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3.5-5  Allocation of Negligence - Two Defendants with a Special Defense of Comparative Negligence

Revised to January 1, 2008

Note:  This charge is designed to be used in a case in which the plaintiff has brought an action against two defendants between whom an award of damages may be allocated, and one or both defendants have filed a special defense of comparative negligence against the plaintiff.  It is designed to be given immediately following Comparative Negligence – General, Instruction 3.5-1. 

Practice Tip:  It is useful to the jurors at this stage if you distribute copies of the verdict forms and any special interrogatories and invite them to follow along with this portion of the charge using the forms as a guide.

In the event that you determine that the plaintiff will be entitled to some award of money damages – in other words, the plaintiff has proved all the elements of (his/her) claim, and neither defendant has proved that the plaintiff was more that 50% negligent in causing (himself/herself) injury – there is another determination that you must make.

As with the comparative negligence analysis, the total amount of the negligence that causes the injury must equal 100%; but you must allocate that negligence among all of the parties, depending on what your findings are.  Our law requires that you do this because a defendant is only required to pay damages to an injured plaintiff based on the percentage of that defendant's negligence and no more.

Let me give you four illustrations of how this would work depending on your findings:

1) You may find that the plaintiff has proved that the negligence of both defendants caused (him/her) injury and that neither defendant has proved that the plaintiff (himself/herself) was negligent in any degree.  You would assign 0% of negligence to the plaintiff, and since the plaintiff has proved (his/her) claims against both defendants, you would have to determine how the remaining 100% of the negligence is to be allocated between the two defendants.

2) You may find that the plaintiff has proved (his/her) claims against only one defendant but that one or both defendants have proved that the plaintiff's injury was caused by the plaintiff's own negligence amounting to 50% or less of the total negligence.  Then there are two parties – the plaintiff and one defendant – between whom you must allocate this 100%.

3) You may find that the plaintiff has proved (his/her) claims against both defendants, and that the defendants have proved that the plaintiff's injury was caused by the plaintiff's own negligence amounting to 50% or less of the total negligence.  Under the comparative negligence rule, the plaintiff is entitled to a verdict in (his/her) favor, but the effect of that finding by you would leave three parties among whom to allocate the negligence:  the plaintiff at 50% or less and the two defendants at the remaining percentage. 

4) Finally, there are two situations in which there would be no allocation among any of the parties.  One is if the plaintiff has not proved that either defendant was negligent or that none of the negligence of either defendant caused (him/her) to suffer injury; and the other is if you find that the plaintiff proved (his/her) claims, but you also find that one or both defendants have proved that the plaintiff was more than 50% negligent in causing the injury, so that the plaintiff's negligence is a complete bar to (his/her) prevailing in this case.  In either of those situations, you will return a verdict for the defendants.

Notes

See Sample Apportionment Verdict Form (Plaintiff), Instruction 6.1.  The judge should consider distributing copies of the verdict forms to the jury in conjunction with the delivery of this charge, so that the jury can see the practical effect of the charge before they begin their deliberations.  General Statutes §§ 52-102b, 52-572h; Carlson v. Waterbury Hospital, 280 Conn. 125 (2006).
 


 

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