Opinion
CV176069792S
08-10-2018
Mohamed Reda EL BOUAMRI v. CITY OF NEW HAVEN
UNPUBLISHED OPINION
Wilson, J.
I
STATEMENT OF CASE AND PROCEDURAL HISTORY
The plaintiff, Mohammed Reda El Boumari, ppa Afifa Medlouane, (plaintiff) commenced this action on April 4, 2017, by service of writ, summons and complaint on the defendants, city of New Haven, city of New Haven Board of Education, Garth Harries, Michael Giorini and Porter Athletic Company (Old Porter).
On October 12, 2017, and May 30, 2018, the plaintiff filed a withdrawal as to defendants, City of New Haven Board of Education, Garth Harries and Michael Giordini. The count against the city of New Haven remains. The city has filed a motion to strike which is still pending.
On July 5, 2017, Old Porter filed a motion to dismiss count five of the plaintiff’s complaint on grounds that the court lacked subject matter jurisdiction over Old Porter because the ten-year statute of repose governing products liability actions had run. Specifically, Old Porter claimed that its operational assets, including products and manufacturing were sold to Porter Athletic, Inc. (New Porter) on June 12, 2006, and that Old Porter is a dissolved company, and New Porter is a separate company, which, as of the date of Old Porter’s motion to dismiss, was not named in the present action. In addition, Old Porter claimed that no models of the alleged basketball hoop at issue were sold from December 2006, to the present date. The motion to dismiss filed by Old Porter appeared on the court’s short calendar on October 2, 2017, to which the plaintiff and counsel for Old Porter appeared. Counsel for the plaintiff agreed that the motion to dismiss as to Old Porter could be granted since New Porter purchased both the assets and liabilities of Old Porter, and because counsel had filed a motion to cite in New Porter. The court granted both the plaintiff’s motion to cite in New Porter and, without objection by the plaintiff, the court also granted Old Porter’s motion to dismiss.
On October 24, 2017, pursuant to this court’s granting of the plaintiff’s motion to cite in New Porter, the plaintiff filed a substituted complaint, in which he alleges a product liability claim pursuant to the CPLA against New Porter. On March 20, 2018, the plaintiff filed a request to amend and a second amended complaint which contains three counts. (No. 128.) Count three alleges a products liability claim against New Porter. Also on March 20, 2018, in accordance with Practice Book § 10-60(a)(3)(A) the plaintiff filed the second amended complaint document "showing the portion or portions of the original pleading or other parts of the record or proceedings with the added language underlined and the deleted language stricken through or bracketed." (No. 132.) Count three in this document alleges a claim against New Porter pursuant to the CPLA.
On March 27, 2018, New Porter filed a motion to dismiss count three of the plaintiff’s second amended complaint as well as the associated allegations incorporated therein, from count one against New Porter. The defendant New Porter filed the motion to dismiss on grounds that the ten-year statute of repose governing product liability actions has run, and therefore the court lacks subject matter jurisdiction over claims against New Porter. In support of its motion to dismiss, the defendant submitted the affidavit of Jason Norton, Chief Financial Officer of Litania Sports Group, Inc. as Exhibit A. Litania Sports Group is the sole shareholder of New Porter. The defendant also submitted photographs of the backstop at issue as Ex, B; Porter Athletic Sales advertisement as Ex. C; photographs of 205 model base of the hoop as Ex. D; a copy of the advertisement for the 208 model as Ex. E; and a photograph of the 208 model base as Ex. F.
The plaintiff filed an objection to the defendant’s motion to dismiss on grounds that he should be allowed to rebut the defendant’s claim of lack of subject matter jurisdiction under General Statutes § 52-577a(c), the useful life exception to the ten-year statute of limitations. The plaintiff argues that he should be given the opportunity to conduct limited discovery on the factors set forth in § 52-577a(c). Oral argument on the motion was heard at short calendar on May 14, 2018.
II
DISCUSSION
"Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." (Internal quotation marks omitted.) Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 245, 558 A.2d 986 (1989), cert. denied, 502 U.S. 1094, 112 S.Ct. 1170, 117 L.Ed.2d 416 (1992). The Supreme Court has termed this "fundamental principle" the " ‘jurisdiction first’ rule. Once the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented ... The court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) St. Paul Travelers Companies, Inc. v. Kuehl, 299 Conn. 800, 816, 12 A.3d 852 (2011). "[T]he question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time." (Emphasis omitted; internal quotation marks omitted.) Louis Gherlone Excavating, Inc. v. McLean Construction Co., 88 Conn.App. 775, 779-80, 871 A.2d 1057, cert. granted on other grounds, 274 Conn. 909, 876 A.2d 1201 (2005) (appeal withdrawn February 3, 2006). "Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it ... A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it ... Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action ... It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged ...
" ‘Although related, the court’s authority to act pursuant to a statute is different from its subject matter jurisdiction. The power of the court to hear and determine, which is implicit in jurisdiction, is not to be confused with the way in which that power must be exercised in order to comply with the terms of the statute ... [W]e have maintained the distinction between these concepts. See, e.g., Artman v. Artman, 111 Conn. 124, 130, 149 A. 246 (1930) ([i]f it applied any wrong rule of law to the situation, it was not acting without jurisdiction but in the erroneous exercise of its jurisdiction) ...’ (Citations omitted; internal quotation marks omitted.) Amodio v. Amodio, 247 Conn. 724, 727-29, 724 A.2d 1084 (1999)." Ed Lally and Associates, Inc. v. DSBNC, LLC, 145 Conn.App. 718, 728, 78 A.3d 148 (2013).
