author: Shea, J. Callahan, J.,

text:
    Bradley Facilities, Inc. v. J. William Burns, Commissioner of Transportation
    (13458)
    Healey, Shea, Callahan, Hull and Santaniello, Js.

      Argued October 14
    decision released December 27, 1988

      Lawrence M. Lapine, with whom were Thomas M. Cassone and, on the brief, Christopher R. Bello, for the appellant (plaintiff).

      Michael J. Lombardo, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellee (defendant).
   Shea, J.

In this action the plaintiff, Bradley Facilities, Inc., appealed from the assessment of damages filed by the defendant commissioner of transportation pursuant to General Statutes §§ 13b-42 (e) and 13a-73 in taking by eminent domain the plaintiffs leasehold interest in an air freight terminal at Bradley International Airport. In accordance with General Statutes § 13a-76, a state trial referee, Hon. Charles S. House, was appointed to reassess the damages, and he rendered judgment awarding the plaintiff $145.38 as damages for the taking. From that judgment the plaintiff has appealed to the Appellate Court, and the appeal has been transferred to this court.

The principal issue is whether the assessment of damages is to be determined upon the basis of the fair market value of the leasehold taken or must be made in accordance with a condemnation clause of the lease, as the referee concluded. We conclude that the condemnation clause is applicable and determinative of the award. Accordingly, we find no error.

The significant facts are undisputed. On October 18, 1961, the state leased to the plaintiff a parcel of land at Bradley airport in Windsor Locks upon which the tenant was obliged to construct a building and other facilities to be used as an air freight terminal which would become the property of the lessor upon completion of construction. By an amendment to the lease on July 27,1962, it was agreed that the original lease term would be the twenty year period from September 1, 1962, through August 31, 1982. The lessee was given options to extend the term of the lease for two consecutive periods of five years each. In December, 1979, the plaintiff notified the state that it was exercising these renewal options, thus extending the term of the lease for an additional period of ten years commencing September 1,1982. On January 30,1980, the state informed the plaintiff that plans for improvement of the airport made it necessary to acquire the plaintiff’s leasehold interest by negotiation or by condemnation and that the state intended to complete this acquisition during the original lease term that would expire on August 31, 1982.

The lease between the parties contained a clause providing that, in the event of a condemnation during its original term, the lease would terminate and “there shall be paid or turned over to Tenant, as or from the award for such taking, a sum” representing the unamortized investment of the tenant in the lease allocated over the original lease term.

In 1982, the state notified the plaintiff of its intention to proceed with a condemnation of the leasehold. The plaintiff brought an action against the defendant to enjoin the taking. This action was settled through negotiations, however, and terminated on August 17, 1982, in a judgment by stipulation. Under the stipulation it was agreed that the state would continue with its plans for expansion of Bradley airport, which included the proposed demolition of the building occupied by the plaintiff. The state agreed, however, not to proceed with an actual condemnation of the leasehold of the existing air freight terminal operated by the plaintiff until a substitute facility had been constructed and was ready for occupancy. The stipulation also provided that, if the state should exercise its right of eminent domain, the condemnation should be deemed to have occurred on August 30, 1982, one day before the expiration date of the original term of the lease. The parties also agreed that the plaintiffs acceptance of such date as the condemnation date would not constitute a waiver of any of its rights with respect to the condemnation award.

On April 2,1984, the defendant filed a certificate of taking for the plaintiffs leasehold interest and assessed the damages at $1. The plaintiff, which had continued to operate the air freight terminal after the stipulated judgment had been rendered, remained in possession until some time in July, 1984.

At the hearing before the referee, the plaintiff presented evidence that the fair market value of its leasehold interest was $1,066,000 based upon the assumptions that the condemnation clause of the lease was inapplicable and that the unexpired term of the lease was not limited to the original expiration date of August 31, 1982. The state’s sole witness was an accountant who testified that he had calculated the damages in accordance with the formula set forth in that condemnation clause and had thus determined the damages for the taking to be $146.38. The referee accepted this computation and, allowing for the $1 deposited with the clerk of court at the time the taking certificate had been filed, rendered judgment for the plaintiff to recover $145.38 additional damages plus an expert witness fee of $3000.

The plaintiff claims on appeal (1) that the language of the condemnation clause bars its application in this case, (2) that the parties never intended that the clause should apply to a taking by the state, (3) that inequitable conduct on the part of the state should bar it from acquiring the plaintiff’s leasehold for the small sum awarded, and (4) that in enacting General Statutes § 13b-42 (e), which specifically authorized the defendant to condemn “any interest . . . in land, buildings, equipment or facilities that he has . . . leased or granted in any state airport,” and in applying it to the plaintiff’s leasehold, the state had violated the constitutional rights of the plaintiff under our state and federal constitutions.

I

The plaintiff maintains that the condition precedent to the application of the condemnation clause, “that the entire Demised Premises ... be taken by condemnation or eminent domain,” was never fulfilled and that the clause, therefore, is inapplicable. It contends that a taking of the “entire Demised Premises” refers to a taking of the fee in the land described in the lease, which the state held before the execution of the lease and continued to hold after the taking of the plaintiff’s leasehold interest. A condemnation of the leasehold only, the plaintiff argues, does not constitute a taking of the “entire Demised Premises.”

The significance of the word “entire,” however, is readily apparent in the context of the clause that follows the phrase “entire Demised Premises”: “or so much thereof that the remainder is not useful to Tenant.” Its reference is to the physical parcel of land being leased and not to the diverse interests that may exist in that land, such as those of the lessor and the lessee. This interpretation of the word “entire” is reinforced, by the reference in the second paragraph of the condemnation clause to “any other partial taking,” allowing for a reduction in rent where the portion of land condemned does not render the remaining leased property useless to the lessee. Thus the use of the word “entire” does not support the plaintiff’s claim that the condemnation clause was intended to apply only where all of the outstanding interests in the land that is the subject of condemnation are acquired.

The term “Demised Premises” is defined in the lease to mean the “particular premises shown outlined in red on the annexed copy” of a specified site pían “(which particular premises so shown, with the building and improvements to be constructed thereon, are hereinafter called the ‘Demised Premises’).” The word “demised” in this context means “leased.” Webster’s Third New International Dictionary; Black’s Law Dictionary (5th Ed.). “Premises” in common parlance signifies land with its appurtenances, though its more appropriate meaning in a conveyance, such as a deed or lease, is “that which is conveyed.” Holbrook v. Debo, 99 Ill. 372, 381 (1881); see Zandri v. Tendler, 123 Conn. 117, 123, 193 A. 598 (1937).

When we speak of taking land by eminent domain, we use the word “taking” figuratively, because the land remains physically undisturbed. What is taken or acquired by the condemning authority are the various interests of others in the land. While the condition that triggers the operation of the condemnation clause in the lease before us is that the “entire Demised Premises, or so much thereof that the remainder is not useful to Tenant, be taken by condemnation or eminent domain,” the parties must be deemed to have contemplated as the precipitating event the transfer of rights in the land to the taking authority.

The plaintiff maintains, however, that this phraseology must be construed to refer only to an acquisition of the whole bundle of rights in the land, the fee simple, by some agency other than the state, which already owned the fee. In such a condemnation, which the federal government conceivably might have brought, an award, corresponding to the total value of the land and improvements taken, would have been made. This sum, nevertheless, would have been allocated between the state and the plaintiff pursuant to the formula contained in the condemnation clause. The result would have given the plaintiff the same amount for the termination of its leasehold as it is entitled to receive under the judgment of the trial court.

The position of the plaintiff is that, if a condemning authority, whether state or federal, should choose to take only its leasehold interest, the parties intended the condemnation clause formula not to apply. It is highly improbable, however, that such an intention would have been entertained because it would result in the plaintiff receiving significantly disparate amounts as compensation for the taking of the same leasehold interest depending upon whether the fee were also taken.

Contrary to the plaintiffs claim, the lease does contain language applicable to a taking of only its leasehold interest. The condemnation clause provides that upon a taking “this lease shall terminate, and there shall be paid or turned over to Tenant, as or from the award for such taking, a sum calculated” in accordance with the formula set forth. (Emphasis added.) The alternative, “as . . . the award for such taking,” in contrast to “from” such award, is a clear indication that a taking of only the leasehold was contemplated by the parties as one of the events triggering the condemnation clause. The plaintiff could receive a sum “as . . . the award for such taking” rather than “from” such award only when its interest, but not that of the state, was taken in a condemnation proceeding.

We conclude that there is nothing in the language of the condemnation clause to support the plaintiffs claim that it was intended to become operative only when the state’s interest, as well as the lessee’s interest, is taken by eminent domain.

