Donner v. Kearse

• Court: Connecticut Supreme Court
• Writing for the Court: Before PETERS; BERDON
• Citation: Donner v. Kearse, 234 Conn. 660, 662 A.2d 1269 (Conn. 1995)
• Decision Date: 01 August 1995
• Docket Number: No. 15036,15036
• Parties: Lilyan DONNER et al. v. Kelvan KEARSE et al.

Page 1269

662 A.2d 1269

234 Conn. 660

Lilyan DONNER et al. v. Kelvan KEARSE et al.

No. 15036.

Supreme Court of Connecticut.

Argued March 22, 1995.

Decided Aug. 1, 1995.

Wesley W. Horton, with whom were Susan M. Cormier and Jack G. Steigelfest, Hartford, for appellants (named defendant et al.).

Michael A. Stratton, with whom, on the brief, was Richard A. Bieder, Bridgeport, for appellee (named plaintiff).

Before PETERS, C.J., and CALLAHAN, BERDON, NORCOTT and PALMER, JJ.

BERDON, Associate Justice.

This appeal raises two principal issues: (1) whether General Statutes § 52-572h ¹ requires a jury to consider the negligence of a plaintiff who had withdrawn his action in apportioning the amount of damages for which the defendant is responsible; and (2) whether the trial court properly ordered a separate trial on the issue of whether the plaintiff, in executing a general release of liability, had released the defendant.

The original plaintiffs, Lilyan Donner and Robert Donner, brought this action for damages as a result of personal injuries they received in an automobile collision in the town of Windsor. Robert Donner had been operating the vehicle in which he and Lilyan Donner, his passenger, were riding. In their action, the Donners alleged that two other drivers had been operating their vehicles negligently and had caused both the collision and the Donners' injuries. These other drivers were Kelvan Kearse, a Windsor police officer who was operating a town police cruiser, and Anna Riccio. Both Kearse and Riccio were named as defendants in the action. ²

Prior to trial, two events occurred that altered the status of the parties to the action. First, Lilyan Donner agreed to a $100,000 settlement with Riccio, and executed a release that specifically released Riccio from any claims arising from the auto accident. This preprinted general release also included boilerplate language stating that Lilyan Donner similarly released from liability "any and all other persons" involved in the collision. Lilyan Donner withdrew her action against Riccio and the Donners subsequently amended their complaint to reflect this change. Second, Robert Donner withdrew his cause of action against both defendants. This meant that the sole remaining plaintiff was Lilyan Donner (plaintiff) and that the sole remaining defendant was Kearse (defendant). The plaintiff amended her complaint to reflect the new status of the pleadings and the parties.

The defendant filed an answer and several special defenses to the revised complaint. The defendant specially pleaded that the proximate cause of the plaintiff's injuries was the negligence of Robert Donner, rather than any negligence of himself. The defendant also specially pleaded that the plaintiff had released him from liability when she executed the release that included language releasing "any and all persons" from liability. The plaintiff moved to strike the special defense that referred to Robert Donner's negligence on the ground that he was no longer a party and, therefore, that his negligence could not be considered by the jury in apportioning damages under § 52-572h. The plaintiff also moved to bifurcate the issue of whether the release also had operated to release the defendant from liability. The trial court, over the objections of the defendant, granted both motions. The trial court subsequently charged the jury on how to determine damages if it found that the defendant had been negligent. ³ The trial court instructed the jury that in apportioning the amount of damages for which the defendant was responsible, it should take into account any negligence that was attributable to Riccio. The trial court did not, however, give a similar instruction with respect to any negligence of Robert Donner.

The jury found the issue of liability in favor of the plaintiff and found that the plaintiff had incurred economic and noneconomic damages in the amount of $554,000. The jury attributed 100 percent of the negligence to the defendant and 0 percent of the negligence to Riccio. Accordingly, the jury apportioned the entire amount of the $554,000 in damages to the defendant. The court accepted the verdict.

In accordance with the plaintiff's earlier motion for bifurcation, the same jury next considered whether the plaintiff had released the defendant from liability when she had executed the release. After a trial on the issue, the jury, in response to a special interrogatory, found that the plaintiff had not intended to release the defendant from liability. The trial court subsequently rendered judgment for the plaintiff on both verdicts. ⁴ The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c).

