67 CBJ 355. The Legal Framework of a Products Liability Case in Connecticut.

Author:BY ROBERT B. ADELMAN AND MARY ANN CONNORS (fn*)
 
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Connecticut Bar Journal

Volume 67.

67 CBJ 355.

The Legal Framework of a Products Liability Case in Connecticut

355The Legal Framework of a Products Liability Case in ConnecticutBY ROBERT B. ADELMAN AND MARY ANN CONNORS (fn*)Products liability claims in Connecticut must be brought under the Connecticut Products Liability Act. (fn1) The Act unites all theories of liability in the products area into one cause of action, (fn2) so that all products cases follow like procedures, with the same remedies and statute of limitations. (fn3) The Act provides an exclusive remedy in a products liability action. (fn4) There has been, however, controversy over whether the Products Liability Act has abolished the common law theories of liability.

This analysis supports the proposition that the Act does not abolish the common law theories of liability. This article provides an historical perspective of the law of products liability and compares the Connecticut Products Liability Act to the Uniform Model Product Liability Act to demonstrate that the common law theories of liability are not abolished by the Connecticut Act. Further, the common law theories of liability under the Connecticut Products Liability Act are set forth with a discussion of how they should be pleaded under the Act.

  1. AN HISTORICAL PERSPECTIVE

    Over the years our courts fashioned a number of theories under the common law to cope with personal injury and death caused by products. Until 1963, these theories (primarily forms of negligence and breach of warranty) were modifications of existing legal theories, none of which precisely fits the situations presented by products claims. These historically based theories carried with them excess baggage (fn5) ill-suited to the needs of individual product claims. As a result, the courts were forced to

    356display ever increasing ingenuity in fitting these theories to product causes of action.

    In 1963, recognizing the need for a theory of liability that would adequately address product liability claims, justice Traynor applied a new theory called strict liability in tort, in Greenman v. Yuba Power Products, Inc. (fn6) For the first time, a new common law theory of liability in products liability cases, crafted expressly for this purpose, was applied by a state's highest court. (fn7) Contemporaneous with the developments in the area of strict liability in tort, 402A of the Second Restatement of Torts was accepted by the American Law Institute in 1964. (fn8) This custom designed theory in products liability cases, elegant in its simplicity, easy in its application, was so well suited to its task that it swept across the country, finding immediate acceptance in virtually all courts. (fn9) The Connecticut Supreme Court adopted the theory of strict liability in tort, as set forth in 402A, in 1965. (fn10)

    Despite its widespread acceptance, the adoption of the theory of strict liability in tort did not abolish its predecessors. The creators of this new theory perhaps had thought that because of its simplicity, compared with the historical relics which preceded it, the doctrine of strict liability in tort would preempt the historically based theories of liability by a natural process. This, however, did not happen. Instead, strict liability coexisted with the theories that had developed over the years. This caused pleadings and trials to become more complex, as strict liability in tort served not as a substitute, but as an additional road to recovery.

    In response to this situation, the Department of Commerce published its Model Uniform Product Liability Act (fn11) (hereinafter referred to as "MUPLA"), on October 31, 1979. MUPLA was offered for the voluntary use of the states. Its purpose and design

    357 was to abolish all common law theories of liability, including the historically based theories as well as strict liability in tort, in products liability cases, (fn12) and substitute a new legislatively crafted theory of liability. (fn13) The theory of liability drafted by the Department of Commerce, however, was less favorable to plaintiffs than the theory of strict liability in tort, which had already been adopted in nearly all states. MUPLA was not a neutral bill aimed at codifying existing law, but a bill which made it more difficult for plaintiffs to recover in products liability cases.

  2. WHERE WE ARE GOING

    1. The Legal Framework of a Products Liability Case

    While it has been stated that Connecticut's Product Liability Act (fn14) is "based upon" MUPLA, (fn15) the two acts are more different than alike. The Connecticut Products Liability Act most significantly differs from MUPLA in that unlike Sections 103A and 104 of MUPLA, our Act does not abolish all common law theories of liability and substitute a legislatively crafted theory of liability. The Connecticut Products Liability Act does not specifically state that the Connecticut Act "is in lieu of and preempts all existing law . . . ." as does Section 103A of MUPLA. Instead, the Connecticut Act states that "[a] products liability claim . . . may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability

    358 and warranty for harm caused by a product." (fn16) This language indicates that the Connecticut Products Liability Act is the exclusive remedy for claims or actions falling within its scope. (fn17) In other words, one cannot bring a common law cause of action for harm caused by a product outside the purview of the Products Liability Statute. (fn18)

    This distinction between including common law theories of liability (such as negligence, strict liability in tort and breach of warranty) in an action brought under the Connecticut Products Liability Act, and bringing a common law cause of action outside the statute, is a distinction which has caused confusion. (fn19) The Connecticut Products Liability Act has even been interpreted by some of the legislators involved in its passage as abolishing the common law theories of liability. A comparison of our Act with MUPLA, however, clearly establishes that our Act does not abolish the common law theories of liability and replace them with a new legislatively created theory of liability, as does MUPLA.

    Representative John Berman, managing the bill on the floor of the House of Representatives, stated:

    359We are now going with a simple product liability cause of action. Formerly we had a concept of strict liability. We had negligence and we had warranty causes and suits were brought in at least three different counts and frequently more. So now we are going with one simple product liability cause of action. (fn20)

    Likewise, Senator DePiano, managing the bill on the floor of the Senate, said: "Section 2 (fn21) sets forth that the bill is intended as a substitute for prior theories of harm caused by a product." (fn22) "[I]t's definitely the intention to create a products liability cause of action in an effort to abolish all the various other types of actions that we've been using to date . . . ." (fn23) Reading Connecticut General Statutes § 52-572n(a) in context with the rest of the Act, specifically § 52-572m(b), it becomes clear that the legislators' interpretation cannot be correct. (fn24)

    Connecticut General Statutes § 52-572m(b) defines a products liability claim as including, but not limited to, . . all actions based on the following theories: strict liability in tort; negligence; breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent; misrepresentation or nondisclosure, whether negligent or innocent.

    This definition incorporates the common law theories of liability; it does not abolish them. (fn25)

    In contrast, § 102(D) of MUPLA, the section from which § 52-572m(b) is derived, provides:

    360"Product Liability claim" . . . includes, but is not limited to, any action previously based on: strict liability in tort; negligence; breach of express or implied warranty; breach of, or failure to, discharge a duty to warn or instruct; whether negligent or innocent; misrepresentation; concealment, or nondisclosure, whether negligent or innocent; or under any other substantive legal theory. [Emphasis added.]

    As the comparison between the two sections demonstrates, the word "previously" has been omitted from the Connecticut Products Liability Act.

    One cannot abolish the common law theories of liability without providing a substitute. Unlike MUPLA, the Connecticut Products Liability Act does not provide a substitute theory of liability. (fn26) In the absence of such a substitute, what would the plaintiff be required to prove at trial in order to prevail? What would the judge charge the jury? The Connecticut Products Liability Act does not specify. This guidance can only come from the common law theories of liability.

    361It is clear from the above that the purpose of § 52-572n(a) cannot be to abolish the common law theories of liability. (fn27) Instead, our Act unites the common law theories in one cause of action within its procedural framework. (fn28) It creates uniform procedures and remedies for product claims. (fn29) The purpose of § 52-572m(b) is to set forth the common law theories of liability which define the substantive law under which the plaintiff intends to proceed. All theories must conform with the Act's Statute of Limitations. (fn30)

    The interpretation that the Connecticut Products Liability Act utilizes the...

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