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3.10-3 Product Liability - Comparative
Responsibility (Causation)
New March 1, 2009
If you find the defendant
liable under the instructions I just gave you, based upon findings that its
product was defective and that the defect was a proximate cause of the
plaintiff’s alleged injuries, you must go on to consider the defendant’s special
defense of comparative responsibility. To establish this defense, the defendant
must prove by a fair preponderance of the evidence that the plaintiff bears at
least partial responsibility for (his/her) own injuries because (he/she) engaged
in (negligent/reckless/intentional) conduct of the kind alleged in the special
defense and such conduct, like the defendant’s defective product, was also a
proximate cause of those injuries. Under our law, the plaintiff’s recovery of
damages for injuries proximately caused by a defective product is not barred if
such injuries are also shown to have been caused by the plaintiff’s own
(negligence/recklessness/intentionally tortious) conduct. Instead, in such
circumstances, (his/her) award of damages must be diminished by a percentage
representing the measure of (his/her) own responsibility for those injuries
compared to the combined responsibility of all parties, including
(himself/herself), who have been shown to bear some responsibility for those
injuries. If the defendant persuades you that the plaintiff did indeed engage
in (negligent/reckless/intentional) conduct of the sort here alleged, and
further that such conduct proximately caused the injuries (he/she) complains of
in this case, then you must go on to determine the percentage of responsibility
(he/she) personally must bear for those injuries, determined as a percentage of
the combined responsibility of all parties found responsible for those injuries
in this case.
Here, the defendant has
alleged that the plaintiff bears at least partial responsibility for (his/her)
own alleged injuries by engaging in the following acts of
(negligence/recklessness/intentional) misconduct, which (he/she) claims to have
proximately caused those alleged injuries: <quote the specifications of
negligence, recklessness or intentionally tortious conduct set forth in the
special defense for which at least some evidence has been presented at trial>.
Under our law, a person engages in (negligence/recklessness/intentional tortious)
conduct when <here describe the elements of negligence or of any other type
of tortious conduct by which the plaintiff is claimed to have caused (his/her)
own injuries in the case>. To prove that the plaintiff engaged in
negligence [or other pleaded form of tortious conduct], in the manner described
in the special defense, the defendant must prove the following essential
elements by a fair preponderance of the evidence: <here list the essential
elements of the defendant’s claim of negligence or other tortious conduct, as
pleaded in the special defense>.1
(Negligence/Recklessness/Intentionally tortious) conduct is a proximate cause of
an alleged injury when it is a substantial factor in bringing that injury about.
In determining if the defendant has proved this second element of its claim of
comparative responsibility, you must apply the same general instructions on
legal causation which I previously gave you on the causation element of the
plaintiff’s product liability claim.
If the defendant persuades
you by a fair preponderance of the evidence that the plaintiff engaged in
(negligent/reckless/intentionally tortious) conduct in the manner here alleged
and that such conduct proximately caused (his/her) alleged injuries, you must
next determine the comparative responsibility of all parties for those
injuries. The comparative responsibility of each party who is shown to have
been responsible for the plaintiff’s proven injuries must be determined by
assigning him a percentage of the combined responsibility of all parties you
find to be responsible for such injuries, totaling 100%. Because comparative
responsibility is a special defense, the defendant bears the burden of proving
the extent of the plaintiff’s proportionate responsibility for (his/her) own
injuries, expressed as a percentage of the combined responsibility of all
parties whose responsibility for such injuries has been proved at trial.
In determining the
comparative responsibility of the parties for the plaintiff’s alleged injuries,
you must consider, on a comparative basis, both the nature and the quality of
each party’s proven conduct.2 Factors for assigning percentages of
responsibility to each party whose legal responsibility has been established
include the nature of the party’s risk-creating conduct, including any awareness
or indifference with respect to the risks created by the conduct and any intent
with respect to the harm created by the conduct, as well as the strength of the
causal connection between the party’s risk-creating conduct and the harm.3
The nature of a responsible party’s risk-creating conduct includes such things
as how unreasonable the conduct was under the circumstances, in light of the
extent to which it deviated from the legal standard applicable to it in this
case; the circumstances surrounding the conduct; each party’s abilities and
disabilities; and each party’s awareness, intent, or indifference with respect
to the risks.4 The comparative strength of the causal connection and
the harm depends on how attenuated the causal connection was, the timing of each
person’s conduct in causing the harm, and a comparison of the risks created by
the conduct and the actual harm suffered by the plaintiff.5 Your
task, after considering the responsible parties’ proven conduct in light of
these factors, is to assign to each party a percentage representing (his/her)
proportion of the combined responsibility of all parties for the plaintiff’s
proven injuries, with the total of such individual percentages of responsibility
equaling 100%.
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1
Before instructing on any particular specification of negligence (or other
tortious conduct) set forth in the special defense, the court must obviously
determine if the alleged conduct could support the proposed finding as a matter
of law. See generally, Barry v. Quality Steel Products, Inc., 280 Conn.
1, 22 (2006) (finding no error in the trial court’s refusal to instruct that
roof workers who fell and were injured due to the failure of the defendant’s
defective roof brackets could be found negligent, for comparative responsibility
purposes, based upon their alleged failure to anticipate the failure of the
brackets and to use backup systems to guard against the possible dangers
resulting therefrom).
2
This language comes directly from General Statutes § 52-572o (c).
3
This language comes directly from § 8 of Restatement (Third), Torts,
Apportionment of Liability, which our Supreme Court referenced with approval in
Barry v. Quality Steel Products, Inc., supra, 280 Conn. at 21
(prescribing the manner in which a jury should be instructed as to the
plaintiff’s alleged negligence when it is pleaded as a basis for asserting the
special defense of comparative responsibility). That Section, which sets forth
generally applicable rules apportioning responsibility among joint tortfeasors,
applies directly to the apportionment of responsibility between the sellers of
defective products which injure plaintiffs and plaintiffs whose tortious conduct
contributes to their own product-related injuries under § 17 of the Restatement
(Third), Apportionment of Liability. Section 17 provides as follows:
§
17. Apportionment of Responsibility Between or Among Plaintiff, Sellers and
Distributors of Defective Products, and Others.
(a) A plaintiff’s recovery of damages for harm caused by a product defect may be
reduced if the conduct of the plaintiff combines with the product defect to
cause the harm and the plaintiff’s conduct fails to conform to generally
applicable rules establishing appropriate standards of care.
(b) The manner and extent of the reduction under Subsection (a) and the
apportionment of plaintiff’s recovery among multiple defendants are governed by
generally applicable rules apportioning responsibility.
4
This language comes directly from Comment c to § 8 of the Restatement (Third),
Torts, Apportionment of Responsibility.
5
Id.
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