author: Arthur H. Healey, J.

text:
    Ann J. Bennett et al. v. Elaine Meader
    (13293)
    Healey, Shea, Glass, Covello and Hull, Js.

      Argued April 15
    decision released July 19, 1988

      Antoinette E. Grenier, for the appellant (defendant).

      Christopher B. Carveth, for the appellees (plaintiffs).
   Arthur H. Healey, J.

The issue on this appeal is whether an arbitration award must be vacated at the request of a party on the basis that there was no written agreement between the parties to submit the dispute to arbitration. The defendant appeals from the judgment of the trial court, McGrath, J., vacating the arbitration award. We find no error.

The facts are not in dispute. On November 9, 1982, an automobile owned and operated by the named plaintiff, Ann J. Bennett, was involved in an accident with an automobile owned and operated by the defendant, Elaine Meader. Ann Bennett and her husband, Philip Bennett, then brought a civil action seeking damages for personal injury, lost wages and loss of consortium as a result of the accident.

In December, 1985, original counsel for the plaintiffs began negotiations for settlement with the defendant’s insurer, Travelers Insurance Company (Travelers). Plaintiffs’ counsel made a settlement demand of $60,000, and Travelers’ claims manager offered $30,000. The settlement negotiations reached an impasse with the plaintiffs’ final demand of $43,000 and Travelers’ final offer of $33,000. Travelers’ claims manager then suggested resolution of the dispute by arbitration. All parties orally agreed to arbitrate as to both liability and damages.

The insurer contacted the American Arbitration Association (AAA), which sent to the attorneys for the parties a notice of hearing, biographical data on the arbitrator, a blank submission agreement, an oath to be signed by the arbitrator, and a copy of the AAA’s alternative dispute resolution rules. After some discussion among the parties and the AAA, the parties accepted the AAA’s selection of attorney Robert Berchem as the arbitrator. Neither the plaintiffs nor the defendant completed the submission agreement provided by the AAA, nor did the parties execute any other writing memorializing their agreement to arbitrate the dispute.

On or about March 17,1986, the plaintiffs voluntarily withdrew their civil action from the Superior Court docket. On June 5, 1986, the arbitration hearing was held as to both liability and damages resulting from the automobile accident. All parties to the dispute testified at the hearing. By memorandum of decision dated June 26,1986, the arbitrator assessed liability and damages against the defendant as to Ann Bennett’s claims in the amount of $5110.20. The memorandum of decision did not mention Philip Bennett’s claim for loss of consortium. The plaintiffs then filed an application in the Superior Court to vacate the arbitration award.

After a hearing, the trial court vacated the arbitration award. The court ruled that General Statutes § 52-408 requires that an arbitration agreement, to be enforceable, must be in writing. The defendant appealed to the Appellate Court and this court transferred the case to itself pursuant to Practice Book § 4023.

Resolution of the issue in this case requires this court to make a threshold determination of whether arbitration in Connecticut is controlled by both statute and common law or by statute alone. We hold that our comprehensive statutory scheme regarding arbitration, General Statutes §§ 52-408 through 52-424, controls arbitration in this state where the common law is inconsistent with our statutory scheme.

Many jurisdictions regard common law arbitration and statutory arbitration as coexistent. See, e.g., Zelle v. Chicago & North Western Railway Co., 242 Minn. 439, 446, 65 N.W.2d 583 (1954); Heffner v. Jacobson, 100 N.J. 550, 554, 498 A.2d 766 (1985); Daniels Ins. Agency v. Jordan, 99 N.M. 297, 299, 657 P.2d 624 (1982); Lammonds v. Aleo Mfg. Co., 243 N.C. 749, 753, 92 S.E.2d 143 (1956); Runewicz v. Keystone Ins. Co., 476 Pa. 456, 460, 383 A.2d 189 (1978); Harwell v. Home Mutual Fire Ins. Co., 228 S.C. 594, 600, 91 S.E.2d 273 (1956). We favor the approach that the arbitration statute governs where the statute conflicts with the common law. See, e.g., Andrews v. Stearns-Roger, Inc., 93 N.M. 527, 602 P.2d 624 (1979).

This approach is consistent with prior holdings of our court. This court has declared that “authority for arbitration must be derived from the agreement of the parties . . . and the relevant provisions of applicable statutory directives . . . . ” W. J. Megin, Inc. v. State, 181 Conn. 47, 49, 434 A.2d 306 (1980). The development of our statute was recounted briefly in Reinke v. Greenwich Hospital Assn., 175 Conn. 24, 392 A.2d 966 (1978), and that discussion is illuminating. “In 1929, by virtue of 1929 Public Acts, chapter 65, the legislature enacted what is now chapter 909 of the General Statutes which, in effect, rendered arbitration contracts subject to specific statutory requirements . . . .” Id., 26-27.

There also have been instances where Connecticut courts, with reference to specific statutory provisions, have implied that the statutory scheme governs arbitrations where there may be a conflict with the common law. In Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 22, 453 A.2d 1158 (1983), we stated: “The right to review an arbitration award is wholly encompassed within the parameters of § 52-418.” General Statutes § 52-418 goes beyond the common law and provides additional grounds upon which to vacate an award. See Yale & Towne Mfg. Co. v. International Assn, of Machinists, 15 Conn. Sup. 118,119 (1947). The Appellate Court has concluded similarly: “Arbitration proceedings, including court proceedings to compel arbitration, are creatures of statute in Connecticut and are not common law actions.” Fishman v. Middlesex Mutual Assurance Co., 4 Conn. App. 339, 345, 494 A.2d 606, cert. denied, 197 Conn. 806, 807, 499 A.2d 57 (1985); see also R. A. Civitello Co. v. New Haven, 6 Conn. App. 212, 226, 504 A.2d 542 (1986); Skidmore, Owings & Merrill v. Connecticut General Life Ins. Co., 25 Conn. Sup. 76, 84, 197 A.2d 83 (1963). At common law, a party could not compel arbitration through judicial process. See A. Gold, “Judicial Interpretations and Applications of the Connecticut Arbitration Statutes,” 7 Conn. L. Rev. 147, 149 (1974), citing Yale & Towne Mfg. Co. v. International Assn. of Machinists, supra; R. Rodman, Commercial Arbitration (1984) § 3.1, pp. 48-49. In contrast, this court has extended equity to remedy a dispute that was not within the purview of the statute. See Gaer Bros., Inc. v. Mott, 144 Conn. 303, 130 A.2d 804 (1957).

Additionally, there are a multitude of references to the common law arbitration scheme that were made in the past tense. In discussing an arbitrator’s use of ex parte evidence, this court noted that “[t]his was permitted even under the common law. . . . The statute codifies the former rule.” (Emphasis added.) International Brotherhood of Teamsters v. Shapiro, 138 Conn. 57, 64-65, 82 A.2d 345 (1951); see generally Yale & Towne Mfg. Co. v. International Assn. of Machinists, supra. Further, Judge John Cotter, later Chief Justice of this court, noted that “ [arbitration is in derogation of the common law,” in that it removes the resolution of disputes from the courts, where the claimant has a right to disposition, to a private forum. Hartford Accident & Indemnity Co. v. Travelers Ins. Co., 25 Conn Sup. 414, 416, 206 A.2d 847 (1964). Common law rules of arbitration must yield to statutory provisions concerning the subject matter of the rules. See Burns v. Gould, 172 Conn. 210, 222, 374 A.2d 193 (1977).

This case law illustrates, at the very least, the long standing assumption by our courts that arbitration is governed by statute where the statute is inconsistent with the common law. Our courts have not taken opportunities to declare explicitly that the statutory arbitration scheme is cumulative with the common law, as many other jurisdictions have. See R. Rodman, supra, § 3.1, p. 50. Neither has the legislature expressly preserved the common law rules along with the statute, as some states have done. See, e.g., Ala. Code § 6-6-16 (1975).

The view that we express today also is consistent with accepted principles of statutory construction. “In cases of conflict between legislation and the common law, legislation will govern because it is the latest expression of the law.” 2A J. Sutherland, Statutory Construction (4th Ed. Sands 1984) § 50.01, p. 421; see Skorpios Properties, Ltd. v. Waage, 172 Conn. 152, 156, 374 A.2d 165 (1976). The statutory arbitration scheme encompasses many aspects of the arbitration process ranging from the agreement to arbitrate; General Statutes § 52-408; through the relationship between the arbitration process and the judicial process; General Statutes §§ 52-409 and 52-410; discovery; General Statutes § 52-412; and postaward action; General Statutes §§ 52-417 to 52-421; to judicial appeal. General Statutes § 52-423. Thus, it is evident that the legislature’s purpose in enacting the statutory scheme was to displace many common law rules. Having decided that the statutory scheme replaces the common law where there is any inconsistency between the two, we now can address directly the propriety of the trial judge’s decision vacating the arbitration award that was not made pursuant to a written agreement to arbitrate.

At common law, an oral agreement to arbitrate was valid. R. Rodman, supra, § 3.1, p. 50. The parties to the agreement, however, could not obtain a court order compelling arbitration under the agreement. An aggrieved party could resort to judicial intervention for equitable relief only if the arbitrator was accused of fraud or partiality, if the arbitrator failed to apply the decision-making principles established by the parties, or if one or more of the parties acted fraudulently. Yale & Towne Mfg. v. International Assn. of Machinists, supra, 119. A party could not otherwise seek judicial confirmation, modification or vacation of the award. See id.; Fisher v. Towner, 14 Conn. 26, 30 (1840); M. Domke, Commercial Arbitration (Rev. Ed. Wilner 1984) § 3.01, pp. 22-23. General Statutes § 52-408 provides, however, that any agreement to arbitrate in any written contract, or in a separate writing executed by the parties to a written contract, or an arbitration provision in the bylaws of an association or corporation of which the parties are members, or an agreement in writing between two or more persons to arbitrate a controversy that exists between them at the time of the agreement, shall be valid, enforceable and irrevocable unless sufficient legal or equitable cause exists to avoid a written contract in general. Because we have decided that our statutory scheme controls arbitration in Connecticut where inconsistent with the common law, it is clear from this latchkey provision that only written agreements to arbitrate are valid. Oral agreements are not included, implicitly or explicitly, in the description of valid arbitration agreements. This is exemplified in General Statutes § 52-421, which requires that any party seeking to modify, confirm or correct an arbi- . tration award in court, a procedure that was prohibited at common law, must file certain papers with the court, one of which is the agreement to arbitrate.

