author: Per Curiam. Berdon, J.,

text:
    Steven G. M. Biro et al. v. Thomas W. Hill, Jr., et al.
    (14992)
    Peters, C. J., and Borden, Berdon, Norcott and Palmer, Js.
    Argued September 23
    decision released December 6, 1994

      Peter L. Truebner, for the appellants (plaintiffs).

      Robert G. Oliver, with whom, on the brief, was Carolyn P. Gould, for the appellee (defendant Sidley and Austin).
   Per Curiam.

The plaintiffs appeal challenging the action of the trial court, Rush, J., denying their motion for reconsideration of a judgment of nonsuit previously rendered against them, and denying their motion to set aside that judgment. In this appeal, the plaintiffs challenge: (1) the rendition of the original judgment of nonsuit; (2) the denial of their motion to set aside that judgment; and (3) the denial of their motion to reconsider both the judgment of nonsuit and the denial of their motion to open the judgment of nonsuit. After full and careful consideration of the relevant portions of the trial court record and of the briefs of the parties on appeal, we conclude that: (1) under the Practice Book and our well established case law, all of the challenged rulings of the trial court were matters committed to the discretion of the trial court; and (2) any such procedural considerations aside, on their merits all of the challenged actions of the trial court were within its discretion. We therefore affirm the judgment of the trial court.

On July 13, 1992, the trial court ordered a nonsuit entered against the plaintiffs for their failure to respond to certain discovery requests that had been filed by the defendant on October 18, 1991. The nonsuit followed the plaintiffs’ failure to comply, even partially, with the discovery requests on three previously entered deadlines for compliance, namely, December 18, 1991, February 18, 1992, and July 2, 1992. Practice Book § 231 gives the trial court discretion to impose appropriate sanctions for the failure to comply with discovery requests “as the ends of justice require.” The factors to be considered by the court include: (1) whether noncompliance was caused by inability, rather than wilfulness, bad faith or other fault; (2) whether and to what extent noncompliance caused prejudice to the other party, including the importance of the information sought to that party’s case; and (3) which sanction would, under the circumstances of the case, be an appropriate judicial response to the noncomplying party’s conduct. Pavlinko v. Yale-New Haven Hospital, 192 Conn. 138, 144, 470 A.2d 246 (1984). As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did. See, e.g., Pool v. Bell, 209 Conn. 536, 541, 551 A.2d 1254 (1989); DiPalma v. Wiesen, 163 Conn. 293, 298-99, 303 A.2d 709 (1972). We are convinced that the trial court properly considered all of the relevant factors in ordering the nonsuit. The record demonstrates, furthermore, that, as is appropriate, the trial court recognized that a nonsuit is among the most drastic of the available remedies, and that it exercised its discretion with due caution and restraint in ordering that sanction. We conclude, therefore, that the trial court did not abuse its discretion in ordering the nonsuit.

Despite the trial court’s invitation based upon the plaintiffs’ representations; see footnote 6; the plaintiffs did not file their motion to set aside the judgment of nonsuit until September 17, 1992. In their counsel’s affidavit in support of their motion, the plaintiffs asserted that the reason for their failure to comply with the discovery orders, for which the judgment of nonsuit had been rendered, “was [the] Plaintiffs’ decision to retain new attorneys and a belief that it would be unfair to bind new counsel with responses to interrogatories and production requests before he had opportunity to evaluate the case.” The plaintiffs also asserted that they had now complied with the discovery requests. The defendant disputed that such compliance had occurred. The defendant also opposed the motion on the grounds that the plaintiffs had not satisfied the requirements for setting aside a judgment of nonsuit, and that the late and incomplete disclosure would be unduly prejudicial in light of a trial date already set for early December. After full oral argument on the motion and the defendant’s objection, the trial court, on October 7, 1992, denied the motion to set aside the judgment of nonsuit without a written or oral memorandum of decision. The plaintiffs did not seek an articulation of that ruling.

The power of the court to set aside a judgment of nonsuit is governed by General Statutes § 52-212. Jaconski v. AMF, Inc., 208 Conn. 230, 237, 543 A.2d 728 (1988); Pantlin & Chananie Development Corp. v. Hartford Cement & Building Supply Co., 196 Conn. 233, 240, 492 A.2d 159 (1985); see also Practice Book § 377. The plaintiff must establish that a good cause of action, the nature of which must be set forth, existed when the judgment of nonsuit was rendered, and that the plaintiff was prevented from prosecuting it because of mistake, accident or other reasonable cause. Pantlin & Chananie Development Corp. v. Hartford Cement & Building Supply Co., supra, 240. In ruling on a motion to open a judgment of nonsuit, the trial court must exercise sound judicial discretion, which will not be disturbed on appeal unless there was an abuse of discretion. Id., 237-38. In reviewing the trial court’s exercise of its discretion, we make every presumption in favor of its action. Acheson v. White, 195 Conn. 211, 215, 487 A.2d 197 (1985). This record amply supports the trial court’s denial of the plaintiffs’ motion, and we can discern no abuse of discretion that would justify reversing that action.

On November 12, 1992, the plaintiffs filed a motion to reargue and for reconsideration of: (1) the judgment of nonsuit; and (2) the denial of their motion to open that judgment. Although the motion stated that “[supporting affidavits and a memorandum of law are attached,” those documents were not attached, either to the motion filed in court or to the copy sent to the defendant, and they were not filed in court until November 18, 1992. The defendant objected on both procedural and substantive grounds. After full oral argument, the trial court denied the plaintiffs’ motion without a written or oral memorandum of decision, and the plaintiffs did not seek articulation. Having examined the record, we can find no basis upon which to reverse the trial court’s exercise of discretion in denying the plaintiffs’ motion.

The judgment is affirmed.

Berdon, J.,

concurring. I agree with the majority that the trial court in this case did not abuse its discretion in entering a disciplinary nonsuit pursuant to Practice Book § 231 and in refusing to set aside the judgment of nonsuit pursuant to General Statutes § 52-212.1 write separately in order to emphasize that the entry of a nonsuit is a drastic remedy and should be considered only as a last resort. There are, of course, other effective ways of persuading the errant party to comply with rules of discovery, such as awarding attorney’s fees to the discovering party; Practice Book § 231 (b); or fining the dilatory attorney. General Statutes § 51-84; In re Mongillo, 190 Conn. 686, 690-91, 461 A.2d 1387 (1983). In this case, on the basis of the record before us, I have no reason to believe that the trial court did not consider these other alternatives.

Seldom are the interests of justice served for either party when litigation fails to be concluded upon its merits. Indeed, when the plaintiff is nonsuited, that does not necessarily put an end to the substantive issues raised. The plaintiff may, in fact, institute a new action. General Statutes § 52-592; see Gionfrido v. Wharf Realty, Inc., 193 Conn. 28, 34 n.6, 474 A.2d 787 (1984); Marangio v. Shop Rite Supermarkets, Inc., 11 Conn. App. 156, 160, 525 A.2d 1389, cert. denied, 204 Conn. 809, 528 A.2d 1155 (1987). Of course, the reinstitution of litigation involves additional attorney’s fees for both parties and an additional burden for the courts. Given such consequences, it may well be in the best interest of the parties and the court to impose sanctions other than a nonsuit on a dilatory litigant.

