§ 52-572h — Negligence actions. Doctrines applicable. Liability of multiple tortfeasors for damages.

Connecticut § 52-572h

• Jurisdiction: Connecticut
• Title 52: Civil Actions
• Ch. 925: Statutory Rights of Action and Defenses

Text

(a) For the purposes of this section: (1) “Economic damages” means compensation determined by the trier of fact for pecuniary losses including, but not limited to, the cost of reasonable and necessary medical care, rehabilitative services, custodial care and loss of earnings or earning capacity excluding any noneconomic damages; (2) “noneconomic damages” means compensation determined by the trier of fact for all nonpecuniary losses including, but not limited to, physical pain and suffering and mental and emotional suffering; (3) “recoverable economic damages” means the economic damages reduced by any applicable findings including but not limited to set-offs, credits, comparative negligence, additur and remittitur, and any reduction provided by section 52-225a; (4) “recoverable noneconomic damages” means the noneconomic damages reduced by any applicable findings including but not limited to set-offs, credits, comparative negligence, additur and remittitur. (b) In causes of action based on negligence, contributory negligence shall not bar recovery in an action by any person or the person's legal representative to recover damages resulting from personal injury, wrongful death or damage to property if the negligence was not greater than the combined negligence of the person or persons against whom recovery is sought including settled or released persons under subsection (n) of this section. The economic or noneconomic damages allowed shall be diminished in the proportion of the percentage of negligence attributable to the person recovering which percentage shall be determined pursuant to subsection (f) of this section. (c) In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1, 1987, if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for such party's proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section. (d) The proportionate share of damages for which each party is liable is calculated by multiplying the recoverable economic damages and the recoverable noneconomic damages by a fraction in which the numerator is the party's percentage of negligence, which percentage shall be determined pursuant to subsection (f) of this section, and the denominator is the total of the percentages of negligence, which percentages shall be determined pursuant to subsection (f) of this section, to be attributable to all parties whose negligent actions were a proximate cause of the injury, death or damage to property including settled or released persons under subsection (n) of this section. Any percentage of negligence attributable to the claimant shall not be included in the denominator of the fraction. (e) In any action to which this section is applicable, the instructions to the jury given by the court shall include an explanation of the effect on awards and liabilities of the percentage of negligence found by the jury to be attributable to each party. (f) The jury or, if there is no jury, the court shall specify: (1) The amount of economic damages; (2) the amount of noneconomic damages; (3) any findings of fact necessary for the court to specify recoverable economic damages and recoverable noneconomic damages; (4) the percentage of negligence that proximately caused the injury, death or damage to property in relation to one hundred per cent, that is attributable to each party whose negligent actions were a proximate cause of the injury, death or damage to property including settled or released persons under subsection (n) of this section; and (5) the percentage of such negligence attributable to the claimant. (g) (1) Upon motion by the claimant to open the judgment filed, after good faith efforts by the claimant to collect from a liable defendant, not later than one year after judgment becomes final through lapse of time or through exhaustion of appeal, whichever occurs later, the court shall determine whether all or part of a defendant's proportionate share of the recoverable economic damages and recoverable noneconomic damages is uncollectible from that party, and shall reallocate such uncollectible amount among the other defendants in accordance with the provisions of this subsection. (2) The court shall order that the portion of such uncollectible amount which represents recoverable noneconomic damages be reallocated among the other defendants according to their percentages of negligence, provided that the court shall not reallocate to any such defendant an amount greater than that defendant's percentage of negligence multiplied by such uncollectible amount. (3) The court shall order that the portion of such uncollectible amount which represents recoverable economic damages be reallocated among the other defendants. The court shall reallocate to any such other defendant an amount equal to such uncollectible amount of recoverable economic damages multiplied by a fraction in which the numerator is such defendant's percentage of negligence and the denominator is the total of the percentages of negligence of all defendants, excluding any defendant whose liability is being reallocated. (4) The defendant whose liability is reallocated is nonetheless subject to contribution pursuant to subsection (h) of this section and to any continuing liability to the claimant on the judgment. (h) (1) A right of contribution exists in parties who, pursuant to subsection (g) of this section are required to pay more than their proportionate share of such judgment. The total recovery by a party seeking contribution shall be limited to the amount paid by such party in excess of such party's proportionate share of such judgment. (2) An action for contribution shall be brought within two years after the party seeking contribution has made the final payment in excess of such party's proportionate share of the claim. (i) This section shall not limit or impair any right of subrogation arising from any other relationship. (j) This section shall not impair any right to indemnity under existing law. Where one tortfeasor is entitled to indemnity from another, the right of the indemnitee is for indemnity and not contribution, and the indemnitor is not entitled to contribution from the indemnitee for any portion of such indemnity obligation. (k) This section shall not apply to breaches of trust or of other fiduciary obligation. (l) The legal doctrines of last clear chance and assumption of risk in actions to which this section is applicable are abolished. (m) The family car doctrine shall not be applied to impute contributory or comparative negligence pursuant to this section to the owner of any motor vehicle or motor boat. (n) A release, settlement or similar agreement entered into by a claimant and a person discharges that person from all liability for contribution, but it does not discharge any other persons liable upon the same claim unless it so provides. However, the total award of damages is reduced by the amount of the released person's percentage of negligence determined in accordance with subsection (f) of this section. (o) Except as provided in subsection (b) of this section, there shall be no apportionment of liability or damages between parties liable for negligence and parties liable on any basis other than negligence including, but not limited to, intentional, wanton or reckless misconduct, strict liability or liability pursuant to any cause of action created by statute, except that liability may be apportioned among parties liable for negligence in any cause of action created by statute based on negligence including, but not limited to, an action for wrongful death pursuant to section 52-555 or an action for injuries caused by a motor vehicle owned by the state pursuant to section 52-556 . See Sec. 52-102b re addition of person as defendant for apportionment of liability purposes. See Sec. 52-225a re reduction in economic damages in personal injury and wrongful death actions for collateral source payments. See Sec. 52-225d re payment of damages in lump sum and periodic installments in personal injury, wrongful death and property damage actions.