This court explained the statutory scheme and the necessity of a written agreement in McCaffrey v. United Aircraft Corporation, 147 Conn. 139, 157 A.2d 920, cert. denied, 363 U.S. 854, 80 S. Ct. 1636, 4 L. Ed. 2d 1736 (1960). “The statutes relating to, and governing, arbitration in this state are set out in chapter 909 of the General Statutes. The basis for arbitration in a particular case is to be found in the written agreement between the parties.” Id., 141-42. In Schwarzschild v. Martin, 191 Conn. 316, 317, 463 A.2d 527 (1983), we clarified the requirements of § 52-408 by stating that the section did not necessarily require that the agreement contain the signature of both parties, but the agreement had to be a “written contract” or “separate writing.” See also A. Gold, supra, 149 (§ 52-408 details documents that can meet the requirements of a valid arbitration agreement).

Similarly, under other statutory arbitration schemes, such as the United States Arbitration Act, 9 U.S.C. §§ 1 through 14 (1982), which is modeled after the Uniform Arbitration Act, the parties must have a written agreement to gain the benefit of its provisions. See 9 U.S.C. § 2 (1982). The act applies only to controversies where there is a written agreement to arbitrate. See Genesco, Inc. v. T. Kakiuchi & Co. Ltd., 815 F.2d 840, 846 (2d Cir. 1987); Weyerhaeuser Co. v. Western Seas Shipping Co., 743 F.2d 635, 637 (9th Cir.), cert. denied, 469 U.S. 1061, 105 S. Ct. 544, 83 L. Ed. 2d 431 (1984); Medical Development Corporation v. Industrial Molding Corporation, 479 F.2d 345, 348 (10th Cir. 1973); Fisser v. International Bank, 282 F.2d 231, 233 (2d Cir. 1960). This writing requirement also is noted in commentary on arbitration. “The requirement that the arbitration clause be in writing in order that it may be considered enforceable is set forth in the United States Arbitration Act, the Uniform Arbitration Act and the statutes of most states. This provision renders invalid mere oral arbitration agreements.” M. Domke, supra, § 6.01, p. 73; see also R. Rodman, supra, § 4.5, pp. 93-94; M. Bernstein, Private Dispute Settlement: Cases and Materials on Arbitration (1968) p. 69; 5 Am. Jur. 2d 529-30, Arbitration and Award § 13. These authorities emphasize that a statutory requirement of a written arbitration agreement must be enforced strictly.

The strict enforcement of the writing requirement in § 52-408 is supported by policy considerations. First, and most apparent, is that this requirement eliminates the problems of proving an oral agreement. It is likely that the parties’ understanding of a purported oral agreement to arbitrate will differ. The content of the agreement would then have to be determined by the court and this would not be as efficient or as easy as establishing the existence and content of a written agreement. The process of proving an oral agreement would not foster the stated purpose of arbitration of “ 'avoiding the formalities, delay, expense and vexation of ordinary litigation.’ ” O & G/O’Connell Joint Venture v. Chase Family Limited Partnership No. 3, 203 Conn. 133, 145, 523 A.2d 1271 (1987), quoting Bridgeport v. Bridgeport Police Local 1159, 183 Conn. 102, 107, 438 A.2d 1171 (1981); Administrative & Residual Employees Union v. State, 200 Conn. 345, 349, 510 A.2d 989 (1986); see also International Brotherhood of Teamsters v. Shapiro, supra, 62.

Second, because the parties must memorialize their agreement to arbitrate, it also is likely that they will establish, either separately or within the agreement to arbitrate, a written submission setting forth the arbitrable issues. It is from the submission alone that the arbitrator receives his or her authority, and the submission largely controls the parties’ rights on judicial review. See American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 185, 530 A.2d 171 (1987). The submission is unrestricted unless otherwise agreed by the parties. See O & G/O’Connell Joint Venture v. Chase Family Limited Partnership No. 3, supra, 154; Ramos Iron Works, Inc. v. Franklin Construction Co., 174 Conn. 583, 588-89, 392 A.2d 461 (1978); cf. Board of Trustees v. Federation of Technical College Teachers, 179 Conn. 184, 193, 425 A.2d 1247 (1979). As long as the arbitrator rules within the parameters of the submission and provides the parties with a fair hearing, the award will not be set aside on judicial review. See American Universal Ins. Co. v. DelGreco, supra, 186; see generally Darien Education Assn. v. Board of Education, 172 Conn. 434, 374 A.2d 1081 (1977). The AAA itself recognizes the importance of a written submission. The alternative dispute resolution procedures promulgated by the AAA provide for a joint submission in writing. American Arbitration Association, Alternative Dispute Resolution Procedures (1984). Thus, requiring a written agreement to arbitrate also encourages the parties to devise a written submission, which will clarify the rights of the parties for the purposes of both arbitration and judicial review.

In summary, we conclude that an agreement to arbitrate must meet the requirements of the arbitration statute, including the requirement that the agreement be in writing, or it is-invalid. This principle is supported by the language and organization of the statute, case law and commentary on the subject, and policy considerations.

As a final matter, the defendant argued in her brief that the plaintiffs’ failure to bring into question the validity of the arbitration agreement before the award was rendered amounted to a waiver of the right to raise that issue after the award. We disagree. The authority of the arbitrator is a subject matter jurisdiction issue, and as such it may be challenged at any time prior to a final court judgment. International Brotherhood of Teamsters v. Shapiro, supra, 65; Textile Workers Union v. Uncas Printing & Finishing Co., 20 Conn. Sup. 91, 96, 125 A.2d 236 (1956). Thus, the plaintiffs’ challenge to the arbitrator’s authority after the award was timely.

Therefore, we conclude that the trial court properly vacated the arbitration award in this case.

There is no error.

In this opinion the other justices concurred.

       The American Arbitration Association’s alternative dispute resolution procedures refer to the arbitrator or mediator as the neutral. See American Arbitration Association, Alternative Dispute Resolution Procedures (1984).

       General Statutes § 52-408 provides: “agreements to arbitrate. An agreement in any written contract, or in a separate writing executed by the parties to any written contract, to settle by arbitration any controversy thereafter arising out of such contract, or out of the failure or refusal to peform the whole or any part thereof, or a written provision in the articles of association or bylaws of an association or corporation of which both parties are members to arbitrate any controversy which may arise between them in the future, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable and enforceable, except when there exists sufficient cause at law or in equity for the avoidance of written contracts generally.”

       General Statutes § 52-418 provides: “vacating award, (a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.
      “(b) If an award is vacated and the time within which the award is required to be rendered has not expired, the court or judge may direct a rehearing by the arbitrators.”

       This rule has been retained in the statute under General Statutes § 52-418. See footnote 3, supra.

       General Statutes § 52-421 provides in pertinent part: “record to be FILED WITH CLERK OF COURT. EFFECT AND ENFORCEMENT OF JUDGMENT OR decree, (a) Any party applying for an order confirming, modifying or correcting an award shall, at the time the order is filed with the clerk for the entry of judgment thereon, file the following papers with the clerk: (1) The agreement to arbitrate, (2) the selection or appointment, if any, of an additional or substitute arbitrator or an umpire, (3) any written agreement requiring the reference of any question as provided in section 52-415, (4) each written extension of the time, if any, within which to make the award, (5) the award, (6) each notice and other paper used upon an application to confirm, modify or correct the award, and (7) a copy of each order of the court upon such an application.”

       The requirement of a written agreement also is supported by other provisions in the statutory scheme which would be rendered superfluous in the absence of a written agreement because of the provisions’ express requirement of such an agreement. See, e.g., General Statutes § 52-409—stay of proceedings in court; General Statutes § 52-410—application for court order to proceed with arbitration; General Statutes § 52-411—appointment of arbitrator or umpire; General Statutes § 52-412—subpoenas and depositions; and General Statutes § 52-414—additional arbitrator.

       The defendant cited Schwarzschild v. Martin, 191 Conn. 316, 463 A.2d 527 (1983), in her brief in support of the proposition that the plaintiffs’ claim that the agreement was revocable was unpersuasive because it was not made before the award. The defendant cited the following language: “ ‘In the absence of a statute requiring a signature . . . parties may become bound by the terms of a contract, even though they do not sign it, where their assent is otherwise indicated, such as by the acceptance of benefits under the contract.’ ” Id., 321-22, quoting 17 Am. Jur. 2d, Contracts § 70.
      In Schwarzschild, the plaintiff entered a written agreement with the defendants to purchase some stock. In an addendum to the agreement, there was a clause stating that the parties would submit any dispute to arbitration. The defendants signed the addendum but the plaintiff did not. A dispute later arose and the defendants requested arbitration and the plaintiff agreed. During arbitration, however, the defendants learned that the plaintiff had not signed the written addendum containing the arbitration clause, and the defendants filed a civil action to restrain further arbitration claiming fraud and invalidity of the agreement. Schwarzschild v. Martin, supra, 317-19. This court found no error in a decision upholding the unsigned arbitration agreement. Id., 321.
      The language quoted in the defendant’s brief seems to indicate that the parties to an arbitration agreement must be held to their bargain. In other words, one who participates in an arbitration is estopped from later claiming that the arbitration is invalid because of a defective agreement. Although this proposition may be true when there is a dispute over an agreement that was not signed by the parties, that circumstance must be distinguished from the instant case.
      In Schwarzschild, this court stated: “Nowhere in the statute is found the specific requirement urged on us by the defendant that the contract be signed by both parties.” Id. Our holding today, however, emphasizes that there is a requirement that the agreement be in writing. If it is not in writing, there is no legally cognizable bargain to be enforced. Thus, the Schwarzschild rationale for enforcing the unsigned written agreement to arbitrate is inapplicable to the instant case in which there was no written agreement.

