dissenting. I continue to adhere to the views that I expressed in the original majority opinion in this case, which was released last September. Paige v. St. Andrew’s Roman Catholic Church Corp., 247 Conn. 24, 718 A.2d 425 (1998). I write once again in order to underscore the weakness of the new majority opinion.
The African-American plaintiff, Thelonious Paige, sustained extensive injuries when a large boiler in the basement of a church owned by the defendant St. Andrew’s Roman Catholic Church Corporation (defendant) was activated while the plaintiff was cleaning it from the inside. As a result of this incident, “the plaintiff suffered third and fourth degree bums over two thirds of his body; portions of his legs and ankles were burned to the bone. Ten years later, the plaintiff remains severely scarred. Following his injury, the plaintiff brought this negligence action against the defendant.” Id., 25-26.
The juiy found that the defendant was negligent in each of the following ways: (1) “[f]ailing to deactivate the boiler in which [the plaintiff] was injured” and (2) “[fjailing to supervise its employees, servants, and agents and failing to instruct them to avoid activating the burner or boiler while [the plaintiff] was cleaning the boiler.” Moreover, the jury found that “[t]he defendant’s custodian, in spite of assuring [the plaintiff] that the boiler and burner had been deactivated, [negligently] failed to properly deactivate the boiler and burner.” 1 Based upon these findings, the juiy concluded that the defendant’s negligence “was ... at least one proximate cause of (a substantial factor causing) the injuries to [the plaintiff],” and awarded the plaintiff damages *42in the approximate amount of $3.2 million.2 The trial court declined to set this verdict aside and rendered judgment for the plaintiff in accordance with the verdict.
“The concurrence of the judgments of the [trial] judge and the jury who saw the witnesses and heard the testimony is a powerful argument for upholding the verdict. Lopez v. Price, 145 Conn. 560, 564, 145 A. 2d 127 (1958); accord Fink v. Golenbock, 238 Conn. 183, 207-208, 680 A.2d 1243 (1996); Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 610, 662 A.2d 753 (1995); Mather v. Griffin Hospital, 207 Conn. 125, 130, 540 A.2d 666 (1988). Furthermore, it is not the function of this court to sit as the seventh juror when we review the sufficiency of the evidence . . . rather, we must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the jury’s verdict .... Purzycki v. Fairfield, 244 Conn. 101, 112-13, 708 A.2d 934 (1998). In making this determination, [t]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable. . . . Fink v. Golenbock, supra, 208. In other words, [i]f the jury could reasonably have reached its conclusion, the verdict must stand, even if this court disagrees with it. . . . Donner v. Kearse, 234 Conn. 660, 681, 662 A.2d 1269 (1995); see Trzcinski v. Richey, 190 Conn. 285, 298, 460 A.2d 1269 (1983).
“Three further points bear emphasis. First, it is fundamental that, in a civil case, the plaintiff is not required to prove his case beyond a reasonable doubt; a mere preponderance of the evidence is sufficient. Second, jurors are not expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them *43to the evidence or facts in hand .... Purzycki v. Fairfield, supra, 244 Conn. 113. Third, the well established standards compelling great deference to the historical function of the jury find their roots in the constitutional right to a trial by jury. Id., 112.” (Emphasis in original; internal quotation marks omitted.) Paige v. St. Andrew's Roman Catholic Church Corp., supra, 247 Conn. 30-31.
In the opinion released last September, three justices on the five member panel (Berdon, Norco tt and Palmer, Js.') concluded that the verdict must be sustained on the following ground: “the jury reasonably could have concluded that the defendant’s negligence in failing to properly supervise its employees was causally connected to the plaintiffs injuries . . . .” Id., 27 n.3. Because we deemed this rationale a sufficient basis upon which to affirm the work of the jury and the trial court, we declined to “address the defendant’s claims with respect to the causal connections between the jury’s other findings of negligence and the plaintiffs injuries.” Id. During the second round of oral arguments in this case, the plaintiff presented an alternative ground for affirmance that was based upon the remaining two specifications of negligence contained in the jury interrogatories. Although the author of the new majority opinion extensively questioned the plaintiffs counsel concerning this argument, the majority opinion does not so much as mention it. In part I of this dissent, I discuss this alternative ground for affirmance. In part II, I revisit the grounds upon which three justices of this court originally affirmed the judgment last year.
I
At oral argument before an en banc panel of this court, plaintiffs counsel emphasized two of the jury’s findings: (1) the defendant “[failed] to deactivate the boiler in which [the plaintiff] was injured” and (2) “[t]he *44defendant’s custodian, in spite of assuring [the plaintiff] that the boiler and burner had been deactivated, [negligently] failed to properly deactivate the boiler and burner.”