Legislative History

(P.A. 73-622, S. 1; P.A. 82-160, S. 241; P.A. 86-338, S. 3; P.A. 87-227, S. 3; P.A. 88-364, S. 69, 123; P.A. 99-69, S. 1, 2.) History: P.A. 82-160 rephrased the section and added Subsec. (d) re family car doctrine, formerly Sec. 52-572i; P.A. 86-338 added provisions re the definition of economic and noneconomic damages, the limitation of a person's liability to his proportionate share of recoverable damages, the calculation of each person's proportionate share of damages, the reallocation of an uncollectible amount of damages among other liable parties, the establishment and exercise of a right of contribution, the effect of the provisions of the section on any right of subrogation or indemnity and the applicability of the provisions of the section to breaches of trust or of other fiduciary obligation; P.A. 87-227 substantially revised and rewrote section including, inter alia, revising the definitions, replacing “person” with “party” throughout section, making section applicable to actions for damage to property occurring on or after October 1, 1987, including settled or released persons in the attribution of percentages of negligence, requiring the jury or court to specify any findings of fact necessary for the court to specify recoverable economic damages and recoverable noneconomic damages, revising the method of reallocating an uncollectible amount of damages so that all recoverable economic damages are reallocated among the other defendants and the claimant is fully compensated for such recoverable economic damages, providing the total recovery by a party seeking contribution shall be limited to the amount paid by such party in excess of such party's proportionate share of the judgment, replacing provisions re when an action for contribution must be brought depending upon if a judgment has or has not been rendered with requirement that an action for contribution be brought within two years after the party seeking contribution has made the final payment in excess of his proportionate share of the claim and adding Subsec. (n) re the effect of a release, settlement or similar agreement on liability and the total award of damages; P.A. 88-364 made a technical change in Subsec. (g); P.A. 99-69 added Subsec. (o) prohibiting apportionment of liability or damages between parties liable for negligence and parties liable on any basis other than negligence and made technical changes for purposes of gender neutrality, effective May 27, 1999, and applicable to any civil action pending on or filed on or after August 11, 1998. Cited. 175 C. 112; Id., 477. Section did not abrogate common law rule against contribution among joint tortfeasors, related only to modification of contributory negligence doctrine and of the doctrines of abolition, last clear chance and assumption of risk. 176 C. 523. Cited. 179 C. 372; Id., 425; 181 C. 515; Id., 650; 182 C. 236; Id., 125; 183 C. 473; 184 C. 205; Id., 594; 186 C. 370; 187 C. 339; 188 C. 607; 189 C. 601; 190 C. 285; 193 C. 15; 194 C. 645; 196 C. 341; 203 C. 607; 208 C. 82; 212 C. 509; 214 C. 1; 216 C. 200; 222 C. 775; 225 C. 566; 228 C. 441; 231 C. 77; 232 C. 559; 234 C. 660; 235 C. 107; 236 C. 625; Id., 670; Id., 820; 239 C. 798; 240 C. 694; 241 C. 399; 242 C. 169. Plain language of section provides that only negligent persons may be cited in by defendant for apportionment for liability purposes and, therefore, a person whose conduct was reckless, willful and wanton is not liable pursuant to section and cannot be added for purposes of apportionment; Supreme Court extended section as matter of common law to permit apportionment between a negligent and an intentional tortfeasor. 246 C. 223. Apportionment principles of section do not apply where apportionment complaint rests on any basis other than negligence, including strict liability, of which product liability is simply a form. 253 C. 787. By enacting P.A. 99-69, Sec. 1(o), legislature merely clarified section to preclude a common law right to apportionment between a negligent and intentional tortfeasor. 263 C. 358. Because statutes allow for apportionment among negligent defendants and because Connecticut is a comparative negligence jurisdiction, as indicated by Sec. 52-572o, the simpler and less confusing approach to cases where jury must determine which, among many, causes contributed to plaintiff's injury, is to couch the analysis in proximate cause rather than allowing defendants to raise a defense of superseding cause. Id., 424. Defendant may assert under a general denial that the negligence of an employer who is not a party to the action is the sole proximate cause of plaintiff's injuries. 287 C. 20. Cited. 