       It was suggested at oral argument that General Statutes § 52-408 serves as a statute of frauds. While in some respects this is an appealing argument, it is not an accurate characterization. Our statute of frauds provides that certain contracts, if not in writing, are unenforceable. See General Statutes § 52-550; Scinto v. Clericuzio, 1 Conn. App. 566, 568, 474 A.2d 102 (1984). Our interpretation of the arbitration statute, however, is slightly different; that is, only written arbitration agreements are enforceable and all others are void.

       The record does not disclose why the parties in the instant case did not fill out the blank submission form that the AAA had provided to them.

       For example, the execution of the written submission of the issues to be arbitrated would have included the claims of the parties, including Philip Bennett’s claim of loss of consortium. The arbitrator’s memorandum of decision does not even refer to this claim.


source: Caselaw Access Project

author: Glass, J.

license: Public Domain

text:
    State of Connecticut v. James J. Kelly
    (13242)
    Healey, Shea, Callahan, Glass and Hull, Js.
    Argued February 9
    decision released July 26, 1988

      Kenneth Rosenthal, special public defender, with whom, on the brief, was Jon C. Blue, assistant public defender, for the appellant (defendant).

      CarolynK. Longstreth, deputy assistant state’s attorney, for the appellee (state).
   Glass, J.

In November, 1985, the defendant was tried by a jury on a four count information charging him with kidnapping in the second degree in violation of General Statutes § 53a-94, robbery in the first degree in violation of General Statutes § 53a-134 (a) (3), larceny in the second degree in violation of General Statutes § 53a-123 (a) (l), and sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (2). He was acquitted of the robbery charge and convicted on the remaining three counts. The trial court imposed consecutive sentences of twenty years on the kidnapping count, ten years on the larceny count and one year on the sexual assault count, for a total effective sentence of thirty-one years of incarceration.

The defendant claims that the trial count erred in: (1) closing the courtroom over his objection in violation of his constitutional right to a public trial; (2) excluding entirely evidence of prior complaints and ongoing psychological problems bearing directly on the complainant’s credibility, state of mind, powers of perception and recollection in violation of his rights to confront his accusers, to present a defense and to due process of law; (3) denying him access to all records of the complainant’s psychiatric problems, rape crisis counseling, and the testimony she had given in a similar sexual assault case, in violation of his rights to due process, confrontation and compulsory process under the state and federal constitutions; (4) denying his motions to strike testimony and for a judgment of acquittal and his request for an adverse inference instruction based on the destruction of an alleged second statement of the complainant to the New Haven police; and (5) denying his motion for judgment of acquittal on the larceny count. We find no error.

The jury could reasonably have found that on April 1, 1985, the complainant drove to New Haven from her parent’s home in New Jersey to visit friends, and spent the night with her boyfriend at Yale University. The previous year she had been a student at the university. On April 2, at about 6 a.m., she left her boyfriend’s room, planning to drive to her place of employment in New Jersey. Her car was parked in a nearby parking lot. As she walked toward her car the defendant began to follow her, and when she reached her car and turned around, he was standing next to her. The defendant told her that his name was Pete, that she was pretty, and that he wanted her to be his girlfriend. While repeatedly putting his hand in his pocket he told her that he had a knife and could make her do whatever he wanted. He asked her if she had any money and she gave him ten dollars, hoping that he would then leave her alone. Instead, the defendant pushed her against the car, tried to kiss her and grabbed roughly at her breasts and thighs. She unsuccessfully tried to push him away. She did what the defendant ordered because she thouight that he had a knife and was afraid of him. As he ordered, she opened the door, let him in and also entered the car herself in order to drive.

The complainant drove the car to a stoplight near the exit of the parking lot. At that point the defendant ordered her to let him drive. They changed seats and he drove the car to the area of the Yale-New Haven Hospital where he stopped in front of a house. He stated that he lived there and wanted to go inside, but could not find a parking space. He stopped the car in the driveway next to the house and forced the complainant to perform fellatio. Afterwards, as the defendant was driving around, the complainant persuaded him to stop at a pay telephone because she had told him that if she did not arrive at work on time, her employer would come looking for her. The complainant intended to call the police, but the defendant followed her to the telephone. She called her boyfriend’s room and spoke with his roommate. After hanging up she asked the defendant for permission to make another call, but the defendant became angry and told her to get back into the ear, saying “No more phone calls.”

Because she was afraid of the defendant the complainant got back into the car,' but jumped out at the next traffic light and ran along the street toward Yale-New Haven Hospital. The defendant followed her in the car and then on foot. When he caught her he stated, “Nobody ever runs away from me,” and then pinned her against a wooden wall surrounding a construction site, kissed her and touched her breasts and inner thighs.

While the complainant and the defendant were struggling, Patricia Bougourd drove by, came to a stoplight and noticed them struggling. She motioned to the complainant and unlocked the passenger door of her car. The complainant broke away from the defendant, ran to Bougourd’s car and got inside. Bougourd drove the complainant to the nearby YWCA, and called the police.

Officer Hilda Kilpatrick responded to Bougourd’s call. She interviewed the complainant as well as Bougourd and then broadcasted on the police radio a description of the defendant, the complainant’s car and its license number. Soon thereafter, another police officer observed the defendant at the parking lot where the complainant had parked her car overnight, stopped him, patted him down and found the complainant’s car keys in his pocket. The complainant and Bougourd were brought to the parking lot and they both identified the defendant as the person from whom the complainant had escaped. The defendant was arrested.

I

The defendant first claims that the trial court erred in closing the courtroom in violation of his constitutional right to a public trial. Prior to trial, on November 7, 1985, the state moved, pursuant to General Statutes § 54-86f (rape shield statute), to close the hearing on the defendant’s motion to offer evidence of a prior sexual assault on the complainant. After a hearing, the trial court granted the state’s motion. The state thereafter proceeded with the presentation of its case and the direct examination of the complainant was conducted in open court and was completed on November 14, 1985. Prior to the commencement of her cross-examination, the trial court ordered the closure of the courtroom. Neither the defendant nor any other interested party had appealed the court’s November 7 closure order.

As a threshold issue we must determine whether the defendant’s closure claim is reviewable. Under § 54-86f, evidence of prior sexual misconduct is “admissible only after a hearing on a motion to offer such evidence containing an offer of proof.” In anticipation of the defendant’s motion to put in issue the complainant’s prior sexual conduct, the state exercised its right to have such a hearing held in camera. A hearing held pursuant to § 54-86f is subject to the provisions of General Statutes § 51-164x which provides that “[a]ny person affected by a court order which prohibits any person from attending any session of court . . . shall have the right to appeal such order by filing a petition for review with the appellate court within seventy-two hours from the issuance of such court order.” Thus, the defendant and the general public had seventy-two hours in which to appeal to the Appellate Court the order of the trial court issued on November 7, 1985.

This statutory right to an expedited review of a closure order provides immediate protection of a defendant’s right to a public trial. While the record indicates that the defendant objected to the closure order, it also indicates that he failed to pursue the statutory remedy provided by the legislature to challenge the validity of the order. We recognize that “[t]he failure to provide a public trial deprives the defendant of a fundamental constitutional right and the public of access to an open judicial forum.” State v. Sheppard, 182 Conn. 412, 418, 438 A.2d 125 (1980); State v. Frazier, 185 Conn. 211, 230-31, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982). Since the record does not reflect any justifiable reason for the defendant’s failure to pursue the statutory remedy of an expedited appeal, we would ordinarily decline to review the claim that the trial court erred in ordering closure. “A statute which provides that a thing shall be done in a certain way carries with it an implied prohibition against doing that thing in any other way.” State ex rel. Barlow v. Kaminsky, 144 Conn. 612, 620, 136 A.2d 792 (1957). The defendant’s claim, however, raises an issue of constitutional dimension and we find that it comes within one of the exceptions in State v. Evans, 165 Conn. 61, 65, 327 A.2d 576 (1973). “We refer to that situation delineated in Evans which allows review where the record, as here, is .sufficiently complete for us to consider the claims on the merits and the claims involve a fundamental constitutional right.” State v. Godek, 182 Conn. 353, 356, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031, 101 S. Ct. 1741, 68 L. Ed. 2d 226 (1981).

Turning to the substance of the defendant’s claim, we note that the United States Supreme Court has articulated the following standards regarding closure. “The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.” Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984). “Under Press-Enterprise, the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.” Waller v. Georgia, 467 U.S. 39, 48, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984).

In the present case, the court granted the state’s motion for a closed rape shield hearing and stated: “Obviously, in light of the Legislature’s adoption of the Statute, the policy which they are trying to pursue . . . the rights that they are trying to protect are best served by a hearing in camera and could well be damaged without a.hearingin camera.” The trial court acted within its discretion in closing the hearing on the rape shield motion. “If the state, over the defendant’s objection, seeks to have a trial closed during the testimony of designated witnesses, it must furnish to the court some information to demonstrate a compelling need to deny his right to a public trial. The court may then conduct an evidentiary hearing into the propriety of excluding the public, unless it is satisfied from the examination of an affidavit, or from a colloquy with counsel or from the testimony of witnesses, that there exists a factual justification for exclusion of the public. ... On the basis of a factual showing, the court can then determine what kind of exclusionary order, if any, is warranted. It is axiomatic that the order should be reasonably limited to respond only to the compelling need for closure.” State v. Sheppard, supra, 417-18.