II

The plaintiff’s second claim, that the parties to the lease never intended that the condemnation clause should apply to a taking by the state, is closely related to the claim we have rejected, that the language of the clause precludes such an application. In support of its second claim, the plaintiff contends that (1) at the time the lease was executed, the defendant had no statutory authority to condemn facilities at a state airport, as now provided by § 13b-42 (e), and that (2) the sole purpose of the condemnation clause was to provide for the possibility of a taking by some federal agency. Again we note that the plaintiff would have been entitled to receive exactly the same award for the condemnation of its leasehold interest by a federal authority as it has received under the judgment as compensation from the state, because the condemnation clause formula is applicable to any taking by eminent domain. The plaintiff does not claim that it would have been better off if the condemning authority had not been the state, but that it had a reasonable expectation that no condemnation by the state was likely to occur during the term of the lease.

“It is a fundamental principle of law that the power to appropriate private property for public use is an attribute of sovereignty and essential to the existence of government.” Northeastern Gas Transmission Co. v. Collins, 138 Conn. 582, 586, 87 A.2d 139 (1952). “But into all contracts, whether made between States and individuals or between individuals only, there enter conditions which arise not out of the literal terms of the contract itself; they are superinduced by the preexisting and higher authority of the laws of nature, of nations, or of the community to which the parties belong; they are always presumed, and must be presumed, to be known and recognized by all, are binding upon all, and need never, therefore, be carried into express stipulation, for this could add nothing to their force. Every contract is made in subordination to them, and must yield to their control, as conditions inherent and paramount, wherever a necessity for their execution shall occur. Such a condition is the right of eminent domain.” West River Bridge Co. v. Dix, 47 U.S. (6 How.) 507, 532-33, 12 L. Ed. 535 (1848). “It attaches to every man’s land, and is paramount to his right of ownership. All titles are held subject to it.” Water Commissioners v. Johnson, 86 Conn. 151, 164, 84 A. 727 (1912). “[A] leasehold interest acquired from the State is as completely subject to condemnation for public use as a title derived from any other source . . . .” Cox v. Revelle, 125 Md. 579, 584, 94 A. 203 (1915); see Danbury v. Danbury Airport Corporation, 9 Conn. Sup. 319, 321 (1941).

The plaintiff has not disputed these principles but maintains that the claimed absence of authority for the defendant to condemn airport property in 1961, when the lease was signed, might reasonably have been relied upon as assurance that only a taking by some federal authority would cause the lease to terminate pursuant to the condemnation clause. The plaintiff acknowledges that parties are presumed to have contracted with reference to existing law; Hatcho Corporation v. Della Pietra, 195 Conn. 18, 21, 485 A.2d 1285 (1985); but contends that it was not bound to anticipate the enactment of § 13b-42 (e), which nineteen years later authorized the defendant to condemn its leasehold.

Since the condemnation clause of the lease, as we have concluded in Part I, is compatible with a taking by any authority having the power to take property by eminent domain, it does not inhibit in any manner the state’s exercise of that power by enacting legislation to implement this inherent attribute of sovereignty to which all contracts, including this lease, are subject. West River Bridge Co. v. Dix, supra. In signing the lease the plaintiff became bound by a reasonable construction of its terms. That document contains no provision to assure the plaintiff that the state would not exercise its power of eminent domain during the lease term. Even if statutes in existence at the time the lease was executed might have been inadequate to support the taking of a leasehold at Bradley airport, the plaintiff must be presumed to have been aware that the legislative branch of the state, the lessor, might at any time enact the necessary legislation to do so. The plaintiff does not claim to have bargained for any restriction upon the power of the state to enact such legislation during the term of the lease. “[A] promise not expressly made will not be read into a contract unless it arises by necessary implication from the terms of the agreement.” Bria v. St. Joseph’s Hospital, 153 Conn. 626, 631, 220 A.2d 29 (1966); Texaco, Inc. v. Rogow, 150 Conn. 401, 408, 190 A.2d 48 (1963). In executing the lease, the plaintiff is presumed to have been aware that it contains no exception to the applicability of the condemnation clause for a taking initiated by the state. Since the language of the clause is sufficiently broad to include a condemnation by the state as a triggering event, the plaintiff gains nothing from its claimed expectation that the clause would apply only to a taking by some federal authority.

In asserting that the sole purpose of the condemnation clause was to provide for the possibility of a federal taking, the plaintiff has not referred to any evidence concerning the actual intentions of the parties in 1961 when the lease was executed. It relies instead upon various intradepartmental memoranda prepared at the time the condemnation of the leasehold was under consideration in which counsel for the transportation department expressed the opinion that “the intent of the clause was to relate to a Federal takeover since the State at that time did not have a clear-cut statutory right to condemn out its own lease.” The opinion of this official of the transportation department, rendered about twenty years after the lease had been executed, does not constitute evidence of the intention of the parties at the time of its execution. Further, the state is not bound by the construction of the lease made by this official solely for use of the department, which we have concluded in Part I was erroneous.

Ill

The plaintiff claims that the state should be barred from invoking the formula in the condemnation clause of the lease to limit the award because of its alleged inequitable conduct in seeking to condemn the plaintiffs leasehold interest “during the Original Term” of the lease simply for the purpose of saving money. The defendant relies upon the fact that the state did not actually file its notice of condemnation until April 2, 1984, and that the plaintiff was not required to vacate the leased premises until July, 1984. The earlier attempt by the state in 1982 to condemn the leasehold had been forestalled by the plaintiffs action seeking an injunction. The stipulated judgment terminating that action had specified that, if the state should later commence a condemnation proceeding, it would be deemed to have occurred on August 30, 1982, a date within the original lease term during which the condemnation clause was applicable.

There was ample evidence that when the state notified the plaintiff in 1982 of its intention to acquire the leasehold prior to August 31,1982, the expiration date of the original lease term, it was motivated by a desire to meet its construction schedule as well as by the circumstance that the formula in the lease condemnation clause would operate to limit the amount of the award only for a condemnation occurring within the original term. Under the stipulated judgment, the parties agreed that a later condemnation would be deemed to have occurred within the original term and also that, until a substitute air freight facility had been constructed, the plaintiff could remain in possession of the existing facility. There is nothing inequitable in holding the plaintiff to its bargain concerning the effective condemnation date when it has enjoyed the fruits of the concession obtained from the state as part of the stipulation that enabled it to operate the existing facility for almost two years after the condemnation might otherwise have occurred. It can hardly rely upon the delay in the actual filing of the condemnation notice as support for its contention that the state acted inequitably in attempting to commence the condemnation within the original lease term, when that delay resulted from its agreement with the state.

Furthermore, the claim that the state acted inequitably in seeking to take the plaintiffs leasehold interest before a sufficient necessity had arisen raises issues that were involved in the earlier action for an injunction. The stipulated judgment must be deemed to have foreclosed the plaintiff from pursuing those claims further. It is true, as the plaintiff contends, that the stipulation contains a reservation of rights clause: “The plaintiff’s agreement with said condemnation date shall not be deemed a waiver of its rights in connection with any condemnation award or acquiescence with or to the position of the state or defendant thereto.” This language cannot be given the effect of preserving the plaintiffs claim that the state has acted inequitably in exercising its right to condemn within the original term of the lease when the plaintiff agreed in the stipulation that the impending condemnation “shall be deemed to have occurred on August 30,1982,” the day before expiration of such term.

IV

Finally, the plaintiff claims that § 13b-42 (e), the statute authorizing the taking of the plaintiffs leasehold, as applied in conjunction with the lease condemnation clause, violates the prohibition against the impairment of contract contained in article I, § 10, of our federal constitution.

Our interpretation of the condemnation clause of the lease, which makes it applicable to a taking of the plaintiffs leasehold interest by any authority having the power of eminent domain, including the state, leaves little substance to this constitutional claim. As we have noted, the condemnation of a property right granted by the state does not violate the constitutional prohibition against impairment of contract because all agreements are presumed to have been entered into subject to the condition that the state may elect during the term of the agreement to exercise its power of eminent domain. West River Bridge Co. v. Dix, supra. The use of that power, of course, imposes on the state the obligation to compensate an owner fairly for the property interest taken. Id. Where parties to a lease have agreed in advance that, in the event of a condemnation, the lessee’s award will be calculated pursuant to a prescribed formula, the resulting sum must be deemed fair compensation because it is in accordance with the agreement. However inadequate the amount arrived at through the formula might appear in the absence of such an agreement, an award made pursuant to the agreement cannot be regarded as an impairment of contract.

We previously have upheld the enforceability of similar condemnation clauses in leases. Waesche v. Redevelopment Agency, 155 Conn. 44, 49-50, 229 A.2d 352 (1967); see United States v. Petty Motor Co., 327 U.S. 372, 375-76, 66 S. Ct. 596, 90 L. Ed. 729, reh. denied, 327 U.S. 818, 66 S. Ct. 813, 90 L. Ed. 1040 (1946); annot., 96 A.L.R.2d 1140, 1145. The plaintiff does not challenge that holding and implicitly concedes that, if the condemnor had been some federal authority, it would have been entitled to receive no more than is permitted by the judgment under review. Given our construction that the condemnation clause is applicable regardless of the identity of the condemning authority, there is no basis for claiming a constitutional violation when the-plaintiff is to receive the same amount from the state as it would have received if the condemning authority were some federal agency.

