Giglio v. Connecticut Light and Power Co.

• Decision Date: 15 April 1980
• Court: Connecticut Supreme Court
• Parties: Josephine GIGLIO et al. v. CONNECTICUT LIGHT AND POWER COMPANY.

Page 486

429 A.2d 486

180 Conn. 230

Josephine GIGLIO et al. v. CONNECTICUT LIGHT AND POWER COMPANY.

Supreme Court of Connecticut.

Argued Nov. 15, 1979.

Decided April 15, 1980.

William B. Fitzgerald, Jr., Waterbury, with whom were John C. Bullock, Waterbury, and, on brief, Anthony M. Fitzgerald, Waterbury, for appellant (defendant).

Thomas L. Brayton, Waterbury, for appellee (named plaintiff).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, PETERS and WRIGHT, JJ.

WRIGHT, Associate Justice.

In October of 1959, the defendant Connecticut Light and Power Company converted a coal burning home furnace to gas operation for the named plaintiff Josephine Giglio (hereinafter the plaintiff) in her apartment in Waterbury. On October 7, 1967, the plaintiff's daughter, feeling cold, raised the thermostat regulating the furnace. When the furnace did not start, she checked the system's "Baso Safety Switch," an indicator designed to tell whether the pilot light was on or off. If the pilot light were on, the color silver should have appeared in the window with the word "on" displayed. If the pilot light were off, the word "off" and the color red should have appeared. The indicator on the plaintiff's Baso safety switch always showed partially silver and partially red thereby confusing the plaintiff.

On numerous occasions prior to the incident in question, the plaintiff Josephine Giglio had informed Connecticut Light and Power Company employees of the condition of the indicator. On those occasions the defendant's employees told the plaintiff to check to see if the pilot light was lit. In order to check to see if the pilot light was on, the plaintiff necessarily had to open the furnace door.

On this particular occasion, the plaintiff's daughter opened the furnace door and observed that the pilot light was on, but at the same time the furnace was not running and no heat was being generated. The plaintiff Josephine Giglio then checked the furnace and pilot light herself. When she opened the furnace door, there was a simultaneous "puff" or "roll-out" of flames that shot out and severely burned the plaintiff.

At trial, the plaintiff's claim sounded in counts of negligence and strict liability in tort. The jury returned an identical verdict for the plaintiff Josephine Giglio on both counts.

Where there are two or more counts, a general verdict will be upheld if any of the counts are valid. Franks v. Lockwood, 146 Conn. 273, 279, 150 A.2d 215; Mercier v. Naugatuck Fuel Co., 139 Conn. 521, 525, 95 A.2d 263; Bulkley v. Andrews, 39 Conn. 523, 534. Similarly, where there are two or more distinct causes of action, a general verdict will cure an erroneous charge as to one of them. Barbieri v. Pandiscio, 116 Conn. 48, 53, 163 A. 469.

In view of the foregoing, we are restricting our discussion to the second count of the substitute complaint relating to strict liability in tort. We express no opinion as to the negligence claim.

The defendant has assigned numerous errors. Some of these assignments would be pertinent if the judgment on the first count relating to negligence were to be scrutinized by this court. Since we are restricting our opinion, however, to the second count relating to strict liability in tort, there remain only three main issues to be reviewed.

I DO THE EVIDENCE AND THE LAW SUPPORT A PLAINTIFF'S VERDICT ON THE THEORY OF STRICT TORT LIABILITY?

The issue in this case is whether the defendant Connecticut Light and Power Company's failure adequately to warn the plaintiff of the possibility of a "roll-out" in the event that the furnace door were opened while the pilot light was on but with the furnace not running constituted an unreasonably dangerous condition, thereby rendering the furnace defective. We answer this issue in the affirmative. Under the doctrine of strict liability in tort we find that the jury had sufficient evidence upon which to hold the defendant liable for the damages caused by its defective product.

In Garthwait v. Burgio, 153 Conn. 284, 216 A.2d 189, we accepted the principles adopted by the American Law Institute as contained in § 402A of the Restatement (Second), Torts, establishing strict liability in tort. We have reaffirmed those principles in subsequent cases. Wachtel v. Rosol, 159 Conn. 496, 271 A.2d 84; Rossignol v. Danbury School of Aeronautics, Inc., 154 Conn. 549, 227 A.2d 418.

In 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. Restatement (Second), Torts § 402A (1965); see Rossignol v. Danbury School of Aeronautics, Inc., 154 Conn. 549, 562, 227 A.2d 418.

