1993 Connecticut Tort Law Review
| Pages | 161 |
| Publication year | 2021 |
68 CBJ 161. 1993 Connecticut Tort Law Review
The most sweeping changes in tort law in 1993 occurred in the field of workers' compensation, where Public Act 93-288 altered many of the rights, remedies and procedures in that field, generally to the disadvantage of the claimant. There were also important decisions regarding jury interrogatories, jury verdicts and the application of the general verdict rule.
In this article, the authors have attempted to maintain the same substantive scope as previous annual surveys of tort law. Uninsured motorist cases are thus omitted while procedures and employment-related torts are covered. The authors discuss most, but not all, of the tort decisions of the Connecticut Supreme and Appellate Courts and the legislative enactments affecting tort cases. Superior Court decisions have generally been omitted, while selected opinions of the United States District Court for the District of Connecticut are included.
The Connecticut Supreme Court granted certification to many of the interesting 1993 tort decisions of the Appellate Court. During 1994, and prior to the final submission of this article, the Supreme Court decided those cases. So that this article may be as current and useful as possible, the authors have chosen'to discuss those 1994 Supreme Court opinions in this article summarizing 1993 developments in tort law.
A. Res Ipsa Loquitur
Submission of a negligence case to the jury under the doctrine of res ipsa loquitur (fn1) may be easier in the wake of Giles
v. New Haven (fn2) in which our Supreme Court undertook to clarify some confusion in earlier cases regarding the scope of the res ipsa loquitur doctrine. (fn3) In Giles, the plaintiff was an elevator operator allegedly injured when she jumped from the elevator cab after the compensation chain on the elevator became hooked on a bracket, broke free and crashed to the bottom of the shaft. (fn4) She sued Otis Elevator for negligent failure to inspect, maintain and repair the compensation chain.
Previous decisions had suggested that res ipsa loquitur applied only when the plaintiff proved that the defendant had exclusive control over the instrumentality that caused the injury. (fn5) Otis Elevator maintained that the doctrine of res ipsa loquitur was inapplicable because the plaintiff operated the elevator and thus had some control over the sway of the chain. (fn6) The Supreme Court noted that although the term "exclusive control" had found its way into some earlier opinions, the court had never held that any use of the instrumentality by the plaintiff would necessarily preclude application of res ipsa loquitur. (fn7) Rather, the court had intended to require proof of the defendant's management and control to limit the doctrine of res ipsa loquitur to situations in which the defendant's negligence was probably the cause of the plaintiff's injuries. (fn8) The Supreme Court noted that many jurisdictions and the Restatement (Second) of Torts either reject or deemphasize the requirement of exclusive control. (fn9) The Supreme Court held that if the jury could reasonably find that the defendant's control was sufficient to warrant an inference that the defendant was more likely responsible for the incident than someone else, even in the absence of proof of absolute exclusivity and control over the instrumentality by the defendant, the trial court must allow the jury to draw that
inference. (fn10)
The court also specifically adopted the holding suggested by its earlier dictum in Malvicini v. Stratfield Motor Hotel, Inc., (fn11) that a plaintiff need no longer show freedom from contributory negligence now that Connecticut is a comparative fault jurisdiction. (fn12) Accordingly, a plaintiff may be negligent and still recover under a doctrine of res ipsa loquitur, so long as the plaintiff's negligence is not greater than that of the defendants. (fn13)
B. Vehicular negligence actions
The legislature repealed no fault-insurance and, along with it, § 38a-368 of the General Statutes, which had set a threshold of $400.00 in medical bills or a permanent injury for suit against the owner or operator of a private passenger motor vehicle. (fn14) There will now be no threshold for automobile accident claims. In another statutory change, bicycle helmets are required for children under twelve years of age operating bicycles on the traveled portion of any highway, but failure to wear them shall not be considered contributory negligence on the part of either the parent or child and shall not be admissible in civil actions. (fn15) This provision is similar to that regarding the inadmissibility of evidence of failure to wear seatbelts. (fn16)
The Appellate Court held that, with the appropriate facts, a jury may properly find that the manner in which a passenger was riding in a motor vehicle was negligent and the largest cause of his own injuries. (fn17)
C. Proximate Cause
The Appellate Court reversed a trial court which had repeatedly referred in its jury instructions to "the proximate cause" rather than "a proximate cause" in discussing the relationship that must be proven between the negligence of the defendant and the injuries suffered by the plaintiff. (fn18) There may be more than one proximate cause of the harm.
