Significant Recent Tort Developments

JurisdictionConnecticut,United States
Publication year2021
CitationVol. 78 Pg. 107
Connecticut Bar Journal
Volume 78.


VOLUME 78, NO. 2



In this survey, important developments in tort law during the period 1999 to 2004 will be reviewed. Emphasis will be on the more recent cases in 2003 and 2004 but the review will discuss some of the more prominent developments over the past several years. As a result of this fairly large block of time, the coverage will be more comprehensive in some areas, and less so in others.


There have been several apportionment of liability decisions that are worth discussing. In Crotta v. Home Depot(fn1) the Supreme Court addressed whether the doctrine of parental immunity precluded the parent of a minor plaintiff from being joined for purposes of apportionment of liability. The injury in Crotta occurred when the father of the plaintiff placed his minor son in the cargo portion of a shopping cart provided by the defendant.(fn2) The plaintiff fell from the cart and the plaintiff's mother brought a product liability suit on behalf of her son against the named defendant and the manufacturer of the cart.(fn3) Both defendants filed third-party complaints against the plaintiff's father claiming apportionment of liability due to his negligent supervision.(fn4) The Court found that since Section 52-572h of the General Statutes allowed apportionment among only those parties from whom the plaintiff was entitled to recover, the doctrine of parental immunity barred the apportionment claims.(fn5)

The Supreme Court provided further clarification to apportionment of liability in Allard v. Liberty Oil Equipment

*Of the New Haven Bar.

1 249 Conn. 634, 635, 732 A.2d 767 (1999).

(fn2)Id. at 636.

3 Id.

4 Id. at 637.

5 Id. at 639.

6 253 Conn. 787, 756 A.2d 237 (2000).

Co.(fn6) The issue was whether a defendant sued for failing to provide a safe service area to a customer who fell on a hand truck could apportion liability as to the seller of the truck from which the plaintiff was alighting.(fn7) The Court affirmed the trial court's granting of the product seller's motion to strike, reasoning that Section 52-572h(o) of the General Statutes prohibited apportionment of liability between parties liable on the basis of intentional, wanton or reckless misconduct, strict liability, or liability pursuant to any cause of action created by statute where the basis of liability is other than one in negligence.(fn8) The Court stated that product liability claims were a form of strict liability and not based on fault.(fn9) In addition, the allegations in the apportionment complaint constituted a product liability claim within the meaning of Section 52-572m et seq. of the General Statutes, and as such, the exclusive remedy for making a claim against a product seller was under the product statute.(fn10)

In Eskin v. Castiglia(fn11) the issue was whether pursuant to Section 52-102b of the General Statutes an apportionment complaint could be served on an unknown person. The action arose out of a motor vehicle accident where the defendant alleged that an unidentified person waved to him indicating that he could proceed.(fn12) The defendant claimed that in response to the wave he began his turn but he collided with the vehicle in which the plaintiff was a passenger(fn13) The trial court granted the plaintiff's motion to strike and the Supreme Court affirmed, holding that the text of the statute and legislative history indicated that the legislature intended that only identified persons could be added for apportionment.(fn14)

In Bhinder v. Sun Co.(fn15) (Bhinder I) the Supreme Court held that although the apportionment legislative scheme did not contemplate apportionment between a negligent defen-

7 Id at 788-89.

8 Id at 801.

9 Id at 804-806.

10 Id at 800.

11 253 Conn. 516, 5 17-18, 753 A.2d 927 (2000).

12 Id at 520.

13 Id

14 Id at 528.

15 246 Conn. 223, 717 A.2d 202 (1998).

dant and an intentional or reckless tortfeasor, it did not preclude a negligent defendant from apportioning liability to an intentional defendant as a matter of the common law.(fn16) In response to Bhinder I, the legislature passed Public Act 99- 69, § 1(o), later codified at Section 52-572h(o) of the General Statutes, which provides, in part, that there shall be no apportionment of liability between parties liable for negligence and parties liable on any basis other than negligence including intentional, wanton or reckless misconduct, strict liability, or liability pursuant to any cause of action created by statute. Pubic Act 99-69 § 1(o) by its terms became effective on August 11, 1998, the date of release in Bhinder I.

