source: Caselaw Access Project

author: Shea, J.

license: Public Domain

text:
    Connecticut Building Wrecking Company, Inc., et al. v. Leslie Carothers, Commissioner of Environmental Protection
    (14181)
    Shea, Callahan, Glass, Hull and Borden, Js.

      Argued February 15
    decision released May 7, 1991

      Gary A. Mastronardi, for the appellants (plaintiffs).

      Janet P. Brooks, assistant attorney general, with whom were Robert B. Teitelman, assistant attorney general, and, on the brief, Clarine Nardi Riddle, then attorney general, and Joseph Rubin, assistant attorney general, for the appellee (defendant).
   Shea, J.

The state department of environmental protection (DEP) charged the plaintiffs with operating and depositing waste at an unpermitted solid waste disposal facility. The DEP ordered them to cease these illegal activities and to remove all solid waste exclusive of “clean fill” from the site. After seven days of hearings, the DEP hearing officer affirmed the order. In the ensuing administrative appeal, the Superior Court affirmed the hearing officer’s finding of liability but refused to review the order itself, ruling that the reasonableness of the order could only be challenged in the pending enforcement proceeding. The plaintiffs appealed, challenging (1) the sufficiency of the evidence for the finding of liability, (2) the trial court’s refusal to review the enforcement order itself, and (3) the constitutionality of General Statutes (Rev. to 1985) § 22a-207 (4) and (6), specifically, whether the phrase “location utilized for the ultimate disposal of wastes” is an impermissibly vague definition of “solid waste disposal area.” We affirm the judgment with respect to the first and third issues raised, but reverse with respect to the second.

The following facts are not in dispute. In a series of orders commencing in September, 1985, the DEP charged Connecticut Building Wrecking Company, Inc. (CBWC), and its joint owners, Geno and Russell Capozziello, who are brothers, with violations of Public Acts 1985, No. 85-334, § 2 (b) and (c). Those provisions essentially prohibit, inter alia, “altering” (§ 2 [b]) or “operating” (§ 2 [c]) a solid waste facility that does not have a permit. As a remedy, the DEP ordered the plaintiffs either to remove “all solid waste exclusive of clean fill” at the site or to close the facility after submitting acceptable plans within a prescribed timetable. The DEP made similar charges with respect to the same site against at least one other company, Bridgeport Wrecking Company (BWC), which the record reveals is owned by Thomas Capozziello, another brother of Russell and Geno. BWC did not, however, appeal the order against it. After reaching a tentative settlement with the DEP, CBWC submitted documents in connection with the required closure plans. The DEP, however, considered the documents inadequate and untimely. It insisted that the plaintiffs clear the site.

The “site” ordered cleared is a sloping piece of land running behind a row of houses on Clearview Drive and Clearview Circle in Bridgeport. The DEP’s “principal environmental analyst,” Thomas Pregman, estimated that the dumped materials or “fill” covering the site area measured approximately 500 feet in length, 35 to 40 feet in width and 20 to 30 feet in height. The fill covered the backyards of nine different but contiguous lots of land with nine different owners. No solid waste permit of any kind was ever sought by or issued to either the plaintiffs or any of the resident owners.

Both the DEP and the plaintiffs agree that truckloads of material were dumped on the site by CBWC as well as by other companies. Some residents initially welcomed the dumping as a means of leveling the steep slope of their backyards. The plaintiffs do not dispute the presence of “solid waste” at the site, including wood, tires, stumps and leaves. The hearing officer made factual findings that “[t]he limits of the solid waste fill are unknown” and that “[t]he sources of most of this waste are undetermined.”

I

Before proceeding to address the substance of the hearing officer’s conclusions, we must discuss the plaintiffs’ claim that the statute they are charged with violating is unconstitutionally vague.

The DEP found that the plaintiffs had violated § 2 (b) and (c) of No. 85-334 of the 1985 Public Acts, subsequently modified by No. 85-661, § 147 of the 1985 Public Acts and codified as General Statutes § 22a-208a (b) and (c). Under any version of the statute in effect during the period in question, it was illegal to alter or operate a “solid waste facility” that did not have the requisite permits the statutes or regulations required. Because the plaintiffs’ conduct would not violate the statute unless the “facility” at which they dumped was required to have a permit, the pertinent issue involves the statutory definition of “solid waste facility.”

General Statutes (Rev. to 1985) § 22a-207 (4) defines “[s]olid waste facility” as “any solid waste disposal area ... if such area . . . handles more than five tons a year of solid waste.” Section 22a-207 (6) defines “[s]olid waste disposal area” as “the location utilized for ultimate disposal of wastes as approved by the department.” The plaintiffs argue that the word “location” makes the entire statutory scheme unconstitutionally vague on its face. They also argue that the word “location” makes the statutory scheme unconstitutionally vague when applied to the Clearview Drive site, which consists of portions of nine separately owned lots of land.

When a litigant challenges a statute as void for vagueness under the United States constitution, we confíne our inquiry to the statute’s applicability to the facts of the case unless the statute could intrude upon fundamental constitutional guarantees, such as first amendment rights. State v. Cavallo, 200 Conn. 664, 670, 513 A.2d 646 (1986). A statute maybe unconstitutionally vague in violation of due process without impinging upon such fundamental guarantees, but in such a case, a litigant lacks standing to challenge the statute’s vagueness unless his own due’process rights would be violated by its application to him. Id. An exception to this general rule arises in those rare cases when the statute’s vagueness itself violates due process by making the statute impossible to obey. See, e.g., Champlin Refining Co. v. Corporation Commissions of Oklahoma, 286 U.S. 210, 243, 52 S. Ct. 559, 76 L. Ed. 1062 (1932); cf. Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S. Ct. 618, 83 L. Ed. 888 (1939). In order to prevent this latter difficulty, we will, if we have not previously construed the statute, “search for ‘an effective and constitutional construction that reasonably accords with the legislature’s underlying intent’ ”; State v. Floyd, 217 Conn. 73, 79, 584 A.2d 1157 (1991), quoting State v. Breton, 212 Conn. 258, 269, 562 A.2d 1060 (1989); thereby dispelling any claimed constitutional violation. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 795-76, 109 S. Ct. 2746, 105 L. Ed. 2d 661, reh. denied, 492 U.S. 937, 110 S. Ct. 23, 106 L. Ed. 2d 636 (1989) (the United States Supreme Court, in evaluating a facial challenge to a state law, will consider any limiting instruction proffered by a state court).

The plaintiffs contend that, as written, § 22a-207 (4) and (6) make it impossible for any dumper to obey General Statutes (Rev. to 1989) § 22a-208a (b) and (c). Since a dumpsite “location” is not a “solid waste disposal area” unless it “handles more than five tons a year of solid waste,” the plaintiffs maintain that a dumper will be at a loss when he tries to determine whether his disposal activities in a given “area” or “location” have triggered the “five ton” permit requirement. This argument suggests that dumping one ton in each of five city neighborhoods could be dumping five tons in one “location” if the “location” is the entire city.

“The court must use common sense in construing statutes and must assume that a reasonable and rational result was intended by the promulgating legislature.” Windham First Taxing District v. Windham, 208 Conn. 543, 553, 546 A.2d 226 (1988). The statute refers to an “area that handles” and a “location utilized for” solid waste. Without delimiting the full scope of the term “location”; cf. Board of Education v. Freedom of Information Commission, 217 Conn. 153, 161, 585 A.2d 82 (1991); Cos Cob Volunteer Fire Co. No. 1, Inc. v. Freedom of Information Commission, 212 Conn. 100, 106, 561 A.2d 429 (1989); we can reasonably construe § 22a-207 (6) as limited to contiguous property that is intended to or reasonably appears to act as a single dumpsite. So construed, the statutory scheme is not “impossible” to obey; the still puzzled would-be dumper may seek further clarification from the DEP, the agency responsible for administering the statute. “[Sjtatutes are not automatically invalidated as vague simply because difficulty is found in determining whether certain marginal offenses fall within their language.” United States v. National Dairy Corporation, 372 U.S. 29, 32, 83 S. Ct. 594, 9 L. Ed. 2d 561 (1962), reh. denied, 372 U.S. 961, 83 S. Ct. 1011, 10 L. Ed. 2d 13 (1963). This is especially true when the statute affects regulated activity, such as dumping, for “the regulated enterprise may have the ability to clarify the meaning of the regulation by its own inquiry, or by resort to an administrative process.” Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 498, 102 S. Ct. 1186, 71 L. Ed. 2d 362, reh. denied, 456 U.S. 950, 102 S. Ct. 2023, 72 L. Ed. 2d 476 (1982); see also Kolender v. Lawson, 461 U.S. 352, 358 n.8, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983); Papachristou v. Jacksonville, 405 U.S. 156, 162, 92 S. Ct. 839, 31 L. Ed. 2d 110 (1972); cf. Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 72 S. Ct. 329, 96 L. Ed. 367 (1952). By contrast, the statute at issue in Champlin Refining Co. v. Corporation Commissions of Oklahoma, supra, would have required the refining company to conduct an exhaustive economic survey of its operations in order to discover whether it was operating “wastefully,” even assuming that the term “wasteful” was capable of any objective meaning.

Although we conclude that § 22a-207 (6), as construed, is sufficiently clear to preserve the constitutionality of § 22a-208a (b) and (c), the plaintiffs did not have the benefit of our limiting construction at the time they are alleged to have violated the statute. They are, therefore, entitled to contend that the statute was unconstitutionally vague as applied to the facts of their case.