" ‘[A] motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.’ (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). ‘The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process.’ Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 143, which is now § 10-31. ‘[I]n ruling on a motion to dismiss, the trial court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.’ (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432-33, 829 A.2d 801 (2003). ‘Pursuant to Practice Book § 10-31(a), a motion to dismiss ..."shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record." ’ Conboy v. State, 292 Conn. 642, 647 n.7, 974 A.2d 669 (2009). ‘If affidavits and/or other evidence submitted in support of a defendant’s motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counter affidavits ... or other evidence, the trial court may dismiss the action without further proceedings.’ (Citations omitted.) Id., at 652, 974 A.2d 669." Pina v. Metalcraft of Mayville, Inc., Superior Court, judicial district of New Haven, Docket No. CV116024842S. (February 3, 2014, Wilson, J.) . "A motion to dismiss is used to assert jurisdictional flaws that appear on the record or are alleged by the defendant in a supporting affidavit as to facts not apparent on the record." Village Pond, Inc. v. Darien, 54 Conn.App. 178, 182 (1999); Bradley’s Appeal from Probate, 19 Conn.App. 456, 461-62 (1989). "It is the law in our courts, as it is in the federal courts, that [a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Pamela B. v. Ment, 244 Conn. 296, 309 (1998).
The court, during oral argument, questioned whether the defendant’s motion to dismiss was the appropriate vehicle for raising the statute of limitations defense. Accordingly, the court will address whether the defendant’s motion is procedurally appropriate.
"Practice Book § 10-31(a) specifies that a motion to dismiss is generally only appropriate for contesting jurisdictional matters, including lack of jurisdiction over the subject matter, lack of jurisdiction over the person, improper venue, insufficiency of process, and insufficiency of service of process. Additionally, the Supreme Court, citing Practice Book § 10-50, has stated that ‘ordinarily, [a] claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense ...’ (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 344 n.12, 890 A.2d 1269 (2006). Nevertheless, the courts have also recognized an exception to this rule, stating, ‘[W]hen ... a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter ... In such cases, the time limitation is not to be treated as an ordinary statute of limitation ... but rather is a limitation on the liability itself, and not of the remedy alone ... [U]nder such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised [by the court] at any time ... and may not be waived.’ (Internal quotation marks omitted.) State v. Lombardo Bros. Mason Contractors, Inc., 307 Conn. 412, 444, 54 A.3d 1005 (2012)." Id.
"The great majority of courts have held that the time limitation in § 52-577a is procedural because it does not create a right of action in the products liability context. See Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 523-26, 562 A.2d 1100 (1989) (‘§ 52-577a must be considered procedural’); see also Ramic v. Stop & Shop Supermarket Co., LLC, Superior Court, judicial district of Fairfield, Docket No. CV 08 5014745 (November 5, 2009, Tyma, J.) (48 Conn.L.Rptr. 704); Allstate Ins. Co. v. Keystone RV Co., Superior Court, judicial district of Hartford, Docket No. CV 05 4008725 (August 9, 2007, Elgo, J.) (44 Conn.L.Rptr. 7); Demelis v. Lyon & Billard Co., Superior Court, judicial district of New Haven, Docket No. CV 94 0367841 (August 25, 2000, Levin, J.) (28 Conn.L.Rptr. 5); Demelis v. Lyon & Billard Co., Superior Court, judicial district of New Haven, Docket No. CV 94 0367841 (January 3, 2000, Alander, J.) (26 Conn.L.Rptr. 209). Similarly, the Connecticut District Court has found that § 52-577a(b) is not a limitation on the liability itself, but rather, is a limitation on ‘a defendant’s ability to join additional parties in a pending product liability action.’ Kearney v. Philips Industries, Inc., 708 F.Supp. 479, 480 (D.Conn.1987)." Garrity v. First and Last Tavern, Inc., Superior Court, judicial district of Middlesex, Docket No. MMXCV106002820S (April 10, 2012, Holzberg, J.) .
The cases in which the majority of courts concluded that § 52-577a was procedural, were interpreting the language of subsection b of that statute which provides that: "In any [product liability] action a product seller may implead any third party who is or may be liable for all or part of the claimant’s claim, if such third-party defendant is served with the third-party complaint within one year from the date the cause of action brought under subsection (a) of this section is returned to court." General Statutes § 52-577a(b).
The trial courts looked to the language of § 52-577a(b) and concluded that "[t]he language ... does not support the position of the third-party defendants that its time limitation is jurisdictional. The statute’s use of the term ‘may’ rather than ‘shall’ is suggestive of a non jurisdictional purpose ... Section 52-577a(b) also contains no language expressly invalidating a third-party claim not filed within one year from the date the cause of action is returned to court. See Banks v. Thomas, 241 Conn. 569, 583 (1997).
"In addition, § 52-577a(b) does not create a right of action which was unavailable at common law. Section 52-577a(b), like General Statutes § 52-102a, is simply an impleader statute that allows a defendant to bring into a pending action a third party who is or may be liable for all or part of the claimant’s claim. See Malerba v. Cessna Aircraft Co., 210 Conn. 189, 194 (1989). (The court determined that § 52-577a(b) and § 52-102a contain similar language and should receive parallel treatment.) As is the case with § 52-102a, the purpose and effect of § 52-577a(b) are to accelerate the accrual of the right to assert a claim against the impleaded person. It is procedural in nature and does not affect substantive rights. See Shurgast v. Schumann, 156 Conn. 471, 487 (1968).
"Section 52-577a(b) authorizes a defendant in a product liability action to assert a cause of action for indemnity or contribution against a third party. See Malerba v. Cessna Aircraft Co., supra, 210 Conn. 195. These causes of action were not created by § 52-577a(b). ‘Section 52-577a does not create a right of action in the product liability context. That right of action is created by the common law or the product liability act. Thus, 52-577a must be considered procedural.’ Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 525 (1989)." Demelis v. Lyon & Billard Co., supra, Superior Court, Docket No. CV 94 0367841.