6 CA 383; 11 CA 1; 14 CA 561; 15 CA 371; Id., 392; 24 CA 446; 26 CA 220; Id., 509; 27 CA 471; 30 CA 327; 31 CA 584; 35 CA 301; judgment reversed, see 235 C. 107; 37 CA 453; Id., 515; 38 CA 685; 41 CA 61; Id., 373; Id., 856; 43 CA 453; 46 CA 18; Id., 377; Id., 391. Enactment of statute did not render general verdict rule inapplicable. 53 CA 399. Trial court should instruct jury that if it is unable to determine how much of plaintiff's damages is attributable to each of the three tortfeasors from separate motor vehicle accidents, jury may make a rough apportionment and if unable to do so, jury must apportion the damages equally among each party whose negligent actions caused injury to the plaintiff. 57 CA 134. Statute applies only to negligence actions and not to claims based on recklessness. 86 CA 728. Purpose of apportionment statute is to prevent any defendant from paying more than his or her share of award and permits inclusion on verdict form of defendant who has received a directed verdict in his favor, allowing jury to apportion liability to him even though he is relieved of obligation to pay. 90 CA 766. Comparative negligence statute does not alter Connecticut doctrine as to proximate cause and thus does not affect the rule that failure to use a seat belt is not contributory negligence. 32 CS 89. Cited. 33 CS 187. No contribution among joint tortfeasors where both parties are negligent. 35 CS 268. Cited. 37 CS 574; 38 CS 597; 39 CS 20. Public policy concerning comparative negligence applied to Sec. 31-293 discussed. Id., 222. Cited. 40 CS 214; 43 CS 168; 44 CS 510. “Damage to property” does not include purely commercial losses. 47 CS 166. Subsec. (b): When plaintiff's conduct in assuming a risk is unreasonable, the assumption of risk doctrine overlaps contributory negligence and the principle of comparative negligence embodied in statute should apply. 190 C. 791. The mere availability of comparative negligence under section does not negate application of the wrongful conduct rule which precludes a plaintiff from recovering for injuries sustained as a direct result of his or her own illegal conduct of a serious nature. 311 C. 370. Defense of contributory negligence applies to claims of negligent service of alcohol to minor. 312 C. 184. Subsec. (c): Discussed re applicability of Subsec. (g) to actions against the state under Sec. 52-556. 247 C. 256. P.A. 86-338 replaced common-law rule of joint and several liability and provisions dealing with apportionment of liability were not repealed by P.A. 87-227. Id., 638. Provides for apportionment of liability only among those parties from whom plaintiff is entitled to recover damages. 249 C. 634. Adoption of alternative liability rule. 333 C. 206. Subsec. (f): Subdiv. (4): Jury entitled to attribute and divide percentage of negligence only among parties to the action. 33 CA 714. Subsec. (g): State, when sued pursuant to a waiver of sovereign immunity under Sec. 52-556, is not immune from reallocation of damages pursuant to Subsec. 247 C. 256. Whether defendant made “good faith efforts” is a subjective, factual determination, and the phrase “good faith” is clear and unambiguous. 132 CA 146. Subsec. (k): Provision of Subsec. re impairment of right to indemnity applies to section, but not to suits under product liability act, Sec. 52-572m et seq. 205 C. 694. Subsec. (n): Trial court required to instruct jury to apportion liability where plaintiff had settled with named uninsured motorist carrier and defendant who had been found liable for damages. 257 C. 718. Trial court properly determined that withdrawal of the action against one of defendants did not constitute a “release, settlement or similar agreement” within meaning of statute, so as to permit an apportionment complaint by remaining defendant; a release and settlement represents a surrender of a cause of action pursuant to an agreement; a withdrawal shares few of the essential characteristics of a settlement and release and may be accomplished unilaterally and unconditionally; court construed “similar agreement” to mean an agreement having the same essential characteristics of a release or settlement, and presumed that had legislature intended for apportionment to apply to withdrawn parties, it would have used term “withdrawal” in addition to, or in lieu of “similar agreement”. 283 C. 412. Subsec. (o): Contributory negligence is not defense to recklessness; even if jury reasonably could have found that plaintiff's conduct was a contributory cause of accident, once jury determines that defendant's conduct was reckless, there is no apportionment of liability and damages between the parties. 266 C. 822. Apportionment under Subsec. is allowed for cause of action sounding in negligence against municipal defendant for failure to inspect pool after notice fell under negligence exception of Sec. 52-557n(b)(8). 344 C. 86.