At the closed hearing on November 14,1985, the evidence presented consisted principally of the complainant’s testimony. She testified that in February, 1984, during her freshman year at Yale University, she was walking back to her dormitory one night when she was approached by someone who dragged her into an alley and sexually assaulted her with a razor blade. She was cut on the breast and thighs and the razor blade was placed in her vagina. Ultimately, Walter Bolivar was arrested and charged with sexual assault and unlawful restraint. After a public jury trial he was acquitted. At his trial Bolivar asserted an alibi defense and he and his girlfriend testified in support of that defense. The defendant Kelly sought to examine the complainant about the Bolivar incident, in order to compare it with the circumstances of the charges against him, and to have Bolivar and his girlfriend testify that the February, 1984 incident did not occur.

In its argument in support of closure the state directs attention to the evidence about the Bolivar incident. We note, however, that Bolivar’s trial was public and aside from a general reference to the rape shield statute, the trial court made no findings as required by Waller v. Georgia, supra. Moreover, while this case was pending the complainant participated in an interview that resulted in a newspaper article in the New Haven Register where she discussed both cases.

We conclude, on the basis of the record, that the November 7 closure order was improper. Ordinarily, this case would be returned to the trial court for a Waller type hearing. Because, however, the defendant claims that the court erred in excluding from his trial the evidence that was considered at the closed hearing, the admissibility of the excluded evidence will be considered in this appeal. Only if the excluded evidence is found to be admissible is a new trial required. The admissibility of this evidence will be addressed in the following discussion.

II

The defendant’s second claim is that the trial court erred in the blanket exclusion of evidence bearing directly on the complainant’s credibility, state of mind, powers of perception and recollection, prior complaints and on going psychological problems, in violation of his rights to confront his accuser, to present a defense and to due process. This claim is related to the defendant’s third claim that the trial court erred in denying him access to all records concerning the complainant’s psychiatric problems, rape crisis counseling, and her testimony in the Bolivar case, and to all other records relating to that case, in violation of his rights of due process, confrontation and compulsory process under the state and federal constitutions. Essentially, the defendant claims that the trial court erred in excluding from the trial the testimony given by the complainant at the closed hearing.

A

There is no dispute that in the adversarial setting of a trial, the accused has a right under the confrontation clause “to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, [can] appropriately draw inferences relating to the reliability of the [State’s] witness.” Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State v. Ouellette, 190 Conn. 84, 101-103, 459 A.2d 1005 (1983). It is also undisputed that the accused has an equal right under the compulsory process and due process clauses “to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so that it may decide where the truth lies.” Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967).

The defendant argues that “[t]he jury was exposed to the full force of the State’s case against Defendant, presented largely through the testimony of a complainant who enjoyed all means of advantage over Defendant, and who was articulate, extremely intelligent, equipped with matter of fact explanations for even the most bizarre of circumstances, experienced at testifying, and blessed with a surface veneer of sincerity, polish and utter normality.” To counteract the complainant’s appearance of “utter normality,” the defendant sought access to the records of the Bolivar case, and the right to obtain and use the transcript in that case in the examination and cross-examination of the complainant. Additionally, the defendant sought to present as witnesses Walter Bolivar and his alibi witness for the testimony that Bolivar was acquitted of the charge. The evidence was excluded as irrelevant.

It is well settled that “[i]n exercising the right to present witnesses in his own defense, the defendant ‘must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.’ Chambers v. Mississippi, [410 U.S. 284, 302, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973)]; State v. Mastropetre, [175 Conn. 512, 521, 400 A.2d 276 (1978)]. The constitution does not require that the defendant be permitted to present every piece of evidence he wishes, although exclusionary rules of evidence cannot be applied ‘mechanistically’ to deprive the defendant of his rights. Chambers v. Mississippi, supra. If the proffered evidence is not relevant, however, the defendant’s right to confrontation is not affected and the evidence was properly excluded. State v. Vaughn, 448 So. 2d 1260 (La. 1983), on rehearing, 448 So. 2d 1266, 1267 (La. 1984); State v. Patnaude, [140 Vt. 361, 369, 438 A.2d 402 (1981)]; see General Statutes § 54-86f (4); State v. Mastropetre, supra, 517.

“ ‘As a general principle, evidence is relevant if it has a tendency to establish the existence of a material fact. “ ‘ “One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable.” ’ ” State v. Lombardo, 163 Conn. 241, 243, 304 A.2d 36 (1972).’ State v. Mastropetre, supra, 517.” State v. Cassidy, 3 Conn. App. 374, 383, 489 A.2d 386, cert. denied, 196 Conn. 803, 492 A.2d 1239 (1985).

The record reveals no facts that warrant importing the evidence from the Bolivar trial into this case. The . fact that Bolivar was acquitted is of no probative value in this case. This is particularly true since Bolivar asserted an alibi defense. It is impossible to determine why he was acquitted by the jury. If speculation is to be indulged, however, it is plausible that the jury accepted Bolivar’s alibi. The jury could have believed that the complainant was sexually assaulted, but that Bolivar was elsewhere as he claimed. Bolivar’s acquittal does not make the charge of sexual assault against him or the charge against the defendant a “recent contrivance,” “imagination,” or “sexual fantasy,” as discussed in State v. Ouellette, supra, 98, 103.

Moreover, it must be remembered that the complainant is the victim in this case. “The relevant conduct was that between the defendant and the victim. Unless she had raised a false claim before, her conduct with another man had no bearing on her conduct with this defendant or on the credibility of her testimony in this case.” State v. Cassidy, supra, 382. There is no evidence, nor has the defendant proffered any evidence, that the complainant was not sexually assaulted as she claimed in the Bolivar case. Like the trial court, we agree that the Bolivar testimony was irrelevant to this case. Since the trial court properly excluded the proffered testimony of Bolivar and his alibi witness, there was no error in denying the defendant access to the Bolivar trial transcript. Furthermore, our resolution of this issue leads us to the conclusion that although the trial court erred in ordering closure, such error was harmless. The testimony that the defendant sought to have set forth in a public forum was ruled irrelevant and was not considered by the jury.

B

In addition to her testimony regarding the Bolivar case, the complainant testified at the closed hearing that she had participated in psychiatric therapy and counseling from February, 1984, to mid April, 1985, as a result of the Bolivar incident. She also testified about two experiences that reflected her reaction to the Bolivar sexual assault. First, one night in March, 1984, after consuming some alcohol she began crying and screaming and her roommates took her to the emergency room of the Department of University Health at Yale University, where she was treated. Second, in November, 1984, because of an overdose of codeine enhanced tylenol, she testified that she was taken by friends and admitted to the psychiatric ward at Yale-New Haven Hospital where she was treated.

Pursuant to the defendant’s subpoenas and supplementary requests for discovery, numerous documents relating to the complainant’s psychiatric therapy and counseling following the Bolivar case were entered as sealed court exhibits. The defendant argued that “he was not only seeking materials revealing inconsistencies or blatant falsehoods, but also material relating to [the complainant’s] psychological instability, alterations and embellishment of recollection over time, distortions of reality, misperceptions of words and actions of others, psychological needs and problems with respect to interpersonal relations, preoccupation with sexual issues, symptoms of hysterical personality disorder, and gaps, discrepancies or other evidence of unreliability with respect to [the complainant's] account in the Bolivar case.” The complainant waived the applicable privileges for the limited purpose of allowing an in camera inspection of her records by the trial court. The trial court took a recess, examined the exhibits in camera, and thereafter reconvened court and denied the defendant access to the exhibits.

“Connecticut has a broad psychiatrist-patient privilege that protects the confidential communications or records of a patient seeking diagnosis and treatment. C.G.S. §§ 52-146d, 52-146e; see State v. Toste, 178 Conn. 626, 629, 424 A.2d 293 (1979); State v. White, 169 Conn. 223, 234, 363 A.2d 143, cert. denied, 423 U.S. 1025 [96 S. Ct. 469, 46 L. Ed. 2d 399] (1975). The privilege covers not only communications between the patient and psychiatrist, but also all communications relating to the patient’s mental condition between the patient’s family and the psychiatrist and his staff and employees, as well as records and communications prepared at mental health facilities. C.G.S. § 52-146d.” C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 12.9.1. We have had occasion to address the “[problem] of attempting to reconcile the privilege with the right of confrontation in respect to disclosure of records of psychiatric treatment of a witness in a criminal case. State v. Bruno, 197 Conn. 326, 329-32, 497 A.2d 758 (1985), cert. denied, 475 U.S. 1119, 106 S. Ct. 1635, 90 L. Ed. 2d 181 (1986); State v. Esposito, 192 Conn. 166, 177-80, 471 A.2d 949 (1984); State v. Storlazzi, 191 Conn. 453,455-63, 464 A.2d 829 (1983).” State v. Pierson, 201 Conn. 211, 225, 514 A.2d 724 (1986).

In State v. Storlazzi, supra, 459, we stated that “[t]he linchpin of the determination of the defendant’s access to the records is whether they sufficiently disclose material ‘especially probative of the ability to “comprehend, know and correctly relate the truth” ’; United States v. Lindstrom, 698 F.2d 1154, 1165-66 (11th Cir. 1983); so as to justify breach of their confidentiality and disclosing them to the defendant in order to protect his right of confrontation. As in the case of admissibility of such records, access to records bearing on ‘the mental unsoundness of a witness (i.e., relating to a trait importing in itself a defective power of observation, recollection or communication), at or around the time of trial or of the occurrence about which he is to testify’; State v. Piskorski, [177 Conn. 677, 736, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979)]; should be granted to the defendant. And as in the case of admissibility of such records, however, access to ‘such [records] must be left to the discretion of the trial court which is better able to assess the probative value of such evidence as it relates to the particular case before it’; id., 737; and to weigh that value against the interest in confidentiality of the records. Whether and to what extent access to the records should be granted to protect the defendant’s right of confrontation must be determined on a case by case basis.”