Sharp v. Wyatt, Inc., (fn19) may prove the most influential product liability decision of 1993. In a thoughtful opinion authored by judge Schaller, Sharp discussed several questions of first impression related to failure-to-warn claims under Section 52-572q of the General Statutes. (fn20) The Appellate Court reversed the trial court's granting of summary judgment for oil suppliers in an action brought by the estates of fuel company employees who were asphyxiated in an underground vault adjoining fuel tanks. The Appellate Court first found that the trial court had improperly determined that no warnings were required unless the product itself is defective. Rather, the defect may be the very absence of adequate warnings or instructions. (fn21)
In Sharp, the Appellate Court also held that proximate cause in a claim under Section 52-572q depended upon the test set forth in that statute (fn22) rather than upon the doctrine of foreseeability which applies in negligence actions. (fn23)
The trial court in Sharp had determined that, as a matter of law, the plaintiffs failed to show with reasonable probability that the defendant's products caused the deoxygenation of the vault where the workers were asphyxiated. The Appellate Court
found that evidence that the defendants had supplied about 25% -of the petroleum products stored in the tanks surrounding the vault created a genuine issue of fact with regard to that issue, even though the defendants' products were commingled with others' in many of the tanks. The court noted that under Champagne v. Raybestos-Manhattan, Inc., (fn24) a product seller may be liable if its defective product contributes to the cause of an injury or death. (fn25)
The Appellate Court additionally held that liability for inadequate warnings is not predicated upon the existence of warning requirements under federal law (fn26) and it rejected a sophisticated user defense to liability under § 52-572. It held that while the sophistication of the expected product user may be a consideration under subsection (b)(2) of the statute, the sophisticated user doctrine does not offer the product seller an affirmative defense. (fn27)
Finally, the Appellate Court discussed but did not decide which of two statute of limitation periods applied to the action. The defendants contended that the period was only two years under § 52-577c (fn28) for injuries caused by exposure to hazardous chemical substances, mixtures or pollutants applied, rather than three years under § 52-577a (fn29) for product liability actions. The court held that there was a genuine issue of fact with regard to the applicability of the shorter period, noting that the claim was apparently that the decedents died from the exclusion of oxygen by the petroleum products, rather than from actual inhalation of the petroleum products. (fn30)
The Supreme Court granted certification (fn31) and affirmed, noting that the issues on which certification had been granted were properly resolved by the Appellate Court. (fn32)
B. Elliot v. Sears, Roebuck & Co.
In Elliot v. Sears, Roebuck & Co., (fn33) the Appellate Court addressed the misuse and alteration defenses to a product liability claim. The plaintiff was injured while walking down a ladder which he was using as a temporary stairway. (fn34) The defendant sought to have the trial court instruct the jury concerning the defense of alteration pursuant to § 52-572p of the General Statutes. The court did not. The court also did not charge as requested that misuse of the product by the claimant was a complete bar to recovery, although it did charge regarding the issues of proximate cause and comparative responsibility. After a verdict for the plaintiff, the defendant appealed.
The Appellate Court held that the defendant was entitled to have the jury consider the principles of § 52-572p, but since the alleged alteration was an alteration in use, the instructions were adequate in that they discussed misuse and proximate cause. The Appellate Court also held that § 52-5721 of the General Statutes (fn35) does not apply to a product liability claim under the 1979 Product Liability Act. (fn36) Prior to the effective date of the 1979 Product Liability Act, misuse had been a complete bar even if a product defect was a proximate cause of the plaintiff's injuries. (fn37) Now...
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