941, 101 S. Ct. 2024, 68 L. Ed. 2d 329 (1981) .... The charge must be examined to determine whether it fairly presents a case to a jury and is not to be subject to a degree of scrutiny that is tantamount to a microscopic examination seeking technical flaws, inexact, inadvertent or contradictory statements. Ubysz v. DePietro, 185 Conn. 47, 57, 440 A.2d 830 (1981) . . . . ” Carfora v. Globe, Inc., 5 Conn. App. 526, 530, 500 A.2d 958 (1985), cert. denied, 198 Conn. 804, 503 A.2d 1186 (1986).

The plaintiff claims that the challenged omission in the trial court’s charge to the jury was not improper when viewed in light of the entire charge. She points to the following statements in the court’s charge to buttress her claim: (1) “[IJt’s not incumbent upon the defendant to disprove the essential elements of the plaintiff’s cause of action. But on the contrary, the burden of proof is on the plaintiff to prove by the fair preponderance of the whole evidence the essential elements of her case”; (2) “[The plaintiff] need show by a fair preponderance of the evidence that her filing of the workers’ compensation claim was a substantial, determining factor, that is, a factor which made a difference in either the defendant’s decision to remove her from the position that she would have been holding and then placing her in the pool, or and ultimately being fired or not”; and (3) “You must decide whether or not to believe that this explanation put forth by [the defendant] was the true reason that [the plaintiff] was finally removed from her position and ultimately fired, or merely was it a pretext to cover up the defendant’s discriminatory motive.” The plaintiff argues that in light of the jury charge as a whole, “[t]he court’s mere failure at this point to remind the jury of the plaintiff’s burden on the subsidiary issue of pretext . . . cannot fairly be viewed as having misled the jury into applying the wrong burden of proof to the overriding issue in the case.” (Emphasis added.)

We do not view the court’s omission as a “mere” failure to “remind” the jury of the plaintiff’s burden on the issue of pretext. The court failed specifically to state the plaintiffs burden with respect to a key issue in the case, namely the plaintiffs claim that the reasons given by her employer for her termination were pretextual. A three-step procedure concerning the allocation of burdens of proof in employment discrimination cases has carefully been delineated by the courts. Just as the omission of a step in a three-step dance routine can result in much stumbling on the dance floor, the omission of the third step in the consideration of a § 31-290a claim can result in confusion in the jury room. The instructions were not presented to the jury in a way that clearly set forth the allocation of burdens of proof in the case. The jury was, therefore, likely misled. We, accordingly, reverse the judgment of the court and remand the case for a new trial.

III

We turn next to the defendant’s claim that the plaintiff presented insufficient evidence at trial to support the jury verdict, and that the trial court, therefore, should have granted the defendant’s motion to set aside the verdict or the motion for judgment notwithstanding the verdict. The defendant maintains that because the plaintiff failed to introduce sufficient evidence to establish that the defendant’s stated nondiscriminatory reason for terminating her employment was a pretext for discrimination, the plaintiff necessarily did not meet her burden of proof. We do not agree.

“ ‘The same principles are to be applied in the review of the court’s action on each motion. . . . ’ Greene v. DiFazio, 148 Conn. 419, 420, 171 A.2d 411 [1961], In reviewing the decision of the trial court, ‘we consider the evidence in the light most favorable to the sustaining of the verdict. Petrizzo v. Commercial Contractors Corporation, 152 Conn. 491, 499, 208 A.2d 748 [1965]; Kazukynas v. N. C. Casciano & Sons, Inc., 149 Conn. 1, 2, 174 A.2d 796 [1961] . . . . ’ Kelly v. Bliss, 160 Conn. 128, 130, 273 A.2d 873 [1970] .... If the jury could reasonably have reached their conclusion the verdict must stand. Chanosky v. City Building Supply Co., 152 Conn. 642, 643, 211 A.2d 141 [1965]. ‘The concurrence of the judgments of the judge and the jury, who saw the witnesses and heard the testimony, is a powerful argument for sustaining the action of the trial court. Giambartolomei v. Rocky DeCarlo & Sons, Inc., 143 Conn. 468, 474, 123 A.2d 760 [1956].’ [Id.]; Trani v. Anchor Hocking Glass Corporation, 142 Conn. 541, 545, 116 A.2d 167 [1955]; Zullo v. Zullo, 138 Conn. 712, 715, 89 A.2d 216 [1952].” Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 555, 316 A.2d 393 (1972).