The parties did not dispute that the defendant was in the business of selling or leasing gas furnaces, nor is it disputed that the gas furnace reached the plaintiff without substantial change in condition. The focus of this case then is whether the furnace was in a defective condition unreasonably dangerous to the plaintiff.

The doctrine of strict liability in tort is concerned with the character of the product injected into the stream of commerce, not with the specific conduct of the defendant. 2 Dooley, Modern Tort Law § 32.35 (1977). The plaintiff must prove that the product is unreasonably dangerous. Comment i of the Restatement (Second) of Torts, § 402A, defines an "unreasonably dangerous" product as one "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." In this regard, it is important to note that it is not necessary that the plaintiff in a strict liability tort action establish a specific defect, so long as there is evidence of some unspecified dangerous condition. See Lindsay v. McDonnell Douglas Aircraft Corporation, 460 F.2d 631, 637 (8th Cir. 1972); 2 Dooley Modern Tort Law, op. cit., § 32.49; 63 Am.Jur.2d, Products Liability § 15. Whether a product is unreasonably dangerous is a question of fact to be determined by the jury. As we recently stated, "(t)his includes those questions arising under § 402A, and the jury can drawn their own reasonable conclusions as to the expectations of the ordinary consumer and the knowledge common in the community at large." Slepski v. Williams Ford, Inc., 170 Conn. 18, 23, 364 A.2d 175, 178.

It is well established in this jurisdiction; Tomer v. American Home Products Corporation, 170 Conn. 681, 689, 368 A.2d 35; Basko v. Sterling Drug, Inc., 416 F.2d 417 (2d Cir. 1969); as well as in a majority of other jurisdictions; see generally, 2 Dooley, Modern Tort Law, op. cit., § 32.39; that "(a) product may be defective because a manufacturer or seller failed to warn of the product's unreasonably dangerous propensities." See Restatement (Second), Torts § 402A; Prokolkin v. General Motors Corporation, 170 Conn. 289, 365 A.2d 1180; Noel, "Manufacturer's Negligence of Design or Directions for Use of a Product," 71 Yale L.J. 816 (1962); Prosser, "The Fall of the Citadel," 50 Minn.L.Rev. 791, 826 (1965-66).

Dean Prosser, the Restatement (Second) Reporter, states: "There is no dispute that the seller is under a duty to give adequate warning of unreasonable dangers involved in the use of which he knows, or should know. The duty extends not only to dangers arising from improper design or other negligence in manufacturing, but also to dangers inseparable from a properly made product of the particular kind." Prosser, Law of Torts (4th Ed. 1971), pp. 646-47. See Basko v. Sterling Drug, Inc., supra, 426. In other words, the failure to warn in such circumstances is, of itself, a defect. Prosser, op. cit., p. 659.

In the case at hand, the facts clearly show that the defendant knew, or should have known, of the potentiality of a dangerous roll-out occurring. The evidence revealed that the manufacturer anticipated, and that the defendant was aware of, this dangerous possibility.

The safety unit contained no warnings. The only wording on the unit constituted instructions, intended for a service person, and for the consumer, on how to start the pilot light in the event it went out. ¹ Moreover, these instructions were applicable only where the pilot light was out. There were no instructions or warning on what to do, or what not to do, when the pilot light was on, but the furnace was not running and no heat was being generated, as was the situation in this case. In any event, the duty to warn involves more than instructions intended for service personnel. The warning must consider the consumer's comprehension. Technical language or instructions are insufficient. Similarly, language directed to persons who could not reasonably be expected to understand the nomenclature is insufficient. West v. Broderick & Bascom Rope Co., 197 N.W.2d 202 (Iowa 1972); 2 Dooley, Modern Tort Law, op. cit., § 32.39. Warnings must specifically identify for the user the danger inherent in the product's use.

Moreover, on several occasions the plaintiff notified the defendant's employees that the safety unit on the furnace did not clearly indicate whether the pilot light was on. The defendant's employees' instructions to the plaintiff to open the furnace door to see if the pilot light was on in no way resembles a warning. As stated above, the defendant knew the capabilities of the furnace to accumulate unburned fuel which could result in a dangerous roll-out. The defendant had a duty adequately to warn the plaintiff of this unreasonably dangerous condition.

The failure to place an adequate warning on the furnace's safety unit, as well as the failure verbally to warn...