69 CBJ 32. 1994 CONNECTICUT TORT LAW REVIEW.

• Author: BY DOUGLAS W. HAMMOND AND EVERETT H. MADIN, JR.

Connecticut Bar Journal

Volume 69.

69 CBJ 32.

1994 CONNECTICUT TORT LAW REVIEW

331994 CONNECTICUT TORT LAW REVIEWBY DOUGLAS W. HAMMOND AND EVERETT H. MADIN, JR.(fn*)

There were no sweeping statutory changes in tort law during 1994 to rival the revisions to the workers' compensation system in 1993. The Supreme and Appellate Courts issued important decisions concerning strict liability actions and the tolling of statutes of limitation. Both courts continued to address the implementation of the tort law changes which originated in Tort Reform I and Tort Reform 11 in 1986 and 1987, respectively.

The authors have kept the substantive scope of this 1994 survey the same as in previous years, although a case could be made for the inclusion of uninsured motorist cases and the exclusion of cases regarding employment related torts. The number of tort decisions issued by the Supreme and Appellate Court precludes coverage of decisions of the Superior Court and the United States District Court for the District of Connecticut. Those 1994 Public Acts which will most affect the practice of tort law are discussed under the applicable subject headings.

1. NEGLIGENCE

   1. Duty

      In RK Constructors, Inc. v. Fusco Corp.,(fn1) the Supreme Court held that a tortfeasor's responsibility for negligent conduct does not extend so far as to make it liable for an increase in workers' compensation premiums suffered by the employer of the worker which it injured. The majority concluded that in the absence of a controlling statute or overriding public policy consideration, the increased premiums and lost dividends were too remote to be chargeable to the tortfeasor.(fn2) Justice Berdon concurred in the result but would not have reached

      33that question.(fn3) He would have found that Section 31-293a of the General Statutes, which permits an employer to bring an action against the tortfeasor to recover workers' compensation benefits paid, was the exclusive remedy available to the employer.(fn4)

      In Fleming v. Garnett,(fn5) the Supreme Court touched upon the liability of a business for failing to warn of a dangerous condition on adjoining land not owned by that business. The Supreme Court upheld a trial court determination that a jury could properly have found that the defendant truck terminal had an obligation to warn drivers of oversized loads of the danger of exiting the terminal and entering the roadway through a driveway on adjacent property which was neither owned nor controlled by that defendant.

   2. Work Completed and Accepted

      In Minion v. Kirsch,(fn6) the Appellate Court noted that the common law rule that the liability of a contractor terminated when the work was completed and accepted was inconsistent with the Supreme Court holding in Coburn v. Lenox Homes, Inc.(fn7) The court held that Connecticut had joined the majority of jurisdictions in rejecting the "completed and accepted" rule.(fn8) The court held that the former common law rule had been replaced with the following rule of foreseeability expressed in the Restatement (Second), Torts: One who on behalf of the possessor of land erects a structure or creates any other condition thereon is subject to liability to others upon or outside of the land for physical harm caused to them by the dangerous character of the structure or condition after his work has been accepted by the possessor, under the same rules as those determining the liability of one who as manufacturer or independent contractor makes a chattel for the use of others.(fn9)

      34C. Vicarious Liability

      In Pedevillano v. Bryon,(fn10) the Supreme Court overruled(fn11) its own prior "dictum"(fn12) and held that Section 14-154a, the lessor liability statute, does not impose such strict liability upon lessors that the lessor is liable even if the provisions of the rental contract restricting the use of the automobile to specified drivers are violated. In Pedevillano, a car rental agency had rented out a vehicle with a lease agreement which limited the authorized drivers to the renter, his spouse and co-workers engaged in business activities with the renter.(fn13) According to an affidavit of the driver, he and the renter were engaged together in illegal drug business. The plaintiff brought suit against the driver and rental agency. The Supreme Court upheld summary judgment for the defendant.