When viewed in the light most favorable to the plaintiff, it is apparent that the evidence supports these findings. In order to deactivate the boiler and thereby render the burner inoperable, it was necessary that an emergency switch and three circuit breakers all be in the “off’ position.3 The plaintiffs employer instructed the defendant to deactivate the boilers the night before the accident, so that they would be sufficiently cool the next morning to permit the workers to enter and clean them. Juan Hernandez, a custodian for the defendant, claimed that he turned off the requisite switches and locked the door to the boiler room at approximately 5 o’clock in the afternoon preceding the accident. The following morning, however, the door was unlocked. The jury reasonably could have credited Hernandez’ testimony that only he and another of the defendant’s employees — the church pastor — had access to the keys to the boiler room.4 In addition, the plaintiff and Osvaldo Cano — the on-site supervisor employed by the plaintiffs company — found that one of the boilers was hot to the touch and glowed fluorescent orange when they arrived. According to the plaintiffs expert, this meant that the boiler had been in operation within the previous several hours. There is thus more than sufficient evidence to support the jury’s findings that the defendant “[failed] to deactivate the boiler in which [the plaintiff] was injured” and, more specifically, that Hernandez, “in spite of assuring [the plaintiff] that the boiler and burner had been deactivated, failed to properly deactivate [them].”
*45Based upon these findings and the undisputed fact that the boiler could not have ignited if it had been deactivated while the plaintiff was cleaning it, the jury reasonably could have determined that the defendant was negligent. For the reasons that I have just discussed, the jury reasonably could have found that all of the requisite switches were in the “on” position on the morning of the accident.5 Furthermore, the jury reasonably could have determined that the plaintiff and Cano either: (1) (a) believed Hernandez when he told them that the boiler was deactivated and (b) did not independently verify that all of the switches were off; or (2) (a) checked the switches to make certain that they were off and (b) mistakenly concluded that they were.6 In addition, the jury reasonably could have determined that either or both of these scenarios was sufficiently foreseeable that the defendant acted negligently *46by failing to follow the express instructions to deactivate the boiler.
With these premises in place, it becomes perfectly clear that the jury reasonably could have reached the following conclusions: (1) the defendant was negligent because Hernandez failed to deactivate the boiler; and (2) this negligence was a proximate cause of the plaintiffs injuries. It is undisputed that, if the defendant had properly deactivated the boiler, it would not have been capable of igniting. Because the defendant negligently failed to deactivate the boiler, the boiler ignited.7 The defendant’s negligence was thus a proximate cause of the plaintiffs grievous injuries.
This scenario makes perfect sense in light of the jury’s other findings. In addition to finding that the defendant’s negligence proximately caused the plaintiffs injuries, the jury also found that the plaintiff was contributorily negligent in the amount of 35 percent.8 In its answer to the plaintiffs complaint, the defendant proffered the following special defense: “The plaintiff was himself negligent and careless in at least one, if not more than one, of the following respects, in that ... he failed to insure that the [relevant] boiler was deactivated prior to entering same ... he failed to undertake and follow proper procedures to insure that the boiler he was cleaning would not ignite ... he failed to conduct the proper investigation prior to entering the boiler to insure that the boiler would not ignite ... he entered the boiler and attempted to clean same *47without insuring that it was safe to do so . . . [and] he failed to take the proper precautions necessary to insure his own safety prior to and while engaged in cleaning said boiler . . . .’’This finding dovetails seamlessly with the jury’s determination that the defendant negligently “[failed] to deactivate the boiler in which [the plaintiff] was injured.”
It is thus apparent that the jury reasonably could have determined (1) that the defendant was negligent because it failed to deactivate the boiler, (2) that the plaintiff was contributorily negligent because he failed to ensure that the boiler had been properly deactivated, and (3) that the combined effect of these two failures proximately caused the plaintiffs injuries. Accordingly, we must uphold the work of the jury and the trial court in this case.
II
In the opinion that we released last September, a majority of the five member panel began from a different set of premises. Most importantly, we explained that the jury reasonably could have concluded that “ [a]ll four switches were in the ‘off position when the plaintiff entered the boiler. ”9 Paige v. St. Andrew’s Roman Catholic Church Corp., supra, 247 Conn. 27. Correlatively, we explained that “[t]he boiler in which the plaintiff was injured could not have ignited unless someone *48activated both the emergency switch and the three circuit breakers.”10 Id., 28.