       The plaintiffs appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       This is the second time that we have considered this case on appeal. Previously, we reversed the judgment of the trial court, Lewis, J., dismissing the case for failure to join a necessary party. Biro v. Hill, 214 Conn. 1, 570 A.2d 182 (1990).
      The plaintiffs are Steven G. M. Biro and his wife, Safiye Guzin Altiok Biro. The sole defendant in this appeal is the law firm of Sidley and Austin. The named defendant, Thomas W. Hill, Jr., was never served, and he is not a party to this case. As to four individual partners of Sidley and Austin, the trial court, Lewis, J., granted a motion to strike, from which no appeal was taken, and they are no longer parties to this case.
      We note also that the plaintiffs have brought a similar action against the defendant and Hill in New York, which was pending at the time of the trial court proceedings in this case.

       Although there is some question regarding the timeliness of the plaintiffs’ appeal with respect to the original nonsuit; see Practice Book § 4009; and although the defendant challenges the timeliness of that portion of the appeal, we address that portion of the appeal because the time limitation does not implicate subject matter jurisdiction; see Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 762, 628 A.2d 1303 (1993); and because to do so would not affect our determination of the outcome of the appeal.

       In this per curiam opinion, we have referred to only the most significant parts of the record that lead us to affirm the judgment.

       Practice Book- § 231 provides: “order for compliance; failure to ANSWER OR COMPLY WITH ORDER
      “If any party has failed to answer interrogatories or to answer them fairly, or has intentionally answered them falsely or in a manner calculated to mislead, or has failed to respond to requests for production or for disclosure of the existence and contents of an insurance policy or the limits thereof, or has failed to submit to a physical or mental examination, or has failed to comply with a discovery order made pursuant to Sec. 230A, or has failed to comply with the provisions of Sec. 232, or has failed to appear and testify at a deposition duly noticed pursuant to this chapter, or has failed otherwise substantially to comply with any other discovery order made pursuant to Secs. 222, 226, and 229, the court may, on motion, make such order as the ends of justice require.
      “Such orders may include the following:
      “(a) The entry of a nonsuit or default against the party failing to comply;
      “(b) The award to the discovering party of the costs of the motion, including a reasonable attorney’s fee;
      “(c) The entry of an order that the matters regarding which the discovery was sought or other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
      “(d) The entry of an order prohibiting the party who has failed to comply from introducing designated matters in evidence;
      “(e) If the party failing to comply is the plaintiff, the entry of a judgment of dismissal.
      “The failure to comply as described in this section may not be excused on the ground that the discovery is objectionable unless written objection as authorized by Secs. 222, 226, and 229 has been filed.”

       Indeed, when it ordered the nonsuit the trial court indicated that, if the plaintiffs complied with the outstanding discovery requests within three weeks, it would consider setting aside the nonsuit. At that time, the plaintiffs represented to the court that they had drafted the responses to the discovery requests, that by “mutual consent” they had engaged new counsel who was in the courtroom but who had not yet entered his appearance, and that they would be prepared to file the responses within three weeks.

       General Statutes § 52-212 provides: “reopening judgment upon default OR nonsuit, (a) Any judgment rendered or decree passed upon a default or nonsuit in the superior court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.
      “(b) The complaint or written motion shall be verified by the oath of the complainant or his attorney, shall state in general terms the nature of the claim or defense and shall particularly set forth the reason why the plaintiff or defendant failed to appear.
      “(c) The court shall order reasonable notice of the pendency of the complaint or written motion to be given to the adverse party, and may enjoin him against enforcing the judgment or decree until the decision upon the complaint or written motion.”

       Practice Book § 377 provides: “opening judgment upon default oe NONSUIT
      “Any judgment rendered or decree passed upon a default or nonsuit may be set aside within four months succeeding the date on which it was rendered or passed, and the case reinstated on the docket on such terms in respect to costs as the court deems reasonable, upon the written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of such judgment or the passage of such decree, and that the plaintiff or the defendant was prevented by mistake, accident or other reasonable cause from prosecuting or appearing to make the same. Such written motion shall be verified by the oath of the complainant or his attorney, shall state in general terms the nature of the claim or defense and shall particularly set forth the reason why the plaintiff or the defendant failed to appear. The court shall order reasonable notice of the pen-dency of such written motion to be given to the adverse party, and may enjoin him against enforcing such judgment or decree until the decision upon such written motion.
      “If the court opens a nonsuit entered pursuant to Sec. 363, the court as part of its order may extend the time for filing pleadings or disclosure.”


source: Caselaw Access Project

author: Katz, J.

license: Public Domain

text:
    John Muldoon v. Homestead Insulation Company et al.
    (14927)
    Peters, C. J., and Borden, Norcott, Katz and Palmer, Js.

      Argued October 25
    decision released December 13, 1994

      Robert F. Carter, for the appellant (plaintiff).

      Karen P. Blado, with whom were Mary J. Ambro-gio and, on the brief, Cori-Lynn S. Webber, for the appellees (defendant Cummings Insulation Company et al.).
   Katz, J.

The issue in this certified appeal is whether the Appellate Court properly concluded that the compensation review board of the workers’ compensation commission had improperly affirmed the decision of the workers’ compensation commissioner for the fourth district ordering the defendant CNA Insurance Company to pay benefits and all reasonable and necessary medical expenses to the plaintiff, John Muldoon, pursuant to General Statutes § 31-299b. The Appellate Court concluded that because the commissioner had found that the claimed injury was an increase in a preexisting disability and not a new injury, the board should have concluded that the claim was barred by a prior stipulation. Because we disagree with the Appellate Court’s interpretation of the findings of fact by the commissioner, we reverse the judgment.

The following facts are undisputed. From 1947 to 1974, Muldoon had been employed by various employers as an asbestos insulation worker. In 1975, he was diagnosed as having pulmonary asbesto sis, a restrictive lung condition caused by the scarring of lung tissue by the asbestos fibers to which he had been exposed. Muldoon filed a claim under the Workers’ Compensation Act (act); General Statutes § 31-275 et seq.; for the pulmonary asbestosis based upon his exposure to asbestos during the course of his employment from 1947 to 1974. His lung condition, based on this exposure, was found to be a 50 percent permanent partial disability. Muldoon settled this claim for $19,500 by stipulation approved on March 31,1977. Two of the defendants in the present case, Cummings Insulation Company (Cummings) and New England Insulation were among the twenty-two employers who were parties to the stipulation. The parties agreed that payments were “in full accord and satisfaction of a disputed claim” and “shall be made and accepted as a full and final settlement for all compensation for said injury and for all results upon [Muldoon], past, present and future, and for all claims for past, present and future medical, surgical, hospital and incidental expenses and all compensation which may be due to anyone in case of the death of [Muldoon], to the end that the payment of such sum shall constitute a complete satisfaction of all claims due or to become due at any time in favor of anybody on account of the claimed injury, or on account of any condition in any way resulting out of the said injury, or on account of the death of [Muldoon] on account of said condition.” The settlement further stated that Muldoon understood the agreement to be a “full and final settlement and that it is intended to deal with any and all conditions, known or unknown, which exist as of the date thereof, or any changes of conditions which may arise in the future on account of said alleged occupational disease occurring between 1947 and 1974.”