Applying the standards of Storlazzi, our examination of the record fails to “sufficiently disclose material ‘especially probative of the [complainant’s inability] to “comprehend, know and correctly relate the truth .....” ’ ” Id., 451. During the course of the extensive cross-examination of the complainant, the defendant was able to show to the jury several gaps, omissions and contradictions in her testimony. Many of the gaps, omissions and contradictions were the complainant’s deliberate efforts to avoid embarrassment and are not probative of her ability to comprehend, know and correctly relate the truth so as to warrant a breach of the confidentiality of her privileged records by disclosing them to the defendant.

We recognize that the documents subpoenaed by the defendant were not in the possession of the state’s attorney, nor were the documents examined by the state’s attorney or the defendant. Nonetheless, the rationale of Pennsylvania v. Richie, 480 U.S. 39, 59, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987) (prosecutor’s decision on disclosure is final unless defendant becomes aware, after he has made a general request for exculpatory material, that other exculpatory material was withheld and brings it to the court’s attention), regarding discovery in general and in particular the in camera inspection of the documents by the trial court in this case, leads us to conclude, after our own examination of the documents, that the trial court did not err in denying the defendant access to the documents in question.

Ill

Next, the defendant claims that the trial court erred in denying his motions to strike testimony and for a judgment of acquittal and his request to give an adverse inference instruction based on the destruction of the complainant’s statement to the New Haven police.

The complainant testified that she initially reported this incident to Officer Hilda Kilpatrick at the YWCA. Kilpatrick took her to the parking lot where her motor vehicle was parked, and there she and Patricia Bougourd identified the defendant. The complainant was then taken to the New Haven police station where she gave a formal taped statement to Officer Winkler Christensen. The complainant was told that the statement would be typed and that she would have to come back at a later date to sign the statement. In this statement the complainant failed to mention that the defendant had forced her to perform fellatio. She testified that she omitted this information because of embarrassment and fear.

The complainant also testified that diming the month of April, 1985, she attempted to contact Christensen several times by calling the police station, and that he was never in when she called. On April 29, 1985, she went to the police station, reviewed and signed her typewritten April 2, 1985 statement. She noticed the omission of fellatio from the statement and that she had failed to include in her statement the facts that: (1) she had made a telephone call to her boyfriend’s room; (2) when the defendant caught up to her near the hospital, he repeatedly put his hand in his pocket as though he was handling a knife; and (3) when the defendant caught her he stated, “Nobody ever runs away from me.” She testified that she did not mention any of these omitted matters because she had been told by the police that the case was probably not going to come to trial and that she was in a hurry and was undecided about telling about fellatio. When she decided to tell the police about the omitted matters, she attempted, without success, to contact Christensen. Finally, she testified that on May 3, 1985, she drove to New Haven from New Jersey, went to the police station and gave a second statement that included the omitted matters. This statement was not taken by Christensen or anyone known to or identifiable by the complainant.

In November, 1985, when the complainant met with the assistant state’s attorney to prepare for trial, it was discovered that the second statement had never been forwarded to his office. The assistant state’s attorney also learned that neither the tape nor the transcript could be found despite a diligent search by the police. The complainant gave a physical description of the officer who took her statement, but none of the officers resembling her description remembered taking the statement. Defense counsel was notified of the loss of the statement. At the request of defense counsel, the missing statement was reconstructed as accurately as possible. On November 8, 1985, Detective Mary Fish retraced the route that the complainant stated the defendant took in her car on the date of the incident.

At the trial the defendant conducted an extensive cross-examination of the complainant, developing gaps, inconsistencies and omissions in her various statements. After argument, the trial court denied the defendant’s motion to strike the complainant’s testimony or dismiss the charges pursuant to Practice Book § 755. The court also denied the defendant’s request for an adverse inference charge based on the state’s failure to produce the complainant’s second statement given on May 3, 1985.

“This court has considered similar claims involving the loss of a witness’s tape-recorded statement in several recent decisions. See State v. Milum, 197 Conn. 602, 500 A.2d 555 (1985); State v. Myers, [193 Conn. 457, 479 A.2d 199 (1984)]; State v. Shaw, 185 Conn. 372, 441 A.2d 561 (1981), cert. denied, 454 U.S. 1155, 102 S. Ct. 1027, 71 L. Ed. 2d 312 (1982). In those cases we employed a balancing test whereby the imposition of sanctions for nondisclosure ‘ “depends in large measure upon the extent of the Government’s culpability for failure to make disclosable material available to the defense, on the one hand, weighed against the amount of prejudice to the defense which resulted, on the

other.” ’ State v. Shaw, supra, 386, quoting United States v. Miranda, 526 F.2d 1319, 1329 (2d Cir. 1975), cert. denied, 429 U.S. 821, 97 S. Ct. 69, 50 L. Ed. 2d 82 (1976); see also State v. Milum, supra, 617; State v. Myers, supra, 467. Since there exists no constitutional right of access to the statements of a witness for the prosecution, the burden of showing prejudice rests with the defendant. State v. Vessichio, 197 Conn. 644, 662, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986); State v. Milum, supra, 616.” State v. Mullings, 202 Conn. 1, 7-8, 519 A.2d 58 (1987).

We have reviewed the transcript pertaining to this claim and are not persuaded that the trial court erred in denying the defendant’s motion to strike the testimony of the complainant, in denying the defendant’s motion for a judgment of acquittal, or in declining to give an adverse inference instruction based on the complainant’s lost statement. There is no claim, nor is there any evidence, that the prosecution or any police officer deliberately lost, misplaced or destroyed the statement. In fact, when the assistant state’s attorney discovered that a second statement had been given by the complainant and that it had not been forwarded to his office and that it could not be found by the police, counsel for the defendant was immediately notified. Moreover, the missing statement was reconstructed at the defendant’s request. “Where, as here, the loss of [the statement] was the result of negligence, the question then becomes to what extent, if any, the defense was prejudiced by [its] loss. State v. Myers, supra, 469; State v. Shaw, supra.” State v. Palmer, 206 Conn. 40, 59, 536 A.2d 936 (1988).

On cross-examination of the complainant, the defendant questioned her extensively about her first statement given on April 2, 1985, and the statement, given on November 8,1985, reconstructing the lost May 3,1985 statement. Additionally, the defendant examined Kilpatrick, Christensen and Fish about the statement that each officer had taken from the complainant. The cross-examination of the complainant and the cross-examination and direct examination of the officers who had taken statements from the complainant were unrestricted. We note that there is no claim that the trial court in any way restricted cross-examination of the complainant or the presentation of witnesses by the defendant with respect to this aspect of the case.

Thus, we find that the defendant has not met his burden of showing prejudice by the failure of the trial court to grant his motion to strike the testimony of the complainant. See State v. Palmer, supra, 60; State v. Santangelo, 205 Conn. 578, 588-89, 534 A.2d 1175 (1987); State v. Mullings, supra, 10. Neither can the defendant prevail on his additional claim that the state’s failure to produce the second statement violated his fifth and sixth amendments rights. “[Tjhere exists no constitutional right of access to the statements of a witness for the prosecution . . . .” (Citations omitted.) State v. Mullings, supra, 8.

IY

Finally, the defendant claims that the trial court erred in denying his motion for judgment of acquittal on the larceny count in which he was charged with theft of the complainant’s motor vehicle. The defendant challenges the sufficiency of the evidence to meet the requirement that the state prove the elements of the crime charged beyond a reasonable doubt.

The jury was presented with the following evidence in support of the larceny charge: (1) the complainant’s testimony that the defendant took possession of her vehicle and drove off with it; (2) a police officer saw the defendant at the parking lot walking away from the complainant’s vehicle after the assault had occurred; and (3) the complainant’s car keys were found in the defendant’s pocket. “Each essential element of the crimes charged must be proved beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). Though the jury may ‘draw reasonable, logical inferences from the facts proven, [it] may not resort to speculation and conjecture.’ State v. Saracino, 178 Conn. 416, 419, 423 A.2d 102 (1979). ‘ “Where it cannot be said that a rational trier of fact could find guilt proven beyond a reasonable doubt, then, a conviction cannot ‘constitutionally stand,’ as it is violative of due process under the fourteenth amendment. Jackson v. Virginia, 443 U.S. 307, 317-18, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Kish, 186 Conn. 757, 768, 443 A.2d 1274 (1982).” (Footnote omitted.) State v. Haddad, 189 Conn. 383, 387-88, 456 A.2d 316 (1983).’ ” State v. Brown, 199 Conn. 14, 21-22, 505 A.2d 690 (1986).

While the evidence in this case was substantially circumstantial, it was nonetheless sufficient, if believed by the jury, to support a verdict of guilty of larceny in the second degree as charged. “[T]here is no legal distinction between direct and circumstantial evidence so far as probative force is concerned.” State v. Haddad, supra, 390. “ ‘In reviewing the sufficiency of the evidence this court must construe the evidence in the light most favorable to sustaining the verdict; State v. Ferrell, 191 Conn. 37, 46, 463 A.2d 573 (1983); and then determine whether the jury “could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.” State v. Jackson, 176 Conn. 257, 262, 407 A.2d 948 (1978); see State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984).’ State v. Cimino, 194 Conn. 210, [211,] 478 A.2d 1005 (1984). ‘ “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Johnson v. Louisiana, 406 U.S. [356, 362, 92 S. Ct. 1620, 32 L. Ed. 2d 152 (1972)].” (Emphasis in original.) State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983), quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).’ State v. Morrill, 197 Conn. 507, 512, 498 A.2d 76 (1985).” State v. Brown, supra, 22-23. We find that the evidence summarized was sufficient to support the verdict of the jury.