Starting from these premises, we relied upon the following reasoning in order to uphold the work of the jury and the trial court: “[T]he defendant . . . failed to provide any supervision, instructions or warnings whatsoever to any of its employees that they were not to activate the boiler. Moreover, the defendant concedes — as it must — that, if the jury reasonably could have concluded that an employee activated the boiler, the defendant’s failure to instruct its employees not to activate the boiler was a proximate cause of the plaintiffs injuries.11 In other words, if the jury reasonably could have found that an employee activated the boiler, the defendant concedes negligence and causation, and therefore liability. . . .
“The jury’s determination [that it was more probable than not that an employee activated the boiler]12 is supported by focusing upon two consecutive and interrelated inquiries: (1) Who possessed the ability to activate *49the boiler? and (2) Of those people, who possessed the incentive to do so? We conclude that the jury reasonably could have determined that only [employees of the defendant] possessed sufficient ability to activate the boiler, and that they also possessed ample incentive to do so.
“First, it is apparent that employees of the defendant possessed the ability to activate the boiler. [Numerous] employees were within easy walking distance of the boiler room; some of them would not even have had to exit the building in which they worked in order to do so.13 Moreover, the jury reasonably could have concluded that several of these employees knew both where the boiler room was located and how to activate the boiler.
“Second, it is equally apparent that those employees possessed ample incentive to ignite the boiler. On the morning of [the accident], the weather was between ten and twenty degrees above freezing. On the basis of *50this evidence, the jury could have concluded that one of the employees working in the complex served by the boiler was uncomfortably cold and that he or she activated the boiler in order to heat the building. In addition, a mass was scheduled at the church for 12:10 p.m. [that day]. The jury could have found that an employee wanted to make the church comfortable for parishioners,14 and that, because the church requires a sufficient length of time to warm up, it was necessary for the employee to activate the boiler approximately one hour prior to the commencement of the mass. . . .
“On appeal, the defendant posits a number of exculpatory speculations, which it denominates ‘plausible hypotheses.’ Although they may be plausible, they do not preclude the jury from reasonably having found that the person who ignited the boiler was, more probably than not, an employee of the defendant. See Duley v. Plourde, 170 Conn. 482, 486, 365 A.2d 1148 (1976) (‘ “[p]roof of a material fact by inference need not be so conclusive as to exclude every other hypothesis” ’). In other words, the jury reasonably could have concluded that only persons employed by the defendant possessed the ability and incentive to ignite the boiler.
“The only other individuals who could have activated the boiler fall into two categories: parishioners and strangers off the street. There is no evidence that indicates that either a parishioner or a stranger was anywhere near the defendant’s boiler room at the time the boiler was activated.
“John E. Gilmartin, the pastor at the church, testified that all the parishioners who attended the 7 a.m. mass *51left shortly after it ended at 7:25, and there was no evidence that any parishioner arrived early for the 12:10 mass. Moreover, in order to activate the boiler at or near 11 a.m., the approximate time the accident occurred, a parishioner would have had to either linger for more than three hours after the morning mass had ended or arrive approximately one hour before the 12:10 mass began. At trial, the defendant was unable to account for any parishioner’s presence in the church during either of these intervals. For these reasons, the jury reasonably could have concluded that no parishioners were inside the church at the time the boiler ignited.
“Even if a parishioner had been in the church for some reason at the requisite time, no evidence was presented to support the defendant’s assumption that someone not employed by the defendant was permitted to enter the boiler room, knew where the boiler room was, or knew how to activate an industrial boiler. Thus, the jury reasonably could have concluded that it was less probable than not that a parishioner ignited the boiler.
“The highly speculative nature of this string of suppositions increases geometrically when applied to strangers off the street. Again, the defendant has introduced no evidence that any stranger was present in either the church or the boiler room on the morning of [the accident]. Accordingly, the jury reasonably could have concluded that no such person was inside the church when the boiler ignited.15
*52“Because the jury reasonably could have concluded that neither parishioners nor strangers were anywhere near the boiler on the morning of [the accident], it is unnecessary to address their incentive to do so.
“For all of these reasons, the jury reasonably could have concluded, on the basis of the following findings of fact and inferences drawn from the trial testimony, that it was more probable than not that an employee of the defendant activated the boiler: (1) some person activated the boiler; (2) that person was not the plaintiff, Cano or either of the [two] painters [who were working on the defendant’s premises that day];16 (3) that person was not a parishioner; (4) that person was not a stranger off the street; (5) [numerous] employees of the defendant were within easy walking distance of the boiler; and (6) these employees possessed both the ability and the incentive to ignite the boiler.