Despite authority to the contrary, the court in Barringer v. Whole Foods, Superior Court, judicial district of Hartford, Docket No. CV 09 6005918 (July 14, 2011, Sheldon, J.) (52 Conn.L.Rptr. 410) held that § 52-577a(b) is jurisdictional because the third-party defendant’s motion to dismiss attacked the court’s personal jurisdiction of the third-party plaintiff’s claims against it. The court relied on Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 848 A.2d 418 (2004) for its holding and noted: "[O]ur Supreme Court has since provided a definitive answer to [the] question [of whether § 52-577a(b) ] in the related context of apportionment complaints and the pleading over by plaintiffs of direct claims of negligence against apportionment defendants is jurisdictional. The pleading of such claims in negligence actions, like the pleading of indemnification and contribution claims in products liability actions, must be brought by a fixed statutory deadline if they are to be litigated together with the plaintiff’s initial claims against the original defendants. In Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 848 A.2d 418 (2004), the Court held that a plaintiff’s failure to serve an amended complaint pleading over against an apportionment defendant by the statutory deadline for that purpose constitutes a jurisdictional defect properly raised by a motion to dismiss. However, the Court further held that any such defect is a defect in personal, not subject-matter jurisdiction. The Court discussed the difference between these two aspects of jurisdiction as follows: ‘We have previously stated that "jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong ... A court has subject-matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy. (Internal quotation marks omitted.) Rayhall v. Akira Co., 263 Conn. 328, 339, 819 A.2d 803 (2003). A defect in process, however, such as an improperly executed writ implicates personal jurisdiction rather than subject-matter jurisdiction. See Brunswick v. Inland Wetlands Commission, 222 Conn. 541, 551, 610 A.2d 1260 (1992)." 269 Conn. at 37-38, 848 A.2d 418.’ Concluding that the plaintiff’s failure to serve an amended complaint pleading over against an apportionment defendant within the time prescribed by law was a defect in process, the Court found that failure could be raised by a timely motion to dismiss for insufficiency of process." Barringer v. Whole Foods, supra, Superior Court, Docket No. CV 09 6005918.
It is important to point out that the court in Lostritto determined that § 52-102b, t h e apportionment statute at issue, and to which the court in Barringer concluded § 52-577a(b) parallels, conferred rights that did not exist at common law and therefore the 120-day statute of limitations for filing an apportionment complaint contained therein, was substantive and not procedural. After undergoing an exhaustive review of the legislative history of § 52-102b, and "the development of the tort reform legislation that preceded the passage of § 52-102b, which highlights the genesis of the current statutory right to apportion liability" under § 52-572h; Lostritto v. Community Action Agency of New Haven, supra, 269 Conn. 23; the court concluded that "[t]his symbiotic relationship between § § 52-102b and 52-572h leads us to conclude that, because § 52-102b was designed to clarify and make uniform the method of apportioning liability, it is intertwined inextricably with the broad right to apportionment created by the legislature in 1986, despite its placement in a different statutory section. We previously have determined that the system of comparative fault established by Tort Reform I and refined by Tort Reform II created rights that did not exist at common law. Nash v. Yap, 247 Conn. 638, 648, 726 A.2d 92 (1999). Accordingly, it is axiomatic that § 52-102b, which gave life to the right to apportionment provided in § 52-572h, also confers rights that did not exist at common law .
General Statutes § 52-102b provides in relevant part: "(a) A defendant in any civil action to which section 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff’s damages in which case the demand for relief shall seek an apportionment of liability. Any such writ, summons and complaint, hereinafter called the apportionment complaint, shall be served within one hundred twenty days of the return date specified in the plaintiff’s original complaint. The defendant filing an apportionment complaint shall serve a copy of such apportionment complaint on all parties to the original action in accordance with the rules of practice of the Superior Court on or before the return date specified in the apportionment complaint. The person upon whom the apportionment complaint is served, hereinafter called the apportionment defendant, shall be a party for all purposes, including all purposes under section 52-572h."
General Statutes § 52-572h provides in relevant part: "(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:
"Having concluded that § 52-102b created rights that did not exist at common law, we further conclude that the statute’s 120-day time limitation is a substantive limitation on the right to apportionment. As we already have stated, § 52-102b was designed to create an effective means of accomplishing apportionment with reasonable certainty. This was not possible prior to § 52-102b, which delineated the proper timing and method of service of an apportionment complaint. Although § 52-102b contains some procedural aspects, its substantive purpose and effect cannot be minimized. Section 52-102b gives tangible force to the right to apportionment created in § 52-572h. Conversely, failure to comply with its requirements prevents a defendant from exercising the right to apportion liability. Accordingly, on the basis of the mandatory language employed by the legislature and our conclusion that § 52-102b(a) is substantive, we further conclude that the 120-day time limitation contained therein is mandatory." (Emphasis added.) Id., 26-27.
The court’s reliance on Lostritto in Barringer to conclude that § 52-577a(b) is jurisdictional and not procedural is therefore based on the fact that § 52-577a(b) like § 52-102b(a) creates a right of action, namely the right to apportion liability, that did not exist at common law, and thus, the time limitation contained in those statutes is substantive rather than procedural.
By contrast § 52-577a(a) provides: "Limitation of action based on product liability claim (a) No product liability claim, as defined in section 52-572m, shall be brought but within three years from the date when the injury, death or property damage is first sustained or discovered or in the exercise of reasonable care should have been discovered, except that, subject to the provisions of subsections (c), (d) and (e) of this section, no such action may be brought against any party nor may any party be impleaded pursuant to subsection (b) of this section later than ten years from the date that the party last parted with possession or control of the product." In addition, General Statutes § 52-572n provides in relevant part that "(a) A product liability claim as provided in ... section[ ] 52-577 may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability and warranty, for harm caused by a product."
Section 52-577a(a) imposes a time limitation on the products liability cause of action, the statute, however, does not create a right that did not exist at common law. Products liability claims did indeed exist at common law, and our Supreme Court in Potter v. Chicago Pneumatic Tool, Co., 242 Conn. 199, 694 A.2d 1319 (1997), Connecticut’s seminal strict liability precedent, provides a thorough review of the development and evolution of the common law on strict products liability.