We have detailed previously the facts, taken in the light most favorable to sustaining the verdict, that the jury could reasonably have found. The defendant’s argument that this evidence is insufficient as a matter of law to support the jury verdict is premised on the fact that conflicting evidence was presented at trial concerning the intent of the defendant in terminating the plaintiff’s employment. Although conflicting evidence was presented at trial, we cannot conclude on that basis that the jury verdict should not stand. “ ‘The choice of the more credible evidence was for [the jury] to make. Desmarais v. Pinto, 147 Conn. 109, 110, 157 A.2d 596 [1960].’ Petrizzo v. Commercial Contractors Corporation, [supra, 499]. ‘It is the province of the jury to weigh the evidence and determine the credibility and the effect of testimony; and we must decide the question whether on the evidence presented, the jury could have fairly reached their verdict for the [plaintiff]. Hanauer v. Coscia, 157 Conn. 49, 53, 244 A.2d 611 [1968]. Novella v. Hartford Accident & Indemnity Co., supra, 561. We conclude that the verdict reached by the jury was reasonable in view of the evidence. The trial court, therefore, did not improperly refuse to set aside the verdict or deny the motion for judgment notwithstanding the verdict.

IV

The defendant next claims that the trial court improperly permitted the jury to hear testimony concerning the plaintiff’s fee arrangements with her attorney. This issue is further refined by the defendant’s claim that § 31-290a requires that the court, not the jury, determine an appropriate award of attorney’s fees.

We note at the outset that the scope of the issue here presented by the defendant is somewhat confusing. The confusion stems from the interchangeable use by the trial court and the parties of the terms “punitive damages” and “attorney’s fees.” The court instructed the jury as follows: “Now, the statute also authorizes you to award the plaintiff punitive damages. . . . And the statute further goes on to say and defines what they mean by punitive damages by saying that any employee who prevails in such civil action shall be awarded reasonable attorney’s fees and cost[s] to be taxed by the Court. Now, so you folks, should you get this far in the case, will then have to determine whether or not reasonable attorney’s fees and costs should be determined.” The court then continued by discussing the evidence concerning the plaintiff’s attorney’s fees.

The situation is made murkier by the fact that the corrected judgment dated December 12,1988, included an award of “[Reasonable attorney’s fees” in the amount of $49,657.66. The parties agreed at oral argument that both parties and the court used the terms “punitive damages” and “attorney’s fees” interchangeably. It appears that the court was attempting to charge the jury on punitive damages as measured by attorney’s fees. We need not, however, try to unscramble this particular judicial omelet. In our view, the submission of either “punitive damages” or “attorney’s fees” to the jury was improper under the language of § 31-290a (b), without regard to the defendant’s claim of prejudice.

Section 31-290a (b), subsequent to delineating the types of remedies available to the plaintiff, provides: “The court may also award punitive damages. Any employee who prevails in such a civil action shall be awarded reasonable attorney’s fees and costs to be taxed by the court . . . .” (Emphasis added.) We were faced in Bishop v. Kelly, supra, with the question of whether General Statutes (Rev. to 1987) § 14-295, entrusting the award of double or treble jury awards in certain tort actions to the court, violated the defendant’s right to trial by jury as guaranteed by our state constitution. We applied the test articulated herein at Part I and concluded that at the time of the state constitution of 1818, a defendant in an action pursuant to the statutory predecessor of § 14-295 had a right to have all the facts underlying an award of multiple damages tried to a jury. Id., 620. We then held that the multiple damages provision of § 14-295 was unconstitutional because it violated the defendant’s right to have a jury determine whether his conduct justified the award of multiple damages. Id., 620-21.

It is important to point out what is not involved in our consideration of the issue presently before us. We are not faced here with the question of whether the Bishop decision mandates, as a matter of state constitutional law, that the issue of punitive damages in this case should have been tried to the jury. The defendant states that “the submission of the attorney’s fees issue to the jury was improper because the statute required ‘the court’ to determine an appropriate award of fees.” The defendant did not raise the issue of whether the punitive damages question as such should have been submitted to the jury either as a statutory or constitutional matter. The plaintiff stated in a conclusory fashion only that “it is also well settled and constitutionally required that the assessment and measure of punitive damages is the province of the jury,” citing as authority for this proposition Bishop v. Kelly, supra, 620-21. The plaintiff did not further brief or argue whether the antecedents of § 31-290a, if any, extant in 1818, provided for the submission of punitive damages to the jury. Punitive damages and multiplied damages are first cousins, but we are not prepared to rule, on this

record, whether Bishop v. Kelly or the historical record of any precedents to § 31-290a mandate a result in this case similar to that in Bishop.