“Because of the concurrence of both the jury’s verdict and the trial court’s refusal to set aside the verdict, and viewing the evidence in the light most favorable to sustaining the verdict, we are persuaded that there was sufficient evidence in the record to support the jury’s finding of the defendant’s liability by a fair preponderance of the evidence.” (Emphasis in original.) Paige v. St. Andrew’s Roman Catholic Church Corp., supra, 247 Conn. 29-36.
*53The members of the new majority have not supplied any reason to question the viability of the analytic framework that three justices of this court set forth last September. Nor have they supplied any reason to question either our threshold premises or the conclusions derived therefrom.17 Instead, the only way that the new majority can justify reversal of the original majority opinion is by disregarding our extraordinarily deferential standard of review.18
I am troubled by the paucity of principled argument that appears in the new majority opinion. As I read the opinion, the new majority has suggested only four reasons to overrule the opinion that we released last *54September. In my view, none of these reasons justifies overturning the work of the jury, the trial court, and three justices of this court.
First, the majority emphasizes the jury’s finding that Hernandez, the defendant’s custodian, did not affirmatively activate the boiler.19 This emphasis can only avail the majority if it distracts attention away from the factual finding that lies at the heart of the jury’s determination that the defendant “[failed] to supervise its employees, servants, and agents and [failed] to instruct them to avoid activating the burner or boiler while [the plaintiff] was cleaning the boiler”: one of the defendant’s employees activated the boiler. Because there were numerous employees other than Hernandez who had both the ability and the incentive to activate the boiler, the jury’s finding that Hernandez was not the employee who did so is of no moment.
One of these other employees was the priest responsible for the 12:10 p.m. mass (which was scheduled to commence one hour after the boiler ignited). The jury reasonably could have concluded that it was more likely than not that this priest was the employee who activated the boiler. This conclusion finds compelling support in the following facts: it was a cold day, it was necessary to activate the boiler early enough that it would supply heat for the mass, and the boiler ignited approximately one hour before the mass was scheduled to commence. Because this priest presided over the mass, it would have been both logical and reasonable for the jury to have drawn the inference20 that — because he had both *55the ability and a strong incentive to activate the boiler— he was, in fact, the employee who did so.
Second, the majority claims that “[i]t would require . . . creative reasoning to conclude” that one of the employees who worked in the rectory ignited the boiler. In fact, “[t]he rectory is so close to the complex [where the plaintiff was injured] that a painter working in the church hall went to the rectory to call 911 after learning of the plaintiff’s injuries.” Paige v. St. Andrew’s Roman Catholic Church Corp., supra, 247 Conn. 28. Although the majority is correct that “[a]ny chill in the rectory . . . would not be remedied” by activating the boiler in which the plaintiff was injured, this does not alter the fact that — as agents of the defendant — (lie employees who worked in the rectory possessed ample incentive to turn the boiler on for the comfort of the parishioners who would be arriving later in the day to attend the 12:10 mass.
Third, the majority speculates that one of the painters might have ignited the boiler. As discussed in footnote 16 of this dissent, the jury reasonably could have credited the unambiguous and unimpeached testimony of Carl A. Coletta, the head painter in the church hall, that neither he nor his partner touched the emergency switch or the circuit breaker switches. Moreover, the majority’s speculation is highly irrational. As the majority concedes, the boiler in which the plaintiff was injured supplied no heat to the part of the complex where the painters were working. Accordingly, the painters would have had no incentive to activate the boiler, even if they had known how to do so.
Fourth, the majority claims that “[i]t would be pure conjecture ... to conclude that [someone] . . . *56entered the boiler room while Cano was assisting the plaintiff without Cano even realizing that someone had entered the room . . . [and then] left the boiler room, without ever having been noticed by Cano . . . .’’Nevertheless, the majority assumes in two separate parts of its opinion that “the only way that the [boiler] could have ignited while the plaintiff was inside cleaning [it] would' be if someone had entered the boiler room and had activated both the circuit breakers and the emergency switches.”21 The majority does not deny that the boiler did, in fact, ignite. Accordingly, I am unable to appreciate the “conjecture” that the majority claims is required in order to support the factual finding that the majority itself characterizes as “the only way” that the accident could have happened.