Muldoon remained in asbestos related employment from 1975 through 1984 with Cummings, Wallingford Insulation, Crouse Nuclear Energy Services, Inc., and C.F. Hogge and Company. In 1987, he filed a workers’ compensation claim based on a substantial increase in his pulmonary disability that he claimed had been caused by this additional significant exposure to asbestos. The commissioner found that Muldoon’s “continued exposure to asbestos from 1975 through 1984 was a substantial causal factor in the material worsening of this pulmonary condition from 50 percent to 75 percent disability; and this deteriorated condition of [Muldoon’s] respiratory system was a substantial causal factor in [Muldoon’s] total disability from July 1,1986, through the present.” The commissioner further found “that [Muldoon] developed a substantial increase in his pulmonary disability from his exposure to asbestos from 1975 through 1984.” On the basis of these findings, the commissioner ordered the defendants to pay Muldoon benefits at the rate of $397 per week pursuant to General Statutes § 31-299b.

The defendants appealed from that decision to the board, claiming that: (1) Cummings was not Muldoon’s last employer pursuant to § 31-299b; (2) Muldoon’s continued work with asbestos after 1975 and his smoking habits constituted serious and wilful misconduct that rendered him ineligible for workers’ compensation benefits; and (3) Muldoon’s benefit claim was barred by the stipulation approved on March 31, 1977.

The board affirmed the commissioner’s finding and award, holding that: (1) there was ample evidence to support the commissioner’s findings that Muldoon’s employment at Cummings in 1984 was his last known exposure to asbestos and that any post-1984 exposure was merely speculative; (2) the commissioner’s finding that Muldoon’s continued work.with asbestos following 1974 did not constitute wilful and serious misconduct was supported by evidence and the law; and (3) Muldoon’s settlement of his claim regarding his lung damage incurred between 1947 and 1974 did not bar his claim for disability benefits based upon his additional injury from contact with asbestos between 1975 and 1984.

The defendants filed two appeals to the Appellate Court raising virtually these same claims. The Appellate Court first determined that the board had improperly substituted its finding that the disability resulted from a new injury for the commissioner’s finding that the disability was only a substantial increase resulting from the old injury. The Appellate Court then concluded that the board’s decision to grant an award was legally incorrect because the 1977 stipulation barred future recovery for disability stemming from the old injury. Accordingly, the Appellate Court reversed the decision of the board and ordered the case remanded with direction to sustain the defendants’ appeals. Muldoon v. Homestead Insulation Co., 33 Conn. App. 695, 701, 638 A.2d 41 (1994).

We granted certification on the issue of whether the Appellate Court properly concluded that Muldoon’s claim had been barred by the prior stipulation as a matter of law. Muldoon v. Homestead Insulation Co., 229 Conn. 915, 642 A.2d 1209 (1994). We reverse.

Our scope of review on appeal is well established. “A decision by a commissioner to grant or deny an award may be appealed to the compensation review division pursuant to General Statutes (Rev. to 1989) § 31-301 (a), which provides in pertinent part: At any time within ten days after entry of such award by the commissioner . . . either party may appeal therefrom to the compensation review division. . . . Such appeal shall be heard by a panel of the compensation review division .... The compensation review division shall hear the appeal on the record of the hearing before the commissioner, provided, if it is shown to the satisfaction of the division that additional evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the commissioner, the compensation review division may hear additional evidence or testimony. Upon the final determination of the appeal by the compensation review division ... it shall issue its decision, affirming, modifying or reversing the decision of the commissioner. The decision of the compensation review division shall include its findings and award and conclusions of law. . . . (Emphasis added.) [T]he review division’s hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [I]t is obligated] to hear the appeal on the record and not retry the facts. . . . [T]he power and duty of determining the facts rests on the commissioner, the trier of facts. . . . [T]he conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Citations omitted; internal quotation marks omitted.) Crochiere v. Board of Education, 227 Conn. 333, 346-47, 630 A.2d 1027 (1993).

Whether the ten years of asbestos exposure from 1975 through 1984, the period following that covered by the 1977 stipulation, was a cause of the substantial increase in Muldoon’s preexisting disability is a question of fact. See Janov v. General Electric Co., 4 Conn. Workers’ Comp. Rev. Op. 44 (1987). Similarly, the issue of whether a disability arose out of an old injury is factual in nature. Findings regarding the cause and effect of successive injuries may not be disturbed on appeal unless reached without evidence. See Mund v. Farmers’ Cooperative, Inc., 139 Conn. 338, 342, 94 A.2d 19 (1953). According to Professor Larson: “Whether the employment aggravated, accelerated, or combined with the internal weakness or disease to produce the disability is a question of fact, not law, and a finding of fact on this point by the commission based on any medical testimony, or, in the commoner afflictions where the commissioners themselves have acquired sufficient medical expertise, based on the commission’s expert knowledge even without medical testimony, will not be disturbed on appeal.” 1 A. Larson, Workmen’s Compensation (1993) § 12.25, pp. 3-475-3-476. The commissioner’s conclusions are accorded “the same deference as that given to similar conclusions of a trial judge or jury on the issue of proximate cause.” Fair v. People’s Savings Bank, 207 Conn. 535, 541, 542 A.2d 1118 (1988).

From a fair reading of the record, we conclude that the commissioner found that the last ten years of asbestos exposure was a substantial causal factor in the worsening of Muldoon’s respiratory condition. The commissioner found that Muldoon had suffered a “substantial increase” in pulmonary disability, but he never articulated any subordinate finding that this increase was simply an internal progression of the original disease. On the contrary, the commissioner specifically attributed this “substantial increase” to Muldoon’s “exposure to asbestos from 1975 through 1984.” Charged with the enforcement of the act; Police Dept. v. State Board of Labor Relations, 225 Conn. 297, 300, 622 A.2d 1005 (1993); the commissioner was well acquainted with the kinds of evidence generally submitted in connection with a claim under the act and with interpreting this evidence. Consequently, the commissioner’s function was to determine the facts and draw all conclusions therefrom subject only to the requirement that these inferences must not result from an incorrect application of the law to the subordinate facts or be illegal or unreasonable. Hansen v. Gordon, 221 Conn. 29, 31, 602 A.2d 560 (1992); Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18, 411 A.2d 924 (1979).

Our review of the record reveals that the only medical evidence submitted was from Mark Cullen, Mul-doon’s treating physician and director of the occupational medicine program at the Yale School of Medicine. He concluded, in 1987, that Muldoon suffered from “a severe mixed respiratory tract impairment . . . [that] corresponds to a loss in both lungs in the range of approximately 75 percent.” In 1989, Cullen reported that “[w]hile there is I think no doubt from both the patient’s record and the most existing epidemi-ologic data that asbestos exposures occurring to Mr. Muldoon prior to 1975 probably have played the major role in the causation of his asbestosis and colon cancer, it would be my opinion that continued exposure to asbestos has played a contributing role in both regards. Regarding the asbestosis, the basis of this belief is quite clear. The data are now sufficient to recognize that while only a small minority of individuals with asbestosis who are removed from exposure go on to further progression, a majority of those with continued exposure will progress. Given that Mr. Mul-doon has shown some progression between the midl970s and the midl980s during a period of time in which he worked, I would have to attribute at least some of this progression to the continued work with reasonable medical certainty. ” (Emphasis added.) In view of this undisputed evidence, the commissioner could reasonably have concluded that the post-1974 exposure contributed to Muldoon’s increase in disability.