The defendant raises four issues on appeal: (1) Did the trial court properly strike the defendant's special defense that the negligence of Robert Donner was a proximate cause of the plaintiff's injuries? (2) Did the trial court properly bifurcate the issue of whether the plaintiff, in executing the release, had also released the defendant from liability? (3) Did the trial court properly instruct the jury on statutory negligence? and (4) Was the jury's finding that Riccio was 0 percent negligent contrary to the evidence presented? We affirm the judgment of the trial court.

I

The defendant initially argues that the trial court should not have stricken his special defense that referred to the negligence of Robert Donner as being a proximate cause of the plaintiff's injuries. The defendant argues that the court's action was improper because § 52-572h required the jury, in apportioning responsibility and the amount of damages for which the defendant was responsible, to consider not only the negligence of Riccio but also the negligence of Robert Donner. The defendant's objective in seeking to include Robert Donner's negligence within the jury calculus, of course, is to reduce the percentage of responsibility that the defendant must bear for causing the plaintiff's injuries. ⁵

Before embarking on our analysis of the defendant's claim, it is helpful to begin with a brief history of the development of the apportionment of damages among tortfeasors. Prior to October 1, 1986, this state adhered to the rules of joint and several liability with no contribution among joint tortfeasors. This doctrine can be stated succinctly. "If the illegal conduct of each of the defendants was a proximate cause of the collision, they would be liable jointly and severally, the plaintiff would have a right to recover the entire amount of damages awarded from either, and, if he did so, the defendant paying them would have no right of contribution against the other; or the plaintiff might have sued either alone, and of course in the event of a recovery, that one would have been compelled to pay the entire amount of damages." Rose v. Heisler, 118 Conn. 632, 633, 174 A. 66 (1934). ⁶

In accordance with the common law of joint and several liability, therefore, even a defendant whose degree of fault was comparatively small could be held responsible for the entire amount of damages, as long as his negligence was a proximate cause of the plaintiff's injuries. Thus, the plaintiff could collect the entire amount of his judgment "from the richest defendant, or from the defendant with the 'deepest pocket.' " G Royster, "Joint and Several Liability and Collateral Sources Under the 1987 Tort Reform Act," 62 Conn.B.J. 257 (1988).

Partially in response to these concerns, the legislature undertook to reform the tort recovery provisions of our civil system, by enacting No. 86-338 of the 1986 Public Acts (Tort Reform I), which took effect October 1, 1986. Section 3 of Tort Reform I provided that each defendant would initially be liable for only that percentage of his negligence that "proximately caused the injury, in relation to one hundred percent, that is attributable to each person whose negligent actions were a proximate cause of the damages." (Emphasis added.) In other words, under Tort Reform I, the jury, in determining the percentage of negligence attributable to any defendant, could take into account the negligence of any other person, whether or not that person was a party to the action. See G. Royster, supra, 62 Conn.B.J. 259 ("Tort Reform I had the plaintiff's negligence compared with everyone in the world who was at fault"). Tort Reform I, however, did not provide the plaintiff with a means of securing payment of damages unless that person was also a party. ⁷

Under Tort Reform I, to avoid the possibility that a jury would find that the negligence of a nonparty was a proximate cause of his or her injuries, a plaintiff was required to name as defendants all persons whose actions suggested even the slightest hint of negligence. The unwanted practical effect, therefore, was that plaintiffs were "required to pursue claims of weak liability against third parties, thereby fostering marginal and costly litigation in our courts." General Accident Ins. Co. v. Wheeler, 221 Conn. 206, 213, 603 A.2d 385 (1992).

The legislature amended these tort recovery provisions just one year later when it enacted No. 87-227 of the 1987 Public Acts (Tort Reform II), the pertinent provisions of which now are codified in part under § 52-572h. ⁸ These revisions, which took effect October 1, 1987, altered the class of individuals to whom the jury could look in determining whose negligence had been a proximate cause of a plaintiff's injuries. In short, these revisions changed the focus of this class of negligent individuals from any "person" to any "party" and certain other identifiable persons. See General Statutes § 52-572h(c), (d), (f), (n). Thus, while Tort Reform I provided that the jury, in determining the percentage of responsibility of a particular defendant, could also consider the entire universe of...