The case returned to the Supreme Court as Bhinder v. Sun Co., Inc. (Bhinder II)(fn17) after the trial court granted the plaintiff's motion to strike the apportionment complaint on remand.(fn18) The Court rejected the defendant's arguments that Public Act 99-69 § 1(o) violated the doctrine of separation of powers and the due process clauses of the federal and state constitutions, and that it had a vested right to apportionment under Bhinder(fn19) The Court found that since Public Act 99- 69 § 1(o) only clarified the intent of Section 52-572h of the General Statutes, it was necessarily retroactive and did not violate any constitutional provisions.(fn20) With respect to the defendant's second argument, the Court stated that although a cause of action can be considered a vested property interest, the defendant in the case had never attained a vested right since the clarifying legislation established what the law was at the time of passage and a defendant cannot have a vested right to a cause of action that never existed.(fn21)

More recently the Supreme Court in Lostritto v. Community Action Agency of New Haven, Inc.(fn22) addressed whether the 120-day statutory limit to serve apportionment

16 Id. at 234-3 8.

17 263 Conn. 358, 819 A.2d 822 (2003).

18 Id. at 360-61.

19 Id. at 373-75. (fn20)Id.

21 Id. at 375-378.

22 269 Conn. 10, 12-14, 848 A.2d 418 (2004).

23 Id. at 15.

complaints was mandatory(fn23) The Court found that it was mandatory, but that the statute implicated personal rather than subject matter jurisdiction.(fn24) The Court noted the serious implications as to whether a time limit invokes subject matter jurisdiction or personal jurisdiction, since the former may not be waived, while the latter is waived if not raised by a motion to dismiss within thirty days of the filing of an appearance.(fn25)

In Carpenter v. Law Offices of Dressler & Associates, LLC.(fn26) the Appellate Court in a legal malpractice case faced an issue related to those discussed in Lostritto. The defendants added successor law offices to the case as apportionment defendants, but the trial court granted the apportionment defendants' motion to strike since Sections 52-102b and 52-572h of the General Statutes allow apportionment for claims alleging damages resulting from personal injury, wrongful death, or property damage, but not for legal malpractice.(fn27) Before the motion to strike was granted the plaintiff had pled over against the apportionment defendants.(fn28) After the motion to strike was granted, the apportionment defendants filed a motion to dismiss the direct claims of the plaintiff, which was also granted by the trial court since it determined that it did not have subject matter jurisdiction over the apportionment complaint.(fn29) The Appellate Court stated that the trial court lacked subject matter jurisdiction over the apportionment action because apportionment of liability did not apply to a claim of legal malpractice, but the trial court did have subject matter jurisdiction over the direct claims since those were no different than the original claims against the defendants.(fn30) The Appellate Court also agreed with the plaintiff that since the apportionment defendants did not file their motions to dismiss within thirty days, as required by Practice Book § 10-30, and since Section 52-

24 Id. at 31-35.

25 Id. at 32.

26 85 Conn. App. 655, 858 A.2d 820, cert. denied, 272 Conn. 909, 863 A. 2d 700 (2004).

27 Id. at 657. (fn28)Id.

29 Id. at 657-58.

(fn30)Id. at 660.

102b of the General Statutes implicates personal jurisdiction, as interpreted by the court in Lostritto, the apportionment defendants waived any challenge to personal jurisdiction.(fn31)

In Card v. State(fn32) the plaintiff had sustained injuries to the same part of her body in three motor vehicle accidents over approximately a six-month period.(fn33) The plaintiff brought three separate lawsuits; two of the cases were consolidated for trial and the third case was settled before trial.(fn34) At trial the plaintiff's medical expert opined that each of the accidents was a substantial factor contributing to the plaintiff's injuries, but that it was impossible to determine to a degree of medical certainty how much of the injuries were attributable to each accident, and therefore each accident contributed equally.(fn35) The jury awarded the same amount in noneconomic damages to the plaintiff in each case, the trial court granted the defendants' motions to set aside the verdict, and the case was appealed.(fn36) The Appellate Court agreed with the trial court that the plaintiff's expert opinion on apportionment was speculative, but the Court did not end its analysis there.(fn37) The Court found that Section 52-572h of the General Statutes, the apportionment statute, was silent as to what happens when liability cannot be apportioned.(fn38) The Court adopted a rule that requires the trier of fact, if unable to determine how much of the plaintiff's damages are attributable to each tortfeasor, to make a rough apportionment, and if a rough apportionment cannot be made, then...

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