      The Court first rejected the argument that Section 14-154a should be applied literally to impose liability on the lessor for any injury caused by any motor vehicle which it owns.(fn14) The court noted that its 1931 decision in Connelly V. Deconinck,(fn15) had previously held that the statute would not be so broadly applied and that literal application of the statute would extend liability to a car stolen off the lessor's lot.(fn16)

      The Court then considered whether the statute should be read liberally to impose unlimited liability on any lessor that voluntarily entrusts a motor vehicle to a lessee. Here, the court overruled the earlier precedent and held that the statute allows a lessor to impose reasonable restrictions on the entity of those to whom it is willing to entrust its property and for whose conduct it is willing to assume risk.(fn17)

      35The authors believe that the liberal construction of the statute would have been warranted. A lessor often entrusts a motor vehicle to a renter of whom it has relatively little knowledge, and who may readily permit others to operate the vehicle, whatever the contract may say about authorized drivers. Innocent victims should be able to recover from those who are in the business of profiting from the renting of motor vehicles.

      Finally, the court rejected a claim that the driver qualified as authorized under the contract because he was a co-worker engaged in business related activities, specifically illegal drug activities. The court sensibly ruled that "business related activities" was implicitly limited to legal activities.(fn18)

   4. Res Ipsa Loquitur

      In a decision discussed more fully in the 1993 survey,(fn19) the Supreme Court discussed the doctrine of res ipsa loquitur in Giles v. New Haven.(fn20) In brief, the court held that the doctrine could be used to allow a jury to infer negligence even if the defendant's control over the instrumentality causing injury was not absolutely exclusive, and even if the plaintiff was contributorily negligent.

   5. Comparative Negligence

      In Bradford v. Herzig,(fn21) the Appellate Court reversed a trial court which had allowed a jury to assess contributory nealiaence although: (1) the court had not charged on it other-than in describing the verdict form to the jury; (2) the defendant had not pleaded contributory negligence; and (3) the record on appeal was devoid of any documentation that evidence of contributory negligence was presented at trial. The court first noted that the plaintiff should not have to show the absence of contributory negligence on appeal. The court therefore placed the burden to supply a record to support the finding of contributory negligence upon the defendant-appellee,

      36although the burden of s lying an adequate record normally falls upon the appellant.

      The defendant claimed the negligence consisted of a failure to follow the defendant's instructions but the court noted that such a failure would usually constitute a failure to mitigate damages rather than contributory negligence.(fn22)

      The defendant argued that Section 52-572h(f)(5) relieved him of his burden to plead contributory negligence.(fn23) The court did not address the merits of that contention, finding that the defendant could not demonstrate on appeal that he had proven any contributory negligence.

      F. Apportionment Of negligence

      The Appellate Court, in Bradford also held that it was error to apportion liability to a non-party in a negligence action, under Tort Reform 11, which was effective October 1, 1987.(fn24) The court engaged in a lengthy discussion of the policy reasons why apportionment to a non-party should not be permitted. The court said: There is no complaint or third party complaint against [the nonparty physician] and no way to determine what comprised his negligence. Also, there is obviously no answer or special defense by [him] possible, because he is not a party ... The plaintiff had the right to choose either or both of two defendants to sue. If the defendant believed that a nonparty was responsible for some or all of the plaintiffs' injuries, it was his responsibility to *in lead that nonparty. The plaintiff here is caught in a dilemma if §52-572h(~41 is read to allow the total amount of damages found the jury to be due the plaintiff to be reduced by 2537 percent The damages found attributable to [the nonparty physician] as a nonparty are not a judgment and do not bind [him]. The plaintiff cannot obtain a judgment against [him] without bringing a separate action against him. Such an action would be time barred in this case. The plaintiff would therefore be forced to sue all possible joint tortfeasors before the statute of limitations ran in either the same suit or a separate suit. If he chose a separate suit, and the first suit had terminated with the jury's determination that [the non party physician] was responsible for 25 percent of the damages, the plaintiff would be limited to a cap of 25 percent of the first jury's verdict in his suit against [him]. It is also possible that the plaintiff would be unable to collect anything from [the non-party physician] because a jury in a suit actually...