Further, Muldoon argues that the Appellate Court’s focus solely on Cullen’s use of the term “progression” to overturn the board’s decision was a mischaracteri-zation of the evidentiary basis of the commissioner’s finding of fact. We agree. Although the medical report states that Muldoon’s increased disability was a progression of the same disease, the report also attributes, with reasonable medical certainty, some of the progression to Muldoon’s continued work with asbestos from the midl970s to the midl980s. Because “the commissioner’s determination was not based on an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them”; Fair v. People’s Savings Bank, supra, 207 Conn. 546; we conclude that the board, bound by these findings, appropriately characterized this “substantial increase” in Muldoon’s pulmonary condition as a new injury.

We next determine whether, in light of these findings, the 1977 stipulation precludes the present claim. The defendants argue that under the stipulation, Mul-doon’s 1987 claim constitutes “future . . . claims for . . . future expenses . . . due or to become due at any time ... on account of any condition in any way resulting out of the said injury . . . .” The stipulation explicitly states that the parties understood it “to deal with any and all conditions, known or unknown, which exist[ed] as of the date thereof, or any changes of conditions which may arise in the future on account of said alleged occupational disease . . . .” Relying on this language, the defendants argue, in effect, that any claim for an increase in disability resulting from asbestosis of the lung is barred by the stipulation. We disagree.

Initially, we note that although this court has been called upon many times and in a variety of contexts to interpret the terms of a stipulation, we have only rarely been faced with a settlement agreement arising out of a workers’ compensation claim. An overview is therefore appropriate. “A stipulation is a compromise and release type of settlement similar to settlements in civil personal injury cases where a claim is settled with a lump sum payment accompanied by a release of the adverse party from further liability.” J. Asse-lin, Connecticut Workers’ Compensation Practice Manual (1985) pp. 207-208. Although the act does not explicitly provide for this type of settlement, we have consistently upheld the ability to compromise a compensation claim as inherent in the power to make a voluntary agreement regarding compensation. Sugrue v. Champion, 128 Conn. 574, 578-79, 24 A.2d 890 (1942). There are three types of stipulations: (1) a full and final stipulation that closes all aspects of the claim whether they are for past, present or future wages and medical expenses, known and unknown; (2) a stipulation to date that is used to close out only a portion of a claim with the remainder left open or that is used to close out an entire claim but only up to a certain date; and (3) an open medical stipulation that closes all aspects of the claim except for medical expenses that are related to the accident or the disease. A. Sevar-ino, Connecticut Workers’ Compensation After Reforms (1994) p. 233. As in the case of a voluntary agreement, no stipulation is binding until it has been approved by the commissioner. J. Asselin, supra, p. 208.

In this case, the board concluded that the commissioner properly had determined that the 1977 stipulation was a settlement of all claims, known and unknown, arising from Muldoon’s pulmonary asbestosis incurred as a result of the exposures between 1947 and 1974. Because the substantial increase in pulmonary disability was based upon exposure to asbestos from 1975 to 1984, the board concluded that the commissioner properly had determined that the new injury was outside the scope of the stipulation. Muldoon does not dispute that the stipulation encompasses the consequences that directly flow from the original injury. Rather Muldoon contends, as the commissioner found and the board affirmed, that because his increase in disability resulted from a new injury and not merely from a recurrence or exacerbation of the old injury, his present claim for workers’ compensation benefits survives the 1977 stipulation.

We agree with this conclusion because to decide otherwise would conflict with public policy and the remedial purpose of the act. Except in very rare instances, the settlement and release of a claim does not cover claims based on events that have not yet occurred. See, e.g., Blakeslee v. Water Commissioners, 121 Conn. 163, 185, 183 A. 887 (1936) (“ ‘The general words in a release are limited always to that thing or those things which were specially in the contemplation of the parties at the time when the release was given. But a dispute that had not emerged, or a question which had not arisen at all, cannot be considered as bound and concluded by the anticipatory words of a general release.’ ”). “The usual general release, then, is not ordinarily construed to include in its coverage claims based upon occurrences which have their beginning after the instrument is executed.” H. Havighurst, “Principles of Construction and the Parol Evidence Rule as Applied to Releases,” 60 Nw. U.L. Rev. 599, 611 (1965). For that reason, language covering “future claims” and “unknown claims” in releases is ordinarily construed to cover only inchoate claims that are in being at the time of release but which have not yet manifested themselves. Id., 611, 616.

We find the decision in Chubb v. Amax Coal Co., 125 Ill. App. 3d 682, 466 N.E.2d 369 (1984), instructive. In that case, the plaintiff had settled a prior claim for total disability under a disability policy for the entire extent of the disability benefits. Id., 684. Thereafter, he returned to work for the same employer and incurred a second period of disability, for which he filed a claim. Id. The defendant argued that the claim was barred by the release obtained in connection with his first claim. Id., 684-85. In holding that the release of his first claim did not bar his second claim, the court explained the law regarding release of future claims as follows: “It is well settled that a release, being a contract whereby a party abandons a claim to a person against whom that claim exists, is subject to rules governing the construction of contracts. . . . The intention of the parties, therefore, controls the scope and effect of the release, and this intent is discerned from the language used and the circumstances of the transaction. ... It is similarly stated that a release, no matter how broad its terms, will not be construed to include claims not within the contemplation of the parties . . . and, where the language of the release is directed to claims then in existence, it will not be extended to cover claims that may arise in the future. . . .

“This construction of the release [as limited to claims in existence at the time of the release] is further justified by considerations of public policy regarding the effect of the release on the parties’ future relationship. As noted in legal commentary on the subject of releases, a release covering all claims that might later arise between the parties ‘would constitute a consent to the [forgoing] of .. . legal protection for the future and would plainly be against public policy.’ [H. Havighurst, supra, 616]. In the specific context of disability insurance, it has been observed that ‘if [an] insurer were relieved absolutely of [all] liability for any future accidents, the coverage might as well be terminated, as it [would have] become a nullity.’ ” (Emphasis added.) Chubb v. Amax Coal Co., supra, 125 Conn. 685-87.

Muldoon began his post-1974 employment with a preexisting condition of pulmonary asbestosis. The last ten years of employment, as the commissioner found, caused him to suffer an additional injury and a resulting increase in disability. If Muldoon had settled a prior claim for injury to his back and exacerbated that back condition by repetitive trauma in subsequent jobs to become totally disabled, his claim for disability benefits under the act would not have been barred by the stipulation. See, e.g., Glynn v. Terry Corp., 8 Conn. Workers’ Comp. Rev. Op. 87, 88 (1990). Under the facts of this case, we can find no justification for treating his asbestosis claim differently.

To deprive a worker, such as Muldoon, of coverage for new injuries from subsequent exposures to asbestos would violate public policy and contravene the purpose of the act, which is to be liberally construed to provide coverage for employees who are injured on the job. Ash v. New Milford, 207 Conn. 665, 672, 541 A.2d 1233 (1988) (act is remedial and should be construed liberally to achieve its humanitarian purpose). As this court has stated on numerous occasions: “The [act] is to be construed with sufficient liberality to carry into effect the beneficent purpose contemplated in that legislation, and not to defeat that purpose by narrow and technical definition.” Massolini v. Driscoll, 114 Conn. 546, 553, 159 A. 480 (1932).