“A party attacking the constitutionality of a validly enacted statute bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt. State v. Breton, [supra]; Zapata v. Burns, 207 Conn. 496, 507-508, 542 A.2d 700 (1988).” State v. Floyd, supra, 79. The concept of unconstitutional vagueness derives from the guarantees of due process contained in the fifth and fourteenth amendments to the United States constitution. See Hoffman Estates v. Flipside, Hoffman Estates, supra, 498-504; Grayned v. Rockford, 408 U.S. 104, 108-109, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972). Due process requires that laws “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited” and “provide explicit standards for those who apply them” in order to prevent the risk of arbitrary and discriminatory enforcement. Grayned v. Rockford, supra, 108; see also Smith v. Goguen, 415 U.S. 566, 573, 94 S. Ct. 1242, 39 L. Ed. 2d 605 (1974); United States v.Petrillo, 332 U.S. 1, 7, 67 S. Ct. 1538, 91 L. Ed. 1877 (1946); Keogh v. Bridgeport, 187 Conn. 53, 60, 444 A.2d 225 (1982). To demonstrate that a statute is unconstitutionally vague as applied to him, a litigant must therefore demonstrate beyond a reasonable doubt that he had inadequate notice of what was prohibited or that he was the victim of arbitrary and discriminatory enforcement. The plaintiffs can do neither.

To demonstrate his lack of notice of what was prohibited, the challenging party must establish that a person of ordinary intelligence would not be able to know whether his conduct is permitted or prohibited under the statute. Bottone v. Westport, 209 Conn. 652, 658, 553 A.2d 576 (1989). “ ‘The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.’ ” State v. Chetcuti, 173 Conn. 165, 167, 377 A.2d 263 (1977), quoting Jordan v. De George, 341 U.S. 223, 231-32, 71 S. Ct. 703, 95 L. Ed. 886 (1950). The DEP’s unchallenged photographic exhibits depict an enormous mountain ridge of waste spanning the nine Clearview Drive backyards without visible demarcations of any kind. No reasonable person could view such a scene, as the plaintiffs admittedly did, and perceive nine separate dumpsites. The ordinary person could not fail to realize that dumping in any one or more of the nine backyards would constitute dumping in a single “location.”

To demonstrate that the statute’s vagueness gives an agency unbridled discretion to enforce the statute arbitrarily and discriminatorily, the challenging party must establish that he was the victim of such arbitrary and discriminatory enforcement. See State v. White, 204 Conn. 410, 417, 528 A.2d 811 (1987); cf. Hoffman Estates v. Flipside, Hoffman Estates, supra, 508. The final hearing officer specifically concluded that the plaintiffs “[had] not alleged any facts to support a finding of invidious prosecution.” The plaintiffs have not contested that conclusion on appeal and cannot now be heard to claim that the statute sanctioned arbitrary enforcement against them. State v. White, supra.

II

The plaintiffs next claim that the DEP’s orders should be reversed as “clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.” General Statutes § 4-183 (j) (5).

“The ‘substantial evidence’ rule governs judicial review of administrative factfinding under General Statutes (Rev. to 1987) § 4-183 (g). ... An administrative finding is supported by ‘substantial evidence’ if the record affords a ‘ “ ‘substantial basis of fact from which the fact in issue can be reasonably inferred.’ ” ’ . . . Such a standard of review allows less room for judicial scrutiny than does the ‘weight of the evidence’ rule or the ‘clearly erroneous’ rule. ... In determining whether an administrative finding is supported by ‘substantial evidence,’ a court must defer to the agency’s assessment of the credibility of the witnesses and to the agency’s right to believe or disbelieve the evidence presented by any witness, even an expert, in whole or in part. ... An agency composed of [experts] is entitled, furthermore, to rely on its own expertise within the area of its professional competence. . . . Basically, an agency is not ‘required to use in any particular fashion any of the materials presented to it so long as the conduct of the hearing is fundamentally fair.’ ” (Citations omitted.) Briggs v. State Employees Retirement Commission, 210 Conn. 214, 217-18, 554 A.2d 229 (1989); see also Connecticut Light & Power Co. v. Department of Public Utility Control, 216 Conn. 627, 639-40, 583 A.2d 906 (1990).

The plaintiffs contend that “under Connecticut law, in order to operate a ‘solid waste disposal area,’ a person must (1) utilize a location; (2) for ultimate disposal of solid waste; (3) at the rate of at least five tons per year.” They further contend that “solid waste” is waste exclusive of “clean fill” as defined by administrative regulations, so that in order to meet its burden of proof, the DEP had to prove that they dumped more than five tons per year of waste exclusive of clean fill. They maintain, in conclusion, that the DEP failed to satisfy this burden. The plaintiffs’ contentions are completely without merit, however, because they fundamentally misconstrue both the statute and the regulations.

The plaintiffs were charged with violations of § 2 (b) and (c) of No. 85-334 of the 1985 Public Acts, formerly General Statutes (Rev. to 1985) § 22a-208 (c), subsequently General Statutes (Rev. to 1987) § 22a-208a (b) and (c). Under any version of the statute, the plaintiffs would be liable for its violation if they either altered, e.g., by adding to, a preexisting solid waste facility that did not itself have a construction permit (subsection [b] of the statute), or if they “operated” a solid waste facility without a permit to do so (subsection [c] of the statute).

The DEP could have demonstrated the plaintiffs’ liability even if the plaintiffs had not themselves dumped a single ounce of anything, solid waste or otherwise, at the dump, if it were able to show that the plaintiffs had “operated” the dump, e.g., if they had managed it, supervised dumping by other companies, controlled the contours of the site by spreading the waste and directing the location of new loads, or performed other acts that the administrative regulations require “certified” operators of solid waste facilities to perform. The final hearing officer’s findings with respect to the individual liability of Geno and Russell Capozziello have significant support in the administrative record and might have supported an ultimate conclusion that CBWC was also liable as such an “operator” of the facility. Instead, however, the final hearing officer assessed CBWC’s liability based on his finding that the plaintiffs had'“operated” the site in question “by dumping.” For this reason alone, we shall proceed to evaluate the substantiality of the evidence in support of the hearing officer’s finding that the plaintiffs “operated” a solid waste facility “by dumping.”

A

As the plaintiffs point out, the first question is whether the DEP proved that the facility was a “solid waste facility.” We have already construed § 22a-207 (6) to define a “solid waste disposal area” as including a location consisting of contiguous property that is intended to or reasonably appears to act as a single dumpsite “utilized for ultimate disposal of wastes,” and have concluded that the Clearview Drive dumpsite was such an “area.” To prove that the Clear-view Drive dumpsite was a “solid waste disposal facility,” the DEP still had to prove, however, that the site “handled more than five tons a year of solid waste.”

Section 22a-207 (3) defines “solid waste” as “unwanted or discarded materials, including solid, liquid, semisolid or contained gaseous material.” The plaintiffs do not dispute the presence at the site of discarded “solid material,” nor, indeed, that they dumped such “solid material” at the site. Instead, they assert that the hearing officer’s decision was not based on substantial evidence because the DEP did not prove the presence of more than five tons of materials other than “clean fill,” which, they assert in a footnote, “is not, by definition, ‘solid waste.’ ”

The plaintiffs are incorrect. The statutes do not mention “clean fill,” and the only statutory definition of “solid waste” is the broad definition, cited above, in § 22a-207 (3). The DEP regulations promulgated pursuant to General Statutes § 22a-209 do not provide any definition of “solid waste,” much less a narrow definition of “solid waste” excluding “clean fill,” and, indeed, such a contradictory regulation might exceed the commissioner’s statutory authority. See General Statutes (Rev. to 1985) § 22a-209.

The DEP regulations do address “clean fill,” but not in the sense asserted by the plaintiffs. Section 22a-209-l of the Regulations of Connecticut State Agencies first defines “clean fill” as “natural soil, rock, brick, ceramics, concrete, and asphalt paving fragments which are virtually inert and pose neither a pollution threat to ground or surface waters nor a fire hazard.” Next, § 22a-209-3 of the Regulations of Connecticut State Agencies provides: “These regulations apply to the operation and management of all existing and proposed solid waste facilities, and to all applications for a permit or contract approval which are submitted after or are in process on the effective date of these regulations. Areas which are solely for the disposal of clean fill shall be exempt from the provisions of these regulations.” (Emphasis added.) By implication, areas for the disposal of solid wastes that include both clean fill and other wastes are not exempt from the regulatory requirements.

The prohibition on combined dumping is made clear by the only other regulation using the term “clean fill,” § 22a-209-l. That section defines “bulky waste” as “landclearing debris and waste resulting directly from demolition activities other than clean fill” and then includes “bulky waste” within the definition of “special wastes” or “non-hazardous solid wastes which require special handling . . . .” Next, § 22a-209-8 (c) of the Regulations of Connecticut State Agencies provides: “The combined disposal of special wastes with other solid wastes or special wastes is prohibited unless specifically approved in writing by the Commissioner.” Thus, “bulky waste” and “clean fill” may not be disposed of together without special approval by the commissioner.

These regulations make it clear that “clean fill” is solid waste within the statute. The question is not whether there were five tons of waste exclusive of clean fill where the plaintiffs dumped; the question is whether there were five tons of any solid waste at that site, so long as clean fill was not the only waste at the site. If the unpermitted site contained more than five tons of solid waste, deposited within one year, the statutes and regulations made it illegal for the plaintiffs to “operate” or “alter” the site by adding anything, even less than five tons, to the site.

The facts of this case illustrate the legislative purpose behind imposing cleanup liability on even those who engage in merely negligent dumping of otherwise innocuous materials. Decomposition of solid waste other than clean fill creates demonstrated environmental hazards. If decomposable solid waste and clean fill are combined, it becomes difficult to discover the culprit and assign liability. Presumably for that reason, the regulations prohibit combination dumps without permission; requiring DEP permission enables the DEP to exercise some oversight. Once a combination dump has been created without DEP oversight, additional deposits of any material, including clean fill, make it more difficult to remove the decomposing materials and, if necessary, clean up the entire combination dump, as well as further complicating discovery of the persons responsible.