There is no error.

In this opinion Healey, Shea and Hull, Js., concurred.

Callahan, J., concurred in the result.

       “[General Statutes] Sec. 53a-94. kidnapping in the second degree: class B felony, (a) A person is guilty of kidnapping in the second degree when he abducts another person.
      “(b) Kidnapping in the second degree is a class B felony.”

       General Statutes § 53a-134 (a) (3) provides: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime ... (3) uses or threatens the use of a dangerous instrument.”

       General Statutes (Rev. to 1985) § 53a-123 (a) (1) provides: “A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119 and: (1) The property consists of a motor vehicle, the value of which is two thousand dollars or less.”

       “[General Statutes] Sec. 53a-73a. sexual assault in the fourth degree: class a misdemeanor, (a) A person is guilty of sexual assault in the fourth degree when ... (2) such person subjects another person to sexual contact without such other person’s consent.”

       At the time of the offense on April 2,1985, the rape shield statute, General Statutes § 54-86f, provided: “admissibility of evidence of prior sexual conduct. In any prosecution for sexual assault under sections 53a-70, 53a-70a, and 53a-71 to 53a-73a, inclusive, no evidence of the prior sexual conduct of the victim may be admissible unless such evidence is (1) offered by the defendant on the issue of whether the defendant was, with respect to the victim, the source of semen, disease, pregnancy or injury, or (2) offered by the defendant on the issue of credibility of the victim, provided the victim has testified on direct examination as to his or her prior sexual conduct, or (3) evidence of prior sexual conduct with the defendant offered by the defendant on the issue of consent by the victim, when consent is raised as a defense by the defendant, or (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights. Such evidence shall be admissible only after a hearing on a motion to offer such evidence containing an offer of proof. On motion of either party the court may order such hearing held in camera, subject to the provisions of section 51-164x. If the proceeding is a trial with a jury, such hearing shall be held in the absence of the jury. If, after hearing, the court finds that the evidence meets the requirements of this section and that the probative value of the evidence outweighs its prejudicial effect on the victim, the court may grant the motion. The testimony of the defendant during a hearing on a motion to offer evidence under this section may not be used against the defendant during the trial if such motion is denied, except that such testimony may be admissible to impeach the credibility of the defendant if the defendant elects to testify as part of the defense.”

       In Waller v. Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984), the trial court, in the absence of statutory authority, ordered closure of a pretrial suppression hearing over the objection of the defense. After the hearing and trial, the defendant was acquitted of some charges and convicted of others. The Georgia Supreme Court affirmed the convictions. After determining the closure order was issued without findings and was too broad, the United States Supreme Court reversed and remanded the case for a determination by the state court of what portions, if any, of the suppression hearing may be closed, followed by a new suppression hearing and a new trial if the hearing results in the suppression of material not suppressed at the first trial.

       We distinguish this case from State v. Sheppard, 182 Conn. 412, 438 A.2d 125 (1980), where we found error and ordered a new trial. In Sheppard, the public had been excluded during the testimony of the two complaining witnesses pertaining to the charges against the defendant. In this case the public was not excluded during the complaining witness’ testimony pertaining to the offenses for which the defendant was charged. Rather, the public was excluded from hearing the complaining witness testify regarding matters the court determined to be inadmissible evidence. Absent the closure order the public would have heard the excluded testimony even though under the court’s ruling it would have been excluded from the jury.

       “[Practice Book] Sec. 755.--FAILURE TO COMPLY WITH ORDER
      “If the prosecuting authority elects not to comply with an order of the judicial authority to deliver to the defendant any statement of a witness who has testified or such portion thereof as the judicial authority may direct, the judicial authority shall strike from the record the testimony of the witness, and the trial shall proceed unless the judicial authority, in his discretion, upon motion of the defendant, determines that the interests of justice require that a mistrial be declared.”


author: Peters, C. J.

text:
    State of Connecticut v. Edmund J. Price
    (13361)
    Peters, C. J., Healey, Shea, Glass and Hull, Js.
    Argued June 2
    decision released July 26, 1988

      Albert S. Bill, Jr., with whom, on the brief, was Igor I. Sikorsky, Jr., for the appellant (defendant).

      Leon F. Dalbec, Jr., deputy assistant state’s attorney, with whom, on the brief, was Michael Regan, deputy assistant state’s attorney, for the appellee (state).
   Peters, C. J.

The dispositive issue in this appeal is whether the constitutional guarantee against double jeopardy precluded the trial that led to the conviction of the defendant, Edmund J. Price, of the crime of larceny in the sixth degree, as defined in General Statutes § 53a-125b. We conclude that it did not, and therefore find no error.

The procedural history of the defendant’s conviction is as follows. The defendant was arrested and charged with larceny in the sixth degree on April 13, 1987. A trial on this charge was originally scheduled for July 7, 1987, but it did not go forward on that day. After a jury had been selected, but before it had been sworn, the state informed the trial court, O’Connor, J., of the unavailability of one of the state’s key witnesses. Further inquiry disclosed that a key witness for the defense was about to undergo surgery and would be unavailable either the following day or for a significant period of time thereafter.

To resolve the issues raised by the overlapping unavailability of these crucial witnesses, the defendant orally moved that the jury be called in and sworn, and that the case be dismissed if the state found itself unable to go forward. The trial court denied this motion. When the defendant thereafter declined the opportunity to present his defense out of sequence, in advance of the presentation of the state’s case, the court, having attempted to set a date certain for trial to begin, dismissed the jury. The defendant took an exception to the court’s refusal to grant his motion to dismiss the case and also noted his exception to the continuance to the date designated. The defendant did not, however, inform the court that a postponed trial might violate his constitutional rights with respect to double jeopardy.

On November 9, 1987, the defendant was tried and convicted on the larceny charge. At no time during this trial did the defendant raise a defense of double jeopardy.

In his appeal to this court, the defendant takes no issue with the conduct of the trial that led to his conviction except to maintain that it should not have been held at all. He relies on the provision of the fifth amendment to the United States constitution that declares: “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” The guarantee against double jeopardy applies to state as well as to federal criminal proceedings. Benton v. Maryland, 395 U.S. 784, 787, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). In our view, however, the defendant’s conviction did not violate the constitutional guarantee against double jeopardy.

The defendant’s invocation of the principles of double jeopardy faces two hurdles, one procedural and one substantive. As a matter of procedure, the question is whether the defendant has waived his constitutional claim of double jeopardy by his failure to raise this defense during the November 9,1987 proceedings that led to his conviction. As a matter of substance, the question is whether the defendant was put into constitutional jeopardy by reason of the trial court proceedings of July 7, 1987, which were terminated before a jury had been sworn.

Whether a defendant may raise a defense of double jeopardy on appeal, when that issue was not raised at trial, is a question that this court addressed, and resolved against the defendant, in State v. Jones, 166 Conn. 620, 353 A.2d 764 (1974). There, as in this case, the defendant “proceeded to trial, verdict and judgment without raising [a double jeopardy] claim.” Id., 630. We held that “in so doing he impliedly waived the defense of double jeopardy, and, therefore, that issue [was] not before us for determination on the merits.” Id.

Our resolution of the issue of waiver in State v. Jones, supra, is in accord with the treatment of that issue in other jurisdictions. The United States Court of Appeals for the Second Circuit has repeatedly held that “[t]he constitutional immunity from double jeopardy is a personal right which, if not affirmatively pleaded by the defendant at the time of trial, will be regarded as waived.” United States v. Perez, 565 F.2d 1227, 1232 (2d Cir. 1977); see also Paul v. Henderson, 698 F.2d 589, 592 (2d Cir. 1983). Other federal courts have expressed the same opinion. United States v. Herzog, 644 F.2d 713, 716 (8th Cir. 1981), cert. denied, 451 U.S. 1018, 101 S. Ct. 3008, 69 L. Ed. 2d 390 (1981); United States v. Scott, 464 F.2d 832, 833 (D.C. Cir. 1972); United States v. Buonomo, 441 F.2d 922, 924-25 (7th Cir.), cert. denied, 404 U.S. 845, 92 S. Ct. 146, 30 L. Ed. 2d 81 (1971). The Supreme Court of the United States has implied, in United States v. Dinitz, 424 U.S. 611, 609-10 n.11, 96 S. Ct. 1075, 47 L. Ed. 2d 267 (1976), that the guarantee against double jeopardy is not one of those constitutional rights whose waiver must meet the knowing, intelligent and voluntary standard set forth in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). See C. Wright, Federal Practice and Procedure: Criminal 2d (1982) § 193, pp. 705-706.

