Opinion
No. CV01 0064902
March 23, 2005
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR ARTICULATION OF ALLOCATION OF DAMAGES
The defendants have requested that the Court provide "an articulation of the allocation of damages and negligence in accordance with C.G.S. § 52-572h(f)" (Motion #157).
The Court is puzzled by the defendants' request for articulation in that the action brought by the plaintiffs and the Court's judgment after trial were rather predicated upon C.G.S. § 52-572m — the Product Liability Statute (count I) and the Uniform Commercial Code (count V). While the operative pleading, the Second Amended Complaint dated July 10, 2002 set forth seven counts, two of which, counts VI and VII, were predicated on negligence, counts VI and VII were subsequently withdrawn during trial. Count I was brought pursuant to C.G.S. § 52-572m, Product Liability Actions. Section 52-572n defines Product Liability Actions. "A product liability claim as provided in Section(s) . . . 52-572m . . . 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." C.G.S. § 52-572n. The Court found for the plaintiff on the basis if strict liability and breach of warranty pursuant to the Product Liability Act, under count I; and for economic loss caused by a defective product under count V. Those items of damage constituting "economic loss" are set forth in Section A(5.) of the Judgment. See Memorandum of Decision, March 3, 2005.
Thus, § 52-572h(f), styled "Negligence actions. Doctrines applicable," would have no application with regard to the present motion.
The Memorandum of Decision of March 3, 2005 states that the judgment was rendered with regard to counts I (§ 52-572m) and count II (§ 42a-2-314). Although C.G.S. § 52-572n states that a product liability action shall be in lieu of all other claims against product sellers, § 52-572n(c) provides that "[a]n action for commercial loss caused by a product may be brought only under, and should be governed by, title 42a, the Uniform Commercial Code." Based upon the evidence presented at trial, the Court entered judgment for the plaintiffs predicated upon the rights of recovery as claimed under counts I and V.
The defendants did not plead comparative negligence pursuant to § 52-572o in their special defenses to the operative complaint dated September 15, 2002. The defendants instead predicated their special defenses upon common law which appear to claim misuse of the product (first special defense as to count VII) and mitigation of damages (second special defense as to counts I, III, IV and V). Count VII, having been withdrawn, would make the first special defense moot. The Court is also mindful that the dictates of Practice Book § 10-3 are directory and not mandatory. Rocco v. Garrison, 268 Conn. 541, 557, 848 A.2d 352 (2004). See also Novak v. Omega Plastics Corp., Inc., 60 Conn.App. 424, 760 A.2d 137, cert denied, 255 Conn. 910, 763 A.2d 1036 (2000). Therefore, the defendants' second special defense was considered by the Court in weighing all of the evidence, in spite of the fact that a special defense is generally inapplicable to a claim of strict product liability.
Even if the defendants had properly plead comparative negligence, it was the judgment of the Court that no comparative responsibility or failure to mitigate damages was applicable to either count under which it found for the plaintiffs. Therefore, there would be no basis upon which to proportionately diminish the award to either plaintiff as set forth in the Court's March 3, 2005 Memorandum of Decision. Any reliance by the defendants upon § 52-572h(f) is completely misplaced with regard to the instant matter.
Riley, J.