B

The plaintiffs have never claimed that the whole nine backyard site consisted entirely of clean fill. If, then, the dumpsite contained more than five tons of solid waste deposited during one year, irrespective of the quantity of clean fill within that waste, the plaintiffs have violated General Statutes § 22a-208a (b).

It would have been reasonable for the hearing officer to have inferred from the dimensions of the fill, the testimony concerning its contents; e.g., truckloads of leaves, the debris from a bedding store destroyed by fire, the rubble of a demolished housing project, all deposited during 1985; as well as from his own on-site inspection of the dump, that the fill as a whole contained five tons of solid waste deposited within one year. The hearing officer, however, apparently based his conclusion that the plaintiffs “operated” the facility “by dumping” at the site solely upon the unnecessary factual finding that they had dumped at least five tons of solid waste at the site during the period from April to October, 1985, without deciding, as indeed he had no need to do, what proportion of that solid waste was clean fill. The plaintiffs can prevail, therefore, only if this finding is without substantial support in the record as a whole.

The five ton requirement was first raised in passing during the plaintiffs’ cross-examination of the DEP’s expert, Thomas Pregman, a senior environmental analyst with eleven years of experience in solid waste management. Responding to a request that he appraise the relative condition of various portions of the site, Pregman answered: “We consider the whole—all the property as the one site.” He continued, “Anything in excess of five tons of waste on all of the property is a violation.” Upon the hearing officer’s inquiry, Pregman commented, “I think it’s—you have—basically one good size truckload is five tons.”

The hearing officer cited certain evidence in support of his inference that the dumpsite contained at least five tons of solid waste: (1) the size of the dumpsite (500 feet in length, 35 to 40 feet in width, and 20 to 30 feet in height); (2) the statements of numerous resident witnesses that they had viewed the plaintiffs’ “trucks” dump at the site; and (3) Pregman’s statement that “one good size truckload” weighed five tons.

The plaintiffs attack the first item of evidence by arguing that the “site” at which they dumped consisted of only one or two individual backyards, not the whole nine backyard dumpsite. We have already rejected that argument. In their remaining challenge to the sufficiency of the evidence, the plaintiffs claim that the residents’ testimony and Pregman’s casual assertion that “one good size truckload is five tons” were too imprecise and unreliable to constitute “substantial evidence” that the five ton requirement had been met, without a further description of the size of a “good . . . truckload” or evidence that the trucks viewed by the witnesses would meet that description.

The Uniform Administrative Procedure Act (UAPA) prescribes that review of an administrative adjudicative decision should be “on the whole record.” (Emphasis added.) General Statutes § 4-183 (j). “ ‘Substantial evidence’ exists if the administrative record affords ‘ “ ‘a substantial basis of fact from which the fact in issue can be reasonably inferred.’ ” ’ ” (Citations omitted.) Connecticut Light & Power Co. v. Department of Public Utility Control, supra, 639-40. If, therefore, the specific evidence cited in support of an administrative officer’s ultimate factual finding is inadequate to support that ultimate factual conclusion, a reviewing court should search the record of the entire proceedings to determine whether it does in fact contain substantial evidence from which the ultimate factual finding could reasonably be inferred. Norwich v. Norwich Fire Fighters, 173 Conn. 210, 214, 377 A.2d 290 (1977); see also Connecticut Light & Power Co. v. Department of Public Utility Control, supra; Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369, 537 A.2d 1030 (1988); Persico v. Maher, 191 Conn. 384, 409, 465 A.2d 308 (1983); Ward v. Zoning Board of Appeals, 153 Conn. 141, 144, 215 A.2d 104 (1965). Thus, if the administrative record provides substantial evidence upon which the hearing officer could reasonably have based his finding that the plaintiffs dumped at least five tons at the site within one year, the decision must be upheld.

The most useful additional evidence contained in the record comes from the individual plaintiffs themselves. Testifying in his own behalf, Russell Capozziello described CBWC’s activities. Asked how he reached the property of Joseph Eppes, a portion of the site CBWC admitted using as a dump, Russell stated: “We would come down Clearview Drive with our trucks.” (Emphasis added.) He recollected that he said to Eppes: “ ‘Is it possible that I could fit my company’s big trailers between your house and the next house and use your driveway?’ ” (Emphasis added.) He described how he finally got his “trailer” to Eppes’ property.

Russell went on to say that he had used “tractor/trailer dump trucks” to dump behind Eppes’ house. Each tractor/trailer, he explained, held twenty cubic yards, and his company had dumped forty-five loads of that size. The loads were generated from “[v]arious demolition jobs within the city of Bridgeport,” where CBWC had been hired to demolish buildings. He claimed that CBWC dumped on and off for only three weeks, although on cross-examination it was shown that the Bedding Shack, which CBWC dumped at the site, was demolished in June, 1985, whereas CBWC first reached dumping agreements with two residents in April, 1985.

Further describing his trucks’ capacity, Russell explained that demolition of the Bedding Shack, a concrete building, generated twenty to twenty-five cubic yards of demolition debris; because of the weight of the debris, it was carried in five or six loads. That building was a “very small building.” As a general rule, he explained, a one-story, forty by seventy foot block budding and a two-story wood frame building each generate approximately twenty cubic yards of demolition debris. “One truck,” he testified, holds twenty cubic yards, although a solid load like concrete might require more truckloads.

On redirect, Russell testified concerning seventeen different buildings demolished by CBWC within the relevant time period. He was able to remember the volume of demolition debris generated in each case, but could not remember where it had been dumped. Total fill generated by these demolition jobs was approximately four hundred cubic yards.

The demolition permits entered into evidence stated that the debris was to be taken to legitimate local landfills, especially the D’Addario landfill in Milford. The DEP then offered the business records of that landfill which showed essentially no entries for dumping tickets purchased during the time the seventeen buildings were demolished. The ticket-seller, William Haug, also explained that in his record keeping, he referred to ten wheeler trucks as “fifteen yards” and trailers as “thirty yards.” According to him, a trailer held thirty cubic yards of material. CBWC recalled Russell to the stand, and he then justified the discrepancy in evidence by explaining that he often got access to the D’Addario dumps without tickets because he knew the owner. He could not, however, recall the dates of any such occasions.

This damaging testimony came from the plaintiffs themselves. DEP witnesses, including Clearview Drive residents, gave additional testimony that was fiercely denied by the plaintiffs, who insisted that their accusers were either “lying” or confusing them with their allegedly “look-alike” brothers, Thomas, owner of BWC, and Dennis, owner of New England Demolition. In its memorandum of decision, the trial court recited the residents’ testimony at length. Of particular note are statements by John Karmolinsky that he saw “a number of trucks” owned by CBWC dumping rotted leaves; statements by Elbert Barnes that he saw CBWC dump “the Bedding Shack,” and “leaves, scrub,” and both brick and wood houses that had been demolished; and statements by Eppes that, on his property, “they” dumped “Beardsley Terrace” (a demolished housing project or apartment building), “[o]n Mr. Barnes’ yard,” they dumped “a load of wood and leaves and steel bars and things,” and on the property of “George [Bottone] and Eddie [Fay]” (two contiguous lot owners), “wood and leaves and a refrigerator.”

The DEP also offered testimony by Lawrence Morgan, a police officer called to the site by Manuel Rocha who had returned from vacation to find his yard filled with wood and other debris. Morgan testified that he saw “very large dump trucks, not the square type, but the elongated type dump trucks” exiting from Clear-view Drive, and that a driver of one truck told him he worked for CBWC and Russell Capozziello.

In summary, Russell admitted that CBWC had dumped forty-five twenty cubic yard loads on the dump-site for a total of 900 cubic yards. According to his own testimony, this deposit was the equivalent of forty-five two-story wood frame houses. The DEP’s evidence indicated that at least seventeen houses were probably included in those forty-five loads. This court may not consider facts not in evidence, but neither is it required to suspend all common sense. We conclude that the hearing officer’s finding, that the plaintiffs dumped at least five tons of solid waste at the site, was reasonably inferred from the testimony and other evidence adduced.

III

Having concluded that the hearing officer’s assessment of liability against the plaintiffs was reasonable, the trial court then declined to review the reasonableness of the agency’s order requiring the plaintiffs to clear all solid waste exclusive of clean fill from the site. It concluded that the order’s “reasonableness” was merely a predicate for its enforceability, and should be reviewed in the context of an enforcement proceeding brought by the DEP if the plaintiffs did not comply with the order. We disagree.

A

Under the UAPA, a court “shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative . . . decisions are . . . arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.” (Emphasis added.) General Statutes § 4-183 (j). The administrative decision in this case included a “final order” that the “[respondents shall remove all solid waste, except clean fill,” from “the site” and that the “[respondents shall restore the site to the conditions that existed before solid waste was disposed there.” By affirming the administrative decision without evaluating the cleanup order contained within it, the trial court failed to complete the judicial review required by § 4-183 (j). We therefore remand the case to the trial court for review of the cleanup order itself.

B

On remand, the trial court must conduct its own review of the cleanup order. In the interests of judicial economy, however, we will discuss the pertinent factors that the trial court should apply in evaluating the order.

In their petition to the trial court, the plaintiffs contended that the cleanup order exceeded the agency’s authority and that it constituted an abuse of discretion because the DEP did not join other allegedly indispensable parties, namely, the other persons who dumped at the site. In essence, the plaintiffs claim that the order was an “abuse of discretion” because it was unreasonable for the DEP to require them to remove all the waste at the site when the DEP did not dispute that others had also dumped waste at the site, especially after the DEP hearing officer had denied the plaintiffs’ request to have other dumpers “joined” in the administrative proceeding.

