Beach v. Regional School Dist. No. 13

• Decision Date: 07 November 1996
• Docket Number: No. 14731,14731
• Citation: 682 A.2d 118,42 Conn.App. 542
• Court: Connecticut Court of Appeals
• Parties: , 112 Ed. Law Rep. 987 Doris BEACH v. REGIONAL SCHOOL DISTRICT NUMBER 13 et al.

Page 118

682 A.2d 118

42 Conn.App. 542, 112 Ed. Law Rep. 987

Doris BEACH v. REGIONAL SCHOOL DISTRICT NUMBER 13 et al.

No. 14731.

Appellate Court of Connecticut.

Argued May 29, 1996.

Decided Aug. 13, 1996.

Certification Denied Nov. 7, 1996 ^*.

Robert P. Dutcher, Middletown, for appellant (plaintiff).

Arthur R. Riccio, Jr., Branford, for appellees (defendants).

Before DUPONT, C.J., and LAVERY and HENNESSY, JJ.

DUPONT, Chief Justice.

The plaintiff appeals from the judgment rendered in favor of the defendants following the denial by the trial court of the plaintiff's motion to set aside a jury verdict for the defendants Leo Baker, regional school district number 13 and its board of education ¹ and to order a new trial. The jury's verdict was for the individual defendant Baker because he was "not liable due to governmental immunity," and this appeal concerns only Baker. ²

The plaintiff brought an action against the defendants after she fell on a sidewalk of a municipal high school. The defendants' special defenses were contributory negligence, governmental immunity, and that the plaintiff's action was barred by the Workers' Compensation Act, General Statutes § 31-275 et seq. The plaintiff claims that (1) the trial court improperly determined that no unity of interest, as defined in General Statutes § 51-241, existed among the individual defendants and, (2) there was insufficient evidence for the jury to conclude that the special defense of governmental immunity barred the plaintiff's recovery. We affirm the judgment of the trial court.

The jury reasonably could have found the facts that follow. The plaintiff, a food service worker in the cafeteria at Coginchaug High School in Durham, while on her way to work on January 10, 1991, at 6:30 a.m., slipped and fell on the icy sidewalk between the north parking lot and the main entrance of the school. The plaintiff suffered physical injuries from the fall.

Although most of the cafeteria workers and the janitorial staff park on the south side of the school in order to approach the south cafeteria entrance, the plaintiff chose to park on the north side because her car had been vandalized while parked in the south lot. Because cafeteria workers and the janitorial staff are among the first to arrive in the morning, Donald Harris, acting head custodian, worked on clearing the sidewalks leading to the south entrance to the school before clearing the sidewalks leading to the north entrance. On the morning of the plaintiff's fall, the superintendent of schools, Howard Kelley, had called for a two hour delay in the opening of school. The plaintiff had not learned of the delay and, as a consequence, arrived at the school at her usual time, before Harris had cleared the walk on which she fell. Kelley supervises the defendant, who is the supervisor of buildings and grounds; the defendant supervises Harris.

Prior to trial, the plaintiff filed a motion in limine requesting the trial court to find that the individual defendants, Kelley, Baker, and Harris, had a unity of interest and that the court should consider them a single party for the purpose of making peremptory challenges pursuant to General Statutes § 51-241. ³ The trial court denied this motion, stating that sufficient adversity existed among the defendants to treat them as separate parties ⁴ and allowed the defendants a total of ten peremptory challenges to the plaintiff's four. ⁵

I

A

As a preliminary matter, we must determine whether the trial court properly considered the number of allowable peremptory challenges under the current version of § 51-241, amended in 1993, or whether it should have applied the statute as it existed at the time of the plaintiff's accident in 1991. GENERAL STATUTES § 55-3⁶ provides that "[n]o provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have a retrospective effect." " 'The "obligations" referred to in the statute are those of substantive law'; Nagle v. Wood, 178 Conn. 180, 186, 423 A.2d 875 (1979); and '[l]egislation which limits or increases statutory liability has generally been held to be substantive in nature.' Little v. Ives, 158 Conn. 452, 457, 262 A.2d 174 (1969). '[W]e have uniformly interpreted § 55-3 as a rule of presumed legislative intent that statutes affecting substantive rights shall apply prospectively only.' Darak v. Darak, 210 Conn. 462, 467, 556 A.2d 145 (1989); Westport v. State, 204 Conn. 212, 219, 527 A.2d 1177 (1987). 'The legislature only rebuts this presumption when it "clearly and unequivocally" expresses its intent that the legislation shall apply retrospectively.' Darak v. Darak, supra, at 468, 556 A.2d 145; see also State v. Lizotte, 200 Conn. 734, 741, 517 A.2d 610 (1986)." Gormley v. State Employees Retirement Commission, 216 Conn. 523, 529, 582 A.2d 764 (1990). This "rule is not applied, however, to legislation which is general in its terms and affects only matters of procedure"; Schurgast v. Schumann, 156 Conn. 471, 487, 242 A.2d 695 (1968); "and does not impose new obligations or affect the substantive rights of the parties." Toletti v. Bidizcki, 118 Conn. 531, 536, 173 A. 223 (1934).