In Potter v. Chicago Pneumatic Tool Co., shipbuilders brought products liability claims against manufacturers of pneumatic hand tools used during the course of their employment at Electric Boat. Specifically, the plaintiffs alleged that the tools were defectively designed because they exposed the plaintiffs to excessive vibration and because the defendants failed to provide adequate warnings with respect to the potential danger presented by excessive vibration. The defendants appealed from the judgment rendered on jury verdicts in favor of the plaintiffs, claiming, inter alia, that there was insufficient evidence for the jury to have found that the tools had been defectively designed. Specifically, the defendants claimed that in order to establish a prima facie design defect case, the plaintiffs were required to prove that there was a feasible alternative design available at the time that the defendants put their tools into the stream of commerce. Essentially, the defendants were proposing that the court abandon the "consumer expectation standard" and adopt the requirement that the plaintiff must prove the existence of a reasonable alternative design in order to prevail on a design defect claim. The court declined to accept the defendants’ invitation and instead adopted a modified formulation of the consumer expectation test. Rather than adopting the requirement that the plaintiff must prove the existence of a reasonable alternative design in order to prevail on a design defect, as proposed by the defendants, the court adopted a modified standard of the consumer expectation test. Under the modified consumer expectation test which is used in determining the existence of a defective design in cases involving complex product designs in which an ordinary consumer may not be able to form expectations of safety, factors that the jury may consider include, but are not limited to, the usefulness of the product, likelihood and severity of danger posed by the design, feasibility of an alternative design, financial cost of improved design, the ability to reduce the product’s danger without impairing its usefulness or making it too expensive, and the feasibility of spreading the loss by increasing the product’s price. See Potter v. Chicago Pneumatic Tool, Co., supra, 241 Conn. 217-21. The court held that "[t]he availability of a feasible alternative design is a factor that the plaintiff may, rather than must, prove in order to establish that a product’s risks outweigh its utility." (Citations omitted.) Id., 221.
In declining to adopt the reasonable alternative design standard, and adopting a modified consumer expectation test, our Supreme Court looked to the history and evolution of the common law on strict products liability. The court gave a thorough review of the development of the law as it existed at common law, focusing specifically on design defect liability. The court observed: "At common law, a person injured by a product had no cause of action against the manufacturer of the product unless that person was in privity of contract with the manufacturer. This rule, established in Winterbottom v. Wright, 152 Eng.Rep. 402 (1842), made privity a condition precedent to actions against manufacturers grounded in negligence. American courts widely adopted this rule and, for the next one-half century, the privity requirement remained steadfast in American jurisprudence. 1 M. Madden, Products Liability (2d Ed. 1988) § 1.2, p. 8; see Bragdon v. Perkins-Campbell Co., 87 F. 109, 110 (3d Cir. 1898) (outlining rule that vendor of products generally not liable to third parties); Goodlander Mill Co. v. Standard Oil Co., 63 F. 400, 402 (7th Cir. 1894) (articulating general rule that liability does not attach to manufacturers absent contractual relationship).
"Nevertheless, courts developed a number of exceptions to the privity requirement: (1) ‘an act of negligence ... which is imminently dangerous to the life or health of mankind, and which is committed in the preparation or sale of an article intended to preserve, destroy, or affect human life’; Huset v. J.I. Case Threshing Machine Co., 120 F. 865, 870 (8th Cir. 1903); (2) ‘an owner’s act of negligence which causes injury to one who is invited by him to use his defective appliance upon the owner’s premises’; id., at 870-71; and (3) ‘one who sells or delivers an article which he knows to be imminently dangerous to life or limb to another without notice of its qualities.’ Id., at 871." Potter v. Chicago, supra, 241 Conn. 207, n.4.
"The evolution of modern products liability law began with the landmark case of MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916), in which the New York Court of Appeals extended the manufacturer’s duty to all persons in fact harmed by products that were reasonably certain to cause injury when negligently made. As Justice Cardozo wrote in MacPherson, ‘[i]f the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully.’ Id., at 389, 111 N.E. 1050. The MacPherson reasoning eventually was accepted by nearly all American courts. See J. Wade, ‘Strict Tort Liability of Manufacturers; ’ 19 Sw.L.J. 5 (1965).
"Similarly, the New Jersey Supreme Court in Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960), imposed ‘strict liability’ upon the manufacturer of a defective product, but on a warranty basis. Discarding the antiquated notions of privity of contract, the court imposed upon the manufacturer an implied warranty of merchantability to a third party. Id., at 373, 384, 161 A.2d 69. The Henningsen court stated: ‘We are convinced that the cause of justice in this area of the law can be served only by recognizing that [the third party] is such a person who, in the reasonable contemplation of the parties to the warranty, might be expected to become a user of the [product]. Accordingly, [the third party’s], lack of privity does not stand in the way of prosecution of the injury suit against the [manufacturer].’ Id., at 413, 161 A.2d 69.
"The next major development in products liability law did not attempt to modify the negligence rule any further, but, rather, urged its replacement. In Escola v. Coca Cola Bottling Co. of Fresno, 24 Cal.2d 453, 461, 150 P.2d 436 (1944)[,] Justice Roger Traynor, in a now famous concurring opinion, first suggested that courts should hold manufacturers liable without fault when defective products cause personal injury. Justice Traynor asserted that strict liability would serve several policy justifications: (1) manufacturers could readily absorb or pass on the cost of liability to consumers as a cost of doing business; (2) manufacturers would be deterred from marketing defective products; and (3) injured persons, who lack familiarity with the manufacturing process, would no longer shoulder the burden of proving negligence. Id., at 462, 150 P.2d 436 (Traynor, J., concurring).
"Although Justice Traynor’s argument did not prevail in Escola, nearly twenty years later he wrote for the majority in Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 62, 377 P.2d 897, 27 Cal.Rptr. 697 (1963), holding a manufacturer strictly liable because its defective product caused injury to the plaintiff. The Greenman court stated that ‘[a] manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.’ Id. The court explained that the purpose of this rule ‘is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves.’ Id., at 63, 27 Cal.Rptr. 697, 377 P.2d 897.