The DEP contends, citing General Statutes § 22a-6a (b), that once a violation of the statute had been established, the plaintiffs were jointly and severally responsible for cleanup of the entire site, although entitled to seek contribution on their own behalf from others also responsible. We note that § 22a-6a (b) appears to be addressed to suits for damages brought by the commissioner, not to the propriety of remedial orders issued by the commissioner. Because § 22a-6a was enacted after the 1971 environmental legislation which included the Solid Waste Management Act, General Statutes §§ 22a-207 through 22a-256ee, in order to strengthen the commissioner’s enforcement powers; see, e.g., remarks of Senator Philip N. Costello, Jr., 16 S. Proc., Pt. 8,1973 Sess., p. 3543; remarks of Representative Richard H. Wagner, 16 H.R. Proc., Pt. 15, 1973 Sess., pp. 7780-81; testimony of Daniel Lufkin, commissioner of environmental protection, concerning the bill’s drafting, Conn. Joint Standing Committee Hearings, Environment, Pt. 1,1973 Sess., pp. 264-67; we conclude, however, that the legislature did not intend by its enactment to preclude application of the common law principle of joint and several liability in the context of remedial orders.

In the related field of hazardous waste legislation, the federal courts have consistently applied the common law principle of joint and several liability, with some limitations, as expressed in the Restatement (Second) of Torts, §§ 433A, 433B, 879 and 881, to factual scenarios comparable to the one before us. See, e.g., O’Neil v. Picillo, 883 F.2d 176 (1st Cir. 1989), cert. denied sub nom. American Cyanamid Co. v. O’Neil, 493 U.S. 1071, 110 S. Ct. 1115, 107 L. Ed. 2d 1022 (1990); United States v. A & F Materials Co., 578 F. Sup. 1249, 1255 (S.D. Ill. 1984); see also, applying a different adaptation of the Restatement principles, United States v. Western Processing Co., 734 F. Sup. 930 (W.D. Wa. 1990); United States v. Stringfellow, 661 F. Sup. 1053 (C.D. Cal. 1987). Although the federal hazardous waste statutes at issue in those cases; the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 through 6987; the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601 through 9662; are substantially different from our own Solid Waste Management Act, the problems of detecting causation and assigning responsibility are present in their application as they are in ours. We are persuaded, therefore, that judicial review of any environmental cleanup order should be conducted with reference to the principles of joint and several liability, as limited by the doctrine of apportionment, expressed in those Restatement sections.

Section 433B of the Restatement (Second) of Torts provides: “Burden of Proof. (1) Except as stated in Subsections (2) and (3), the burden of proof that the tortious conduct of the defendant has caused the harm to the plaintiff is upon the plaintiff. (2) Where the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each actor. (3) Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm.” (Emphasis added.) Section 433A of the Restatement provides: “Apportionment of Harm to Causes. (1) Damages for harm are to be apportioned among two or more causes where (a) there are distinct harms, or (b) there is a reasonable basis for determining the contribution of each cause to a single harm. (2) Damages for any other harm cannot be apportioned among two or more causes.”

As part of its review of the DEP cleanup order in this case, the trial court should determine whether the agency ever addressed the issue of combined or alternative causes for the environmental harm caused and made the requisite findings necessary for imposing upon the plaintiffs responsibility for cleaning up the waste deposited by other dumpers. Only in the event that there is no reasonable basis for apportionment of the damages caused to the environment among those whose illegal activities have contributed to such harm would joint and several liability be appropriate. 2 Restatement (Second), Torts § 433A. If the record on these issues is inadequate, the proper course for the trial court would be to remand the matter for further proceedings on those issues. General Statutes § 4-183 (j); see, e.g., Harrison v. Commissioner, 204 Conn. 672, 679, 529 A.2d 188 (1987); Department of Health Services v. Commission on Human Rights & Opportunities, 198 Conn. 479, 488, 503 A.2d 1151 (1986); Feinson v. Conservation Commission, 180 Conn. 421, 429-30, 429 A.2d 910 (1980).

If, after applying these considerations, the trial court finds that the scope of the cleanup order issued to the plaintiffs constituted an abuse of agency discretion, it should vacate that portion of the order requiring the plaintiffs to clear the site and remand the matter to the administrative agency for either a modification of the order with or without additional hearings, or, if the agency so chooses, dismissal of the order.

Although we affirm the judgment with respect to the issue of liability, we reverse the portion of the judgment in which the trial court declined to review the DEP remedial orders and we remand the case to the trial court for further proceedings consistent with this opinion.

In this opinion the other justices concurred.

       Between April and September, 1985, General Statutes (Rev. to 1985) § 22a-207 (4) and (6) provided: “(4) ‘Solid waste facility’ means any solid waste disposal area, volume reduction plant or resource recovery facility operated by any municipal or regional authority or any person if such area, plant or facility handles more than five tons a year of solid waste ....
      “(6) ‘Solid waste disposal area’ means the location utilized for ultimate disposal of wastes as approved by the department.”

       The DEP orders allege violations of No. 85-334, § 2 of the 1985 Public Acts, subsequently amended by No. 85-613, § 147, of the 1985 Public Acts and then codified as General Statutes (Rev. to 1987) § 22a-208 (b) and (c), later renumbered and revised as General Statutes (Rev. to 1991) § 22a-208a (b) and (c). Number 85-334, § 2 of the 1985 Public Acts was not effective until either May 22,1985 (the date it was passed), or June 16,1985 (the date it was signed). Public Acts 1985, No. 85-334, § 8. Number 85-613, § 147 of the 1985 Public Acts, which amended No. 85-334, § 2, was effective as of either June 5,1985 (the date it was passed), or July 10,1985 (the date it was signed). Public Acts 1985, No. 85-613, § 154. The hearing officer based his decision on a finding of illegal acts committed between April and September, 1985. While the plaintiffs do not address this chronological discrepancy directly, parts of their argument appear to focus upon the effective date of No. 85-334 of the 1985 Public Acts. We note, however, that the alleged violations of No. 85-334, § 2 of the 1985 Public Acts would also have violated preexisting General Statutes (Rev. to 1985) § 22a-208 (c). The substantive changes to law contained in No. 85-334, § 2, of the 1985 Public Acts are generally not relevant to the issues disputed by the plaintiffs. We need not, therefore, consider whether the changes contained in the 1985 enactments, each of which provided that it should “take effect from its passage”; Public Acts 1985, No. 85-334, § 8; Public Acts 1985, No. 85-613, § 154; were intended to be retroactive to the date of passage prior to the date those acts were approved by the governor.
      The three different versions of the statute in effect during the period in question (April through September, 1985), are as follows.
      In April, 1985, General Statutes (Rev. to 1985) § 22a-208 (c) provided: “No solid waste facility shall be built, established or altered after July 1, 1971, until the plan and design and method of operation of the same have been filed with the department and approved by the commissioner by the issuance of a permit, provided, nothing in this chapter or in chapter 446e shall be construed to limit the right of any local governing body to regulate, through zoning, land usage for solid waste disposal. No solid waste facility shall be operated on or after October 1, 1984, unless the owner or operator of such facility has filed a closure plan with the commissioner which he has approved as in compliance with regulatory standards adopted pursuant to section 22a-209. The commissioner shall send a written notification of any application for a permit to the chief elected official of each municipality in which the proposed facility is to be located within five business days of the date on which any such application is filed.”
      Public Acts 1985, No. 85-334, § 2, passed on May 22, 1985, and signed into law on June 16,1985, amended General Statutes § 22a-208 by changing former subsection (c) to (b) and adding a new subsection (c), as follows: “(b) No solid waste facility shall be built or established and no solid waste facility for which a permit to construct is required shall be altered after July 1,1971, until the plan, design and method of operation of such facility have been filed with the department and approved by the commissioner by the issuance of a permit to construct, provided, nothing in this act or chapters 446d and 446e of the general statutes shall i>e construed to limit the right of any local governing body to regulate, through zoning, land usage for solid waste disposal. The commissioner shall send a written notification of any application for a permit to construct to the chief elected official of each municipality in which the proposed facility is to be located, within five business days of the date on which any such application is filed.
      “(c) No solid waste facility for which a permit to construct is required shall be operated on and after the effective date of this act, except for performance testing approved by the commissioner, unless such facility has been issued a permit to operate. The commissioner may issue such permit upon determination that the facility (1) will be operated in accordance with applicable laws or regulations, (2) has been constructed in accordance with a permit issued pursuant to subsection (b) of this section, and (3) has satisfactorily completed any performance tests required by the commissioner. All operating facilities holding a valid permit to construct on or before the effective date of this act shall be issued a permit to operate and shall be allowed to continue operations prior to the issuance of such permit to operate.”
      Section 8 of this act provides: “This act shall take effect from its passage.”
      New subsection (b) was further modified by a technical corrections act, Public Acts 1985, No. 85-613, § 147, passed on June 5, 1985, and signed into law on July 10, 1985: “Sec. 147. Subsection (b) of section 2 of public act 85-334 is repealed and the following is substituted in lieu thereof:
      “(b) No solid waste facility shall be built or established and no solid waste facility [for which a permit to construct is required] WITHOUT A PERMIT TO CONSTRUCT shall be altered after July 1, 1971, until the plan, design and method of operation of such facility have been filed with the department and approved by the commissioner by the issuance of a permit to construct, provided, nothing in this act or chapters 446d and 446e of the general statutes shall be construed to limit the right of any local governing body to regulate, through zoning, land usage for solid waste disposal. The commissioner shall send a written notification of any application for a permit to construct to the chief elected official of each municipality in which the proposed facility is to be located, within five business days of the date on which any such application is filed.”
      This section also took effect at its passage. Public Acts 1985, No. 85-613, §154.
      These amended subsections, now renumbered General Statutes (Rev. to 1991) § 22a-208a (b) and (c), have remained unchanged to date.