It is therefore exceedingly doubtful that the defendant’s belated double jeopardy claim is properly before us at this time. Its substantive merits are, if anything, even more doubtful. For jury trials, the Supreme Court of the United States has consistently subscribed to “the proposition that jeopardy attaches when the jury is empaneled and sworn.” Crist v. Bretz, 437 U.S. 28, 35, 98 S. Ct. 2156, 57 L. Ed. 2d 24 (1978); see also Downum v. United States, 372 U.S. 734, 735-36, 83 S. Ct. 1033, 10 L. Ed. 2d 100 (1963). Of necessity, our cases have adopted this federal standard for Connecticut criminal proceedings. See, e.g., State v. Van Sant, 198 Conn. 369, 376, 503 A.2d 557 (1986); State v. Curcio, 191 Conn. 27, 35, 463 A.2d 566 (1983); State v. Roy, 182 Conn. 382, 385-86, 438 A.2d 128 (1980). Until the jury is both impaneled and sworn, jeopardy has not attached. United States v. Fleming, 667 F.2d 440, 441 (4th Cir. 1981), cert. denied, 455 U.S. 959, 102 S. Ct. 1473, 71 L. Ed. 2d 679 (1982); United States v. Lurz, 666 F.2d 69, 79 (4th Cir. 1981), cert. denied sub nom. Magill v. United States, 455 U.S. 1005, 102 S. Ct. 1642, 71 L. Ed. 2d 874 (1982); United States v. Garcia, 589 F.2d 249, 250-51 (5th Cir. 1979), cert. denied sub nom. Munoz v. United States, 442 U.S. 909, 99 S. Ct. 2821, 61 L. Ed. 2d 274 (1979); United States v. Wedalowski, 572 F.2d 69, 74 (2d Cir. 1978); United States v. Green, 556 F.2d 71, 72 (D.C. Cir. 1977); Shaw v. State, 239 Ga. 690, 692, 238 S.E.2d 434 (1977); Godfrey v. State, 177 Ind. App. 644, 646, 380 N.E.2d 621 (1978); People v. Pribble, 72 Mich. App. 219, 223, 249 N.W.2d 363 (1976). The defendant has cited no holdings to the contrary, and we have discovered none. Were we to reach the merits, therefore, the defendant’s claim of double jeopardy would be entirely untenable, because at the time that the jury was discharged on July 7, 1987, it had only been impaneled but had not yet been sworn to try the case against him.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-125b. larceny in the sixth degree: class c misdemeanor, (a) A person is guilty of larceny in the sixth degree when he commits larceny as defined in section 53a-119 and the value of the property or service is two hundred fifty dollars or less.”

       At oral argument in this court, the defendant attributed his failure to raise a question about double jeopardy at his second trial to the inadvertence of his trial counsel. He has not sought to excuse his failure to obtain a trial court ruling by reference to the principles embodied either in State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), or in the plain error rule of Practice Book § 4185. Although these principles address the constitutional importance of assuring a fair trial, they would not assist this defendant because of the nature of a double jeopardy claim. Such a claim implicates the very power of the state to bring him into court, and thus “is collateral to, and separable from, the principal issue at the accused’s impending criminal trial, i.e. whether or not the accused is guilty of the offense charged.” Abney v. United States, 431 U.S. 651, 659, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977).

       In light of this unbroken line of cases, we find it difficult to understand how counsel for the defendant could have stated, in his brief to this court, that the question of whether jeopardy attaches when a jury has been fully impaneled but hot sworn was a novel issue, not previously decided by any “case of significance in this country.”


author: Shea, J.

text:
    Robert F. Maloney, Jr., Administrator (Estate of Anita Maloney), et al. v. Michael Conroy et al.
    (13342)
    Shea, Callahan, Glass, Covello and Hull, Js.
    Argued May 12
    decision released July 26, 1988

      Richard A. Fuchs, with whom was James D. Horwitz, for the appellant (plaintiff Susan Maloney).

      Bryan L. LeClerc, with whom was Thomas L. Brayton, for the appellee (named defendant).

      Michael P. Del Sole, with whom was Stephen P. Sachner, for the appellees (defendant George H. Dickenson et al.)
   Shea, J.

The plaintiff Susan Maloney filed an amended complaint against two physicians, Michael Conroy and George Dickenson, and also the Meriden-Wallingford Hospital seeking damages for a severe emotional disturbance alleged to have resulted from the malpractice of the defendants in treating her mother, Anita Maloney. After the trial court had granted motions of the defendants to strike her complaint, the court rendered a partial judgment against the plaintiff. In her appeal the plaintiff has raised the single issue of whether one who is closely related to a victim of alleged malpractice may recover for a severe emotional disturbance claimed to have resulted from observing the malpractice perpetrated on the victim. We hold that a bystander to medical malpractice may not recover for emotional distress and accordingly find no error in the striking of the complaint by the trial court.

For the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted. Mingachos v. CBS, Inc., 196 Conn. 91, 108-109, 491 A.2d 368 (1985). The facts set forth in the complaint that are pertinent to this appeal may be summarized as follows: The plaintiff, who lived with her mother until the time of her mother’s death, was present at bedside while her mother was being treated by the defendants. Following an operation on her mother, the plaintiff observed her mother’s health deteriorate under the treatment of the defendants and culminate in death. The suffering and death of the mother were caused by the negligence of the defendants in failing to care for her in a reasonably competent manner, including their failure to heed several requests of the plaintiff that they investigate various symptoms she had observed relating to her mother’s deteriorating condition. The defendants knew or should have known that their conduct was likely to cause the unreasonable risk of severe psychological, physiological and emotional distress that the plaintiff ultimately did suffer as a result of their negligent treatment of her mother. As a result of the emotional distress caused by the defendants’ negligence, the plaintiff has incurred expenses for treatment of her mental condition and her ability to carry on her normal activities has been impaired.

In Strazza v. McKittrick, 146 Conn. 714, 718-19, 156 A.2d 149 (1959), where this court first dealt with a bystander emotional disturbance claim based upon negligence, we held unequivocally that a mother could not recover for “nervous shock resulting from fear of injury to her child” after a truck had run into a porch on which the mother, who heard the crash from inside the house, had told the child to wait. We relied upon the view, prevailing generally at that time that one could not recover “for injuries occasioned by fear of threatened harm or injury to the person or property of another.” Id.

At our next encounter with such a claim in Amodio v. Cunningham, 182 Conn. 80,438 A.2d 6 (1980), where the circumstances were quite similar to the present case, we upheld the trial court in striking a count of the complaint alleging a cause of action in behalf of a mother for physical, mental and emotional harm caused by witnessing the death of her daughter, as well as the deterioration of her daughter’s health, that had resulted from the malpractice of the defendants. We noted, however, the “divergence of opinion among the jurisdictions regarding the recognition of a cause of action for emotional distress to a bystander arising from witnessing the negligently inflicted injury of another.” Id., 84. We discussed the view of the New York Court of Appeals in Tobin v. Grossman, 24 N.Y.2d 609, 249 N.E.2d 419, 301 N.Y.S.2d 554 (1969), holding that “a cause of action does not lie for emotional injury sustained by a plaintiff solely as a result of injuries inflicted directly upon another regardless of the relationship of the parties or the fact that the plaintiff was an eyewitness to the negligent act.” Amodio v. Cunningham, supra, 85. We also considered the opinion of the California Supreme Court in Dillon v. Legg, 68 Cal. 2d 728, 441 P.2d 912, 69 Cal. Rptr. 72 (1968), in which a bare majority of the court recognized a cause of action for emotional distress on the part of a mother who had seen her child being struck and killed by a negligently operated automobile that did not endanger the mother. In Dillon the court set forth three criteria for determining whether the injury to the plaintiff was reasonably foreseeable, the standard touchstone of liability for negligence, in a particular case: “(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.” Id., 740-41.

The Amodio opinion analyzed several later California cases applying Dillon in medical malpractice cases as “imposing a policy limitation upon the liability for emotional distress suffered by a witness to alleged negligence by requiring that the plaintiff observe a negligent act contemporaneously causing injury to the third party.” Amodio v. Cunningham, supra, 92. Because the complaint in Amodio indicated “that the injuries suffered by the plaintiffs child became manifest a considerable period of time after the alleged negligence of the defendants occurred,” the court held that, “even were we inclined to adopt the approach taken in Dillon and the cases relying thereon, the complaint in the present case would nevertheless fail to state a cognizable cause of action.” Id.

The trial court in this case similarly concluded that the complaint did not allege that the plaintiff had suffered “an injury contemporaneously with the sensory perception of the alleged negligent conduct of the defendants” or that the defendants had committed “any positive act impacting contemporaneously upon her,” noting that the “alleged negligent conduct consisted of a failure to act.” The plaintiff has not attempted to distinguish the allegations of her complaint from those in. Amodio, but maintains that a more recent California case, Ochoa v. Superior Court, 39 Cal. 3d 159, 703 P.2d 1, 216 Cal. Rptr. 661 (1985), has modified the contemporaneous sensory perception requirement of Dillon to allow a recovery for emotional disturbance resulting from negligence that does not fall within the category of a “brief and sudden event viewed contemporaneously by the plaintiff.”

In Ochoa, as in this case, the plaintiff, over a period of two days, repeatedly called to the attention of the doctor and other medical personnel treating her son various symptoms she had observed indicating that his illness, which resulted in his death, was far more serious than had been assumed. The California Supreme Court concluded that its former view that a “sudden and brief event” was necessary to satisfy the second Dillon guideline of contemporaneous perception of the negligent act should not bar recovery “when there is observation of the defendant’s conduct and the child’s injury and contemporaneous awareness the defendant’s conduct or lack thereof is causing harm to the child . . . .” Id., 170.

We agree with the plaintiff that her complaint sufficiently stated a cause of action for emotional disurbance under the Dillon criteria as modified in Ochoa. She has alleged that she observed her mother’s condition deteriorate under the care of the defendants and that her requests that certain symptoms of her mother be given attention were never heeded, implying her awareness that the defendants’ neglect was harming her mother. We conclude, nevertheless, that the court properly granted the motion to strike the complaint, because we are not inclined to follow the lead of the California courts in allowing a bystander to recover for emotional disturbance resulting from malpractice upon another person that a bystander may have observed.

