Survey of Connecticut Tort Law: 1989
| Publication year | 2021 |
| Pages | 134 |
64 CBJ 134. SURVEY OF CONNECTICUT TORT LAW: 1989
The most significant developments in Connecticut tort law in 1989 occurred in the areas of products liability, medical malpractice, dram shop liability and unfair trade practices. Other areas affected include governmental liability, recovery for emotional distress, premises liability and contribution/indemnification among joint tortfeasors. This survey will discuss decisions in these areas and then briefly outline tort-related cases involving trial procedure and recent legislation affecting tort law.
After years of conflicting decisions in the lower courts, the Connecticut Supreme Court has held that the products liability statute, CONN. GEN. STAT. § 52-572m et seq., provides the exclusive remedy for products liability claims. In Winslow v. Lewis Shepard, Inc.,(fn1) the Court found the language of the statute to be mandatory rather than permissive in ruling that a plaintiff may no longer choose between pleading the statute or the common law counts of negligence, strict liability and warranty.(fn2) In so holding, the Court solidified a principle it had discussed in dictum three years earlier in Daily v. New Britain Machine Co.(fn3) Rather than reply on Daily, however, the Court engaged in an independent analysis of the statute, noting that the legislative history left little doubt that the statute was intended to be the exclusive remedy for products liability claims.(fn4)
The sole instance where the common law counts must still be pleaded is when a products liability claim accrued prior to October 1, 1979, the effective date of the statute. Such was the case in Champagne v. Raybestos-Manhattan, Inc.,(fn5) wherein the plaintiff,
as the administratrix of her deceased husband's estate, brought suit against the defendant manufacturer of asbestos. The decedent had died of lung cancer allegedly caused by his exposure to asbestos while employed as a pipe coverer at Electric Boat. Some of that asbestos had been supplied by the defendant.(fn6)
This case is worthy of note in several respects. First, although the Supreme Court held that the case was properly tried using the common law of products liability, the applicable statute of limitations was found to be the three year period contained in the products liability statute.(fn7) The Court reasoned that the limitation period provided by the statute was procedural and should be applied retrospectively to actions accruing prior to October 1, 1979 but filed after that date.(fn8)
On the issue of comparative responsibility, the Court held that this defense was not limited to misuse of the defective product, but could include any " `conduct which involves an undue risk of harm to the person who sustains it.'" (fn9) The defense in Champagne involved the decedent's extensive smoking history, even after he had been diagnosed as having a moderate degree of asbestosis and had been advised by his doctors that he should stop smoking.(fn10) The Court also ruled that an award of punitive or exemplary damages does not prevent the jury from applying the law of comparative responsibility.(fn11)
As to the manner of computing punitive damages, the trial court in Champagne had limited the amount to the cost of litigation less taxable costs. The award was, thus, comprised of one-third of the verdicts on the products liability and loss of consortium
claims, plus disbursements.(fn12) The Supreme Court did not disturb this computation and held that punitive damages may be awarded in conjunction with a loss of consortium claim and in claims involving many separate litigants. (fn13)
In Malerba v. Cessna Aircraft Co.,(fn14) the Supreme Court held that a defendant in a products liability action may implead a joint tortfeasor for contribution even before a judgment has entered against the defendant seeking contribution or payment made by that defendant. The defendant aircraft manufacturer in Malerba had filed a third party complaint against the owner of the aircraft and the aircraft's mechanic, claiming indemnification and contribution. The trial court ordered the third party complaint stricken in its entirety, ruling that common law principles of indemnification and contribution had been abrogated by the Products Liability Act.(fn15) The statute allows indemnification only where judgment has been rendered against the party seeking contribution or payment has been made by such party in settlement of the claim.