Within a remarkably short period of time after the panel in this appeal was expanded to include Justice Borden and Senior Justice Peters, Justice Palmer’s perspective on this case rotated 180 degrees. Last September, he agreed with the jury, the trial court, and me; today he does not. Because I believe that neither the new majority opinion nor the concurrence has managed to marshal a persuasive argument, I am unable to comprehend what has prompted Justice Palmer to abandon his published views by joining the opinion that Justice Borden has written. According to his concurring opinion, Justice Palmer has had a change of heart because what he calls a “critical factual assertion” in the original majority opinion has turned out to be mistaken. More specifically, Justice Palmer claims that he feels compelled to switch his vote because “there is no evidence, whatsoever, establishing that the priest who performed *57the noon mass possessed a key to the boiler room. On the contrary, the evidence adduced at trial indicated that only Gilmartin and Hernandez possessed keys to the boiler room.” (Emphasis in original.) Looking beyond Justice Palmer’s profligate use of italics, it does not make a whit of difference who had keys to the boiler room.22 It is undisputed that the door to the boiler room was propped open while the plaintiff was cleaning the boiler. Accordingly, no key was necessary to obtain access to the controls in the boiler room. Furthermore, Justice Palmer’s claim that the employees who worked in the church complex — many of whom also lived there — did not know where the boiler room was located defies common sense.23
Moreover, Justice Palmer’s argument contradicts a central premise of the majority opinion that he joined last September: “[I]t is apparent that employees of the defendant possessed the ability to activate the boiler,” even though most of these employees did not have keys to the (propped open) door to the boiler room.24 Paige *58v. St. Andrew’s Roman Catholic Church Corp., supra, 247 Conn. 32. It is as obvious to me now as it was last September that the jury reasonably could have determined that the defendant’s employees knew where in their building the boiler room was located, even though they did not all have keys. I am unable to comprehend why Justice Palmer has decided to reject this seemingly obvious proposition, one which he so recently endorsed.
Finally, if Justice Palmer had genuinely believed last September that this entire case pivoted upon the fulcrum of whether or not a single employee had a key to a door that was propped open at all relevant times, Justice Palmer should have independently verified the relevant citations to the trial transcript that I included in the draft majority opinion that I circulated to the first panel that heard this case. His failure to do so last September strongly suggests that he recognized that the zen-like detail of who had keys to an unlocked door is barely relevant, let alone dispositive. In short, Justice Palmer has got to come up with something better than this if he wishes to justify his decision to jump ship by joining the opinion that Justice Borden has written.
It is not always easy to demarcate the boundary between a conjecture and an inference. Both concepts represent points along a continuum, and whether a given conclusion rises to the level of a legitimate inference is often a matter of nuance and judgment. As we readily acknowledged in the original majority opinion, this was a close case. Id., 31. Now, nine months later, the new majority has failed to reckon with the heavy burden established by our extraordinarily deferential standard of review, which creates a presumption that we must sustain the work of the jury and the trial judge. In order to prevail on appeal, the plaintiff was not required to convince us beyond a reasonable doubt. *59Instead, he merely had to demonstrate that — giving the evidence the most favorable construction of which it is reasonably capable — a rational jury somehow could have found it more likely than not that he was entitled to recover for his grievous injuries. Neither the new majority opinion nor the concurrence contains anything that shakes my conviction that the plaintiff has satisfied this standard.25
Accordingly, I dissent.
APPENDIX A
“JURY INTERROGATORIES
1. Was the defendant, ST. ANDREW’S ROMAN CATHOLIC CHURCH CORPORATION, or its agents, servants, or employees, negligent in any of the following ways (please respond to each item)?
(a) Failing to deactivate the boiler in which Thelonious Paige was injured.
YES X NO__
(b) Failing to see to it that the boiler in which Thelonious Paige was burned remained inoperable while he was in the process of cleaning it.
YES__ NO X
(c) Failing to adequately control access to the boiler controls, thermostats and all other controls which could activate the burner while Thelonious Paige was cleaning the boiler.
YES__NO X
*60(d) Failing to supervise its employees, servants, and agents and failing to instruct them to avoid activating the burner or boiler while Thelonious Paige was cleaning the boiler.
YES X NO__
(e) Failing adequately to inspect the burner, boiler, electrical system, and control mechanisms before Thelonious Paige entered the boiler to ensure that they had placed the burner in an inoperable condition while Thelonious Paige was cleaning the boiler.
YES_NO _X_
(f) The defendant’s custodian, who assured Thelonious Paige that the boiler would remain deactivated, negligently activated a control causing the burner to ignite.
YES __ NO X
(g) The defendant’s custodian, in spite of assuring Thelonious Paige that the boiler and burner had been deactivated, failed to properly deactivate the boiler and burner.
YES X NO_
(h) Failing to take or cause to be taken preventive measures to eliminate the exposure of others to probable injuries which the defendant knew or should have known would occur in the performance of the work of cleaning the boilers at St. Andrews Parish.
YES_NO X
NOTE: If you answer ‘No’ to all of the items in question 1, you have reached a defendant’s verdict for ST. ANDREW’S ROMAN CATHOLIC CHURCH CORPORATION. Please report that you have completed your deliberations.