There is no error.

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

Callahan, J.,

dissenting. I respectfully dissent. It appears clear to me that the condemnation clause in the lease was not intended to apply to a taking of the plaintiffs leasehold interest by the lessor, the defendant commissioner of transportation. Therefore, the formula for assessing damages contained in that clause has no application to the present situation. Consequently, the trial referee should not have used the formula in the lease when assessing damages, but rather should have employed the usual method of measuring damages for the taking of a leasehold interest. See Gigliotti v. Wood, 175 Conn. 243, 246, 397 A.2d 1342 (1978). I believe that he erred in failing to do so.

I would remand this case for a new hearing to determine the value of the plaintiffs leasehold interest, including the option years, without regard to the formula contained in the condemnation clause of the lease.

       The text of the condemnation clause in the lease was as follows: “28. Condemnation. In the event that the entire Demised Premises, or so much thereof that the remainder is not useful to Tenant, be taken by condemnation or eminent domain during the Original Term of this lease, this lease shall terminate, and there shall be paid or turned over to Tenant, as or from the award for such taking, a sum calculated by multiplying the Tenant’s Original Investment (as hereinafter defined) successively by two fractions: (1) a fraction whereof the numerator is the number of days between the date of the vesting of title and the date of expiration of the Original Term of this lease, and the denominator is the number of days in the Original Term, and (2) a fraction whereof the numerator is the then rental value immediately before such taking of the premises taken and the denominator is the then rental value of the entire Demised Premises immediately before such taking. Nothing herein contained shall require Landlord to pay to Tenant any sum in excess of the total award for such taking.
      In the event of any other partial taking, this lease shall terminate only as to the part so taken, and the Fixed Rent for the balance of the then current term shall be reduced by the fraction last above set forth, but Landlord shall, from its share of the total award or otherwise, bear the expense of the restoration to a rentable condition of the untaken balance of the Demised Premises.
      As used herein, the phrase ‘Tenant’s Original Investment’ shall mean the total costs to Tenant of the improvements specified in Article 1 hereof, plus all expenses of Tenant incurred in connection therewith and capitalized by Tenant in accordance with good accounting practice.
      If, at any time during the Original Term or any extended term hereof, the whole or any part of the Demised Premises or of the Building or of Tenant’s interest under this lease shall be taken or condemned by any competent authority for temporary use or occupancy, this lease shall not terminate by reason thereof, and Tenant shall continue to pay in the manner and at the times herein specified, the full amounts of the rent and all additional charges payable by Tenant hereunder, and, except only to the extent Tenant may be prevented from so doing pursuant to the terms of the order of the condemning authority, Tenant shall continue to perform and observe all of the other terms, covenants, conditions and obligations hereof on the part of Tenant to be performed and observed, as though such taking had not occurred. In the event of any such taking, Tenant shall be entitled to receive the entire amount of any award made for such taking, whether paid by way of damages, rent or otherwise, unless such period of temporary use or occupancy shall extend beyond the expiration date of the Original Term of this lease or (in the event that the term hereof shall have been extended as hereinafter provided) of any extended term hereof, in which case such award shall be apportioned between Landlord and Tenant as of such date of expiration. The existence or possible continuation of any such period of temporary use or occupancy shall not affect the right of Tenant, as against Landlord, to exercise any of Tenant’s options to extend the term of this lease.”

       General Statutes § 13b-42 (e) provides as follows: “The commissioner may, in the name of the state, purchase, take or acquire any interest, in whole or in part, in land, buildings, equipment or facilities that he has sold, leased or granted in any state airport, state airport site or any part thereof pursuant to subsection (b) of this section. The commissioner’s determination that such purchase, taking or acquisition is necessary shall be conclusive. Any taking shall be in a manner prescribed in section 13a-73 for the taking of land for highway purposes.”
      This provision was enacted in 1981. Public Acts 1981, No. 81-472, § 127. General Statutes § 13b-42 (c), the statutory predecessor of which was enacted in 1947; Public Acts 1947, No. 337, § 1; also arguably may have authorized the condemnation of the plaintiffs leasehold interest: “The commissioner may . . . purchase or take and, in the name of the state, may acquire title in fee simple to, or any lesser state, interest or right in, any airport . . . owned or controlled ... by any other person . . . .” General Statutes § 13b-36 (a) also may have provided such authority: “The commissioner may purchase or take and, in the name of the state, may acquire title in fee simple to, or any lesser estate, interest or right in, any land, buildings, equipment or facilities which the commissioner finds necessary for the operation or improvement of transportation services.” This statute had been amended in 1974 by substituting “transportation” services for “rail or motor carrier” services. Public Acts 1974, No. 74-342, § 37. An intradepartmental memorandum of counsel for the transportation department dated July 26,1979, which discusses problems involved in planning the condemnation of the plaintiff’s leasehold, concluded that the application of these existing statutes might be “questioned.” We are not required to resolve the issue of the applicability of these earlier statutes in deciding this case.

       In West River Bridge Co. v. Dix, 47 U.S. (6 How.) 507, 532, 12 L. Ed. 535 (1848), the state of Vermont had in 1795 granted the plaintiff the exclusive privilege of erecting a toll bridge across a river and this franchise was to continue for one hundred years. In 1839 the Vermont legislature enacted a statute authorizing the taking of private property, including franchises, for the purpose of laying out public highways. The United States Supreme Court rejected the action brought by the plaintiff to enjoin the condemnation, holding that the taking of the franchise did not violate the prohibition in article I, § 10, of the federal constitution against state enactment of any “law impairing the obligation of contracts.” The opinion of the court relied partly upon the case of Enfield Toll Bridge Co. v. Hartford & New Haven Railroad Co., 17 Conn. 454 (1846), where this court had reached a similar conclusion in sanctioning a breach of a legislative franchise to erect a bridge across the Connecticut river subject to the payment of compensation.

       See footnote 2, supra.

       See footnote 2, supra.

       The plaintiff also relies upon the prohibition in the fifth amendment to our federal constitution, applicable to the states by virtue of the due process clause of the fourteenth amendment, providing: “nor shall private property be taken for public use, without just compensation.” Further reliance is placed upon a similar provision of our state constitution, article first, § 11, which provides: “The property of no person shall be taken for public use, without just compensation therefor.” The discussion in the plaintiff’s brief, however, relates to impairment of contract as the basis for the claim of taking property without just compensation. Accordingly, we confine our discussion of this issue to the question of whether there has been an impairment of contract.

       See Canterbury Realty Co. v. Ives, 153 Conn. 377, 384, 216 A.2d 426 (1966).


source: Caselaw Access Project

author: Callahan, J.

license: Public Domain

text:
    Herbert Virgo v. Christopher J. Lyons et al.
    (13430)
    Peters, C. J., Callahan, Glass, Covello and Hull, Js.
    Argued October 11
    decision released December 27, 1988

      Samuel B. Feldman, for the appellant (plaintiff).

      John P. Clarkson, with whom, on the brief, was Robert E. Beach, for the appellees (defendants).
   Callahan, J.

The central issue in this appeal is whether the plaintiff is collaterally estopped by an award of damages in a previous federal § 1983 action from recovering damages in the Superior Court for negligence and assault and battery. The plaintiff, Herbert Virgo, appealed to the Appellate Court from the judgment rendered by the Superior Court on the granting of the summary judgment motion of the defendants, the city of Hartford, Hartford Police Chief Bernard J. Sullivan and Hartford police officers Christopher J. Lyons, Joseph Cardillo, Armando Lupo and Robert Doherty. Thereafter, this court transferred the appeal to itself, pursuant to Practice Book § 4023. We find no error.

This action stems from a December 10,1983 incident in which the plaintiff claims he was the victim of a false arrest and the unjust use of force by the defendant police officers. Prior to the instant action, the plaintiff filed an action against the defendants in the United States District Court for the District of Connecticut. His complaint in the federal court action contained four counts. The first count alleged that the defendants’ acts constituted “false arrest, an unlawful deprivation of [the plaintiff’s] liberty and his civil rights and an excessive and unjust use of force, all in violation of the first, fourth, fifth and fourteenth amendments to the United States Constitution and 42 U.S.C. 1983." The second, third and fourth counts of the plaintiff’s complaint set forth pendent state law tort claims alleging, respectively, that the defendant officers’ acts constituted negligence, that the city of Hartford and Police Chief Sullivan acted negligently in the informing, counseling and training of the defendant officers, and that the defendant officers’ acts constituted an assault and battery on the plaintiff.

The District Court dismissed the plaintiff’s false arrest claim, finding it to be meritless as a matter of law. The District Court also exercised its discretion and dismissed the plaintiff’s pendent state law claims. The plaintiff’s remaining claim, seeking recovery under § 1983 for violations of his constitutional rights, was tried to a jury. On December 5, 1985, judgment was rendered in favor of the plaintiff against Officer Lupo only. The jury awarded the plaintiff compensatory damages of $25,000 and punitive damages of $1. The plaintiff also recovered costs of $1892.05 and attorney’s fees in the amount of $7500. Judgment was rendered in favor of the remaining defendants.