       Section 2 (b) of Public Acts 1985, No. 85-334, also prohibits “constructing” or “maintaining” an unpermitted solid waste disposal facility. The hearing officer concluded that the appellants had committed these illegal acts as well as “operating” the facility “by dumping,” which we construe to mean they “altered” the facility and “operated” the facility “by altering” it within the meaning of § 2 (b) of the act, i.e., by adding to the volume of waste present at the facility.
      Since there is overwhelming evidence that the dump existed as a solid waste disposal facility before April, 1985, when the plaintiffs are first alleged to have engaged in their illegal activities, the officer’s conclusion that the appellants “constructed” the facility is unsupported. The trial court did not specifically address the hearing officer’s conclusion that the plaintiffs had “maintained” the facility. Since neither party has made arguments with respect to the plaintiffs’ alleged “construction” or “maintenance,” as distinct from “operation,” of the facility, we will assume that the DEP has abandoned any claim that the trial court’s dismissal of the appeal should be upheld on the alternative ground that there is substantial evidence that the plaintiffs “constructed” or “maintained” the facility.

       As a general rule, we consider statutory issues before reaching constitutional questions. See, e.g., State v. DellaCamera, 166 Conn. 557, 353 A.2d 750 (1974). In this case, however, we cannot evaluate the hearing officer’s conclusion that CBWC and its officers violated the statute until we have first construed the statute, because our construction of the statute is intertwined with the constitutional issue of vagueness.

       See footnote 2, supra. Number 85-334, § 2 and No. 85-613, § 147 of the 1985 Public Acts simply amended preexisting General Statutes § 22a-208 (c), which provided in pertinent part: “No solid waste facility shall be . . . altered after July 1,1971, until the plan and design and method of operation of the same have been filed with the department [of environmental protection] and approved by the commissioner by the issuance of a permit. ... No solid waste facility shall be operated on or after October 1, 1984, unless the owner or operator of such facility has filed a closure plan with the commissioner which he has approved as in compliance with regulatory standards adopted pursuant to section 22a-209.” General Statutes (Rev. to 1985) § 22a-208 (c).
      The only changes made by the subsequent 1985 public acts that are relevant to the issues before us are (1) the addition of language limiting the requirement for a “permit to alter” to: first, facilities “for which a permit to construct is required”; Public Acts 1985, No. 85-334; and second, facilities “without a permit to construct”; Public Acts 1985, No. 85-661; and (2) the substitution of a permit requirement for operation of a facility “for which a permit to construct is required on and after the effective date” of No. 85-334 for the previous closure plan approval requirement for operation of any solid waste facility “on or after October 1,1984.” General Statutes (Rev. to 1985) § 22a-208. These changes do not affect the charges against the plaintiffs except by changing the DEP’s evidentiary burden for charges of illegal “operation” of a facility to include proof that the facility was one “for which a permit to construct is required” or, after July 10, 1985, one “without a permit to construct.” This decision is rendered based upon the parties’ apparent assumption that the DEP had to prove that the facility was a “solid waste disposal facility” for which a permit to construct was required.

       Neither General Statutes § 22a-207 (4) or (6) were affected by the statutory modifications enacted in 1985.

       A vague statute that creates a risk of arbitrary or cbscriminatory enforcement might be unconstitutional, alternatively, as an impermissible delegation of legislative authority. Cf. Bottone v. Westport, 209 Conn. 652, 667-68 n.14, 553 A.2d 576 (1989).

       The photographic exhibits were taken on August 20, 1985 (Exhibits 7A, 7B, 8A, 8B), and October 4, 1985 (Exhibits 9A-F, 10). Thus, some were taken after the period of time during which the appellants were alleged to have committed their illegal acts. The appellants have not claimed that the photographs misrepresent the general condition of the site at the time they did their dumping. In addition, the individual appellants themselves testified that when they began dumping the entire site area was “just about . . . filled in.”

       The plaintiffs point out that we recently affirmed a trial referee’s decision setting aside a contempt citation issued against Thomas Capozziello, president of BWC, for continuing solid waste disposal on property he owned that adjoined another property he merely leased. Carothers v. Capozziello, 215 Conn. 82, 107-10, 574 A.2d 1268 (1990). In that context, however, we had no occasion to construe the statutory definition of “location” contained in General Statutes § 22a-207 (6), but addressed ourselves to the terms of the preliminary injunction at issue as compared to the location of the alleged illegal conduct. Because the order upon which the injunction was based claimed violations at the leased site but not at the owned site, we held that the trial court’s interpretation of the scope of the injunction was unduly expansive.

       The Regulations of Connecticut State Agencies, § 22a-209-l provides the following definition of the statutory term “alter”:
      “ ‘Alter’ (1) when referring to a solid waste facility which has no permit, means to change the existing configuration or method of operation of the facility in any manner, including but not limited to adding to the volume of solid waste deposited at the facility; (2) when referring to a solid waste facility which holds a permit, means to change the approved configuration or method of operation of the facility in any manner, including but not limited to adding to the approved volume of solid waste deposited at the facility.”

       See footnote 3, supra.

       See Regs., Conn. State Agencies §§ 22a-209-6, 22a-209-7. The Regulations of the Connecticut State Agencies, § 22a-209-l defines “operator” as “a person who is ultimately responsible for maintaining the solid waste facility in conformance with applicable statutes and regulations and the facility permits.” This definition is unhelpful when one is charged with “operating” a facility that does not have a permit.

       The appellants have not contested the hearing officer’s findings imposing liability upon the Capozziello brothers as individuals for their personal participation in “operating” the facility. By virtue of such participation, we affirm the trial court’s judgment against Russell and Geno Capozziello in their individual capacities with respect to liability. Part III of this opinion, however, also applies to the DEP orders issued against them as individuals.

       The full text of General Statutes § 22a-207 (6) defines “[sjolid waste disposal area” as “the location utilized for ultimate disposal of wastes as approved by the department.” The phrase “as approved by the department” presumably ensures that dumping outside the authorized boundaries of a permitted solid waste facility will constitute unpermitted dumping. In this case, of course, because there was no permit, there was no location “approved by the department.”

       The plaintiffs argued to the trial court that the materials deposited at the site were not “unwanted or discarded” because the residents had authorized the dumping as a means of leveling off their sloping backyards. They have not, however, appealed the trial court’s conclusion that “at the time an outside party contracts with a demolition company, the debris resulting from the demolition of the building or site, becomes unwanted and falls within the statutory definition of solid waste; the debris is ‘discarded’ or ‘unwanted’ by the person or party who contracted to have the particular structure demolished” and therefore that “the demolition debris deposited at Clearview [Drive] constituted solid waste as defined by General Statutes Section 22a-207 (3).” (Emphasis in original.) In the words of the trial court: “Simply because other parties, thereafter, may wish to obtain the debris from the demolition company, by purchase or otherwise, does not remove it from the Section 22a-207 (3) definition; to so construe the statute, in the circumstances of this case, would be to ignore the expressed objective of protecting the environment and the public from unsafe commercial operations presenting risks of fire, odor, air pollution, water pollution, etc.” Our discussion of the words “discarded” or “unwanted” in Carothers v. Capozziello, 215 Conn. 82, 107-10, 574 A.2d 1268 (1990), was in the context of alleged violations of General Statutes § 22a-250 (c), the littering statute, and does not affect this case.

       “[General Statutes (Rev. to 1985)] Sec. 22a-209. REGULATIONS. The commissioner shall promulgate regulations governing solid waste management, and permits, as provided for in subsection (c) of section 22a-208, shall be conditioned upon conformance with such regulations as well as applicable laws.” This statute, formerly enacted as General Statutes § 19-524c, was operative in February, 1985, when the discussed regulations became effective.
      We note that, had the regulations validly exempted “clean fill” from the definition of solid waste, the burden would remain on the plaintiffs to prove that the materials they dumped fell within the exemption. See Conservation Commission v. Price, 193 Conn. 414, 424, 479 A.2d 187 (1984); 2 A J. Sutherland, Statutory Construction (4th Ed. Sands) § 47.22.

       We note that common building brick weighs approximately 120 pounds per cubic feet, or 3240 pounds per cubic yard. R. Perry, Engineering Manual (3d Ed.) p. 4-2; G. Brady & H. Clauser, Materials Handbook (11th Ed.) p. 111. One twenty-yard truckload of building bricks would therefore weigh 64,800 pounds, or 32 tons. As Russell Capozziello explained, twenty yards of such heavy materials would be carried in several loads because of its weight. Even if a brick house producing twenty cubic yards of brick was transported in six loads, each load would be 5 tons. Light concrete block weighs less, only 65 pounds per cubic foot, or 1755 pounds per cubic yard. R. Perry, supra. If, as Russell indicated, one concrete building that the plaintiffs dumped at the site had produced twenty cubic yards of this material, that debris alone would have weighed 35,100 pounds, or 17.6 tons. Uncompressed pine boards weigh only 26 pounds per cubic foot, or 702 pounds per cubic yard. Id. A twenty yard load of pine would therefore weigh 14,040, or 7 tons. Even if we assume that none of the plaintiffs’ trucks were ever full, and that the weights approximated above refer to a compact solid block of each material rather than a loose load of demolition debris, it is plain that forty-five loads of any of these materials would far exceed the five ton requirement.

       The legislature’s recent amendment to General Statutes (Rev. to 1991) § 22a-207 (6), while irrelevant to the disposition of this case, is illuminating. As presently worded, the new definition of “[s]olid waste disposal area” is the “land and appurtenances thereon and structures, including a landfill or other land disposal site, used for the disposal of more than ten cubic

        yards of solid waste.” (Emphasis added.) Under the revised statute, then, the appellants’ dumping would have exceeded the statutory minimum ninety times over.