If you answer ‘Yes’ to any of the items in question 1, continue to question 2.
2. If you found that the defendant, ST. ANDREW’S ROMAN CATHOLIC CHURCH CORPORATION, or of its agents, servants, or employees, were negligent, was *61that negligence at least one proximate cause of (a substantial factor causing) the injuries to Thelonious Paige?
YES _JL_ NO_
NOTE: If you answer ‘No’ to question 2, you have reached a defendant’s verdict for ST. ANDREW’S ROMAN CATHOLIC CHURCH CORPORATION. Please report that you have completed your deliberations. If you answer ‘Yes,’ please continue to question 3.
3. Was THELONIOUS PAIGE negligent on April 22, 1988?
YES _X_NO_
NOTE: If you answer ‘Yes’ to question 3, continue to question 4. If you answer ‘No’ to question 3, go to question 5.
4. If you found [that] THELONIOUS PAIGE was negligent, was that negligence at least one proximate cause of (substantial factor causing) the injuries to Thelonious Paige?
YES _X_ NO_
5. What is the percentage of negligence of each party?
NOTE: If you have answered ‘No’ to either question 3 or question 4, then the percentage of negligence of Thelonious Paige must be zero percent.
St. Andrew’s Roman Catholic Church Corporation 65%
Thelonious Paige 35%
TOTAL 100%
NOTE: If the percentage of negligence which you assign to Thelonious Paige is less than or equal to 50 percent, continue to question 6. If the percentage of negligence which you assign to Thelonious Paige is *62greater than 50 percent, please report that you have finished your deliberations. Your verdict will be a verdict for the defendant and you may not award damages to Thelonious Paige.
6. What is the amount of damages suffered by Thelonious Paige as a result of the incident of April 22, 1988?
Fill in the amounts you wish to award:
Amount of Damages
Economic Damages
Past care needs, medical & related expenses $ 262.000.00
Future medical, hospital surgical, and rehabilitative care and expenses $1.333.000.00
Past lost wages $ 194.205.21
Future loss of earning capacity $1.200.000.00
Non-Economic Damages
Past pain & suffering $ 541.666.00
Future pain & suffering $ 333.000.00
Past loss of enjoyment of life’s activities $ 362.500.00
Future loss of enjoyment of life’s activities $ 666-666-00
TOTAL DAMAGES: $4.893.037.21
7. CALCULATING AMOUNT OF DAMAGE AWARD
(a) Percentage of Negligence of Thelonious Paige (from question 5) 35%
(b) Subtract: 100% - percent from (a) = 65%
(c) Damages to be awarded to Thelonious Paige: Multiply percent in (b) x Total Damages (from question 6) = $3,180,474.19
*63END OF INTERROGATORIES. THANK YOU.
/s/ Charles Mood FOREMAN
13 August 1996 DATE”
See appendix A of this dissent for the jury’s findings as set forth in its answers to the interrogatories.
See appendix A of this dissent.
All of these switches were located in the defendant’s boiler room.
As the concurrence observes, “Hernandez testified that only he and Gilmartin had keys to the boiler room. Gilmartin testified that he did not know whether anyone else had a key.”
There are two remaining permutations: (1) some of the switches were in the "on” position and some were in the “off’ position; and (2) all of the switches were in the “off” position. For a discussion of both of these scenarios, see part II of this dissent.
In his concurring opinion, Justice Palmer places heavy emphasis upon “the uncontroverted testimony of the plaintiff and [Cano] . . . that, before the plaintiff started working on the boiler ... all switches . . . were in the ‘off position.” Justice Palmer appears to misunderstand a fundamental evidentiary principle. “A trier of fact is free to reject testimony even if it is uncontradicted; State v. Dudla, 190 Conn. 1, 7, 458 A.2d 682 (1983); Stanton v. Grigley, 177 Conn. 558, 563, 418 A.2d 923 (1979); Taylor v. Corkey, 142 Conn. 150, 154, 111 A.2d 925 (1955); and is equally free to reject part of the testimony of a witness even if other parts have been found credible. Griffin v. Nationwide Moving & Storage Co., 187 Conn. 405, 422, 446 A.2d 799 (1982); Raia v. Topehius, 165 Conn. 231, 235, 332 A.2d 93 (1973).” Barrila v. Blake, 190 Conn. 631, 639, 461 A.2d 1375 (1983). This principle finds its roots in the very simple premise that a witness’ testimony may well be either untruthful or empirically incorrect, even if no other witness has sufficient knowledge to say so. As for Justice Palmer’s claim that “there simply is no evidence [apart from the testimony of the plaintiff and Cano] to support, the inference that any of the switches to the boiler . . . were in the ‘on’ position when the plaintiff began his work,” I refer the reader to the undisputed fact that the boiler ignited, an occurrence that would have been physically impossible if the boiler had been off.