"Two years later, § 402A of the Restatement (Second) of Torts adopted, with slight variation, the doctrine of strict tort liability espoused in Greenman. Section 402A provides:
"Notably, the Restatement (Second) of Torts ‘eliminated the limitation that the product be one that the manufacturer knows will be used without inspection for defects. In addition, the Restatement version provides for the seller’s liability for loss to property, other than to the defective product itself, even where there is no personal injury.’ 1 M. Madden,
‘(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if ‘(a) the seller is engaged in the business of selling such a product, and ‘(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. ‘(2) The rule stated in Subsection (1) applies although ‘(a) the seller has exercised all possible care in the preparation and sale of his product, and ‘(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.’ 2 Restatement (Second), Torts § 402A (1965).
"Products liability law has thus evolved to hold manufacturers strictly liable for unreasonably dangerous products that cause injury to ultimate users. Nevertheless, strict tort liability does not transform manufacturers into insurers, nor does it impose absolute liability. See R. Traynor, "The Ways and Meanings of Defective Products and Strict Liability," 32 Tenn.L.Rev. 363, 366-67 (1965) (emphasizing that manufacturers are not insurers for all injuries caused by products). As the Wisconsin Supreme Court has pointed out, ‘[f]rom the plaintiff’s point of view the most beneficial aspect of the rule is that it relieves him of proving specific acts of negligence and protects him from the defenses of notice of breach, disclaimer, and lack of privity in the implied warranty concepts of sales and contracts.’ Dippel v. Sciano, 37 Wis.2d 443, 460, 155 N.W.2d 55 (1967). Strict tort liability merely relieves the plaintiff from proving that the manufacturer was negligent and allows the plaintiff to establish instead the defective condition of the product as the principal basis of liability. See Morningstar v. Black & Decker Mfg. Co., 162 W.Va. 857, 883, 253 S.E.2d 666 (1979); W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 99, p. 695.
"Although courts have widely accepted the concept of strict tort liability, some of the specifics of strict tort liability remain in question. In particular, courts have sharply disagreed over the appropriate definition of defectiveness in design cases. As the Alaska Supreme Court has stated: ‘Design defects present the most perplexing problems in the field of strict products liability because there is no readily ascertainable external measure of defectiveness. While manufacturing flaws can be evaluated against the intended design of the product, no such objective standard exists in the design defect context.’ Caterpillar Tractor Co. v. Beck, 593 P.2d 871, 880 (Alaska 1979).
"Section 402A imposes liability only for those defective products that are ‘unreasonably dangerous’ to ‘the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.’ 2 Restatement (Second), supra, § 402A, comment (i). Under this formulation, known as the ‘consumer expectation’ test, a manufacturer is strictly liable for any condition not contemplated by the ultimate consumer that will be unreasonably dangerous to the consumer. See Rojas v. Lindsay Mfg. Co., 108 Idaho 590, 592, 701 P.2d 210 (1985); Ritter v. Narragansett Electric Co., 109 R.I. 176, 190-91, 283 A.2d 255 (1971).
"Some courts, however, have refused to adopt the ‘unreasonably dangerous’ definition, determining that it injects a concept of foreseeability into strict tort liability, which is inappropriate in such cases because the manufacturer’s liability is not based upon negligence. See Caterpillar Tractor Co. v. Beck, supra, 593 P.2d at 882-83 (articulating that ‘unreasonably dangerous’ narrows scope of recovery and unduly increases plaintiff’s burden); Cronin v. J.B.E. Olson Corp., 8 Cal.3d 121, 133, 501 P.2d 1153, 104 Cal.Rptr. 433 (1972) (‘[w]e think that a requirement that a plaintiff also prove that the defect made the product "unreasonably dangerous" places upon him a significantly increased burden and represents a step backward’).
"In Barker v. Lull Engineering Co., 20 Cal.3d 413, 435, 573 P.2d 443, 143 Cal.Rptr. 225 (1978), the California Supreme Court established two alternative tests for determining design defect liability: (1) the consumer expectation analysis; and (2) a balancing test that inquires whether a product’s risks outweigh its benefits. Under the latter, otherwise known as the ‘risk-utility,’ test, the manufacturer bears the burden of proving that the product’s utility is not outweighed by its risks in light of various factors. Three other jurisdictions have subsequently adopted California’s two-pronged test, including the burden-shifting risk-utility inquiry. See Caterpillar Tractor Co. v. Beck, supra, 593 P.2d at 884; Ontai v. Straub Clinic & Hospital, Inc., 66 Haw. 237, 243, 659 P.2d 734 (1983); Lamkin v. Towner, 138 Ill.2d 510, 529, 150 Ill.Dec. 562, 563 N.E.2d 449 (1990).
"In evaluating the adequacy of a product’s design, the
Additionally, other states have adopted
"Other jurisdictions apply only a risk-utility test in determining whether a manufacturer is liable for a design defect. See, e.g., Armentrout v. FMC Corp., 842 P.2d 175, 183 (Colo. 1992); Radiation Technology, Inc. v. Ware Construction Co., 445 So.2d 329, 331 (Fla. 1983); Thibault v. Sears, Roebuck & Co., 118 N.H. 802, 807-09, 395 A.2d 843 (1978). To assist the jury in evaluating the product’s risks and utility, these courts have set forth a list of nonexclusive factors to consider when deciding whether a product has been defectively designed.
"These factors are typically derived from an influential article by Dean John Wade, in which he suggested consideration of the following factors:
‘1. The usefulness and desirability of the product- its utility to the user and to the public as a whole. ‘2. The safety aspects of the product- the likelihood that it will cause injury, and the probable seriousness of the injury. ‘3. The availability of a substitute product which would meet the same need and not be as unsafe. ‘4. The manufacturer’s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility. ‘5. The user’s ability to avoid danger by the exercise of care in the use of the product. ‘6. The user’s anticipated awareness of the dangers inherent in the product and their avoidability, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions. ‘7. The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance.’ J. Wade, ‘On the Nature of Strict Tort Liability for Products,’ 44 Miss.L.J. 825, 837-38 (1973)." Id., 213, n.10.