       General Statutes § 22a-6a (b) provides in pertinent part: “Whenever two or more persons knowingly or negligently violate any provision of section . . . 22a-208, 22a-208a ... or any regulation, order or permit adopted or issued thereunder by the commissioner and responsibility for the damage caused thereby is not reasonably apportionable, such persons shall, subject to a right of equal contribution, be jointly and severally liable under this section.” Public Acts in 1986, 1987,1989 and 1990 made technical changes and added references to other statutory sections but in all other respects the statute is the same as that in effect in 1985.

       General Statutes § 22a-6a was enacted as § 1 of No. 73-665 of the 1973 Public Acts. Senator Philip N. Costello, Jr., sponsor of the original bill, substitute senate bill No. 1973, selectively summarized the section: “It provides that any person who violates any statute, regulation, order or permit administered, adopted or issued by the Commissioner of Environmental Protection shall be liable to the state for damages to the environment caused by such violation.” 16 S. Proc., Pt. 8,1973 Sess., p. 3541. Similarly, Representative Richard H. Wagner, offering the act to the House of Representatives, summarized: “[T]his rather lengthy bill accomplishes two fundamental purposes within the Department of Environmental Protection. It makes any person who violates any statute, regulation, order or permit administered, adopted or issued by the Commissioner be liable to the State for the damages to the environment caused by his violation. . . 16 H.R. Proc., Pt. 15, 1973 Sess., p. 7780.

       In Gutowski v. New Britain, 165 Conn. 50, 55, 327 A.2d 552 (1973), we adopted, in part, § 433B of the Restatement (Second) of Torts, with respect to intentionally tortious acts performed in concert. More recently, the Appellate Court has interpreted Gutowski to permit application of the doctrine to situations where each tortfeasor acts independently, but concurrently, to produce a single injury, liability for which may, nonetheless, be apportioned on some reasonable basis. Reilly v. DiBianco, 6 Conn. App. 556, 567-72, 507 A.2d 106, cert. denied, 200 Conn. 804, 510 A.2d 193 (1986). Our decision today merely applies the doctrines contained in §§ 433A and 433B, which do not require concerted action; cf. Kelley v. Thomason Solvent Co., 714 F. Sup. 1439, 1448 (W.D. Mich. 1989); see also 2 Restatement (Second), Torts § 439; to guide judicial review of administrative orders issued to remedy violations of our Environmental Protection Act.


author: Peters, C. J.

text:
    Edward Furstein v. Rita B. Hill
    (14047)
    (14104)
    Peters, C. J., Callahan, Glass, Borden and F. X. Hennessy, Js.

      Argued March 19
    decision released May 14, 1991

      Elizabeth Dee Bailey, for the appellant in the first appeal (intervening plaintiff).

      Jesse M. Frankl, for the appellant-appellee in the second appeal (plaintiff).

      Robert M. LaRose, for the appellee-appellant in the second appeal (defendant).
   Peters, C. J.

The dispositive issue in this consolidated appeal is whether a police officer occupies the status of an invitee or of a licensee when, in the course of performing his official duties, he is injured by a defective condition on the property of a landowner. The plaintiff, Edward Furstein, a West Hartford police officer, brought an action to recover damages for personal injuries that he suffered as the result of investigating a possible burglary at a house owned by the defendant, Rita B. Hill. The town of West Hartford intervened as a plaintiff to recover sums expended in workers’ compensation payments to the plaintiff. At the close of the plaintiff’s evidence, the defendant moved for a directed verdict on the theory that the plaintiff had not provided a factual foundation to demonstrate her failure to comply with the duty of care owed by a landowner to a licensee. The trial court, Freed, J., denied the motion and submitted the case to the jury, which returned a verdict for the plaintiff reduced in amount by its finding that the plaintiff himself had been 40 percent negligent. Denying motions to set aside the verdict filed by the plaintiff, the intervening plaintiff and the defendant, the trial court rendered judgment in accordance with the verdict and apportioned the award between the plaintiff and the intervening plaintiff. Each of the parties appealed to the Appellate Court and we transferred the consolidated appeals to this court in accordance with Practice Book § 4023. Because we conclude that the defendant’s motion for directed verdict should have been granted, we reverse the judgment of the trial court.

The relevant facts are not in dispute. On September 10, 1987, a private alarm company notified the West Hartford police department that a silent burglar alarm had been activated on property owned by the defendant, Rita B. Hill. The police department dispatched the plaintiff, police officer Edward Furstein, to investigate the alarm. The plaintiff injured his knee when a board in the deck attached to the rear of the house collapsed as he crossed the deck to inspect the sliding glass doors that provided rear access to the house. As a result of his injury, the plaintiff was unable to work for approximately six months, and suffered a permanent partial disability of the knee.

At trial, the plaintiff produced evidence that the deck had been built in 1980 of untreated wood and that its general condition at the time of the plaintiffs accident in 1987 was “rotting” and “weather beaten.” The plaintiff produced no direct evidence that the defendant, who lived in Florida and who did not testify at trial, had actual or constructive knowledge either of the rotted condition of the deck or of the fact that it had been built from untreated wood that would tend to rot more quickly than would chemically preserved wood. The plaintiff did not produce the defendant as a witness, either directly or by deposition, to testify regarding her knowledge of the condition of the deck. He introduced instead as an exhibit the defendant’s responses to the plaintiff’s interrogatories. These responses established only that the defendant owned the house at the time of the plaintiff’s accident, that she acquired the property in May, 1980, that the deck was part of the original house construction in May, 1980, and that it was made of wood and was covered with a stain. The plaintiff produced no evidence that the defendant had ever been on the property, either at the time of acquisition or subsequently, or that any person acting on her behalf had any actual or constructive knowledge of the condition of the deck at the time of the plaintiff’s accident. The plaintiff did not attempt to prove that the defendant had actual knowledge of the plaintiff’s presence on her property at the time of the accident. Rather, he relied on the undisputed fact that the police had been summoned to the scene by an alarm company in response to an alarm system that had been installed in 1980 when the defendant acquired the property.

At the close of the plaintiffs evidence, the defendant moved for a directed verdict. She argued that the plaintiff’s status on the property, under Connecticut law, was akin to that of a licensee, to whom a landowner would owe a duty of due care only if she had actual or constructive knowledge of the licensee’s presence on her property. The defendant further argued that the plaintiff had presented no evidence that would support a finding that she had actual or constructive knowledge either of the defect or of the plaintiff’s presence. The plaintiff argued, in opposition to the motion, that his status on the property at the time of the accident was that of an invitee, to whom the plaintiff owed a duty to inspect the premises and to maintain them in a reasonably safe condition.

The trial court, Freed, J., denied the defendant’s motion for a directed verdict but instructed the jury that the plaintiff was a licensee. When the jury nonetheless returned a verdict, partially offset by the plaintiff’s negligence, in favor of the plaintiff, the court denied all the motions to set the verdict aside and rendered judgment on the jury’s verdict.

On appeal, the principal issue is whether the trial court correctly charged the jury that the plaintiff was a licensee rather than an invitee. Once we have resolved that issue of law, we must examine the record to determine the factual sufficiency of the evidence to sustain the jury’s award of damages to the plaintiff. We conclude, as the defendant contends, that the trial court’s charge was correct but that the court improperly denied her motions for a directed verdict and to set aside the verdict in light of the plaintiffs failure to satisfy his burden of production regarding the defendant’s knowledge of the defective condition and of the plaintiff’s presence on the property.

I

The plaintiff’s appeal is premised on the proposition that, when he entered onto the defendant’s property in response to a burglar alarm triggered by an alarm system installed by the defendant, his status was that of an invitee. Our cases do not support this proposition.

This court first addressed the status of a public officer who is injured on private property while lawfully present in the exercise of his duties in Roberts v. Rosenblatt, 146 Conn. 110, 148 A.2d 142 (1959). We there held that the plaintiff, a firefighter who had been injured in a fall on an icy sidewalk while present on the premises “in the performance of a public duty under a permission created by law,” occupied a status “akin to that of a licensee,” to whom the owners of such premises owed “no greater duty than that due a licensee.” Id., 113. Roberts adopted the principle expressed in the Restatement (Second) of Torts, § 345 (1), that “the liability of a possessor of land to one who enters the land only in the exercise of a privilege, for either a public or a private purpose, and irrespective of the possessor’s consent, is the same as the liability to a licensee.” 2 Restatement (Second), Torts (1965) § 345 (1), pp. 226-27. The conclusion reached by this court in Roberts is a form of the common law doctrine known as the “firefighter’s rule.” See Mignone v. Fieldcrest Mills, 556 A.2d 35, 37 n.1 (R.I. 1989).

Although this court has not previously addressed the scope of the applicability of the firefighter’s rule, we note that no state that has adopted the rule has declined to extend it to police officers. Kreski v. Modern Wholesale Electric Supply Co., 429 Mich. 347, 357 n.6, 415 N.W.2d 178 (1987); see also Flowers v. Rock Creek Terrace, 308 Md. 432, 442 n.4, 520 A.2d 361 (1987); Berko v. Freda, 93 N.J. 81, 84, 459 A.2d 663 (1983). Having reviewed the history and policy issues underlying the rule, we similarly conclude that the rule applies to police officers as well as to firefighters.

A

The firefighter’s rule has well developed roots in the common law. Although the rule had its origins in a social system in which “the landowner was sovereign within his own boundaries” and owed a licensee only the duty not to injure him wilfully or wantonly; Dini v. Naiditch, 20 Ill. 2d 406, 413, 170 N.E.2d 881 (1960); the jurisdictions that have applied the rule in recent years have offered more cogent reasons to justify its continued viability.