The judgment of the Appellate Court is reversed and the case is remanded to that court for further proceedings.

In this opinion the other justices concurred.

       Appeals from decisions of the compensation review board are authorized by General Statutes § 31-301b, which provides: “appeal of decision of compensation review BOARD. Any party aggrieved by the decision of the compensation review board upon any question or questions of law arising in the proceedings may appeal the decision of the compensation review board to the appellate court.”

       At the time of trial, the compensation review board of the workers’ compensation commission was called the compensation review division. The name was changed by No. 91-339 of the 1991 Public Acts and we will refer to the division as the board throughout this opinion.

       General Statutes § 31-299b provides in pertinent part: “initial liability of last employer, reimbursement. If an employee suffers an injury or disease for which compensation is found by the commissioner to be payable according to the provisions of this chapter, the employer who last employed the claimant prior to the filing of the claim, or the employer’s insurer, shall be initially liable for the payment of such compensation. The commissioner shall, within a reasonable period of time after issuing an award, on the basis of the record of the hearing, determine whether prior employers, or their insurers, are liable for a portion of such compensation and the extent of their liability. If prior employers are found to be so liable, the commissioner shall order such employers or their insurers to reimburse the initially liable employer or insurer according to the proportion of their liability. Reimbursement shall be made within ten days of the commissioner’s order with interest, from the date of the initial payment, at twelve per cent per annum. If no appeal from the commissioner’s order is taken by any employer or insurer within ten days, the order shall be final and may be enforced in the same manner as a judgment of the superior court.”

       The defendants in the workers’ compensation action at issue here included Homestead Insulation Company, Liberty Mutual Insurance Company, C.N. Flagg and Company, Kemper Insurance Group, Crouse Nuclear Energy Services, Inc., Zurich-American Insurance Company, Home Insurance Company, American Guarantee and Liability Insurance Company, Cummings Insulation Company and CNA Insurance Company. Two separate appeals were filed in the Appellate Court. The cases were consolidated and the judgment rendered was dispositive of both appeals. Muldoon v. Homestead Insulation Co., 33 Conn. App. 695, 696 n.1, 638 A.2d 41 (1994). Muldoon filed a single petition for certification from that judgment. That petition was granted. Muldoon v. Homestead Insulation Co., 229 Conn. 915, 642 A.2d 1209 (1994). The brief filed in this court by Cummings Insulation Company and CNA Insurance Company was adopted by Homestead Insulation Company, C.N. Flagg and Company and Crouse Nuclear Energy Services, Inc.

       In 1986, Muldoon filed a separate claim for benefits for intestinal cancer arising out of the asbestos exposure from 1947 to 1984. The two claims were consolidated by agreement of the parties. The commissioner found that Muldoon suffered from colon cancer in 1986, but the commissioner made no specific finding that the asbestos exposure caused the cancer. Because the commissioner simultaneously found Muldoon to be totally disabled from his pulmonary condition and awarded temporary total disability benefits on that basis, Muldoon never pursued the colon cancer claim.

       The defendants raised three other claims that the Appellate Court was not required to address in light of its decision. Because we reverse the judgment of the Appellate Court, these issues are proper for consideration upon our remand.

       The board is therefore bound by those findings of fact unless additions, corrections or modifications are made pursuant to the narrow provision set forth in § 31-301 (a). Crochiere v. Board of Education, supra, 227 Conn. 348. Because no additional evidence was offered, this provision is not relevant to the case.

       At oral argument, Muldoon suggested that the defendants’ argument that his disability was merely an exacerbation of a prior injury would effectively undermine the purpose of the Second Injury Fund, which covers the case of “an employee having a previous disability incurring] a second disability from a second injury resulting in a permanent disability caused by both the previous disability and the second injury which is materially and substantially greater than the disability that would have resulted from the second injury alone . . . .” General Statutes § 31-349. Because we uphold the award of benefits in this case and remand for further proceedings, we need not address Muldoon’s concern.

       The commissioner decides whether to approve a stipulation only after thoroughly reviewing it, along with all the pertinent medical bills and reports, and after evaluating employment possibilities and any concurrent claims. The commissioner undertakes such exhaustive inquiry in order to judge properly whether the stipulation is fair and comprehensive. A. Sevarino, supra, pp. 232-36. We can therefore assume that a commissioner is well acquainted with the terms generally used in stipulations and the proper interpretation of such terms. This responsibility is consistent with other authority conferred upon commissioners by the legislature. See General Statutes § 31-296 (commissioner to approve voluntary agreements where they conform in every regard to provisions of act); General Statutes § 31-315 (commissioner has power to open or modify award).

       Muldoon also argues that even if the stipulation effectively bars his claim as to some of the defendants, it cannot release Crouse Nuclear Energy Services, Inc., and C.N. Flagg and Company because they were not parties to that agreement. In light of our disposition of the case, we need not address this claim.


author: Katz, J. Callahan, J.

text:
    State of Connecticut v. Eric Ash
    (14929)
    Peters, C. J., and Callahan, Borden, Berdon and Katz, Js.
    Argued October 27
    decision released December 20, 1994

      Lauren Weisfeld, assistant public defender, with whom, on the brief, was Ramona S. Carlow, special public defender, for the appellant (defendant).

      John A. East III, deputy assistant state’s attorney, with whom, on the brief, were Jaynes E. Thomas, state’s attorney, and Herbert E. Carlson, Jr., senior assistant state’s attorney, for the appellee (state).
   Katz, J.

The issue before the court is whether in the criminal trial of the defendant, Eric Ash, the trial court’s misstatement of law on the duty to retreat under the self-defense statute, General Statutes § 53a-19, was harmless beyond a reasonable doubt. The defendant was convicted, after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (l). The defendant appealed that conviction to the Appellate Court, claiming that the trial court’s jury instructions had contained misstatements about the duty to retreat and that these misstatements, in light of the charge as a whole, made it reasonably possible that the jury was misled. State v. Ash, 33 Conn. App. 782, 794, 638 A.2d 633 (1994). The Appellate Court agreed with the defendant’s contention that the trial court’s instructions had contained misstatements about the duty to retreat, but it agreed with the state that the error was harmless and affirmed the judgment of conviction. Id. We granted certification to appeal from the judgment of the Appellate Court, solely to review whether the Appellate Court properly had concluded that the trial court’s misstatements were harmless beyond a reasonable doubt. State v. Ash, 229 Conn. 916, 642 A.2d 1211 (1994). We reverse the judgment of the Appellate Court.

The Appellate Court determined that the jury reasonably could have found the following facts. “On April 3, 1991, at approximately 8:30 p.m., Vincent Ellison was stabbed to death at the doorway to his apartment. The victim’s apartment is located on the first floor of a dilapidated, brick building at 500 Ann Street in Hartford. The front entrance to the building opens into a large hallway on the first floor and there are two apartments located on the left side of the hallway that are visible from the front entrance. The victim’s apartment was the first one on the left and James Osborne’s was the second. Beyond Osborne’s apartment is a short corridor leading to another apartment, not visible from the front entrance. The victim’s cousin, Oscar Steve Anglin, lived in the third apartment.