On December 10,1985, the plaintiff commenced this action against the same defendants in the Superior Court. The allegations of the plaintiff’s state court complaint were identical to those alleged by him in the federal court action. Moreover, the plaintiff’s state court complaint iterated exactly the same injuries and the same claim for damages as did his federal court complaint. By way of special defense to the plaintiff’s complaint in the Superior Court, the defendants asserted that the “issues between the parties were decided in the United States District Court for the District of Connecticut and further litigation is barred by principles of res judicata and collateral estoppel.” On the basis of this defense, the defendants moved for summary judgment pursuant to Practice Book § 378 et seq. The trial court, in considering the defendants’ motion, concluded that the constitutional and § 1983 claims alleged in the first count of the plaintiff’s state court complaint were specifically litigated in the federal court and were therefore barred by the doctrine of res judicata. It also found that, while the plaintiff’s pendent state law tort claims were “not specifically litigated in the federal court case,” they were barred under the doctrine of collateral estoppel because the issue of damages had already been determined in the federal court. The trial court, therefore, granted the defendants’ motion for summary judgment.

On appeal, the plaintiff claims that the trial court erred in granting, on collateral estoppel grounds, the defendants’ motion for summary judgment addressed to the tort claims set forth in counts two, three and four of his complaint. According to the plaintiff, counts two and three of his complaint that sound in negligence, count four that sounds in assault and battery, and the claims for the damages that resulted from those torts, have never been litigated. He asserts that the compensatory and punitive damages he received in the previous federal suit were compensation only for a violation of his civil rights. Therefore, the plaintiff contends that he is entitled to litigate his tort claims in a state court action. We disagree.

“The doctrines of res judicata and collateral estoppel protect the finality of judicial determinations, conserve the time of the court, and prevent wasteful relitigation. Res judicata or claim preclusion prevents a litigant from reasserting a claim that has already been decided on the merits. Collateral estoppel, or issue preclusion, prevents a party from relitigating an issue that has been determined in a prior suit.” Gionfriddo v. Gartenhaus Cafe, 15 Conn. App. 392, 401-402, 546 A.2d 284, cert. granted, 209 Conn. 809, 548 A.2d 437 (1988); see also State v. Ellis, 197 Conn. 436, 462-67, 497 A.2d 974 (1985); In re Juvenile Appeal (83-DE), 190 Conn. 310, 313-18, 460 A.2d 1277 (1983); Gennarini Construction Co. v. Messina Painting & Decorating Co., 15 Conn. App. 504, 509-10, 545 A.2d 579 (1988). “For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment.” Gionfriddo v. Gartenhaus Cafe, supra, 402; State v. Ellis, supra, 463; Restatement (Second), Judgments § 27; see also P.X. Restaurant, Inc. v. Windsor, 189 Conn. 153, 161, 454 A.2d 1258 (1983); F. James & G. Hazard, Civil Procedure (3d Ed.) §§ 11.16 through 11.19.

The elements of collateral estoppel are satisfied in the present case. Although the current state court action involves claims in negligence and assault and battery, while the federal court action ultimately involved only a claim for violations of the plaintiffs constitutional rights under § 1983, both causes of action arose out of the same alleged wrongs, allegedly committed by the same defendants, and involved the same injuries.

Moreover, the interests protected in a § 1983 action are similiar to those protected in common law tort actions. In Memphis Community School District v. Stachura, 477 U.S. 299, 305, 106 S. Ct. 2537, 91 L. Ed. 2d 249 (1986), the United States Supreme Court stated that “42 U.S.C. § 1983 creates ‘ “a species of tort liability” in favor of persons who are deprived of “rights, privileges, or immunities secured” to them by the Constitution.’ Carey v. Piphus, 435 U.S. 247, 253 [98 S. Ct. 1042, 55 L. Ed. 2d 252] (1978); Imbler v. Pachtman, 424 U.S. 409, 417 [96 S. Ct. 984, 47 L. Ed. 2d 128] (1976). See also Smith v. Wade, 461 U.S. 30, 34 [103 S. Ct. 1625, 75 L. Ed. 2d 632] (1983); Newport v. Fact Concerts, Inc., 453 U.S. 247, 258-59 [101 S. Ct. 2748, 69 L. Ed. 2d 616] (1981).” Stachura makes clear that the purpose of § 1983 damages is to compensate persons for actual injuries and the amount of compensation is ordinarily determined by the rules applicable to common law torts. Id. Further, the interrelationship of § 1983 and common law tort actions has been recognized by numerous courts. See Brooks v. Andolina, 826 F.2d 1266, 1270 (3d Cir. 1987); Giano v. Flood, 803 F.2d 769 (2d Cir. 1986); Fay v. South Colonie Central School District, 802 F.2d 21, 34 (2d Cir. 1986); Sloan v. Jasper County, 167 Ill. App. 3d 867, 522 N.E.2d 334 (1988); Long v. Rothbaum, 68 Md. App. 569, 514 A.2d 1223 (1986); Crane v. Commissioner of Public Welfare, 400 Mass. 46, 507 N.E.2d 751 (1987). In Sloan v. Jasper County, supra, the remedies provided by § 1983 and common law tort actions were considered so intertwined that the court found it unnecessary for the plaintiff, who had filed a § 1983 claim in the state court, to plead separately his state law tort claim of intentional infliction of emotional distress. Because § 1983 provides a remedy in the form of damages for actual injuries suffered by reason of a violation of a plaintiffs civil rights, it follows that the issue of damages for those same injuries cannot be relitigated in a state tort action if it has already been decided in a § 1983 action.

In fact, the damages that are compensable in a § 1983 action may be greater than the damages recoverable under state law for negligence or assault and battery. Plaintiffs aggrieved under § 1983 are entitled to claim compensatory and punitive damages, plus the cost of litigation and attorney’s fees. Plaintiffs who prove liability for the underlying torts in the state court are only entitled to compensatory and punitive damages. Further, the punitive damages may only “consist of a reasonable expense properly incurred in the litigation. . . less taxable costs.” (Citation omitted.) Markey v. Santangelo, 195 Conn. 76, 80, 485 A.2d 1305 (1985); see also Miller v. Drouin, 183 Conn. 189, 190, 438 A.2d 863 (1981) (punitive damages in Connecticut are not designed “to punish the defendant for his offense but rather to compensate the plaintiff for his injuries”).

The plaintiff contends, however, that under § 1983, persons whose constitutional rights are violated may recover damages to compensate them for the abstract value of the constitutional right that was violated independent of any actual injury. Accordingly, he maintains that the damages he received in the federal court action did not compensate him for his actual injuries, but rather, compensated him only for a violation of his constitutional rights. Claiming he received no compensation for his actual injuries, the plaintiff argues that he is now entitled to seek recovery for those injuries by litigating his state law tort claims.

The plaintiff’s contentions, however, directly conflict with Memphis Community School District v. Stachura, supra, in which the United States Supreme Court held that a plaintiff must prove actual injury as a prerequisite to a recovery of compensatory damages in a § 1983 claim. According to the court, the abstract value of constitutional rights may not form the basis of substantial § 1983 damages. Id., 308-10; see also Carey v. Piphus, supra. In Stachura, the court stated that “when § 1983 plaintiffs seek damages for violations of constitutional rights, the level of damages is ordinarily determined according to principles derived from the common law of torts. See Smith v. Wade, [supra, 34]; Carey v. Piphus, supra, [257-58]; cf. Monroe v. Pape, 365 U.S. 167, 196, and n. 5 [81 S. Ct. 473, 5 L. Ed. 2d 492] (1961) (Harlan, J., concurring).” Memphis Community School District v. Stachura, supra, 306. The court went on to state that “[s]ection 1983 presupposes that damages that compensate for actual harm ordinarly suffice to deter constitutional violations. Carey [v. Piphus,] supra, 256-257.” Id., 310.

Both at oral argument and in his reply brief, the plaintiff addressed Memphis Community School District v. Stachura, supra. While he concedes that Stachura requires a § 1983 plaintiff to show actual injury in order to recover compensatory damages, the plaintiff cites Justice Marshall’s concurring opinion for the proposition that “invasions of constitutional rights sometimes cause injuries that cannot be redressed by a wooden application of common law damages rules.” Id., 314. Relying on this quote, the plaintiff claims he is entitled to “substantial damages” for the violation of his constitutional rights, independent of damages for actual injuries suffered, because the damages that were awarded by the jury in the § 1983 action previously tried in the federal court solely compensated him for the violation of his constitutional rights. Accordingly, the plaintiff asserts that the issue of damages for his actual injuries has never been litigated, and thus, that his claims for negligence and assault and battery should not be barred by the doctrine of collateral estoppel.