The most compelling argument for the continuing validity of the rule is the recognition that firefighters and police officers often enter property at unforeseeable times and may enter unusual parts of the premises under emergency circumstances. Kreski v. Modern Wholesale Electric Supply Co., supra, 368; Nared v. School District of Omaha, 191 Neb. 376, 379-80, 215 N.W.2d 115 (1974); 2 Restatement (Second), Torts (1965) § 345 (1), comment (c), p. 228. Such public officers enter the land regardless of the owner’s consent; indeed, if the conditions for the exercise of their public duty exist, the owner would not be privileged to exclude them. Shypulski v. Waldorf Paper Products Co., 232 Minn. 394, 396, 45 N.W.2d 549 (1951); Scheurer v. Trustees of the Open Bible Church, 175 Ohio St. 163, 168, 192 N.E.2d 38 (1963); 5 F. Harper, F. James & O. Gray, The Law of Torts (2d Ed. 1986) § 27.14, p. 260. Recognizing that only invitees may rely on an implied representation of safety, courts have considered it unreasonable to require landowners to undertake the same standard of care for public officers whose presence the landowners can neither predict nor interdict. “There would be an obvious hardship in holding otherwise, because landowners would then be under compulsion to keep all parts of their premises in a condition perhaps uncalled for by the normal use to which the premises are devoted.” Shypulski v. Waldorf Paper Products Co., supra, 397; see also 2 Restatement (Second), Torts (1965) § 345 (1), comment (c), p. 228.

Several jurisdictions have explained their adoption of the firefighter’s rule by recognizing the inherently hazardous nature of the public safety work performed by firefighters and police officers. Some courts have characterized this recognition as a variant of the doctrine of “assumption of the risk”; see Krauth v. Geller, 31 N. J. 270, 273-74, 157 A.2d 129 (1960); while others have noted that firefighters and police officers voluntarily choose to enter their professions knowing that they will often confront physically perilous situations created by the negligence of the public they serve. See Winn v. Frasher, 116 Idaho 500, 503, 777 P.2d 722 (1989). According to the courts that have relied on this rationale, the public “hires, trains, and compensates fire fighters and police officers to deal with dangerous, but inevitable situations,” many of which are caused by negligence. Kreski v. Modern Wholesale Electric Supply Co., supra, 366. “The very nature of police work and fire fighting is to confront danger. The purpose of these professions is to protect the public. . . . [T]he public should not be liable for damages for injuries occurring in the performance of the very function police officers and fire fighters are intended to fulfill.” Id., 367-68.

This rationale has been extended to situations, such as the one presented in this case, in which an injury results from alleged negligence that is unrelated to the cause of the safety officer’s presence on the property. The Supreme Court of New Jersey recently held that a police officer who was injured when he slipped on a powdery white substance on a doughnut shop’s kitchen floor while he was rendering emergency medical aid to an employee of the shop could not recover in tort against the shop’s owners or operators. Rosa v. Dunkin’ Donuts of Passaic, 122 N.J. 66, 583 A.2d 1129 (1991). The court reasoned that “[fjirefighters and police officers must be held to assume the risks that are to be expected in encountering the hazards and risks of their job.....Such risks properly include an ordinary act of negligence that an officer may encounter at the scene of the incident. To hold otherwise creates artificial distinctions between the negligence that occasioned one’s presence and the negligence defining the scene at which one arrives . . . .” Id., 73-74.

A third rationale offered by courts that have adopted the firefighter’s rule is that permitting firefighters and police officers to recover in tort for occupational injuries caused by the negligence of particular members of the public whom the officer is called upon to aid would impose a double burden on the taxpayers, who already pay such officers to deal with the hazards that may result from the 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, supra, 87-88. To avoid this potential for double liability, in taxes and in tort, most courts have concluded that the public as a whole, rather than individual landowners, should bear the burden of the foreseeable losses incurred when firefighters or police officers are injured in the performance of their duties. As more than one court has observed, the public should compensate its safety officers both in pay that reflects the hazard of their work and in workers’ compensation benefits for injuries suffered when the risks inherent in the occupation materialize. Giorgi v. Pacific Gas & Electric Co., 266 Cal. App. 2d 355, 359-60, 72 Cal. Rptr. 119 (1968); Krauth v. Geller, supra, 274.

Reliance on workers’ compensation and other forms of public compensation is also appropriate because “societal responsibility rather than possible tort recovery is the better, surer, and fairer recourse” for a public safety officer injured in the line of duty. Flowers v. Sting Security, Inc., 62 Md. App. 116, 140, 488 A.2d 523 (1985), aff’d, 308 Md. 432, 520 A.2d 361 (1987); England v. Tasker, 129 N.H. 467, 470, 529 A.2d 938 (1987). As one court noted, “the reach of the tax collector is both broader and more persuasive than that of the premium taker.” Giorgi v. Pacific Gas & Electric Co., supra, 360. In addition, courts have noted that society’s recognition of the inherently hazardous nature of the work of public officers has frequently led to the enactment of special benefits for such workers, above and beyond the benefits ordinarily provided by workers’ compensation. See Walters v. Sloan, 20 Cal. 3d 199, 205, 571 P.2d 609, 142 Cal. Rptr. 152 (1977). Such benefits include, for instance, a statutory presumption of occupational causation for certain diseases; see General Statutes § 7-433a (creating a presumption that hypertension or heart disease is a personal injury that arose in the course of employment); and survivors’ benefits for the dependents of police officers and firefighters. See General Statutes § 7-323e.

In summary, both police officers and firefighters have a permission created by law to enter upon private property for an appropriate public purpose, even without the consent of the owner; both are hired and trained to confront hazards in the execution of their duties; and both are entitled to enhanced workers’ compensation benefits for injuries that occur in the line of duty. We conclude, for these reasons, that the firefighter’s rule adopted by this court in Roberts v. Rosenblatt, supra, applies to police officers who are injured by defective conditions on private property while the officers are present upon such property in the performance of their duties.

B

The plaintiff argues that even if the firefighter’s rule adopted in Roberts v. Rosenblatt, supra, is broad enough to encompass police officers, it is nevertheless inapplicable to him for two reasons. First, he contends that General Statutes § 52-557a, enacted four years after this court decided Roberts v. Rosenblatt, abrogated the common law distinction between licensees and invitees. Alternatively, he contends that he was an invitee because he was present on the property in response to a notification by the defendant’s agent that a burglar alarm had been set off there. We find no merit in either claim.

Nothing on the face of § 52-557a supports the plaintiffs argument that the statute was intended to overturn the licensee status of public officers. The statute provides, in its entirety: “The standard of care owed to a social invitee shall be the same as the standard of care owed to a business invitee.” The intent of the statute, as declared in the statement of purpose of the substitute committee bill and in the legislative debates, was “[t]o give the same protection to a person invited for occupiers [sic] pleasure as for one who is invited for his business. To enact into law the dissenting opinion in Laube vs. Stevenson, 137 Connecticut 469.” Substitute Senate Bill No. 243, 1963 Sess., Connecticut General Assembly (file no. 1209). In Laube v. Stevenson, 137 Conn. 469, 78 A.2d 693 (1951), a three-member majority of this court held that a social guest was a mere “gratuitous licensee.” Id., 473. Two dissenting members of the court argued that social guests should be afforded the same protection as business invitees. Id., 477 (Jennings, J., dissenting as to social visitors “enjoying an express invitation”), and 477-78 (O’Sullivan, J., dissenting as to social visitors with either an express or an implied invitation).

The plaintiff argues that remarks made during the public hearings on the proposed bill evince the intent of the legislature to abrogate the firefighter’s rule. We are unpersuaded. Although the committee hearings related to the act contain an inconclusive discussion of the applicability of the proposed act to firefighters and police officers; see Conn. Joint Standing Committee Hearings, Judiciary and Governmental Functions, Pt. 2, 1963 Sess., pp. 335-50; the statute as ultimately enacted manifests no legislative undertaking to abrogate all distinctions between licensees and invitees, as at least one state legislature has done. The language of § 52-557a indicates rather that the législature intended to require a landowner to exercise the same standard of care toward every person whom he “invited” onto his premises, whether the owner extended such an invitation for business or for pleasure. The legislature evidently reasoned that, because the presence of social guests at a particular time and place was as foreseeable as the presence of business invitees, a landowner’s duty of care to both groups should be the same.

In the absence of ambiguity, the intent of the legislature is to be found not in what it meant to say but in what it did say. All Brand Importers, Inc. v. Department of Liquor Control, 213 Conn. 184, 195, 567 A.2d 1156 (1989); Daily v. New Britain Machine Co., 200 Conn. 562, 571, 512 A.2d 893 (1986); Winchester v. Con necticut State Board of Labor Relations, 175 Conn. 349, 361, 402 A.2d 332 (1978). The defendant conceded, at oral argument in this court, that the express terms of the statute do not encompass police officers, who under certain circumstances have legal authority to enter upon private property without the owner’s consent or knowledge. We conclude, therefore, that § 52-557a does not abrogate the common law of Connecticut regarding the status of firefighters and police officers.

The plaintiff alternatively argues that the summons of the private alarm company “invited” him onto the property and thereby transformed his status. This contention cannot be reconciled with our observation in Roberts v. Rosenblatt that “[t]he status of the plaintiff was not dependent in any respect upon the identity of the person who sounded the alarm, be he an occupant or owner of the premises or a passerby.” Roberts v. Rosenblatt, supra, 113. Other jurisdictions have similarly concluded that a police officer’s status on private property should not depend on such fortuitous circumstances as the means by which he receives notice that his services are required. See, e.g., Nared v. School District of Omaha, supra, 380. Acceptance of the plaintiffs contention would lead to the anomalous result that two officers, each injured by the same defective condition on private property, would have different legal rights against the landowner if one officer had responded to a report of a burglar alarm while the second had decided to investigate on his own initiative after having observed something suspicious while walking a beat. We therefore conclude that the plaintiff’s status as licensee was unaffected by the manner in which he came upon the defendant’s premises.