The Supreme Court set aside the judgment striking the third party complaint, noting that Sections 52-102a(a) and 52-477a of the Connecticut General Statutes authorize the impleading of third parties without such preconditions. To bring the apparent inconsistencies of these three statutes into harmony, the Court concluded that a defendant must meet the preconditions of Section 52-472o where it seeks to initiate a separate lawsuit for contribution, but need not meet these preconditions where it seeks
to include such a claim in the original products liability action.(fn16)
Also of note is the Supreme Court's ruling that any assessment of comparative responsibility among co-defendants as to their percentage of liability to the plaintiff is not determinative of the liability one co-defendant may have to another for indemnification. Thus, a finding that one defendant is 70 percent liable to the original plaintiff and another defendant 30 percent liable does not preclude a finding that one defendant is liable to the other for all or a different percentage of the judgment.(fn17)
In a unique decision, a Connecticut Superior Court has found that a pet animal may be a product under the products liability statute. In Worrell v. Sachs,(fn18) the minor plaintiff suffered serious eye damage and loss of sight as a result of exposure to a diseased, parasite-carrying puppy purchased by the child's mother from the defendant's pet shop. The court denied the defendant's motion to strike the claim, rejecting the argument advanced in other jurisdictions that the changing nature of living creatures as they travel through the chain of commerce render them exempt from strict products liability. Citing the new "Pet Lemon Law" enacted in 1988,(fn19) the court emphasized that Connecticut's public policy has already developed in the direction of recognizing pet animals as "goods" or "consumer products." A larger question raised by the holding in Worrell is whether injured plaintiffs may now be able to circumvent the "dog bite" statute in certain instances, especially in light of the recent epidemic of injuries resulting from pit bull attacks.(fn20)
The three year statute of repose for medical malpractice claims, CONN. GEN. STAT. § 52-584 (fn21)has withstood a constitutional challenge which had been suggested in a concurring opinion in an earlier Supreme Court case. However, the decision still leaves open the possibility of a future challenge under a different fact pattern. In Stein v. Katz,(fn22) the plaintiff claimed that the statute violated Connecticut's constitutional guarantee that all injured parties shall have an available remedy(fn23) because it operated to bar causes of action before they could reasonably be discovered and, in some instances, before they even accrued. This anomaly exists because the statute prohibits any action brought more than three years from the date the malpractice is committed, but in some instances, the damages resulting from the malpractice do not occur, or cannot reasonably be discovered, until after the three years has elapsed.(fn24)
A similar issue was addressed by the Supreme Court in 1984 in McDonald v. Haynes Medical Laboratory, Inc.,(fn25) where the Supreme Court interpreted the statute of repose in such a manner as to bar a cause of action before it had accrued.' No constitutional issues were raised in that appeal, but in a concurring opinion, Chief justice Speziale suggested the possibility of a challenge to the statute under the Connecticut Constitution. The Chief Justice went so far as to list cases from other jurisdictions, which held that such a result violates state constitutional provisions similar to those in Connecticut.
The plaintiff in Stein raised the precise constitutional challenge alluded to in the concurring opinion in Haynes, but the
Supreme Court rejected plaintiff's argument. The constitutional provision in question was enacted in 1818, so the question the court found determinative was whether the plaintiff would have had a common law remedy in 1818; at the time the right to redress was guaranteed by the Connecticut Constitution. The defendant dentist in Stein had died while the action was pending and under the common law as it existed in 1818, the plaintiff's claim would have abated upon his death. Therefore, the Court ruled that the application of the statute of repose to bar the plaintiff's claim did not infringe upon any right to redress guaranteed to her by the Connecticut Constitution. The issue remains open, however, with respect to a similar claim where the defendant remains alive during the lawsuit.
Several cases have dealt with the relatively new requirement in medical malpractice cases that a certificate be filed with the complaint attesting to the fact that reasonable inquiry has been made "to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant."(fn27) In Tautic v. Pattillo,(fn28) a Superior Court judge held that the "reasonable inquiry" mandated by the statute does not require the plaintiff to obtain a preliminary opinion from a medical expert that medical negligence has occurred. It requires only...
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