The plaintiff’s argument is unpersuasive for two reasons. First, the plaintiff has misinterpreted Memphis Community School District v. Stachura, supra. In Stachura, the United States Supreme Court, in accordance with Carey v. Piphus, supra, recognized that there are two types of cases that can be litigated under § 1983. In the first type, “the interests protected by a particular branch of common law torts may parallel closely the interests protected by a particular constitutional right.” Carey v. Piphus, supra, 258. In such cases, it is appropriate to apply the tort rules of damages directly to the § 1983 action, thereby compensating the plaintiff for any actual injury he can prove. Memphis Community School District v. Stachura, supra, 309; Carey v. Piphus, supra. In the second type of case, “the interests protected by a particular constitutional right may not also be protected by an analogous branch of the common law of torts.” Carey v. Piphus, supra, 258. As the majority opinion in Memphis Community School District v. Stachura, supra, 311, points out, in that type of case “presumed” damages may be appropriate. In his concurring opinion, cited by the plaintiff, Justice Marshall was referring to this second type of § 1983 case when he stated that it may not always be desirable to apply common law damage rules to § 1983 cases. The present case is not a “presumed” damages case; the interests protected and the injuries for which the plaintiff sought compensation in his § 1983 action closely parallel the interests protected and the injuries for which he now seeks compensation in the state court. Further, the jury in the federal court action was instructed in accordance with the common law rules of damages, the plaintiff’s damages were calculated in accordance with those rules, and he was compensated for the actual injuries he proved. Consequently, the damages that the plaintiff claims in the present state court action would again compensate him for the same actual injuries arising from the same incident.

Even if the § 1983 federal court action were a “presumed” damages case, the plaintiffs argument that he is entitled to damages for his actual injuries, in addition to substantial damages for the violation of his constitutional rights, is incorrect. “Presumed damages are a substitute for ordinary compensatory damages, not a supplement for an award that fully compensates the alleged injury.” (Emphasis in original.) Memphis Community School District v. Stachura, supra, 310. When it is necessary to award “presumed” damages, they should “roughly approximate the harm that the plaintiff suffered and thereby compensate for harms that may be impossible to measure.” Id., 311; see also Carey v. Piphus, supra, 258 (in presumed damages cases, “the task [of calculating damages] will be the more difficult one of adapting common-law rules of damages to provide fair compensation for injuries caused by the deprivation of a constitutional right” [emphasis added]). Justice Marshall, himself, recognized the compensatory nature of “presumed” damages when he stated in his concurring opinion that “the award must be proportional to the actual loss sustained.” Memphis Community School District v. Stachura, supra, 315. Therefore, according to the court in Stachura, a plaintiff seeking damages in a § 1983 action may recover ordinary compensatory damages or, if damages are difficult or impossible to measure, “presumed” damages, but he cannot recover both.

The plaintiffs argument, that the jury in the § 1983 action awarded him damages only for violations of his constitutional rights, is also unpersuasive when the jury instructions given by the judge in the federal court action are examined. The trial court instructed the jury that it could award compensatory damages and punitive damages. In calculating compensatory damages, the judge, in accordance with the holding in Memphis Community School District v. Stachura, supra, informed the jury that they could consider and compensate the plaintiff for proven lost earnings, medical expenses, permanent injury, and pain and suffering. In addition, the court instructed the jury as follows: “Among the items of compensatory damages that you may consider, is the value of the deprivation of a Constitutional right. If you find that the defendants, or any one of them, are liable for the deprivation of plaintiffs constitutional rights, and that the plaintiff has suffered no actual damages as a result, you may award nominal damages, for example, one dollar, as the amount which he should recover.” This language is a clear indication that the jury was instructed to award damages to the plaintiff on the basis of his actual injuries and not on the abstract value of a constitutional right. Since the federal court jury awarded compensation on that basis, the plaintiff should not now be allowed to relitigate that same issue in the state court.

At oral argument before this court, the plaintiff acknowledged that the instructions given to the federal court jury presented it with a measure of damages “which overlapped with the pendent state Paw] claims.” Although he contends the charge was erroneous, the plaintiff conceded that he did not object to it because it was “very favorable” to him. Despite the instruction as to damages in the federal court, the plaintiff argues that he should now be able to retry the case in the state court with an instruction to the jury that it could deduct the compensation he had already recovered for certain damages in the federal court action. The plaintiff maintains that this is a fair solution because if he had had the opportunity to litigate the negligence and assault and battery claims in the federal court action he might have recovered more damages. This argument is unconvincing. Although the plaintiff may be dissatisfied with the damages he received in the federal court action, the fact remains that he has already litigated the issue of damages and he cannot relitigate that issue. “A plaintiff may be compensated only once for his just damages for the same injury.” Gionfriddo v. Gartenhaus Cafe, supra, 406.

Finally, the plaintiff urges this court to find, despite the instruction as to damages given to the jury in the § 1983 action, that the federal court jury believed that it was awarding him damages only for the violation of his constitutional rights. He requests this court therefore to provide him a forum to litigate his state law tort claims. This court cannot, however, look into the hearts and minds of the jurors and determine the injury for which they in fact compensated the plaintiff. We must assume that the jury calculated the damages it awarded to the plaintiff in accordance with the instructions it was given. See State v. Gabriel, 192 Conn. 405, 416, 473 A.2d 300 (1984); State v. King, 187 Conn. 292, 302-303, 445 A.2d 901 (1982); State v. Hines, 187 Conn. 199, 212, 445 A.2d 314 (1982); State v. Bausman, 162 Conn. 308, 314, 294 A.2d 312 (1972). The instructions in the federal court action clearly allowed recovery for the plaintiffs actual injuries. Having thus recovered, he cannot relitigate claims that, if proven, will compensate him a second time for the same injuries.

As the issue of damages was fully litigated in the federal court action, the trial court did not err in granting the defendants’ motion for summary judgment dismissing counts two, three and four of the plaintiff’s complaint as barred under the doctrine of collateral estoppel.

There is no error.

In this opinion the other justices concurred.

       Title 42 of the United States Code, § 1983, provides: “civil action for DEPRIVATION OF RIGHTS
      “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”

       In counts one, two and three of the plaintiff’s federal court complaint and the complaint filed in state court, the following injuries are listed: “(a) Severe injuries and bruises to his head, ribs and groin; (b) Severe head injuries and trauma; (c) A severe shock to his nervous system; (d) The [injability to perform normal personal and social activities; (e) The [injability to return to his work; (f) Deprivation of his liberty as a result of said unlawful arrest; (g) Public embarrassment, shame and ridicule; (h) As a further result of such illegal and unconstitutional acts by such defendants, or each of them, the plaintiff was forced to expend sums for medical treatment for the injuries which he sustained in said incident; (i) Deprivation and denial of his property rights; (j) At the time of said assault upon the plaintiff, he was gainfully employed.” In count four, his assault and battery claim, the plaintiff excluded from both his federal and state court complaint allegations that he suffered a deprivation and denial of his property rights and that he was gainfully employed at the time of the assault. The remaining injuries claimed by the plaintiff in count four, however, are identical to those listed in the earlier counts of his complaint.

       According to the complaints filed in both the federal court action and the present state court action, the plaintiff claims: (1) “Money damages”; (2) “Compensatory damages for medical expenses and lost wages, for pain and suffering he endured, and for the blatant violations of his civil and constitutional rights”; (3) “Punitive damages pursuant to the statute”; (4) “Attorney’s fees and the costs of bringing this action pursuant to statute”; and (5) “such other and further relief as may seem necessary and proper to this Court.”

       The trial court granted the plaintiff’s motion to reargue, but after reargument affirmed its prior decision.

       The plaintiff has abandoned his challenge to the trial court’s disposition of count one of his complaint which was held to be barred under the principle of res judicata.

       In light of the United States Supreme Court’s holding in Memphis Community School District v. Stachura, 477 U.S. 299, 106 S. Ct. 2537, 91 L. Ed. 2d 249 (1986), it is questionable whether the federal court should have dismissed the pendent state law tort claims in this case. That, however, is a possible error that this court cannot remedy.

       The ability to recover punitive damages to punish a defendant for his offense under 42 U.S.C. § 1983 is firmly established by federal case law. See, e.g., Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S. Ct. 2748, 69 L. Ed. 2d 616 (1981); Cunningham v. Overland, 804 F.2d 1066 (8th Cir. 1986). The ability to collect attorney’s fees as part of the cost of litigating a § 1983 claim is, according to statute, left to the discretion of the court. See 42 U.S.C. § 1988.

       Therefore, damages recoverable in a common law tort action may actually be less than those recoverable under 42 U.S.C. § 1983 as that section allows a plaintiff to recover punitive damages in addition to the cost of litigation and attorney’s fees. Moreover, under § 1983 there is no setoff for the contributory negligence of a plaintiff as there may be in negligence actions under Connecticut law.

       Actual injury includes “not only out-of-pocket loss and other monetary harms, but also injuries such as ‘impairment of reputation . . . personal humiliation, and mental anguish and suffering.’ ” Memphis Community School District v. Stachura, 477 U.S. 299, 307, 106 S. Ct. 2537, 91 L. Ed. 2d 249 (1986), quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 350, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974).