Because the trial court correctly instructed the jury that the plaintiff could only recover from the defendant as a licensee, the plaintiff cannot prevail on his appeal. The other issues that he has raised cannot stand in light of our disposition of the defendant’s cross appeal.

II

The conclusion that the defendant owed the plaintiff only the duty she would owe to a licensee does not, of itself, wholly preclude liability for any injury the plaintiff may have suffered. The defendant maintains, nevertheless, in her cross appeal, that the facts adduced by the plaintiff in this case entitled her either to a directed verdict or to an affirmative response to her motion to set aside the verdict of the jury finding her liable to the plaintiff. We agree.

The duty that a landowner owes to a licensee does not ordinarily encompass the responsibility to keep the property in a reasonably safe condition, because the licensee must take the premises as he finds them. Dougherty v. Graham, 161 Conn. 248, 251, 287 A.2d 382 (1971). We have nevertheless recognized that under certain circumstances a heightened duty to the licensee can arise. Laube v. Stevenson, supra, 474. The Restatement (Second) of Torts, § 342, describes the duties owed to a licensee as follows: “A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if, (a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and (b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and (c) the licensees do not know or have reason to know of the condition and the risk involved.” 2 Restatement (Second), Torts (1965) § 342, p. 210.

The plaintiff in this case conceded that the defendant did not have actual knowledge of the defective condition of the deck. He was therefore required to prove that the defendant had “reason to know” of the condition that caused his injury. To satisfy his burden of production on this element, he offered only the following evidence: (1) the defendant’s admission that she owned the property in question; (2) testimony about the “rotted” appearance of the wooden deck offered by the plaintiff, a fellow officer, and a carpenter who inspected the deck about two months after the plaintiff’s accident; and (3) testimony by the carpenter, who had not been qualified as an expert witness, to the effect that wood “takes years” to rot. The plaintiff contends that this evidence was sufficient to establish facts from which the jury could properly impute knowledge of the deck’s dangerous condition to the defendant. We disagree.

To establish that the defendant in this case had “reason to know” of the defective condition of the deck, the plaintiff was required to proffer evidence that the defendant had factual information that would have led a person of reasonable intelligence to conclude that the deck’s condition was dangerous. See 1 Restatement (Second), Torts (1965) § 12 (1), p. 19, and § 12, comment (a), p. 20. The evidence actually introduced by the plaintiff, however, established only that the defendant knew, at the time of the plaintiffs accident, that the deck was approximately seven years old and was made of wood, covered with a “stain.” The plaintiff did not produce evidence that the defendant, who lived in Florida, had ever even seen the deck, had played any role in its installation, or had any knowledge that it was built of “untreated” wood. He produced no evidence tending to prove that wood generally rots in seven years, from which the jury might have inferred that a reasonable person would have reason to know that the deck had deteriorated. The plaintiff similarly failed to produce any evidence that any person acting on the defendant’s behalf with regard to the property at issue had any actual or constructive knowledge of the condition of the deck, or that any person had ever given the defendant any notice, prior to the plaintiff’s accident, that the deck was in poor condition. The record therefore fails to reveal any factual basis from which the jury could have reasonably concluded that the defendant knew or had reason to know that the deck’s condition posed an unreasonable risk of harm to licensees such as the plaintiff. See 2 Restatement (Second), Torts (1965) § 342, p. 210.

Although directed verdicts are generally disfavored; Sestito v. Groton, 178 Conn. 520, 522, 423 A.2d 165 (1979); they are appropriate when the plaintiff has failed to produce any evidence of an essential element of his cause of action. See, e.g., Teitelman v. Bloomstein, 155 Conn. 653, 657-58, 236 A.2d 900 (1967). Since the plaintiff in this case failed to present any evidence that the defendant had actual or constructive knowledge of the dangerous condition of the deck, the trial court should have granted the defendant’s motion for a directed verdict. We therefore reverse the judgment rendered on the jury’s verdict.

Our disposition of the plaintiff’s appeal and the defendant’s cross appeal renders moot the appeal of the intervening plaintiff from the trial court’s apportionment of the damage award. It is well settled that the existence of an actual controversy is an essential requisite to appellate jurisdiction. See, e.g., Patterson v. Council on Probate Judicial Conduct, 215 Conn. 553, 561-62, 577 A.2d 701 (1990); Sobocinski v. Freedom of Information Commission, 213 Conn. 126, 134-35, 566 A.2d 703 (1989); Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944). It is not the province of appellate courts to decide moot questions when no practical relief can follow from their determination. Patterson v. Council on Probate Judicial Conduct, supra; Sobocinski v. Freedom of Information Commission, supra; Reynolds v. Vroom, supra; see also Gormley v. Panuzio, 166 Conn. 1, 3, 347 A.2d 78 (1974). We accordingly dismiss the appeal of the intervening plaintiff, the town of West Hartford.

The judgment is reversed and the case is remanded to the trial court with direction to render judgment for the defendant.

In this opinion the other justices concurred.

       This rationale suggests that an exception to the rule may exist when a public officer is injured by a defective condition on a portion of the land held open to the public at a time when the public might reasonably be expected to be present, and courts have indeed recognized such an exception. This exception is noted in the Restatement (Second) of Torts, § 345 (2), which provides that “[t]he liability of a possessor of land to a public officer or employee who enters the land in the performance of his public duty, and suffers harm because of a condition of a part of the land held open to the public, is the same as the liability to an invitee.” See Brady v. Consolidated Rail Corporation, 35 Ohio St. 3d 161, 163-64, 519 N.E.2d 387 (1988) (affirming reversal of a summary judgment in favor of the defendant railroad company because the plaintiff police officer was injured in a railroad right-of-way that the defendant company was statutorily obligated to keep in good repair for the benefit of all members of the public). This exception, however, provides no support to the plaintiffs claim in this case. The plaintiff presented no evidence suggesting that the property involved here is “held open to the public.” See 2 Restatement (Second), Torts § 345 (2), supra. The evidence here demonstrated, rather, that the plaintiff’s injury occurred on a deck that provided access to the rear entrance of a private residence.

       Although we have on occasion taken notice of remarks made during legislative hearings as bearing on the problem a statute was designed to solve; see, e.g., Mahoney v. Lensink, 213 Conn. 548, 559 n.15, 569 A.2d 518 (1990), and State v. Magnano, 204 Conn. 259, 273-74 n.8, 528 A.2d 760 (1987); in this case the remarks are too ambiguous and contradictory to be of value in determining the intent of the legislature.

       Illinois abrogated the common law distinction between licensees and invitees by a statute that took effect in 1984. Illinois Stat. Ann. c. 80, para. 302 (Smith-Hurd 1987) provides: “The distinction under the common law between invitees and licensees as to the duty owed by an owner or occupier of any premises to such entrants is abolished. The duty owed to such entrants is that of reasonable care under the circumstances regarding the state of the premises or acts done or omitted on them.”
      Although there was a period during the 1960s and 1970s in which approximately fifteen state courts abolished or modified the distinctions in entrant status as a matter of common law, few states have done so by legislative action. See W. Keeton, D. Dobbs, R. Keeton & D. Owen, Torts (5th Ed. 1984) § 62, pp. 432-33. Commentators on torts have noted, moreover, that the judicial trend toward abrogating these distinctions seems essentially to have ended in the early 1980s. “[I]t appears that the courts are gaining a renewed appreciation for the considerations behind the traditional duty limitations toward trespassing adults, and that they are acquiring more generally a healthy skepticism toward invitations to jettison years of developed jurisprudence in favor of a beguiling legal panacea.” Id., p. 434; but see Hudson v. Gaitan, 675 S.W.2d 699 (Tenn. 1984) (abolishing distinctions based on entrant status).

       In addition to his principal claim regarding his status on the property, the plaintiff also claims that the trial court improperly: (1) charged the jury on contributory and comparative negligence; and (2) denied the plaintiff’s motion to set aside the verdict on the ground that the damages awarded were inadequate in light of the evidence of the plaintiff’s injury. Our disposition of the issue of his status and of the defendant’s cross appeal renders the plaintiff’s remaining claims moot.

       The Restatement (Second) of Torts, § 12, provides the following definitions: “(1) The words ‘reason to know’ are used throughout the Restatement of this Subject to denote the fact that the actor has information from which a person of reasonable intelligence or of the superior intelligence of the actor would infer that the fact in question exists, or that such person would govern his conduct upon the assumption that such fact exists.
      “(2) The words ‘should know’ are used throughout the Restatement of this Subject to denote the fact that a person of reasonable prudence and intelligence or of the superior intelligence of the actor would ascertain the fact in question in the performance of his duty to another, or would govern his conduct upon the assumption that such fact exists.” 1 Restatement (Second), Torts (1965) § 12, pp. 19-20.
      The comment to this section further elaborates the distinction between the phrases “reason to know” and “should know.” “Both the expression ‘reason to know’ and ‘should know’ are used with respect to existent facts. These two phrases, however, differ in that ‘reason to know’ implies no duty of knowledge on the part of the actor whereas ‘should know’ implies that the actor owes another the duty of ascertaining the fact in question.” Id., comment (a), p. 20.
      The plaintiff contends, in response to the defendant’s cross appeal, that the defendant would have known of the defective condition of the deck if she had exercised reasonable care. This contention confuses the factual basis required to establish “constructive knowledge” or a “reason to know” with the landowner’s duty to inspect the property and to maintain it in a safe condition for invitees. Since we have held in Part I above that the plaintiff occupied the status of a licensee rather than that of an invitee, it follows that the defendant owed to him only the duty to warn of known dangers that is set forth in § 342 of the Restatement (Second) of Torts.