"With this history in mind, [in adopting a modified formulation of the consumer expectation test,] [the court then] turned] to the development of strict product liability law in Connecticut, [further observing that]: "[i]n Garthwait v. Burgio, 153 Conn. 284, 289-90, 216 A.2d 189 (1965), this court recognized a products liability cause of action sounding in tort and became one of the first jurisdictions to adopt the rule provided in § 402A. See J. Beasley, Products Liability and the Unreasonably Dangerous Requirement (1981) pp. 21, 201. In Garthwait, the court stated: ‘Where the liability is fundamentally founded on tort rather than contract there appears no sound reason why the manufacturer should escape liability simply because the injured user, a party in the normal chain of distribution, was not in contractual privity with it by purchase and sale.’ Garthwait v. Burgio, supra, at 289, 216 A.2d 189. This court has further held that ‘[i]n order to recover under the doctrine of strict liability in tort the plaintiff must prove that: (1) the defendant was engaged in the business of selling the product; (2) the product was in a defective condition unreasonably dangerous to the consumer or user; (3) the defect caused the injury for which compensation was sought; (4) the defect existed at the time of the sale; and (5) the product was expected to and did reach the consumer without substantial change in condition. [2 Restatement (Second), supra, § 402A]; see Rossignol v. Danbury School of Aeronautics, Inc., 154 Conn. 549, 562, 227 A.2d 418 [ (1967) ]’ Giglio v. Connecticut Light & Power Co., 180 Conn. 230, 234, 429 A.2d 486 (1980).
"This court has long held that in order to prevail in a design defect claim, ‘[t]he plaintiff must prove that the product is unreasonably dangerous.’ Id. We have derived our definition of ‘unreasonably dangerous’ from comment (i) to § 402A, which provides that ‘the article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.’ 2 Restatement (Second), supra, § 402A, comment (i). This ‘consumer expectation’ standard is now well established in Connecticut strict products liability decisions. See, e.g., Giglio v. Connecticut Light & Power Co., supra, 180 Conn. at 234, 429 A.2d 486; Slepski v. Williams Ford, Inc., 170 Conn. 18, 23, 364 A.2d 175 (1975); Wachtel v. Rosol, 159 Conn. 496, 500, 271 A.2d 84 (1970); Rossignol v. Danbury School of Aeronautics, Inc., supra, 154 Conn. at 562, 227 A.2d 418; Liberty Mutual Ins. Co. v. Sears, Roebuck & Co., 35 Conn.Supp. 687, 690-91, 406 A.2d 1254 (1979)." Potter v. Chicago Pneumatic Tool Co., supra, 241 Conn. 207-15.
After having gone through an exhaustive review of the development and evolution of the common law on strict products liability, by looking to the Restatement (Second) 402A and the Restatement (Third) of Torts: Products Liability (1995) (Draft Restatement [Third] ), as well as cases in other jurisdictions, the court rejected the feasible alternative design requirement, and instead adopted the modified consumer expectation test. It is thus clear and quite obvious from the court’s thorough examination of the development of strict products liability law, that § 52-577a(a) does not create a right that did not exist at common law.
"In support of their position, the defendants point to the second tentative draft of the Restatement (Third) of Torts: Products Liability (1995) (Draft Restatement [Third] ), which provides that, as part of a plaintiff’s prima facie case, the plaintiff must establish the availability of a reasonable alternative design. Specifically, § 2(b) of the Draft Restatement (Third) provides: ‘[A] product is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe.’ The reporters to the Draft Restatement (Third) state that ‘[v]ery substantial authority supports the proposition that [the] plaintiff must establish a reasonable alternative design in order for a product to be adjudged defective in design.’ Draft Restatement (Third),
In rejecting the feasible alternative design requirement, the court reasoned that "[i]n [its] view, the feasible alternative design requirement imposes an undue burden on plaintiffs that might preclude otherwise valid claims from jury consideration. Such a rule would require plaintiffs to retain an expert witness even in cases in which lay jurors can infer a design defect from circumstantial evidence. Connecticut courts, however, have consistently stated that a jury may, under appropriate circumstances, infer a defect from the evidence without the necessity of expert testimony. See, e.g.,
Nearly twenty years after Potter, the Supreme Court in Izzarelli v. R.J. Reynolds Tobacco Co., 321 Conn. 172, 136 A.3d 1232 (2016) revisited Potter, when it was asked by the United States Court of Appeals for the Second Circuit to consider whether "comment (i) to § 402A preclude[s] a suit premised on strict products liability against a cigarette manufacturer based on evidence that the defendant purposefully manufactured cigarettes to increase daily consumption with regard to the resultant increase in exposure to carcinogens, but in the absence of evidence of adulteration or contamination?" Id., 176. The court was required to revisit Potter and to clarify the proper purview of the two strict liability tests recognized in that case: the ordinary consumer expectation test and the modified consumer expectation test. The court concluded that the modified consumer expectation test was the primary strict liability test, and the sole test applicable in the case before it. The court further concluded that "[b]ecause the obvious danger exceptions to strict liability in comment (i) to § 402A of the Restatement (Second), including "[g]ood tobacco" are not dispositive under the multifactor modified consumer expectation test, the court answered the certified question in the negative." Id., 177.
In reaching its conclusion, as did the court in Potter, the court in Izzarelli looked to the evolution and development of Connecticut’s common law on strict products liability. In doing so, the court recognized that in 1979, the legislature adopted our product liability act. See Public Acts 1979, No. 79-483 which required all common-law theories of product liability to be brought as a statutory cause of action. See General Statutes § 52-572n. The court noted, however, "that the liability act neither expressly codified our common-law definition of defective product under § 402A and comment (i) nor supplanted it with its own definition. But see General Statutes § 52-572q (providing elements for failure to warn defect). A significant change under the liability act was the adoption of comparative responsibility in lieu of contributory fault, so that a plaintiff’s recovery could be reduced in proportion to his or her responsibility for the injury but not barred, no matter how high the degree of fault. See General Statutes § § 52-572l and 52-572o, legislatively overruling Hoelter v. Mohawk Service, Inc., 170 Conn. 495, 505-06, 365 A.2d 1064 (1976) (importing contributory negligence concept and applying it to strict product liability)." Id., 187. The court therefore was required to look to the common law, and to other jurisdictions for guidance on this issue.