       Justice Marshall’s comments were made in conjunction with a discussion of Hobson v. Wilson, 737 F.2d 1 (D.C. Cir. 1984), cert. denied sub nom. Brennan v. Hobson, 470 U.S. 1084, 105 S. Ct. 1843, 85 L. Ed. 2d 142 (1985), which was a “presumed” damages case. In Hobson v. Wilson, the plaintiffs claimed that the defendants had violated their first amendment rights to assemble for peaceable political protest, to associate with others to engage in political expression, and to speak on public issues free of unreasonable government interference. Citing Carey v. Piphus, 435 U.S. 247, 258, 98 S. Ct. 1042, 55 L. Ed. 2d 252 (1978), the court in Hobson v. Wilson, supra, noted that the nature of the plaintiffs’ injuries made the case one in which it would be difficult to estimate the actual loss sustained. To calculate damages in such a case, the court stated that it should first look to common law tort principles. Id. If the interests protected by the first amendment would “go uncompensated on the basis of traditional common law principles” then damages could be awarded only if the intangible interests could be “conceptualized and if the harm can be shown with sufficient certainty to avoid damages based either on pure speculation or the so-called inherent value of the rights violated.” Id., 63.

       Whether the plaintiffs damages in Memphis Community School District v. Stachura, 477 U.S. 299, 106 S. Ct. 2537, 91 L. Ed. 2d 249 (1986), should have been ordinary compensatory damages or “presumed”.damages was not in issue.

       The plaintiff maintains that under Carey v. Piphus, 435 U.S. 247, 98 S. Ct. 1042, 55 L. Ed. 2d 252 (1978), the violation of a substantive constitutional right may permit the plaintiff to recover substantial general damages even without proof of actual injury, but procedural due process claims always require a showing of actual injury. This argument was unequivocably rejected in Memphis Community School District v. Stachura, 477 U.S. 299, 309, 106 S. Ct. 2537, 91 L. Ed. 2d 249 (1986), where the court stated that “[Carey v. Piphus] does not establish a two-tiered system of constitutional rights, with substantive rights afforded greater protection than ‘mere’ procedural safeguards.”

       In fact, these instructions are in conformity with the holdings both in Memphis Community School District v. Stachura, 477 U.S. 299, 106 S. Ct. 2537, 91 L. Ed. 2d 249 (1986), and Carey v. Piphus, 435 U.S. 247, 98 S. Ct. 1042, 55 L. Ed. 2d 252 (1978).


author: Shea, J.

text:
    Peder Pedersen, Jr., et al. v. Misbah Vahidy
    (13362)
    Peters, C. J., Healey, Shea, Covello and Hull, Js.

      Argued November 4, 1988
    decision released January 3, 1989

      Wesley W. Horton, with whom was Alexandra Davis, for the appellant (defendant).

      Kathryn A. Calibey, for the appellee (named plaintiff).
   Shea, J.

In this medical malpractice action a jury returned a verdict of $300,000 for the plaintiff Peder Pedersen, Jr. After denial of his motion to set aside the verdict, the defendant, Misbah Vahidy, appealed from the judgment on the verdict claiming that the trial court had erred in (1) instructing the jury that the plaintiff had proved the specification of negligence that the defendant had failed to obtain an informed consent to the surgery, and (2) failing to grant a mistrial or give curative instructions concerning remarks of the plaintiffs counsel during argument suggesting that the defendant should have produced other surgeons in the area to testify as expert witnesses. The defendant has raised the additional issue of whether the general verdict rule precludes review of the claimed error in the charge to the jury. We conclude that there was error in the charge and that the general verdict rule does not apply under the circumstances of this case. Accordingly, we remand the case for a new trial. We discuss the claim of improper argument only for the purpose of the new trial and conclude that the substance of the argument was not improper.

It is undisputed that the defendant, a general surgeon, on February 25, 1983, performed an operation to remove a lipoma from the left scalene area of the neck of the plaintiff and that in the course of this procedure the left upper trunk of his brachial plexus nerve was injured with resulting disability of the left arm and shoulder. The injury occurred when the defendant inadvertently transected a branch of the nerve with scissors during the operation.

I

Before reaching the issue of whether the trial court has erred in directing the jury to resolve the issue of informed consent against the defendant, we must consider whether the general verdict rule precludes review of this claim. Under the rule, where distinct causes of action or defenses have been pleaded, a general verdict, such as was rendered for the plaintiff in this case, imports that each cause or defense has been decided in favor of the prevailing party. Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 202, 520 A.2d 208 (1987). When, however, “a plaintiff submits to the jury several different specifications of negligent conduct in support of a single cause of action for negligence, we have held that the general verdict rule does not apply.” Id., 203. The complaint in this case included the claim of lack of informed consent as one of six specifications of negligence. The plaintiff argues nevertheless, that this claim is a distinct cause of action separate from the other specifications of negligence. See Lambert v. Stovell, 205 Conn. 1, 6, 529 A.2d 710 (1987); Logan v. Greenwich Hospital Assn., 191 Conn. 282, 289, 465 A.2d 294 (1983). We need not resolve this issue, however, because the defendant submitted to the court interrogatories directed to each of the specifications of negligence in the complaint, including the claim of lack of informed consent. The court refused the request to use interrogatories and the defendant excepted to this ruling.

“A party desiring to avoid the effects of the general verdict rule may elicit the specific grounds for the verdict by submitting interrogatories to the jury.” Finley v. Aetna Life & Casualty Co., supra, 203. It follows that where the court has denied a proper request for interrogatories, as in this case, the general verdict rule does not apply so as to preclude appellate review of error relating to any ground upon which the jury may have rested its verdict and to which an appropriate interrogatory has been directed.

The plaintiff does not on appeal maintain that the submission of interrogatories to the jury would have been inappropriate, but contends (1) that they were untimely, and (2) that the defendant cannot now claim error in the refusal to submit interrogatories because no such ground, was relied upon in support of his motion to set aside the verdict.

With respect to timeliness, which the trial court mentioned as one ground for denying the use of interrogatories, it appears that the defendant first made his request during a chambers conference prior to closing arguments. After the conference, the defendant filed the interrogatories in open court, stating that they would be helpful “in light of your Honor’s action in taking one of the issues away from the jury.” He referred to the court’s denial of his request, and noted his exception. The rules of practice do not specify when interrogatories should be filed. See Practice Book § 312. Since interrogatories normally must be explained to the jury in the charge, the time limit for filing requests to charge in Practice Book § 317, “before the beginning of the arguments or at such earlier time during the trial as the court directs,” is appropriate. This has been the usual practice. Gaulton v. Reno Paint & Wallpaper Co., 177 Conn. 121, 412 A.2d 311 (1979). In this case the court never set any time limit for filing interrogatories or requests to charge. There is no basis for claiming untimeliness, therefore, because the interrogatories were filed within the time allowed by the rules of practice.

“No verdict in any civil action involving a claim for money damages may be set aside except on written motion by a party to the action, stating the reasons relied upon in its support . . . .” General Statutes § 52-228b. We have construed the statute to preclude appellate review of claimed errors, when a party has failed to file a motion to set aside a verdict, except where review for “plain error” is called for under Practice Book § 4185. Small v. South Norwalk Savings Bank, 205 Conn. 751, 758-59, 535 A.2d 1292 (1988); Pietrorazio v. Santopietro, 185 Conn. 510, 515-16, 441 A.2d 163 (1981). Section 52-228b requires not only that a motion to set aside a verdict be filed but that it state the “reasons relied upon.” The Appellate Court has construed this provision to require that the claims of error to be relied upon for appeal be set forth in the motion to set aside the verdict and we agree with this view. Finley v. Aetna Life & Casualty Co., 5 Conn. App. 394, 397, 499 A.2d 64 (1985), rev’d on other grounds, 202 Conn. 190, 520 A.2d 208 (1987).

The defendant in this case did file a motion to set aside the verdict that included his claim that the court had erroneously charged upon the informed consent specification of negligence, but his motion did not mention the refusal to submit his interrogatories. That omission, however, does not bar the defendant from plenary review of his claimed error, because in this appeal he does not claim that erroneous ruling as an independent ground for seeking a new trial but as a reason for not applying the general verdict rule to bar review of the charge upon informed consent. The refusal to submit interrogatories alone might not have been of such significance as to warrant a new trial if there had been no error in the charge. The defendant had no reason at the time he prepared his motion to set aside the verdict to anticipate that the general verdict rule would be invoked after he had made every reasonable effort to protect himself from the consequences of such a verdict by seeking to use interrogatories. The failure of his motion to mention the denial of this request for their submission cannot be relied upon to shield a patently erroneous application of the general verdict rule from review.

II

At the close of evidence the plaintiff moved for a directed verdict in respect to liability upon the ground that several of his specifications of negligence had been proved as a matter of law. The trial court denied the motion except with respect to the claim of failure to obtain an informed consent to the operation. The court concluded that this specification of negligence had been established because of judicial admissions made by the defendant during his testimony. Because the issue of causation still presented factual issues, however, the court refused to direct a verdict on liability, but indicated that it would instruct the jury to find the lack of an informed consent. Later, the court charged the jurors that this specification of negligence “has been proven as a fact.” The defendant excepted to this portion of the charge.