Because an examination of § 51-241 and the legislative history of Public Acts 1993, No. 93-176 (P.A. 93-176) is not dispositive of the legislative intent regarding whether the statute should be applied prospectively or retrospectively, we must turn to an analysis of the procedural versus the substantive nature of the statute.

We construe the amendment to § 51-241 to be procedural rather than substantive in nature. The amendment to the statute does not affect parties' rights relative to peremptory challenges. Peremptory challenges are guaranteed by the constitution of Connecticut, article first, § 19, as amended by amendment IV, but their precise number is established by statute. ⁷ The statute does not change the number of allowable challenges each party has but allows the court to determine whether the parties share a "unity of interest," and if so, gives the court discretion to treat such parties as one. The statute also defines a unity of interest as being an interest that is substantially similar.

The amendment does not change the substantive rights of the parties. Even before § 51-241 was enacted in 1949, and when that statute consisted of only one sentence (until 1993), the number of peremptory challenges given to each party was discussed in terms of whether the parties had separate and distinct causes of action or had a similarity of position. See Krause v. Almor Homes, Inc., 147 Conn. 333, 335-36, 160 A.2d 753 (1960); Reid v. New Haven, 133 Conn. 446, 448-49, 52 A.2d 140 (1947). The amendment did not affect a substantive right, and, therefore, we conclude that the present form of the statute governs this case.

B

The plaintiff claims that the trial court abused its discretion when it denied the plaintiff's motion in limine that sought a finding of a unity of interest among the individual defendants. To demonstrate the defendants' unity of interest, the plaintiff cites the following: "(1) Identical allegations of negligence were asserted against the defendants in a one-count complaint; (2) The defendants had the same counsel before and at trial; (3) They filed the same answer to the complaint; (4) They asserted the same special defenses; (5) They were insured by the same insurance carrier under the same policy; (6) The institutional defendants agreed to indemnify the individual defendants from any adverse verdict; and (7) The individual defendants conceded that they had no conflict with each other." ⁸

We are aware of only one case in which, as dicta, it was stated that each party in an action was entitled to a set of peremptory challenges, without any discussion as to the relationship between the particular parties. Mourison v. Hansen, 128 Conn. 62, 67, 20 A.2d 84 (1941). The Mourison court noted, however, that generally, the number of peremptory challenges allowed in other jurisdictions depended on whether the interests of the parties were diverse or antagonistic. Id. Prior to the 1993 amendment to § 51-241, cases discussed whether a set of peremptory challenges should be allowed to particular parties in terms of whether they had a substantial interest in the case, had filed separate pleadings, could have brought separate actions, had an antagonistic position vis-a-vis other parties, would participate in the trial, and if they could recover or be exonerated from paying a similar amount as other parties. Krause v. Almor Homes, Inc., supra, 147 Conn. at 335-36, 160 A.2d 753; Reid v. New Haven, supra, 133 Conn. at 448-49, 52 A.2d 140; Mourison v. Hansen, supra, at 67, 20 A.2d 84; Commercial Union Insurance Co. v. Frank Perrotti & Sons, Inc., 20 Conn.App. 253, 261-62, 566 A.2d 431 (1989).

This is a case of first impression because an interpretation of the phrase "unity of interest" in § 51-241 has not yet been determined by a Connecticut appellate tribunal. The legislative history of P.A. 93-176 demonstrates that the decision of whether parties share a "unity of interest" lies in the trial court's discretion. See 36 H.R.Proc., Pt. 16, 1993 Sess., p. 5562, remarks of Rep. Dale E. Radcliffe and Rep. Alex Knopp.

Section 51-241 provides that " 'unity of interest' means that the interests of the several plaintiffs or of the several defendants are substantially similar." One commentator notes that the "substantial similarity test is not borrowed from any other jurisdiction and is necessarily difficult to define." J. Steigelfest, "The Unity of Interest Rule and Peremptory Challenges in Connecticut," 69 Conn.B.J. 353, 356 (1995). The legislative history of P.A. 93-176 provides the following examples of circumstances in which the parties may demonstrate substantially similar interests: "the interest of an agent and princip[al],...