Because the etiology of emotional disturbance is usually not as readily apparent as that of a broken bone following an automobile accident, courts have been concerned, apart from the problem of permitting bystander recovery, that recognition of a cause of action for such an injury when not related to any physical trauma may inundate judicial resources with a flood of relatively trivial claims, many of which may be imagined or falsified, and that liability may be imposed for highly remote consequences of a negligent act. W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 54, pp. 359-61. Perhaps for this reason, even those courts that permit recovery for emotional disturbance alone have erected some barriers not applicable to bodily injury claims. Thus, § 436A of the Restatement takes the position that “the negligent actor is not liable when his conduct results in the emotional disturbance alone, without the bodily harm or other compensable damages.” 2 Restatement (Second), Torts § 436A, comment a. This court, however, in Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 344, 398 A.2d 1180 (1978), concluded that “there is no logical reason for making a distinction, for purposes of determining liability, between those cases where the emotional distress results in bodily injury and those cases where there is emotional distress only.” We did, nevertheless, because of our concern “not to ‘open up a wide vista of litigation in the field of bad manners’ id., 345, quoting C. Magruder, “Mental and Emotional Disturbance in the Law of Torts,” 49 Harv. L. Rev. 1033,1035 (1936); impose a condition for emotional distress recovery that “the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm.” Montinieri v. Southern New England Telephone Co., supra. This condition differs from the standard foreseeability of the risk of harm requirement for negligence liability generally in that it focuses more precisely upon the nature of the harm to be anticipated as a prerequisite to recovery even where a breach of duty might otherwise be found, as where a telephone company wrongfully discloses the address of a customer with an unlisted telepone number. Id., 338-40.

When the complication of liability to a bystander for emotional distress is injected into the scene, the concerns that have placed restrictions upon claims for emotional distress by those directly affected by the negligent act are enhanced. The present case, for example, poses the troublesome question of causation involved in distinguishing the plaintiffs natural grief over the loss of her mother, with whom she had lived for many years and whose death she might well have had to bear even in the absence of malpractice, from the effects upon her feelings of her belief that the suffering and death of her mother were attributable to the defendants’ wrongful conduct. Indeed, § 313 of the Restatement expressly disavows the applicability of the rule of that section, approving a cause of action for emotional distress in behalf of the person directly affected by the unintended wrongful conduct, in situations “where the emotional distress arises solely because of harm or peril to a third person, and the negligence of the actor has not threatened the plaintiff with bodily harm in any other way.” 2 Restatement (Second), Torts § 313 (2), comment d. This view is consistent with our decision in Strazza v. McKittrick, supra, 719, where we held that a mother could recover for the injuries she suffered from the fright of hearing a truck crash into the porch where she thought her child was waiting “[t]o the extent that these injuries resulted from fear of injury to herself . . . but she cannot recover for nervous shock resulting from fear of injury to her child.”

Section 436 of the Restatement does, however, sanction a cause of action for bodily harm resulting “solely from the internal operation of fright or other emotional disturbance” on behalf of not only the person who has been directly subjected to the risk of bodily harm by the actor, but also on behalf of a member of the immediate family of the victim who was present at the occurrence of the victim’s injury or peril and thus sustained an emotional disturbance producing bodily harm. 2 Restatement (Second), Torts § 436 (3), comments f and g. It is made clear in § 436A that negligent conduct resulting in emotional disturbance alone, without bodily harm or other compensable damage, is not a sufficient basis for liability. 2 Restatement (Second), Torts § 436A. It should be noted that the complaint in the present action does not claim that the emotional distress the plaintiff suffered from the defendants’ malpractice toward her mother resulted in any “bodily harm” within the meaning of § 436A and, accordingly, the plaintiff does not rely upon that authority.

The plaintiff argues that the criterion for liability to a bystander for negligently caused emotional disturbance should be, as it is in negligence cases generally, the foreseeability that harm of the general nature of that suffered is likely to result. See Orlo v. Connecticut Co., 128 Conn. 231, 237, 21 A.2d 402 (1941). Most of the courts and commentators that have considered the matter, however, have recognized the necessity for imposing some rather arbitrary limitations on the right of a bystander to recover for emotional distress that are not applied in other negligence actions. Annot., “Right to Recover Damages in Negligence for Fear of Injury to Another, or Shock or Mental Anguish at Witnessing Such Injury,” 29 A.L.R.3d 1337,1344-46; W. Prosser & W. Keeton, supra, § 54, pp. 365-66. “It would be an entirely unreasonable burden on all human activity if the defendant who has endangered one person were to be compelled to pay for the lacerated feelings of every other person disturbed by reason of it, including every bystander shocked at an accident, and every distant relative of the person injured, as well as all his friends.” W. Prosser & W. Keeton, supra, § 54, p. 366. Some courts have simply applied the “unforeseeable plaintiff” rationale of Justice Cardozo in Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (1928), even though it takes no great prescience to realize that friends or relatives of a seriously injured accident victim will probably be affected emotionally in some degree. Resavage v. Davies, 199 Md. 479, 86 A.2d 879 (1952); Cote v. Litawa, 96 N.H. 174, 71 A.2d 792 (1950); Waube v. Warrington, 216 Wis. 603, 258 N.W. 497 (1935). Others have limited recovery for emotional distress to those who were personally within the “zone of danger.” Keck v. Jackson, 122 Ariz. 114, 593 P.2d 668 (1979); Stadler v. Cross, 295 N.W.2d 552 (Minn. 1980); Vaillancourt v. Medical Center Hospital of Vermont, Inc., 139 Vt. 138, 425 A.2d 92 (1980). Even those courts in the vanguard of the movement toward permitting bystander recovery have imposed some constraints not generally applicable to other negligence actions. Dillon v. Legg, supra, 739-46. “While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree.” Tobin v. Grossman, supra, 619.

We are not inclined to resume our dalliance with the Dillon guidelines that we held not to be satisfied when we disposed of the malpractice emotional disturbance claim in Amodio that was so similar to the case before us. The subsequent modification in Ochoa that a “sudden and brief event” was not necessary to satisfy the Dillon requirement of “sensory and contemporaneous observance of the accident,” allowing those like this plaintiff to bring actions for emotional disturbance based upon their observation of the course of treatment of an alleged malpractice victim over an extended period of time, demonstrates to us the ineffectiveness of those guidelines in screening out claims of any family member for the grief he has suffered from the loss of a loved one. Whatever may be the situation in other contexts where bystander emotional disturbance claims arise, we are convinced that, with respect to such claims arising from malpractice on another person, we should return to the position we articulated in Strazza that “there can be no recovery for nervous shock and mental anguish caused by the sight of injury or threatened harm to another.” Strazza v. McKittrick, supra, 719.

To allow recovery by one, like the plaintiff, who has been more or less constantly “at the bedside” of the malpractice victim during the period of treatment is likely to cause hospitals and other medical treatment facilities to curtail substantially the extent of visitation of patients that is presently permitted. Such a response by providers of medical care to the risk of liability to visitors whose sensitivity and relationship to the patient may result in emotional disturbances from observing treatment of loved ones that they view as improper would seem inevitable if such claims were to become more frequent. The restriction of current liberal practices with respect to patient visitation in order to reduce the incidence of bystander emotional disturbance claims would be a regrettable social consequence of enlarging the right to recover for emotional disturbances based upon the impact of medical malpractice upon bystanders.

Another undesirable sequel that is likely to follow upon our creation of a duty to a patient’s visitors or relatives is that medical personnel may feel obligated to respond to the usually uninformed complaints of visitors concerning the treatment of patients more for fear of stimulating emotional disturbances upon the part of the visitors than because of the merits of the complaint. Medical judgments as to the appropriate treatment of a patient ought not to be influenced by the concern that a visitor may become upset from observing such treatment or from the failure to follow some notion of the visitor as to care of the patient. The focus of the concern of medical care practitioners should be upon the patient and any diversion of attention or resources to accommodate the sensitivities of others is bound to detract from that devoted to patients.

Obviously, if the attention of medical practitioners is properly called to some deficiency in the treatment of a patient by anyone, that circumstance may be significant in deciding whether there has been malpractice. It is, however, the consequences to the patient, and not to other persons, of deviations from the appropriate standard of medical care that should be the central concern of medical practitioners. In the case before us, if the defendants should have responded to the various requests the plaintiff alleges she made about her mother’s condition, they should be held liable for the consequences of their neglect to the patient or her estate rather than to the plaintiff.

It is a fundamental assumption of jurisprudence that rules of law have an impact on the manner in which society conducts its affairs. We are persuaded that the recognition of a cause of action under the circumstances pleaded in the complaint would have consequences detrimental to the community as a whole that outweigh the benefit a few hypersensitive individuals would be likely to derive from permitting such an action to proceed. Accordingly, we find no error on the part of the trial court in granting the motion to strike the complaint.

There is no error.

In this opinion the other justices concurred.

       This action was commenced in 1982 by the administrator of the estate of Anita Maloney to recover damages for malpractice alleged to have resulted in her death. The fourth count of the complaint alleged a cause of action in behalf of the plaintiff Susan Maloney as a result of being “deprived of the friendship, companionship, guidance, love, affection and society of her mother Anita Maloney, all to her damage.” On September 28, 1987, the claim of the estate was withdrawn as to all defendants. The plaintiff Susan Maloney then proceeded to file a “seventh amended complaint” dated September 30, 1987, setting forth her claim of “severe emotional and mental distress, and pain and suffering,” which is the subject of this appeal.

       In Ladd v. Douglas Trucking Co., 203 Conn. 187, 196, 523 A.2d 1301 (1987), this court held that a wife could not pursue her personal claim for loss of consortium arising from the death of her husband in an accident, though we recognized her cause of action for ante-mortem consortium. We had previously, in Foran v. Carangelo, 153 Conn. 356, 216 A.2d 638 (1966), held that the minor children of a deceased mother, as well as her husband, could not recover for the loss of the decedent’s “care and affection” resulting from her death. The ground relied upon for these decisions was that General Statutes § 52-555 allowed only the estate of the decedent to recover for a wrongful death. To the extent that the plaintiff in this case seeks damages because of the effects upon her of the loss of her mother, her claim would be precluded by our decisions in Ladd and Foran.

       Paragraph 21 of the complaint alleges that the defendants “knew or should have known that their conduct was likely to cause the unreasonable risk of severe psychological, physiological and emotional distress to the plaintiff.” (Emphasis added.) Paragraph 22, however, alleges simply that the plaintiff “has suffered and will continue to suffer severe emotional and mental distress, and pain and suffering,” omitting any reference to physiological distress.