The basis for the ruling that the defendant had judicially admitted his failure to obtain the informed consent of the plaintiff was the testimony of the defendant on cross-examination that in discussing the prospective removal of the limpoma he had never told the plaintiff that “one of the risks of doing this surgery is that . . . your brachial plexus will be transected.” The defendant had previously testified, in response to the question whether an injury to the brachial plexus constituted a deviation from the standard of care for a general surgeon, that he did not think it was a deviation. He then added: “That is an associated risk of the surgery.” The defendant had already testified on direct examination that the potential complication involved in this type of surgery was “injury to underlying muscles, blood vessels and the nerves” and that he had explained the possibility of such injury to the plaintiff.

“A judicial admission dispenses with the production of evidence by the opposing party as to the fact admitted, and is conclusive upon the party making it.” King v. Spencer, 115 Conn. 201, 204, 161 A. 103 (1932). “If a party, as a witness, unequivocally concedes a fact, such concession for the purposes of the trial has the force of a judicial admission .... Unless it amounts to such a stipulation or waiver as to have the force of a judicial admission, the testimony of a party to a fact is ordinarily no more conclusive upon him than the evidence given by any other witness; and it is the duty of the court or jury to determine the fact not alone from the testimony given by the party but from all the evidence in the case.” Kanopka v. Kanopka, 113 Conn. 30, 39, 154 A. 144 (1931). “Where also the testimony of a party relates, not to a fact peculiarly within his own knowledge and as to which he could not be mistaken, but is in the nature of an estimate or opinion as to which he may honestly be mistaken, he does not unequivocally concede that the fact is in accord with the opinion expressed, and there is no injustice in permitting the court to consider the other evidence in the case, and determine from all the evidence what the actual facts are.” King v. Spencer, supra, 205.

It is plain that the defendant’s testimony that he never advised the plaintiff of any risk of injury to the brachial plexus entailed by the contemplated surgery is a judicial admission of that fact. It is not so clear that we should so regard his testimony, given in support of his response that an injury to the brachial plexus did not necessarily constitute a deviation from the standard of care, that such an injury was an “associated risk” of the surgery. If this statement of the defendant meant simply that there was a possibility of such an injury, it might qualify as a simple factual assertion “peculiarly within his own knowledge and as to which he could not be mistaken . . . .” Id. As the trial court interpreted the statement, however, it was given the effect of an incontrovertible concession that this risk was of such a nature that the failure to warn specifically of it meant the lack of informed consent.

In our view the defendant’s testimony cannot reasonably be construed to indicate that he intended to make such an admission. He had testified on direct examination that he had told the plaintiff that the operation to remove the lipoma would entail the possibility of “injury to underlying muscles, blood vessels and the nerves.” The brachial plexus is a complex of nerves, like a telephone cable, controlling the arm. Presumably the defendant thought this warning was adequate. In referring to an injury to the brachial plexus as an “associated injury,” it is not an inescapable conclusion, as the trial court assumed, that the defendant viewed such an injury as so great a risk that this nerve complex should be singled out for special mention. Even if this reference could reasonably be given the significance attributed to it by the court as an expression of the defendant’s opinion of the likelihood of such an injury, we would view it as “in the nature of an estimate or opinion as to which [the witness] may honestly be mistaken . . . .” Id. As such an opinion it would have been at best an evidentiary admission, not carrying the conclusiveness of a judicial admission.

In Logan v. Greenwich Hospital Assn., 191 Conn. 282, 292-93, 465 A.2d 294 (1983), for the purpose of determining claims of lack of informed consent, we adopted the “lay standard of disclosure . . . obligating the physician to provide the patient with that information which a reasonable patient would have found material for making a decision whether to embark upon a contemplated course of therapy.” We held in that case that the trial court’s instruction to the jury, that an alternative more hazardous than the surgical procedure performed was not a viable alternative and thus need not be disclosed to the patient, was erroneous, because it effectively limited a surgeon’s duty in informing his patient of alternatives to advising him of only the least hazardous procedure, even though there was evidence that other procedures were viable. This erroneous instruction, effectively removing from the jury the question whether a particular alternative should have been discussed with the patient, was the basis for our conclusion that a new trial was necessary.

Similarly, in the case before us, the instruction that the jury should find the defendant negligent for failure to obtain the plaintiffs informed consent removed from the jury the factual issue of whether the possibility of an injury to the brachial plexus was such a material risk of the surgery for removal of the lipoma that the defendant should have disclosed it under the lay standard for information reasonably needed by the patient in deciding whether to undergo surgery or treatment. We have noted that the cases on informed consent “require something less than a full disclosure of all information which may have some bearing, however remote, upon the patient’s decision.” Logan v. Greenwich Hospital Assn., supra, 291; see Canterbury v. Spence, 464 F.2d 772, 786 (D.C. Cir.), cert. denied, 409 U.S. 1064, 93 S. Ct. 560, 34 L. Ed. 2d 518 (1972). It is not entirely clear that a possible consequence that, according to the testimony of one of the plaintiff’s expert witnesses, “would never be permitted as a happenstance in the course of this operation” and could occur only where there had been a deviation from the acceptable standard for such surgery, should be disclosed to a patient. The defendant’s testimony, relied upon by the court, that an injury to the brachial plexus was an “associated risk” of the surgery does not establish as a matter beyond reasonable controversy that the likelihood of such an injury was sufficiently great to require as a matter of law that the possibility of such an injury and its consequences be specifically disclosed to a patient.

Under the lay standard for determining whether there has been informed consent, the jurors as laypersons must be given great latitude to decide how much disclosure is sufficient. It is at least debatable whether a physician must disclose all possibilities that are reasonably foreseeable, like the consequences of deviations from the applicable standard of treatment that occur so infrequently as to be quite remote. The jury might reasonably have concluded that specific mention of the possibility of injury to the brachial plexus and its consequences would have been inappropriate in view of the testimony of the plaintiffs expert that such an injury occurs only when the surgeon has deviated from the applicable standard. For a physician to name specifically each bodily structure exposed to the possibility of injury because of its location near the site of the proposed surgery, when the likelihood of such injury is remote, may well be considered unnecessary and detrimental to the patient by overemphasizing the hazards of the operation, thus inducing the patient to refuse needed surgery. Such questions should be left to the factfinder.

We conclude that under the circumstances of this case the defendant’s testimony that an injury to the brachial plexus was an “associated risk” of surgery for removal of the plaintiff’s lipoma was not a judicial admission conclusively establishing that such a risk should have been disclosed to the plaintiff before his consent to the operation could be deemed informed. The trial court’s contrary view and resulting instruction for the jury to find for the plaintiff on the informed consent specification of negligence was, therefore, erroneous.

Ill

Having found error necessitating a remand for a new trial, we consider the defendant’s claim of improper argument only because the issue may again arise at such trial. During closing argument, counsel for the plaintiff commented upon the failure of the defendant to have offered any expert testimony other than his own to support his claim that the injury to the brachial plexus did not necessarily constitute a deviation from the standard of care applicable to a general surgeon. He also referred to the availability of other general surgeons practicing in the area, some of whom had been mentioned specifically during the trial.

Counsel for the defendant objected immediately on the ground that a “Secondino type” of argument was improper. The court overruled the objection and indicated that it would consider a request for a curative instruction. At the conclusion of the plaintiffs argument the defendant moved for a mistrial. The court denied the motion.

We find nothing improper in the argument of plaintiffs counsel. It is basic that the merit of each party’s presentation is to be evaluated not only in the light of the evidence he produces at trial but also in consideration of the evidence available to him that he would naturally be expected to produce if it were favorable to him. “It is an ancient maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other side to have contradicted.” Secondino v. New Haven Gas Co., 147 Conn. 672, 674, 165 A.2d 598 (1960). The remarks to which the defendant objected are wholly in accord with this principle, as they were intended to highlight the fact that the defendant had presented no expert testimony other than his own upon the issue of whether he had deviated from the requisite standard of care. The defendant does not claim that there was insufficient evidence of the availability of the other surgeons in the area to whom reference was made.

The defendant also refers to State v. Daniels, 180 Conn. 101, 113, 429 A.2d 813 (1980), in which we indicated that, in criminal cases where either the state or the defendant intends to argue that an adverse inference should be drawn from the absence of a witness at trial, “an advance ruling from the trial court should be sought and obtained.” He contends that this practice should be mandated in civil cases as well. We agree that such a procedure would be beneficial in reducing the frequency of claims of error involving references during argument to missing witnesses. We need not decide in this appeal under what circumstances the failure to obtain an advance ruling from the trial court would constitute prejudicial error warranting a new trial.

There is error, the judgment for the plaintiff is set aside and the case is remanded for a new trial.

In this opinion the other justices concurred.

