Opinion
No. HHD X04 CV-04-4034705 S
February 11, 2008
MEMORANDUM OF DECISION ON MOTION TO STRIKE SPECIAL DEFENSES (#212)
On February 7, 2008, the court heard oral argument, in related cases, concerning three motions to strike the special defenses of comparative negligence filed by Mine Safety Appliances Company, Inc. (MSA). After consideration, the court issues this memorandum of decision. For the reasons stated below, the motions are denied.
This decision is applicable also to the motions to strike MSA's special defenses in Smolen v. Mine Safety Appliances Co., Docket No. X04 CV 04 4034730 (#144) and Patterson v. Manchester Tank Equipment Co., Docket No. X04 CV 04 4034666 (#188).
In its memorandum of law in opposition to motion to strike, MSA stated that it withdraws its third, fourth, sixth, seventh, eighth, ninth, and tenth special defenses.
"Whenever any party wishes to contest . . . the legal sufficiency of any answer to any complaint . . . or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39(a)(5). "[A] motion to strike challenges the legal sufficiency of a pleading . . . We take the facts to be those alleged in the [pleading] . . . and we construe the [pleading] in the manner most favorable to sustaining its legal sufficiency . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 317-18, 907 A.2d 1188 (2006).
"If facts provable under the allegations would support a defense or a cause of action, the motion to strike must be denied." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994).
"Generally speaking, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action. Practice Book § 10-50 . . . The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway . . . Whether facts must be specially pleaded [however] depends on the nature of those facts in relation to the contested issues." (Citations omitted; internal quotation marks omitted.) Almada v. Wausau Business Insurance Co., CT Page 2254 274 Conn. 449, 456, 876 A.2d 535 (2005).
Here, the movants argue that MSA may not plead special defenses of comparative negligence in response to product liability claims. In Norrie v. Heil Co., 203 Conn. 594, 599-600, 525 A.2d 1332 (1987), the Supreme Court cited General Statutes § 52-572l, which provides, in pertinent part, "[i]n causes of action based on strict tort liability, contributory negligence or comparative negligence shall not be a bar to recovery." The court stated, "This statute . . . eliminated contributory negligence as a defense to products liability actions . . ." Id., 203 Conn. 600.
Subsequently, in product liability actions, various trial courts have granted motions to strike comparative negligence special defenses. "Several Superior Courts have since held that because General Statutes § 52-572o is the applicable comparative negligence statute in a product liability case and under the statute a plaintiff's damages are only diminished in proportion to the plaintiff's own contributory negligence and the statute does not bar recovery, comparative negligence cannot be specially pled in a product liability action because this special defense does not demonstrate that the plaintiff has no cause of action." Stevenson v. Kettler International, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. FST CV 05 5000357 (August 14, 2006, Lewis, J.T.R.) (42 Conn. L. Rptr. 69) (citing other Superior Court decisions).
General Statutes § 52-572o(a), in relevant part, provides that "the comparative responsibility of or attributed to, the claimant, shall not bar recovery but shall diminish the award of compensatory damages proportionately, according to the measure of responsibility attributed to the claimant."
This court must be guided by the Supreme Court's more recent enunciation of decisional law in the product liability area. The Supreme Court, in an opinion issued on December 11, 2007, Mahon v. B.V. Unitron Manufacturing, Inc., 284 Conn. 645, 935 A.2d 1004 (2007), extensively addressed the adequacy of jury instructions concerning a defendant's special defense of comparative negligence to a product liability action. See id., 655-61. In so doing, no reference was made to Norrie v. Heil Co., supra, 203 Conn. 594. The court found that "[b]ecause the jury decided the issue of the decedent's comparative negligence in an instructional vacuum, we cannot conclude that the trial court's instruction fairly presented [the defendant's] comparative negligence claim to the jury in such a way that injustice was not done to the decedent's estate." Mahon v. B.V. Unitron Manufacturing, Inc., supra, 284 Conn. 659. A new trial was ordered. See id., 661.
The Supreme Court made several other earlier references to the pleaded special defense of comparative negligence. See id., 646, 649, 650-51, 652, 653.
As was properly pointed out by counsel at oral argument before this court, review of the docket entries in Mahon when it was before the trial court does not reflect that the special defense of comparative negligence was challenged there by a motion to strike. These entries are available on-line on the Judicial Branch web site.
Nevertheless, this court concludes that, in Mahon, the Supreme Court appears to tacitly approve the pleading of comparative negligence as a special defense to a product liability claim. See Rocque v. Light Sources, Inc., Superior Court, judicial district of Hartford at Hartford, Docket No. CV 98 0581655 (December 13, 2004, Beach, J.) (38 Conn. L. Rptr. 424) (Appellate Court "appeared tacitly" to follow a policy). In Mahon, in the context of its discussion of the adequacy of the trial court's instruction concerning the special defense, the Supreme Court reiterated that § 52-572o incorporates "the idea of pure comparative responsibility into our product liability law." Mahon v. B.V. Unitron Manufacturing Inc., supra, 284 Conn. 656-57. See also Bravo v. Ford Motor Co., Superior Court, judicial district of Hartford at Hartford, Docket No. CV 00 0594807 (April 16, 2001, Berger, J.) (denying motion to strike special defenses of comparative negligence in product liability action).
In addition, denying the motions to strike the special defenses here comports with the fundamental purpose of a special defense, which, as stated above, is to "apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway." Almada v. Wausau Business Insurance Co., supra, 274 Conn. 456.
CONCLUSION
For the foregoing reasons the motions to strike the special defenses are denied.
It is so ordered.