Thus, both Potter and Izzarelli, clearly demonstrate that § 52-577a(a) does not create a right that did not exist at common law, and therefore, the statute of limitations contained therein is procedural and not substantive. "A statute of limitations is generally considered to be procedural, especially where the statute contains only a limitation as to time with respect to a right of action and does not itself create the right of action." Ecker v. West Hartford, 205 Conn. 219, 232, 530 A.2d 1056 (1987). "[When] ... a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter ... In such cases, the time limitation is not to be treated as an ordinary statute of limitation ... but rather is a limitation on the liability itself and not of the remedy alone ... [U]nder such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised [by the court] at any time ... and may not be waived; cf. Moore v. McNamara, 201 Conn. 16, 22, 513 A.2d 660 (1986) (‘[when] a statute of [repose] is procedural, it is subject to waiver; unless specifically pleaded it is deemed waived and the remedy continues beyond the prescribed period’)." (Citations omitted; internal quotation marks omitted.) State v. Lombardo Bros. Mason Contractors, Inc., 307 Conn. 412, 444, 54 A.3d 1005 (2012).
"A statute of limitations defense must be specially pleaded and cannot be raised by a motion to dismiss. Ross Realty Corp. v. Surkis, 163 Conn. 388, 391 (1972). See also Practice Book § 10-50. A right conditioned upon a time limitation, however, since it is substantive and jurisdictional may be addressed through a motion to dismiss. Diamond National Corporation v. Dwelle, 164 Conn. 540 (1973). See also Practice Book § 10-31." Demelis v. Lyon & Billard Co., Superior Court of Connecticut, Docket No. CV 940367841S (January 3, 2000, Alander, J.) .
Again, it is obvious from review of the development and evolution of strict product liability law that a cause of action for product liability existed at common law. [Thus,] "[s]ection 52-577a does not create a right of action in the product liability context. That right of action is created by the common law or the product liability act. Therefore, [section] 52-577a[ (a) ] must be considered procedural." Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 562 A.2d 1100 (1989). Since the time limitation established by § 52-577a(a) is procedural in nature, it may not be evoked through a motion to dismiss. The defendant’s motion to dismiss is therefore denied. The defendant’s statute of limitations challenge should be specially pleaded and thereafter may be raised on a motion for summary judgment. Since the court’s determination that the defendant’s motion to dismiss is procedurally defective is dispositive, the court need not address the merits of the motion.
CONCLUSION
For the foregoing reasons, the defendant’s motion to dismiss is denied.
"(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."
supra, § 6.1, pp. 191-92." Id., 209, n.5.
Barker court stated that ‘a jury may consider, among other relevant factors, the gravity of the danger posed by the challenged design, the likelihood that such danger would occur, the mechanical feasibility of a safer alternative design, the financial cost of an improved design, and the adverse consequences to the product and to the consumer that would result from an alternative design.’ Barker v. Lull Engineering Co., supra, 20 Cal.3d at 431, 143 Cal.Rptr. 225, 573 P.2d 443." Potter v. Chicago Pneumatic Tool Co., supra, 212, n.8
Barker -type alternative tests, but have declined to shift the burden of proving the product’s risks and utility to the manufacturer." See, e.g., Dart v. Wiebe Mfg., Inc., 147 Ariz. 242, 245-46, 709 P.2d 876 (1985); Knitz v. Minster Machine Co., 69 Ohio St.2d 460, 466, 432 N.E.2d 814, cert. denied, 459 U.S, 857, 103 S.Ct. 127, 74 L.Ed.2d 110 (1982). Id., 213, n.9.
supra, § 2, reporters’ note to comment (c), p. 50." Potter, supra, 241 Conn. 215. The court pointed out however that, "this provision of the Draft Restatement (Third) has been a source of substantial controversy among commentators. See, e.g., J. Vargo, ‘The Emperor’s New Clothes: The American Law Institute Adorns a "New Cloth" for Section 402A Products Liability Design Defects- A Survey of the States Reveals a Different Weave,’ 26 U.Mem.L.Rev. 493, 501 (1996) (challenging reporters’ claim that Draft Restatement (Third)’s reasonable alternative design requirement constitutes ‘consensus’ among jurisdictions); P. Corboy, ‘The Not-So-Quiet Revolution: Rebuilding Barriers to Jury Trial in the Proposed Restatement (Third) of Torts: Products Liability,’ 61 Tenn.L.Rev. 1043, 1093 (1994) (‘[t]he decisional support for [the reasonable alternative design requirement], however, appears to be overstated by the Reporters, who claim that [eighteen] states support the rule’); F. Vandall, ‘The Restatement (Third) of Torts: Products Liability Section 2(b): The Reasonable Alternative Design Requirement,’ 61 Tenn.L.Rev . 