Bradford v. Herzig, 12192

• Court: Appellate Court of Connecticut
• Citation: 33 Conn.App. 714,638 A.2d 608
• Decision Date: 09 June 1994
• Docket Number: No. 12192,12192
• Parties: Charles S. BRADFORD et al. v. Steven HERZIG.

Page 608

638 A.2d 608 33 Conn.App. 714 Charles S. BRADFORD et al.
v.
Steven HERZIG. No. 12192. Appellate Court of Connecticut. Argued Dec. 10, 1993.
Decided March 15, 1994.
Certification Denied June 9, 1994.

Page 609

[33 Conn.App. 715] Miles F. McDonald, Jr., Greenwich, with whom, on the brief, was Luke M. Pittoni, New Canaan, for appellants-appellees (plaintiffs).

Daniel E. Ryan III, with whom, on the brief, was W. Patrick Ryan, Stamford, for appellee-appellant (defendant).

Before [33 Conn.App. 714] DUPONT, C.J., and LAVERY and SCHALLER, JJ.

[33 Conn.App. 716] DUPONT, Chief Judge.

The plaintiffs, Charles S. Bradford and Marjorie K. Bradford, ¹ are appealing from the judgment of the trial court in a medical malpractice action rendered in accordance with a jury verdict for them against the defendant physician, Steven Herzig. They claim that the trial court improperly accepted the verdict because (1) contributory negligence was not pleaded as a special defense by the defendant, but the jury verdict assigned 30 percent contributory negligence to the plaintiff, and (2) the jury verdict assigned 25 percent of the negligence involved in the plaintiff's harm to Eckhart Doering, a nonparty physician who treated him. ² That part of the judgment reducing the plaintiff's award against the defendant by the amounts attributed to contributory and nonparty negligence is reversed and we remand the case to the trial court for judgment in accordance with this opinion.

The plaintiffs brought suit against the defendant alleging that the plaintiff had suffered injuries as a result of the negligence of the defendant physician, who had treated the plaintiff from May, 1986, to December 18, 1987. The plaintiff claims that the defendant's negligence caused him permanent injury, including "chronic and acute renal failure requiring lifetime dialysis," "depression," "personality, behavioral, and psychological injury," and the substantial impairment of his earning capacity and life expectancy. In his answer, the defendant denied the plaintiff's allegations of negligence, and did not plead the contributory negligence of the plaintiff as an affirmative defense.

Page 610

In its instructions to the jury, the trial court stated at the outset that a "defendant may admit some of [the [33 Conn.App. 717] plaintiff's allegations], he may deny some of them, or he may set up some new matter as a defense. That's not an issue here, because all we have here is the plaintiff's complaint and the allegations which have been denied by the plaintiff." (Emphasis added.) The trial court did not give an instruction on the concept or definition of contributory negligence, mentioning contributory negligence only when reviewing the verdict forms given to the jury.

The verdict forms submitted to the jury contained a question asking the jury to fill in the percentage of negligence, if any, of the plaintiff. Upon reviewing the verdict forms for the jury toward the conclusion of the charge, the court stated: "Percentage of negligence of the plaintiff, Charles Bradford, that's for you to fill in." The plaintiff excepted to the mention of contributory negligence in the charge on the ground that it had not been pleaded by the defendant. Readdressing the jury on the verdict forms, the court stated that, in accordance with Connecticut's comparative negligence statute; General Statutes § 52-572h; ³ if the negligence of the plaintiff exceeded 50 percent, the jury was required to return a defendant's verdict. After the jury retired, [33 Conn.App. 718] the court expressed concern about not mentioning the element of the plaintiff's contributory negligence in the charge, but took no action on the matter.

The jury answered special interrogatories declaring that the defendant was negligent on specific dates and that his negligence was the proximate cause of the plaintiff's injuries. The jury also concluded that the non-party Doering's care was not a superseding cause of the plaintiff's injuries. ⁴ In its verdict, however, the jury assessed the relative negligence of the physicians as 75 percent on the part of the defendant and 25 percent on the part of Doering. The jury also found the plaintiff to have been 30 percent contributorily negligent. The court rendered a judgment against the defendant in accordance with the verdict, reducing the damages for the plaintiffs by 30 percent and assigning responsibility for 75 percent of that amount to the defendant. ⁵ The plaintiffs appeal from that judgment.

Page 611

[33 Conn.App. 719] I

The plaintiff contends that the trial court improperly found that the defendant's failure to plead the plaintiff's contributory negligence as a special defense pursuant to General Statutes § 52-114 did not bar the jury from considering his contributory negligence in determining the amount of damages to be awarded. The trial court found that the jury properly considered the plaintiff's negligence in allocating the damages due the plaintiff under the dictate of General Statutes § 52-572h. ⁶

General Statutes § 52-114 provides that "[i]n any action to recover damages for negligently causing ... personal injury ... it shall be presumed that such person ... who was injured ... was, at the time of the commission of the alleged negligent act or acts, in the exercise of reasonable care. If contributory negligence is relied upon as a defense, it shall be affirmatively pleaded by the defendant ... and the burden of proving such contributory negligence shall rest upon the defendant or defendants." Thus, there is a presumption of reasonable care on the part of the injured party that the defendant has the burden of overcoming, and the failure of a defendant in a negligence action to plead contributory negligence as an affirmative defense precludes any inquiry into negligent acts by the plaintiff. Delott v. Roraback, 179 Conn. 406, 414, 426 A.2d 791 (1980); Sady v. Liberty Mutual Ins. Co., [33 Conn.App. 720] 29 Conn.App. 552, 556-57, 616 A.2d 819 (1992). It is undisputed that, in the present case, the defendant did not include in his answer any allegation of contributory negligence. Under the terms of § 52-114, he was thus not entitled to a jury instruction on contributory negligence or to a verdict form that included contributory negligence, both of which were provided in this case. Mauro v. Yale-New Haven Hospital, 31 Conn.App. 584, 593, 627 A.2d 443 (1993).

The defendant maintains, however, that § 52-114 does not apply to the jury's consideration of the plaintiff's negligence under § 52-572h, the comparative negligence statute. The question for resolution, then, according to the defendant, is whether § 52-572h relieves a defendant of the obligation affirmatively to plead contributory negligence. The defendant claims that there is a conflict between that section and § 52-114, noting the presence of mandatory statutory language in § 52-572h(b) and (f) requiring the jury to consider the plaintiff's negligence in computing damages. It is the defendant's contention that the comparative negligence statute, being more specific than § 52-114, was correctly deemed controlling by the trial court, which concluded that "it was not necessary to plead contributory negligence on the part of the plaintiff by the defendant as the statute required the jury to consider the plaintiff's negligence in determining the recovery without regard to any claim of contributory negligence." The defendant also contends that the plaintiff waived his right to object to the absence of any allegation of contributory negligence in the pleadings by failing to object at trial to the introduction of evidence of contributory negligence.

Although the plaintiff's alleged contributory negligence is the focus of this claim, exactly what this contributory negligence consists of remains a mystery to this court. The plaintiff stated at oral argument in this [33 Conn.App. 721] court that there was no evidence of contributory negligence presented at trial. The defendant claims that it is clear that the evidence of contributory negligence came out at trial, and consisted of the plaintiff's failure to follow the defendant's instructions. ⁷ The record before this court is devoid, however, of any documentation that such evidence actually existed, much less whether...