2007 Ct. Sup. 13973, 43 CLR 879
No. CV 05 4014217Connecticut Superior Court Judicial District of New Haven at New Haven
August 7, 2007
MEMORANDUM OF DECISION RE WHETHER A SPECIAL DEFENSE ALLEGING PROXIMATE CAUSE OF A NON-PARTY, IF NOT SOUGHT IN APPORTIONMENT, IS LEGALLY SUFFICIENT
CLARANCE J. JONES, J.
Factual Background
On July 25, 2005, plaintiff Seth Chaucer, commenced this action against defendants City of New Haven and Annmarie Wortz. The complaint alleges that Annmarie Wortz negligently collided with a United Illuminating Company van driven by Christopher Jensen in which the plaintiff was a passenger. New Haven is named as a defendant in the suit because the complaint alleges that Annmarie Wortz, a New Haven police officer, was driving a police cruiser within the scope of her duties when the alleged automobile accident occurred.
The defendants have filed an answer and special defense to the plaintiff’s complaint. The special defense alleges “[i]f the plaintiff suffered the injuries, damages and losses he alleges, then they were proximately caused by the negligence of [Christopher M. Jensen], the operator of the motor vehicle in which [the plaintiff] was a passenger, in the following ways . . .” The specifications of negligence attributed to non-party Christopher M. Jensen includes “failure to keep his vehicle under proper and reasonable control,” etc.
The plaintiff has filed a motion to strike on the ground that “in alleging the negligence of an individual who is not and has never been a party to this action, the defendants’ special defenses fail to state a legally sufficient defense to the plaintiff’s cause of action.” The defendants have not submitted a memorandum in opposition to the motion. The motion was scheduled as nonarguable on the short calendar.
Analysis
The plaintiff argues that the defendants are attempting by their CT Page 13974 special defense to establish the apportionment liability of driver Christopher M. Jensen, a nonparty to this lawsuit. The plaintiff argues that this is contrary to General Statutes § 52-102b(a), which is the exclusive means by which the defendants may add a person, who is or may be liable to the plaintiff, as another defendant in a suit for apportionment liability purposes. The plaintiff cites Bradford v. Herzig, 33 Conn.App. 714, 638 A.2d 608, cert. denied, 229 Conn. 920, 642 A.2d 1212 (1994), and Bonelli v. Giguere, Superior Court, judicial district of Hartford, Docket No. CV 02 0819257 (October 15, 2003, Hale, J.T.R.) in support of his contention that it is the responsibility of the defendants to implead a nonparty if the defendants believe that a nonparty is responsible for some or all of the plaintiff’s injuries.
The court ruled in Bradford that the trial court improperly permitted the jury to allocate a percentage of the negligence that caused the plaintiff’s injuries to a physician who was not a party to the action. The court stated that § 52-572h(f) entitles a jury “to attribute and divide the percentage of negligence only among parties to the action . . . the only party whose negligent actions were a proximate cause of the plaintiff’s injuries was . . . the defendant. [The nonparty] was not a party to the action, and no negligence could properly be attributed to him by the jury. There is no complaint or third party complaint against [the nonparty] and no way to determine what compromised his alleged negligence.” Bradford v. Herzig, supra, 33 Conn.App. 723.
In the present case, however, the defendants are not attempting to apportion the negligence on a nonparty, as the defendant did i Bradford. The defendants instead are claiming that all liability for the plaintiff’s injuries, if any, resulted from the conduct of Christopher M. Jensen, a nonparty who was driving the van at the time of the accident. As for the decision in Bonelli, it also dealt with the operation of the apportionment statute. As stated previously, the defendants are not alleging apportionment liability. Rather, they are disclaiming all liability for the plaintiff’s injuries.
In contrast to the cases cited by the plaintiff, is an analogous case in which the court denied the plaintiff’s motion to strike a special defense alleged by the defendant that is similar to the special defense alleged by the defendants in the present case. In Hillman v. York Auto of New Haven, Superior Court, judicial district of New Haven, Docket No. 299668 (October 25, 1990, Schimelman, J.) (2 Conn. L. Rptr. 547), the court denied the plaintiff’s motion to strike the defendant’s first special defense, made on the grounds that § 52-572h allows for apportionment of damages only among parties to the action, because the defendant’s special defense denied liability by alleging that other CT Page 13975 actors were the proximate cause of the plaintiff’s injuries. The court in Hillman made the distinguishment that “[t]he defendant here . . . alleges the absence of proximate cause, not the contributing proximate cause of joint tortfeasors.” See also Paris v. Troutman, Superior Court, judicial district of Fairfield, Docket No. CV 99 0361341 (September 22, 1999, Melville, J.) in which the court opined as follows:
the defendants here claim that the intervening and/or supervening negligence of another was the direct and proximate cause of the plaintiff’s injuries. Thus, they make no claim for apportionment in their special defense. They claim that they bear no responsibility, not that they bear merely a portion of it. Consequently, the plaintiff’s motion, grounded in the law of apportionment, is inappropriate.
See also Baker v. Cordisco, 37 Conn.App. 515, 657 A.2d 230, cert. denied, 234 Conn. 907, 659 A.2d 1207 (1995) (“the defendant [has] a right to proffer evidence that the proximate cause of the underlying automobile accident was attributable to the negligent conduct of a nonparty” Id. 520).
Conclusion
For the foregoing reasons, the plaintiff’s Motion to Strike the defendant’s special defense of proximate causation by a non-party is denied.
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