“The defendant frequently visited the victim at his apartment. On April 3, 1991, the victim, the defendant and the victim’s cousin, Michael Antoine Nixon, were present in the victim’s apartment. The three men spent the afternoon drinking alcohol and taking drugs. At about 5:30 p.m., the defendant left the apartment to ‘hustle’ some money in order to obtain more drugs. He returned shortly thereafter with two sweaters he had shoplifted from a local store. At about 6 p.m., the victim sent Nixon out with directions to sell the sweaters and to purchase more drugs with the proceeds.

“When Nixon failed to return within the hour, the defendant became concerned about Nixon’s absence and expressed this concern to the victim several times. The victim became angry with the defendant for mistrusting his cousin. He threatened to harm the defendant if he did not leave the apartment. The defendant then ran out of the victim’s apartment into the hallway and knocked on the door to Osborne’s apartment. He did not wait for Osborne to answer because he thought the victim was pursuing him with a knife. He continued down the hallway and knocked on Anglin’s door. When Anglin opened the door he saw that the defendant was carrying a large butcher knife. The defendant entered Anglin’s apartment and pleaded with him to calm the enraged victim. Anglin then stepped into the hallway to speak with the victim, who was carrying a broomstick. Anglin had shut the door behind him and the defendant locked the door from the inside. After speaking with Anglin for approximately seven to eight minutes, the victim turned and went down the hallway in the direction of his apartment. The defendant let Anglin return to his apartment and the defendant then decided to leave Anglin’s apartment and to retrieve his shoes and clothes from the victim’s apartment before he left the building.

“Osborne, who had overheard the voices of the defendant, the victim and Anglin coming from the direction of Anglin’s apartment, opened his apartment door to see what was going on in the hallway. Osborne saw the victim first, standing in front of Osborne’s apartment door, holding a broomstick and shouting loudly about 'kicking the defendant’s] ass.’ Osborne then saw the defendant walking down the hallway from the direction of Anglin’s apartment with a knife in his hand. The defendant came face-to-face with the victim and stated that he was tired of his threats and that he was not going to take it any longer. At that point, the victim assumed a karate stance holding the stick with both hands and said to the defendant, ‘Come on, bitch, come on.’

“The victim then swung the stick at the defendant, hitting him in the shoulder and the defendant thrust the knife at the victim. The men fought back and forth from the doorway of Osborne’s apartment toward the front entrance of the building and back to the doorway of the victim’s apartment. At some point during the fight, the knife and stick fell to the hallway floor.

“After several minutes of fistfighting, the victim lost his footing and fell backward onto the floor and across his apartment’s threshold. The victim was lying on his back with his legs extended into the hallway and his upper torso inside his apartment. The defendant ended up on top of the victim, straddling him, while the victim struggled to push or kick the defendant off of him. In the midst of the struggle, the defendant picked up the knife from the hall floor and fatally stabbed the victim. The defendant then went into Osborne’s apartment and asked for a pair of shoes. When Osborne told the defendant that he could not believe he had stabbed the victim, the defendant responded, T did it, and I’ll do it again.’ The defendant then left Osborne’s apartment with the knife and a pair of Osborne’s shoes, went next door to the victim’s apartment to retrieve his jacket, and fled the building.

“When arrested, the defendant told the police, T had to stab him; I had to stab him.’ At trial, however, the defendant testified that he did not recollect actually stabbing the victim although he did recall thrashing at the victim with a knife in his hand. He claimed to have been scared and confused and to have acted in self-defense.” State v. Ash, supra, 33 Conn. App. 784-87.

The defendant provided a somewhat different and more detailed version of the events immediately surrounding the stabbing. On the basis of his testimony, the jury could reasonably have found these following facts. The defendant did not have a knife when he left Anglin’s apartment. It was the victim who, after the defendant disarmed him of his stick, first reached into his jeans and pulled out a knife. The victim then came at the defendant with the knife but slipped and dropped it. The defendant dove on the victim and started to hit him with his bare hands. During the continued melee, the victim tried to retrieve the knife. The defendant struggled to get the knife out of the victim’s reach and managed to gain possession of it. As the defendant tried to get up and throw the knife out of the way, the victim continued to kick and hit the defendant in the face. With the knife in his hand, the defendant tried to block the victim’s assaults. It was during that part of the struggle that the defendant stabbed the victim.

In instructing the jury regarding self-defense and the duty to retreat, the trial court stated, inter alia, “[a] person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force, with complete safety by retreating. These are statements taken directly from the statute for your guidance. ... As to retreating with complete safety, you must consider what was reasonable for the defendant to perceive was available as retreat or if none was available without the use of physical force, what degree of physical force was reasonably necessary to make one available. Now, in this connection, you can realize what you are doing is attempting to stand in the shoes of the defendant, as you would perceive a reasonable person to view the same situation, under the same conditions.

“So, as to retreat, you may consider the evidence that when the argument was escalating in [the victim’s] apartment and that the defendant was asked to leave, whether or not he could perceive that this was an act of wisdom to leave, taking his shoes and jacket, and leaving. Or when he was in Mr. Anglin’s room and there was the opportunity of refuge—which apparently, after he was able to lock the door and before Mr. Anglin left the room to talk to [the victim], [the victim] had apparently not attempted to break into the room and even when Mr. Anglin returned, there was still the opportunity of remaining in the room.

“You may also consider the fact that in the room there was a telephone, so that there was the opportunity for looking for police assistance. When he did go out into the hall, was he in fact looking for an opportunity of leaving the building. Or as I recall his testimony, when they were fighting for some three minutes, after he had fallen on the knife, was there an opportunity of him enlisting Mr. Osborne’s assistance to take custody of the knife.” The jury thereafter convicted the defendant of manslaughter in the first degree, and the defendant was sentenced to the custody of the commissioner of correction for a period of twenty years. On appeal, the Appellate Court determined that the trial court’s instruction on the duty to retreat had contained incorrect statements of law, but it held that the misstatements were harmless beyond a reasonable doubt. State v. Ash, supra, 33 Conn. App. 795-97.

The defendant claims that the Appellate Court improperly held that the trial court’s inaccurate charge to the jury on the duty to retreat was harmless beyond a reasonable doubt. The defendant contends that despite the trial court’s initial statement of the correct, subjective standard in the statutory language, the trial court’s subsequent references to an objective standard made it reasonably possible that the jury was misled. Moreover, the defendant argues that the balance of the trial court’s charge regarding the duty to retreat failed to cure those misstatements of law. We agree.

General Statutes § 53a-19 provides for the defense of self-defense and sets forth the circumstances justifying the use of physical force. Subsection (a) of § 53a-19 does impose an objective reasonableness requirement, providing in relevant part that “deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.” Subsection (b) of § 53a-19, which specifically sets out the duty to retreat, however, imposes only a subjective requirement. That subsection provides, in part, that a person is not justified in using deadly physical force “if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating . . . .” (Emphasis added.) General Statutes § 53a-19 (b). “The statute requires both that a retreat in complete safety be available and that the defendant know of it. ‘The self-defense statute, i.e., General Statutes § 53a-19 . . . focuses on the person . . . claiming self-defense. It focuses on what he reasonably believes under the circumstances and presents a question of fact [as to whether a safe retreat was available and whether he knew of it]. . . . This statutory emphasis upon the defendant further demonstrates the function of the jury in their evaluation of the self-defense claim.’(Emphasis in original.) . . .‘[Section] 53a-19 (b) requires recourse to retreat in lieu of the use of physical force only when the actor himself “knows that he can avoid the necessity of using such force with complete safety . . . ” (Emphasis added.) State v. Quintana, 209 Conn. 34, 46, 547 A.2d 534 (1988).