Assuming that all of the switches were in the “on” position; see footnote 5 of this dissent; a sufficiently high thermostat setting would have triggered the ignition of the boiler without the intervention of any human act. If even one of the switches was in the “off’ position, then someone would have had to enter the boiler room in order to activate the boiler. For a discussion of this scenario, see part II of this dissent.
Accordingly, the jury deducted $1,712,563.02 from the plaintiffs combined economic and noneconomic damages of $4,893,037.21. See appendix A of this dissent.
“The plaintiff and Cano both testified to this fact.” Paige v. St. Andrew’s Roman Catholic. Church Corp., supra, 247 Conn. 27 n.4. I recognize that the foundational premise of this argument and the foundational premise of part I of this dissent are mutually exclusive. See footnote 5 of this dissent. Because we cannot ascertain what, precisely, the jurors were actually thinking, this approach is necessary to cover every possibility. In my view, the work of the jury and the trial court must be sustained under any of the various permutations.
If any of the switches were in the “off’ position when the plaintiff entered the boiler, it follows that someone would have had to enter the boiler room and flip the switch(es) to the “on” position before the boiler would be capable of igniting.
In its answer to the plaintiffs complaint, the defendant proffered the following special defense, which dovetails perfectly with this latter theory of causation: “The plaintiff was himself negligent and careless in at least one, if not more than one, of the following respects, in that ... he failed to take the proper precautions necessary to insure his own safety prior to and while engaged in cleaning [the] boiler . . . [and] he failed to adequately control access to the controls which could activate the boiler wide he was cleaning same
As discussed previously, the jury found that the defendant negligently “[failed] to supervise its employees, servants, and agents and [failed] to instruct them to avoid activating the burner or boiler while [the plaintiff] was cleaning [it].” See appendix A of this dissent. At first glance, it may appear as if this finding is mutually exclusive with the finding that the defendant negligently failed to deactivate the boiler. It is not. There are two different ways to reconcile these findings. First, the jury reasonably could have determined that the defendant negligently left all of the requisite switches in the “on” position, thereby creating a situation in which the *49setting on the thermostat triggered the ignition of the boiler without the intervention of any human act. Accordingly, the jury reasonably could have concluded that the defendant’s negligent failure to instruct its employees to avoid activating the boiler was not a proximate cause of the plaintiffs injuries. This is the scenario that I discuss in part I of this dissent. Alternatively, the jury reasonably could have determined that: (1) the defendant, the plaintiff and Cano collectively deactivated the boiler by leaving at least one of the relevant switches in the “off’ position; and (2) an employee of the defendant’s entered the boiler room and reactivated the boiler by turning the requisite switch(es) to the “on” position.
In addition to Hernandez (whom the jury exculpated of affirmatively activating the boiler), the defendant employed three priests, three nuns, two janitorial assistants, a housekeeper, a cook, and two secretaries. Paige v. St. Andrew’s Roman Catholic Church Corp., supra, 247 Conn. 24, 29. The jury reasonably could have concluded that these employees came to work on the morning that the plaintiff was injured.
The majority has identified nine additional employees of the defendant: eight lay teachers and one school principal. Because school was not in session on file morning that the plaintiff was injured, I assume for the sake of argument that the jury did not consider the possibility that one of these employees activated the boiler.
The new majority implies that the cook, the housekeeper, and the secretaries possessed no incentive to activate the boiler because the resultant heat would not have entered their personal work space. This implication disregards the possibility that one of these four employees may have turned the boiler on in order to supply heat for the upcoming mass.
“The jury reasonably could have rejected the defendant’s alternative suggestion that ‘an enemy’ of the plaintiff activated the boiler. In order to conjure up the facts required to support this self-proclaimed ‘plausible hypothesis’ — that the plaintiff had an enemy, that the enemy was homicidal, that the enemy knew the plaintiffs work schedule, that the enemy could find the boiler room, that the enemy knew how to operate a boiler, and that the enemy planned a grisly murder that would require him to pass undetected in and out of a church occupied by [numerous] people — requires a process of extrapolation that does not find support in the record.” Paige v. St. Andrew’s Roman Catholic Church Corp., supra, 247 Conn. 35 n.13.