       The jury found for the defendant upon the claim of Susan Pedersen, the wife of Peder Pedersen, Jr., for loss of consortium pleaded in the second count of the complaint. Susan Pedersen has not appealed from the judgment. In this opinion Peder Pedersen, Jr., is referred to as the sole plaintiff. Our remand for a new trial does not affect the judgment for the defendant on the second count.

       The paragraph of the complaint setting forth the plaintiffs specifications of negligence is as follows:
      “5. Said injuries and losses were caused by the carelessness and negligence of the defendant, Misbah Vahidy, in one or more of the following ways:
      “a. in that he failed to identify and isolate the left brachial plexus nerve anatomically before removing the lipoma;
      “b. in that he carelessly and negligently manipulated surgical instruments and/or used excessive force in the vicinity of the left brachial plexus nerve, during the course of this surgery;
      “c. in that he allowed administration of a general anesthetic to the plaintiff, Peder Pedersen, Jr., when in the exercise of reasonable care, he should not have done so;
      “d. in that he failed to have an assistant present during said surgery when in the exercise of reasonable care, he should have done so;
      “e. in that he failed to take reasonable measures to protect the left brachial plexus nerve, when he should have known of its proximity to said lipoma, and thereby subjected the plaintiff to unnecessary harm;
      “f. in that he failed to obtain the informed consent of the plaintiff to perform said removal of the lipoma, and did not warn the plaintiff of the potential hazards and dangers involved in such proceeding.”

       The interrogatories requested by the defendant were as follows:
      “1. Was the defendant, Misbah Vahidy, negligent in failing to identify and isolate the left brachial plexus nerve before removing the lipoma?
      “2. Was the defendant, Misbah Vahidy, negligent in the manner in which he manipulated the surgical instruments in the vicinity of the left brachial plexus nerve during the surgery to remove the lipoma?
      “3. Was the defendant, Misbah Vahidy, negligent in using excessive force in the vicinity of the left brachial plexus nerve during the surgery to remove the lipoma?
      “4. Was the defendant, Misbah Vahidy, negligent in allowing the administration of general anethesia to the plaintiff, Peder Pedersen?
      “5. Was the defendant, Misbah Vahidy, negligent in failing to take reasonable measures to protect the left brachial plexus nerve during the surgery to remove the lipoma?
      “6. Was the defendant, Misbah Vahidy, negligent in failing to obtain the plaintiff’s informed consent to the surgery to remove the lipoma?”

       The trial court’s ruling on the motion to submit interrogatories and the related colloquy were as follows:
      “Mr. Huntsman: Your Honor, I would just, of course, note my exception to your Honor’s ruling and secondly, in chambers we briefly discussed the question of the proposed jury interrogatories which were submitted.
      “The Court: Mm hmm.
      “Mr. Huntsman: I would just note for the record we believe in light of your Honor’s action in taking one of the issues away from the jury that this would be of significant help to the Court or any Appellate Court in the future on this case and we believe these should be passed to the jury and that as I understand it, your Honor, your Honor is going to deny that and, therefore, please note our exception to your Honor’s ruling.
      “The Court: All right. Mr. Davis any comment.
      “Mr. Davis: Yes, I have opposed them for two reasons, for their timeliness first and secondarily my understanding of interrogatories is that they are to request specific findings of fact from which a verdict can be predicated and that these are nothing more than the allegations of negligence set forth in the Complaint which the jury has in any event.
      “The Court: I’d say from both points, the timeliness and that they’re the ultimate finders of fact. I’m going to deny your submission for the admission of your interrogatories. An exception is noted.
      “Mr. Huntsman: Thank you.”

       See footnote 4, supra.

       “[Practice Book] Sec. 317.—filing requests
      “Written requests to charge the jury must be filed in triplicate and in writing with the clerk before the beginning of the arguments or at such earlier time during the trial as the court directs, and he shall file them and forthwith hand one copy to the court and one to opposing counsel.”

       “[Practice Book] Sec. 4185. ERRORS CONSIDERED
      “The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The supreme court may in the interests of justice notice plain error not brought to the attention of the trial court.
      “In jury trials, where there is a motion, argument, or offer of proof or evidence in the absence of the jury, whether during trial or before, pertaining to an issue that later arises in the presence of the jury, and counsel has fully complied with the requirements for preserving his objection or exception to the judge’s adverse ruling thereon in the absence of the jury, the matter shall be deemed to be distinctly raised at the trial for purposes of this rule without a further objection or exception provided that the grounds for such objection or exception, and the ruling thereon as previously articulated, remain the same.”

       The motion to set aside the verdict was as follows:
      “The Defendant, Misbah Vahidy, M.D.,‘hereby moves that the verdict rendered in favor of the Plaintiff, Peder Pedersen, after the trial of the above-captioned matter be set aside on the grounds that it is contrary to law in that the Court’s instruction on negligence in the context of informed consent was erroneous and in that the Court failed to give a curative instruction to the jury regarding plaintiff counsel’s remarks in closing argument regarding expert witnesses.
      “In addition, the verdict must be set aside on the grounds that it is tainted as a result of the mention of insurance to members of the jury by a discharged alternate juror.
      “In the alternative, the Defendant moves for a remittitur on the grounds that the verdict is excessive.
      “wherefore, the Defendant moves than an order be entered setting aside the verdict rendered in favor of the Plaintiff, Peder Pedersen.”

       This portion of the charge was as follows: “Now, the last matter, sub-paragraph f, the claim is that the defendant failed to obtain the informed consent of the plaintiff to perform said removal of the lipoma, and did not warn the plaintiff of the potential hazards and dangers involved in such proceeding.
      “This is a matter which I have discussed with counsel and there was an argument made with respect to whether or not based upon the admission of Doctor Vahidy that he did not warn the plaintiff, Mr. Pedersen, that there would be a risk of a transection of the brachial plexus nerve, and on the basis of that, as I’ve indicated to you, it’s my obligation as a Judge to make a determination as to whether this falls into a category which is known as a judicial admission which I have done so, and, therefore, I have found that based upon this evidence and this statement that was offered on the stand, that that fact has been proven and you may treat that as such. So that you may treat as a matter of fact, that the fifth specification of negligence has been proven as a fact. That does not mean that that is the total scope of the issue of liability because there’s still the matter of proximate cause between the matter of informed consent and the ultimate liability. There must be a finding by you of proximate cause between these two issues. I want to make sure that you understand that I am directing you to find that subparagraph f has been proven. If you recall my earlier remarks, that there are certain matters which have been admitted. You may treat those as having been proven. This is a fact that you may treat as having been proven.”

       [Mr. Davis]: Now, next on the situation of the risks. There is no question, is there, Doctor Vahidy, that at no point in time did you ever say to Mr. Pedersen one of the risks of doing this surgery is that I will or that your brachial plexus will be transected?
      “A. No, I didn’t.”

       [Mr. Davis]: Now, Doctor Vahidy, do you have an opinion, based upon reasonable medical probability, as to whether during surgical removal of a lipoma located in the supraclavicular region where surgery is done in the manner described an injury to the brachial plexus constitutes a deviation from the standard of care for a general surgeon?
      “A. I don’t think it constitutes a deviation. That is an associated risk of the surgery.
      “Q. What’s the basis for your opinion?
      “A. Because I did take care with whatever I could do and I did my best at the time of surgery not to injure any structures.”

       ‘ ‘[Mr. Huntsman]: And could you describe for the jury how you described to Mr. Pedersen, how you described the mechanics of the surgery, the actual surgery itself?
      “A. I explained to him briefly that the surgery involved making an incision in the lower part of the neck just on the swelling and the skin and the underlying platsyma muscle and then dissection of the mass from the underlying structures.
      “Q. What are the potential complications which are involved in this type of surgery?
      “A. Well, you can have injury to underlying muscles, blood vessels and the nerves.
      “Q. What did you explain to Mr. Pedersen about the potential complications?

        “A. I explained that there’s a possibility of an injury to the muscles, blood vessels or nerves.”

       This portion of the plaintiff’s argument was as follows: “And again while the burden doesn’t—the burden at all times rests upon the party who has the affirmative, to go forward with the evidence, let me just offer this for your consideration as well. If the damaging of that nerve did not constitute a deviation from accepted practices, that is, if it was a standard type of thing that could occur as the result of this procedure, or if it was something to hit this nerve, to bruise, contuse, or sever it was something using reasonable care could be accomplished, I submit to you that there would have been expert testimony offered in behalf of Doctor Vahidy in that regard. And you’ll recall, I questioned him with reference to other general surgeons in Meriden-Wallingford, other general surgeons within the area.”

       Counsel was referring to Secondino v. New Haven Gas Co., 147 Conn. 672, 674-76, 165 A.2d 598 (1960), where this court approved the rule permitting a negative inference to be drawn where a party failed to produce a witness available to him and whom he would “naturally” be expected to produce.

       No such instruction was given, but the defendant never submitted an appropriate request to charge. Because a new trial is necessary, we need not discuss whether the failure to give an appropriate instruction would constitute error.