The relevant principles of law are not in dispute. “[A] fundamental element of due process is the right of a defendant charged with a crime to establish a defense. Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); State v. Bethea, 167 Conn. 80, 83, 355 A.2d 6 (1974). This fundamental constitutional right includes proper jury instructions on the elements of self-defense so that the jury may ascertain whether the state has met its burden of proving beyond a reasonable doubt that the assault was not justified. State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982). A defendant who asserts a recognized legal defense, the availability of which is supported by the evidence, is entitled as a matter of law to a theory of defense instruction. State v. Fuller, 199 Conn. 273, 278, 506 A.2d 556 (1986); see also United States v. Alfonso-Perez, 535 F.2d 1362, 1365 (2d Cir. 1976).” (Internal quotation marks omitted.) State v. Anderson, 227 Conn. 518, 526, 631 A.2d 1149 (1993).

An improper instruction on a defense, like an improper instruction on an element of an offense, is of constitutional dimension. State v. Fuller, supra, 199 Conn. 278 (“[wjhere the legislature has created a legally recognized defense . . . this fundamental constitutional right includes a proper jury instruction on the elements of the defense ... so that the jury may ascertain whether the state has met its burden of disproving it beyond a reasonable doubt”); see General Statutes § 53a-12 (a) (“[w]hen a defense other than an affirmative defense, is raised at a trial, the state shall have the burden of disproving such defense beyond a reasonable doubt”). In either instance, “[t]he standard of review to be applied to the defendant’s constitutional claim is whether it is reasonably possible that the jury was misled.” State v. Anderson, supra, 227 Conn. 526-27.

In determining whether the jury was misled, “[i]t is well established that [a] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. State v. Estep, 186 Conn. 648, 651-52, 443 A.2d 483 (1982); State v. Harris, 172 Conn. 223, 226, 374 A.2d 203 (1977); Farlow v. Connecticut Co., 147 Conn. 644, 648, 166 A.2d 202 (1960); Amato v. Desenti, 117 Conn. 612, 617, 169 A. 611 (1933). The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. State v. Reed, 174 Conn. 287, 305, 386 A.2d 243 (1978); State v. Holmquist, 173 Conn. 140, 151, 376 A.2d 1111, cert. denied, 434 U.S. 906, 98 S. Ct. 306, 54 L. Ed. 2d 193 (1977). The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. State v. Roy, 173 Conn. 35, 40, 376 A.2d 391 (1977); State v. Mullings, 166 Conn. 268, 274-75, 348 A.2d 645 (1974). State v. Estep, [supra, 652]. State v. Maturo, 188 Conn. 591, 599, 452 A.2d 642 (1982). State v. Jasper, 200 Conn. 30, 37, 508 A.2d 1387 (1986).” (Internal quotation marks omitted.) State v. Dyson, 217 Conn. 498, 501-502, 586 A.2d 610 (1991). “The charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict. State v. Williams, 182 Conn. 262, 269, 438 A.2d 80 (1980). State v. Fuller, supra, [199 Conn.] 279.” (Internal quotation marks omitted.) State v. Anderson, supra, 227 Conn. 532.

The Appellate Court properly determined that the trial court had misstated the applicable law when it instructed the jury to consider “what was reasonable for the defendant to perceive was available as retreat” and to view the defendant’s actions “as you would perceive a reasonable person to view the same situation, under the same conditions.” These words incorrectly suggested that the statute permitted the jury to measure the defendant’s knowledge of his ability to retreat according to an objective standard of “reasonableness” rather than the subjective standard of the defendant’s actual knowledge. See State v. Quintana, supra, 209 Conn. 46. Neither the defendant nor the state disagrees with this conclusion. The parties do disagree, however, about whether these statements, when viewed in the light of the trial court’s other instructions regarding the duty to retreat and the charge as a whole, and viewed in the context of the contested facts of the case, made it reasonably possible that the jury was misled.

The Appellate Court determined, and the state contends, that the trial court’s misstatements were harmless beyond a reasonable doubt because they were preceded and followed by correct statements of law. More precisely, the state argues that the inaccurate passages were cured by the trial court’s prior verbatim statement of the relevant statutory language and the subsequent instruction that “you may consider the evidence that when the argument was escalating in [the victim’s] apartment and that the defendant was asked to leave, whether or not he could perceive that this was an act of wisdom to leave . . . .” (Emphasis added.) We are unpersuaded.

We acknowledge that the trial court first stated the statutory language correctly. The state implicitly recognizes, however, that this accurate recitation of the statutory language, subsequently clouded by the trial court’s misstatements of law, was insufficient, by itself, to instruct the jury properly on the defendant’s duty to retreat. The state therefore argues that the trial court’s improper references to an objective standard were cured by the remainder of its charge on the duty to retreat. We disagree. Viewing the charge in its entirety, we are unpersuaded that the trial court’s subsequent use of the words “could perceive” (emphasis added) in its explanation sufficiently reoriented the jury to the proper subjective standard of actual knowledge. On the contrary, by further instructing the jury to consider what avenues of retreat the defendant “could perceive,” (emphasis added) rather than directing them to consider what the defendant did perceive, the trial court, at best, further muddied the jury’s understanding of the proper subjective standard and, at worst, suggested to the jury that it could reject the defendant’s claim of self-defense if it found he could have perceived, but did not actually know, that he could have avoided using deadly physical force in complete safety by retreating.

In the alternative, the state, citing to the Appellate Court’s decision, argues that the misstatements were harmless beyond a reasonable doubt because there was ample evidence at trial to support the jury’s rejection of the defendant’s claim of self-defense. The state emphasizes that “the evidence that the defendant employed unreasonable force, and/or had provoked the victim, and/or had entered into an agreement to combat, was overwhelming, and thus the jury’s verdict was not dependent upon the retreat issue. Second, even if the jury considered the retreat issue, there was sufficient evidence presented at trial demonstrating that the defendant was aware of several avenues of escape, which he neglected to utilize in lieu of employing deadly force on the victim.”

While we agree that the question of harmlessness of a jury instruction is properly gauged by reference to both the language of the entire charge and the evidence in the case; see State v. Mercer, 208 Conn. 52, 73, 544 A.2d 611 (1988); we find the state’s argument unavailing, for two reasons. First, it primarily serves to rebut the defendant’s claim that there was insufficient evidence for the jury to reject his self-defense claim beyond a reasonable doubt, which the Appellate Court previously decided against him and is not before this court. Second, and more important, the state’s argument, in effect, ignores the evidence that, given the most favorable reading from the defendant’s perspective; State v. Fuller, supra, 199 Conn. 278; if credited, provided a factual basis for the defendant’s right to a proper charge. The defendant testified that he did not have a knife prior to the fight. Rather, the victim had pulled out a knife, came at the defendant, tried to stab him, slipped and dropped the knife, continued to kick and hit the defendant in the face and tried to retrieve the knife as the struggle continued. There was ample evidence to support a finding that the state had not proved that the defendant knew he could retreat with complete safety. The instruction as given neglected to place what the defendant did perceive before the jury and instead allowed it to reject his claim of self-defense based upon a finding that he could have perceived an ability to retreat with complete safety. This issue was a critical circumstance in the jury’s evaluation of his claim of self-defense. Considering the charge from the standpoint of its effect on the jury in guiding it to a proper verdict; State v. Williams, 182 Conn. 262, 269, 438 A.2d 80 (1980); it is reasonably possible that the jury was misled.