It would have been physically impossible for the plaintiff — who was trapped inside the boiler — to have activated the relevant switches (which were, of course, not located on the inside of the boiler). “The jury reasonably could have credited the unambiguous and unimpeached testimony of Cano that he did not activate the boiler. Moreover, the jury reasonably could have credited the unambiguous and unimpeached testimony of Carl A. Coletta, the head painter in the church hall, that he and his partner did not touch the emergency switch or circuit breaker switches. See Lopez v. Price, 145 Conn. 560, 564, 145 A.2d 127 (1958) (credibility determinations fall within traditional province of jury).” Paige v. St. Andrew’s Roman Catholic Church Corp., supra, 247 Conn. 29 n.6.
More specifically, the new majority fails to supply any reason to believe: (1) that the plaintiff, Cano, or either of the painters activated the boiler; (2) (a) that any parishioner was in the church at the appropriate time and (b) that such a hypothetical parishioner had the ability to activate the boiler (i.e., was permitted to do so, knew where the boiler room was located, and knew how to activate an industrial boiler); (3) (a) that a stranger off the street was in the church at the appropriate time and (b) that such a stranger had either the ability or the incentive to activate the boiler; (4) that not one employee of the defendant’s possessed both the ability and the incentive to activate the boiler; or (5) that anyone other than an employee, parishioner, or a stranger off the street had either the ability or an incentive to activate the boiler. When viewed alongside our highly deferential standard of review, this failure is fatal to the position adopted by the members of the new majority.
In three separate parts of his concurring opinion, Justice Palmer emphasizes that, "with respect to some of [the defendant’s] employees, there is no evidence from which it could be inferred that they even knew where the boiler was located or how to ojjerate it. Absent speculation, it would be impossible to conclude that any one of these . . . employees activated the boiler.” Intriguingly enough, Justice Palmer neglects to mention an obvious corollary to this evidentiary lacuna: the persuasive force of his argument increases geometrically when it is applied to either parishioners or strangers off the street.
The new majority suggests, for example, that the jury may have determined that one of the painters activated the boiler. Although it is possible to hypothesize that the jury disregarded the unambiguous and unimpeached testimony of the head painter that neither he nor his partner activated the boiler, this hypothesis disintegrates when viewed in the light most favorable to the plaintiff.
To avoid any possible confusion on this point, I wish to reiterate that the jury also determined that Hernandez, “in spite of assuring [the plaintiff] that the boiler and burner had been deactivated, failed to properly deactivate the boiler and burner.” See appendix A of this dissent.
Even in the context of a criminal case — where the stakes are high and the state must prove its case beyond a reasonable doubt — the jury is entitled to rely upon an inference that the defendant is guilty and reject evidence that would support an acquittal. See, e.g., State v. Dumlao, 3 Conn. App. 607, 616, 491 A.2d 404 (1985) (“in viewing evidence which could yield contrary *55inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence”).
This concession begins from the premise that the jury determined that at least one of the requisite switches was in the “off’ position when the plaintiff entered the boiler. See part I of this dissent for a discussion of the defendant’s liability if the jury determined that all of the switches were in the “on” position when the plaintiff entered the boiler.
To be perfectly clear on this point, it does not make a whit of difference within the context of Justice Palmer’s attempt to refute the argument that I have set forth in part II of this dissent. If Justice Palmer’s recitation of the facts sounds familiar, it is because I cited it for the entirely different, alternative argument that I have set forth in part I of this dissent. See footnote 4 of this dissent and the accompanying text.
If he wishes to be more consistent with his logic than he has been with his votes, Justice Palmer must also believe that the jury could not reasonably have concluded that Ihe defendant’s employees knew where the doors, closets, and bathrooms were located in the church complex. After all, there was no testimony suggesting either that any employee knew where these places were or that any employee had the requisite keys to doors that are often left unlocked.
More fully, Justice Palmer, by joining the original majority, concurred with the following passage: “[I]t is apparent that employees of the defendant possessed the ability to activate the boiler. [Numerous] employees were within easy walking distance of the boiler room; some of them would not even have had to exit the building in which they worked in order to do so. Moreover, the jury reasonably could have concluded that several of these employees knew both where the boiler room was located and how to activate the boiler.” Paige v. St. Andrew’s Roman Catholic Church Corp., supra, 247 Conn. 32.
In a footnote appended to the final word of his concurring opinion, Justice Palmer writes that, “[a]s is frequently his practice, Justice Berdon characterizes the opinions of those with whom he disagrees in disparaging and provocative terms. I . . . refuse to engage Justice Berdon in kind.” Looking past the ad hominem disparagement contained in this provocative footnote, my only response is that I carefully calibrate my rhetoric — here, as elsewhere — in order to convey the intensity of my beliefs. In my view, this is a fundamental aspect of my judicial duties.