We are thus faced with the narrow question of whether as a matter of statutory construction the provision in § 31-290a that “the court may also award punitive damages” means just that and no more. On this issue, Bishop is persuasive. In Bishop, “the plaintiff maintained that when § 14-295 confers authority to impose multiple damages upon ‘the court,’ the term ‘court’ signifies the whole tribunal including the jury.” Id., 615-16. We did not agree with the plaintiff’s proffered construction of the statute. “In legal usage, authority conferred upon a ‘court’ normally contemplates action by a judge and not by a jury. For example, General Statutes § 42a-2-302 (1) leaves consideration of the possible unconscionability of a sales contract to the ‘court,’ for the express purpose, according to the accompanying official commentary, of foreclosing action by a jury. General Statutes Annotated § 42a-2-302, comment 3. Similarly, when, in the criminal context, General Statutes § 53a-28 (b) confers the authority to sentence upon the ‘court,’ that statute does not envisage action by a jury. The fact that we have, in rare circumstances, construed the term ‘court’ in other statutes to include the jury; see, e.g., Banks v. Watrous, 134 Conn. 592, 599, 59 A.2d 723 (1948); Miles v. Strong, 68 Conn. 273, 286-87, 36 A. 55 (1896); does not persuade us that the legislature intended to depart from ordinary usage in mandating action by ‘the court’ in [the statute here involved].” Bishop v. Kelly, supra, 616.

We conclude, therefore, that the legislature has authorized the court, not the jury, to determine punitive damages in a § 31-290a action.

V

We turn now to the defendant’s claim that § 31-290a does not provide for the recovery of damages for emotional distress. We need not tarry long on this issue, because the clear language of the statute is dispositive.

Section 31-290a (b) provides that an employee bringing an action pursuant thereto may seek “reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he would have otherwise been entitled if he had not been discriminated against or discharged and any other damages caused by such discrimination or discharge.” (Emphasis added.) The defendant maintains that the words “other damages” are unclear and require interpretation. We do not agree.

The defendant first argues that emotional distress damages as well as other types of consequential damages are not recoverable under the overall workers’ compensation scheme, because the goal of workers’ compensation is to ensure uninterrupted receipt by the employee of employment-related wages and benefits. To state this unremarkable proposition is to answer it. Section 31-290a has never been considered a part of the overall workers’ compensation benefit package. It is self-evidently a separate and distinct remedy intended to protect and buttress the rights of workers’ compensation claimants.

General Statutes § 1-1 (a) requires that “[i]n the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly.” “If the statutory language is clear and unambiguous, there is no room for construction. New Haven v. United Illuminating Co., 168 Conn. 478, 485, 362 A.2d 785 (1975). If there is no ambiguity in the language of the statute, it does not become ambiguous merely because the parties argue for or would prefer different meanings. Caldor, Inc. v. Heffernan, 183 Conn. 566, 570, 440 A.2d 767 (1981). When language used in a statute is clear and unambiguous, its meaning is not subject to modification or construction. Cilley v. Lamphere, 206 Conn. 6, 9-10, 535 A.2d 1305 (1988).” State Medical Society v. Board of Examiners in Podiatry, 208 Conn. 709, 721, 546 A.2d 830 (1988). We conclude that according to the plain language of § 31-290a, the trial court properly submitted to the jury the plaintiffs claim for damages for emotional distress.

VI

The plaintiff claims in her cross appeal that the court should have granted her attorney’s fees in addition to the punitive damages awarded by the jury, as measured by attorney’s fees. In this appeal, this claim is academic since § 31-290a (b) provides that “[a]ny employee who prevails in such a civil action shall be awarded reasonable attorney’s fees and costs to be taxed by the court.” (Emphasis added.) In view of our reversal of the judgment in this case, it can no longer be said that the plaintiff “prevailed” in this action; she, therefore, has no claim for attorney’s fees based on the judgment that we have reversed. The plaintiff’s cross appeal is dismissed as moot.