Nonetheless, the state argues that the trial court’s misstatements concerning the duty to retreat were harmless beyond a reasonable doubt based on the rationale of our decision in State v. Quintana, supra, 209 Conn. 46-48. In Quintana, the jury convicted the defendant of felony murder after being presented with two different theories to explain the circumstances that caused the defendant to stab the victim with a knife. Id., 47-48. The defendant’s witness had testified that the defendant had stabbed the victim in self-defense to thwart the victim’s unprovoked attack. Id., 47. Another witness had contradicted this testimony, claiming that the defendant had stated that he had used the knife while robbing the victim. We concluded that “[t]he jury’s verdict can fairly be read to indicate a choice between these two inconsistent versions of the stabbing . . . .’’Id. Thus, we held that the trial court’s improper injection of an objective standard into its instructions on the defendant’s duty to retreat under the self-defense statute was harmless beyond a reasonable doubt because “ ‘[t]he principal factual issues . . . were not classically dependent upon [the subtleties of the law of self-defense] for their proof, as is true in cases where the principal factual issue is the . . . [defendant’s subjective knowledge of the availability of safe escape].’ ” Id., 47-48.

Unlike the circumstances in Quintana, the state’s case here hinged substantially on whether the defendant, at some point either prior to or during the fatal altercation, failed to retreat within the meaning of the self-defense statute. As the defendant rightly argues, because there was no real question of identity or causation, the contested issues were intent and whether the state had disproved the defendant’s claim of self-defense. Indeed, testimony concerning the victim’s often violent and erratic behavior, and the defendant’s knowledge of that behavior, raised a significant question about whether the defendant subjectively knew that he could avoid the use of force with complete safety by retreating. That this point was central to the case at trial is further shown by the state’s protracted treatment of the issue during its closing argument. Consequently, we conclude, contrary to the decision of the Appellate Court, that it is reasonably possible that the trial court’s instructions misled the jury.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand the case to the trial court for a new trial.

In this opinion Peters, C. J., and Borden and Ber-don, Js., concurred.

Callahan, J.

dissenting. I would affirm the unanimous judgment of the Appellate Court. I agree with the Appellate Court’s opinion that on the facts of this case and in the context of the entire jury charge, any improper instructions concerning the defendant’s duty to retreat were harmless beyond a reasonable doubt. State v. Ash, 33 Conn. App. 782, 797, 638 A.2d 633 (1994).

       General Statutes § 53a-19 provides: “use of physical force in defense of person, (a) Except as provided in subsections (b) and (c) of this section, a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.
      “(b) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform.
      “(c) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law.”

       The defendant originally had been charged with murder in the first degree in violation of General Statutes § 53a-54 (a). The jury acquitted him of that charge and convicted him of the lesser included offense of manslaughter in the first degree in violation of General Statutes § 53a-55, which provides in relevant part: “manslaughter in the first degree: class b felony, (a) A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person . . . .”

       The Appellate Court also considered and rejected the defendant’s claims that the trial court improperly: (1) concluded that the evidence presented by the state was sufficient to disprove beyond a reasonable doubt the defendant’s defense of justification; (2) concluded that the evidence presented by the state was sufficient to sustain the defendant’s conviction of manslaughter in the first degree; and (3) deprived the defendant of his federal and state constitutional rights to due process by marshaling the evidence in its jury charge. State v. Ash, supra, 33 Conn. App. 782. These other claims are not before this court.

       “Shortly after the incident Anglin told one or more police officers at the Hartford police station that earlier in the evening of April 3, 1991, at about 5 p.m., he had interceded when the defendant.and the victim were threatening each other with knives. He stated that the butcher knife that the defendant was carrying when he knocked on Anglin’s door at approximately 8 p.m. was the same knife he had seen the victim holding earlier.
      “At trial, Anglin testified that he had no recollection of speaking with the Hartford police on April 3, 1991. He also testified that the defendant did not have a knife in his hand when he knocked at his door at approximately 8 p.m.” State v. Ash, supra, 33 Conn. App. 785 n.2.

       The certified question on this appeal asks whether the trial court’s misstatements were harmless beyond a reasonable doubt. State v. Ash, supra, 229 Conn. 917. “We have equated this constitutionally required formulation of the harmless error standard; see State v. Coleman, 14 Conn. App. 657, 678-81, 544 A.2d 194, cert. denied, 208 Conn. 815, 546 A.2d 283 (1988); with our formulation that an instructional constitutional error is harmless if there is no reasonable possibility that the jury was misled. See State v. Mercer, 208 Conn. 52, 73-74, 544 A.2d 611 (1988). We perceive no functional difference between the two formulations.” State v. Cerilli, 222 Conn. 556, 584 n.16, 610 A.2d 1130 (1992).

       In emphasizing the strength of its evidence against the defendant’s claim of self-defense, the state goes so far as to suggest that the defendant was never entitled to an instruction on self-defense. The state asserts that “self-defense is neither a viable nor credible theory of defense and was not available to the defendant. Based upon such facts the trial court justifiably could have refused to instruct the jury regarding self-defense.” Because the state never objected to the instruction at trial, however, it is improper for it now to attempt to show the harmlessness of the trial court’s misstatements by asserting that “the defendant could only have benefitted from an instruction as to the duty to retreat, no matter how inadequate.” See Practice Book § 4185.

       For example, the defendant testified that “[t]here were times when [the victim] didn’t get his way. He would throw a temper tantrum and start yelling, cursing, threatening, saying that he could do more than anyone else could do. He was very power stricken where he wanted everyone to give him the proper respect that he deserved.” The defendant further testified that the victim had swung at him on a prior occasion.
      The victim’s landlord also testified about the victim’s often combative and erratic behavior. He testified that the victim “was kind of a flamboyant individual. He would get loud, mouthy, argumentative. He often engaged in arguments and often times I was amazed that the arguments didn’t escalate to physical violence. Somehow they would calm down.”

       The state’s closing argument detailed the various points during which the defendant, in the state’s view, could have left the scene. It stated that the defendant could have: (1) stayed in Anglin’s apartment, borrowed some clothes from him and used the telephone to call the police; (2) asked Anglin to go for help; (3) exited when the victim first slipped to the floor; or (4) exited after the second time the victim slipped to the floor. This emphasis on the defendant’s ability to retreat, in conjunction with the overall circumstances of the stabbing, distinguishes the case from Quintana, in which the availability of an avenue of retreat was not a contested issue. Compare State v. Anderson, supra, 227 Conn. 532 (finding trial court’s improper instruction on duty to retreat not harmless beyond a reasonable doubt where the “only contested issue in this case was whether the state had disproved the defendant’s claim of self-defense”), with State v. Paladino, 19 Conn. App. 576, 578-79, 563 A.2d 321 (1989) (applying Quintana to find improper instruction harmless beyond a reasonable doubt where “question of retreat was relatively insignificant”).