CHAPTER 9 - 9-2 CONTRIBUTORY AND/OR COMPARATIVE NEGLIGENCE

• Jurisdiction: United States

9-2 Contributory and/or Comparative Negligence

Connecticut recognizes that in legal malpractice actions sounding in negligence, defendants can assert comparative negligence as a special defense, alleging that the plaintiff's damages were legally caused by the plaintiff's own negligence.² The basis for asserting such a defense, however, is not clear. The Connecticut General Statutes³ provide that the special defense of comparative negligence is available in actions for damages "resulting from personal injury, wrongful death or damage to property."⁴ The vast majority of legal malpractice actions, however, do not involve damages "resulting from personal injury, wrongful death or damage to property." Rather, the damages in such cases are economic in nature.

In Williams Ford, Inc. v. Hartford Courant Co., the Supreme Court held that commercial losses resulting from negligence do not include "damages resulting from personal injury, wrongful death or damage to property."⁵ It nonetheless concluded that because the contributory negligence doctrine results in harsh consequences for plaintiffs by being a complete bar to recovery, it would adopt for a negligence action resulting in commercial loss the special defense of comparative negligence that is otherwise available in actions covered by statute.⁶

Comparative negligence would not be a defense to a claim sounding in breach of contract, fraud, CUTPA, or intentional infliction of emotional distress. It may, however, be a defense to a claim for negligent misrepresentation.

Therefore, a former client's negligence may not necessarily be a complete bar to a malpractice action sounding in negligence. Instead, the fact finder will be permitted to attribute a percentage of responsibility to the former client, and any award of damages will be reduced by the percentage assigned to the former client. Presumably, if the percentage assigned to the former client exceeds 50 percent, the former client will be barred from any recovery.

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Notes:

^[2] Somma v. Gracey, 15 Conn. App. 371 (1988).

^[3] Conn. Gen. Stat. § 52-572h.

^[4] Conn. Gen. Stat. § 52-572h(a) applies to "causes of action based on negligence . . . to recover damages resulting from personal injury, wrongful death or damage to property . . ." Subsection (c) provides, "[i]n a negligence action to recover damages resulting from personal injury...