We consider, however, the issue raised by the cross appeal because it may arise on the retrial of this case. The defendant’s brief sheds little light on this subject since it continues the earlier treatment of “punitive damages” and “attorney’s fees” by mixing these terms in an inextricable semantic stew. We treat this issue directly by looking to the statute creating the double remedy of punitive damages and attorney’s fees. The structure of the statute offers compelling evidence that the legislature knew exactly what it was doing in providing such overlapping remedies. Section 31-290a provides for an alternative course of action to the employee’s institution of a civil action. An employee, alleging discharge or discrimination in violation of § 31-290a, may file a complaint with the chairman of the workers’ compensation commission. General Statutes § 31-290a (b) (2). The statute provides that “[a]ny employee who prevails in such a complaint shall be awarded reasonable attorney’s fees.” In stark contrast to this provision, the prevailing employee who chose to institute a civil action, may be awarded punitive damages and shall be awarded reasonable attorney’s fees, both, according to the statute, to be awarded by the court as we have concluded herein. General Statutes § 31-290a (b) (1). The obvious purpose of this disparity in remedies is the greater expense and effort generally involved in a civil action as opposed to a workers’ compensation commission proceeding.

The defendant has stated no reason why the legislature does not have the power to provide for such a double remedy, nor do we recognize any such reason. We stated, albeit in dictum, in Hinchliffe v. American Motors Corporation, 184 Conn. 607, 617, 440 A.2d 810 (1981), a case involving the Connecticut Unfair Trade Practices Act (CUTPA), that “[t]he plaintiff who establishes CUTPA liability has access to a remedy far more comprehensive than the simple damages recoverable under common law. The ability to recover both attorneys’ fees . . . and punitive damages . . . enhances the private CUTPA remedy and serves to encourage private CUTPA litigation.”

We reach a similar conclusion with regard to § 31-290a. Although an award of what may amount in effect to double attorney’s fees is unusual, we conclude that there is no legal impediment to such a dual award in an appropriate case.

On the appeal the judgment of the trial court is reversed and the case is remanded to that court for a new trial in accordance with this opinion; the cross appeal is dismissed.

In this opinion the other justices concurred.

       General Statutes § 31-290a provides: “(a) No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers’ compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter.
      “(b) Any employee who is so discharged or discriminated against may either: (1) Bring a civil action in the superior court for the judicial district where the employer has its principal office for the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he would have otherwise been entitled if he had not been discriminated against or discharged and any other damages caused by such discrimination or discharge. The court may also award punitive damages. Any employee who prevails in such a civil action shall be awarded reasonable attorney’s fees and costs to be taxed by the court; or (2) file a complaint with the chairman of the workers’ compensation commission alleging violation of the provisions of subsection (a) of this section. Upon receipt of any such complaint, the chairman shall select a commissioner to hear the complaint, provided any commissioner who has previously rendered any decision concerning the claim shall be excluded. The hearing shall be held in the workers’ compensation district where the employer has its principal office. After the hearing, the commissioner shall send each party a written copy of his decision. The commissioner may award the employee the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he otherwise would have been eligible if he had not been discriminated against or discharged. Any employee who prevails in such a complaint shall be awarded reasonable attorney’s fees. Any party aggrieved by the decision of the commissioner may appeal the decision to the appellate court.”

       At common law, “[t]respass was the remedy for all forcible, direct and immediate injuries, whether to person or to property—or in other words, for the kind of conduct likely to lead to a breach of the peace by provoking immediate retaliation. Trespass on the case . . . [was] designed to afford a remedy for obviously wrongful conduct resulting in injuries which were not forcible or not direct.” W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 6, p. 29.

       The plaintiff cites Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981), to argue that the plaintiff’s burden to demonstrate pretext “merges with the ultimate burden of persuading the court that [the plaintiff] has been the victim of intentional discrimination.” We conclude that this merger theory, even had it been proffered to the jury by the court, is not an adequate substitute for a clear sequential description of the three-step process involved.

       We note that on its face the statute appears to authorize the award of double attorney’s fees by the court, since in Connecticut punitive damages are to be measured by reasonable attorney’s fees and costs. Vandersluis v. Weil, 176 Conn. 353, 358, 407 A.2d 982 (1978). We discuss this issue in Part VI, infra.