History of the Connecticut Judicial Seal Home Home BannerBanner


 

 

 

 

 

   

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%.
_______________________________

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.


 

Attorneys | Case Look-up | Courts | Directories | Educational Resources | E-Services | Español | FAQ's | Juror Information | Media | Opinions | Opportunities | Self-Help | Home

Common Legal Words | Contact Us | Site Map | Website Policies and Disclaimers

Copyright © 2011, State of Connecticut Judicial Branch