1407, 1428 (1994) (‘The centerpiece of the Restatement (Third) of Torts: Products Liability is the requirement that the plaintiff present evidence of a reasonable alternative design as part of her prima facie case. This requirement is not supported by the majority of the jurisdictions that have considered the question.’). Contrary to the rule promulgated in the Draft Restatement (Third), our independent review of the prevailing common law reveals that the majority of jurisdictions do not impose upon plaintiffs an absolute requirement to prove a feasible alternative design." Id., 216. The court noted that "its research reveal[ed] that, of the jurisdictions that have considered the role of feasible alternative designs in design defect cases: (1) six jurisdictions affirmatively state that a plaintiff need not show a feasible alternative design in order to establish a manufacturer’s liability for design defect; see Karns v. Emerson Electric Co., 817 F.2d 1452, 1457 (10th Cir. 1987) (applying Oklahoma law); French v. Grove Mfg. Co., 656 F.2d 295, 297 (8th Cir. 1981) (applying Arkansas law); Kallio v. Ford Motor Co., 407 N.W.2d 92, 94-97 (Minn. 1987); Rahmig v. Mosley Machinery Co., 226 Neb. 423, 441, 412 N.W.2d 56 (1987); Couch v. Mine Safety Appliances Co., 107 Wash.2d 232, 239, 728 P.2d 585 (1986); Sumnicht v. Toyota Motor Sales, U.S.A., Inc., 121 Wis.2d 338, 370-71, 360 N.W.2d 2 (1984); (2) sixteen jurisdictions hold that a feasible alternative design is merely one of several factors that the jury may consider in determining whether a product design is defective; see Dart v. Wiebe Mfg., Inc., 147 Ariz. 242, 245, 709 P.2d 876 (1985); Camacho v. Honda Motor Co., Ltd., 741 P.2d 1240, 1247-48 (Colo. 1987), cert. dismissed, 485 U.S . 901, 108 S.Ct. 1067, 99 L.Ed.2d 229 (1988); Warner Fruehauf Trailer Co. v. Boston, 654 A.2d 1272, 1277 (D.C.App. 1995); Radiation Technology, Inc. v. Ware Construction Co., supra, 445 So.2d at 331; Banks v. ICI Americas, Inc., 264 Ga. 732, 736, 450 S.E.2d 671 (1994); Chown v. USM Corp., 297 N.W.2d 218, 220-21 (Iowa 1980); Jenkins v. Amchem Products, Inc., 256 Kan. 602, 636, 886 P.2d 869 (1994), cert. denied, 516 U.S . 820, 116 S.Ct. 80, 133 L.Ed.2d 38 (1995); Montgomery Elevator Co. v. McCullough, 676 S.W.2d 776, 780-81 (Ky. 1984); McCourt v. J.C. Penney Co., 103 Nev. 101, 104, 734 P.2d 696 (1987); Thibault v. Sears, Roebuck & Co., supra, 118 N.H. at 807, 395 A.2d 843; Cepeda v. Cumberland Engineering Co., 76 N.J. 152, 174-75, 386 A.2d 816 (1978); Brooks v. Beech Aircraft Corp., 120 N.M. 372, 902 P.2d 54, 61 (1995); Wilson v. Piper Aircraft Corp., 282 Or. 61, 71 n. 5, 577 P.2d 1322 (1978); Claytor v. General Motors Corp., 277 S.C. 259, 265, 286 S.E.2d 129 (1982); Peterson v. Safway Steel Scaffolds Co., 400 N.W.2d 909, 913 (S.D. 1987); Morningstar v. Black & Decker Mfg. Co., supra, 162 W.Va. at 887, 253 S.E.2d 666; (3) three jurisdictions require the defendant, not the plaintiff, to prove that the product was not defective; see Caterpillar Tractor Co. v. Beck, supra, 593 P.2d at 884; Barker v. Lull Engineering Co., supra, 20 Cal.3d at 431-32, 143 Cal.Rptr. 225, 573 P.2d 443; Ontai v. Straub Clinic & Hospital, Inc., supra, 66 Haw. at 242-43, 659 P.2d 734; and (4) eight jurisdictions require that the plaintiff prove a feasible alternative design in order to establish a prima facie case of design defect; see General Motors Corp. v. Edwards, 482 So.2d 1176, 1191 (Ala. 1985); Owens v. Allis-Chalmers Corp., 414 Mich. 413, 426-27, 326 N.W.2d 372 (1982); Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 108, 450 N.E.2d 204, 463 N.Y.S.2d 398 (1983); see also Ill.Comp.Stat.Ann. c . 735, 5/2-2104 (West Sup. 1996); La.Rev.Stat.Ann. § 9:2800.56 (West 1991); Miss.Code Ann. § 11-1-63(f)(ii) (Cum.Sup.1996); Ohio Rev.Code Ann. § 2307.75(F) (Banks-Baldwin 1994); Tex.Civ.Prac. & Rem.Code Ann. § 82.005 (West Sup. 1997)." Id., 216, n.11.
Standard Structural Steel Co. v. Bethlehem Steel Corp., 597 F.Supp. 164, 183 (D.Conn. 1984) (recognizing Connecticut law permits fact finder to draw inference of defect from circumstantial evidence); Living & Learning Centre, Inc. v. Griese Custom Signs, Inc., 3 Conn.App. 661, 664, 491 A.2d 433 (1985) (‘It is not necessary that the plaintiff in a strict tort action establish a specific defect as long as there is evidence of some unspecified dangerous condition. In the absence of other identifiable causes, evidence of malfunction is sufficient evidence of a defect under § 402A of the Second Restatement of Torts.’); Kileen v. General Motors Corp., 36 Conn.Supp. 347, 349, 421 A.2d 874 (1980) (‘[t]he fact finder can find, where other identifiable causes are absent, that the mere evidence of a malfunction is sufficient evidence of a defect’); see also annot., 65 A.L.R .4th 346, 354-58 (1988) (listing twenty-eight states that allow establishment of prima facie case of design defect based upon inferences from circumstantial evidence). "Moreover, in some instances, a product may be in a defective condition unreasonably dangerous to the user even though no feasible alternative design is available. In such instances, the manufacturer may be strictly liable for a design defect notwithstanding the fact that there are no safer alternative designs in existence. See, e.g., O’Brien v. Muskin Corp., 94 N.J. 169, 184, 463 A.2d 298 (1983) (‘other products, including some for which no alternative exists, are so dangerous and of such little use that ... a manufacturer would bear the cost of liability of harm to others’); Wilson v. Piper Aircraft Corp., 282 Or. 61, 71 n.5, 577 P.2d 1322 (1978) (‘Our holding should not be interpreted as a requirement that [the practicability of a safer alternative design] must in all cases weigh in [the] plaintiff’s favor before the case can be submitted to the jury. There might be cases in which the jury would be permitted to hold the defendant liable on account of a dangerous design feature even though no safer design was feasible (or there was no evidence of a safer practicable alternative).’); Sumnicht v. Toyota Motor Sales, U.S.A., Inc., 121 Wis.2d 338, 371, 360 N.W.2d 2 (1984) (‘[a] product may be defective and unreasonably dangerous even though there are no alternative, safer designs available’). Accordingly, [the court in Potter ] decline[d] to adopt the requirement that a plaintiff must prove a feasible alternative design as a sine qua non to establishing a prima facie case of design defect." Id., 217-19.