Gomeau v. Forrest

• Citation: 409 A.2d 1006,176 Conn. 523
• Court: Supreme Court of Connecticut
• Decision Date: 30 January 1979
• Parties: Edward B. GOMEAU, Administrator v. Arthur R. FORREST et al. (ESTATE of Matthew GOMEAU)

Page 1006

409 A.2d 1006

176 Conn. 523

Edward B. GOMEAU, Administrator v. Arthur R. FORREST et al.

(ESTATE of Matthew GOMEAU)

Supreme Court of Connecticut.

Argued Nov. 8, 1978.

Decided Jan. 30, 1979.

David M. Reilly, Jr., New Haven, with whom was Thomas O. Terrace, Hamden, for appellants (third-party plaintiffs).

Donald W. O'Brien, Hartford, for appellees (third-party defendants).

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

LOISELLE, Associate Justice.

The original action herein, alleging that the negligence of an owner and an operator of a truck caused the injuries and death of two-year-old Matthew Gomeau, was brought by his estate. The owner and the operator of the truck then brought a third-party complaint against the parents of the deceased child, claiming that the failure of the parents to exercise reasonable care in the supervision of the activities of the child was the direct and immediate cause of the child's injuries and death, and praying for damages in indemnity or in contribution. The third-party defendants, the parents, demurred to that complaint. Their demurrer was sustained by the court. It is from the judgment rendered thereon that the third-party plaintiffs have appealed.

The third-party plaintiffs claim that the trial court erred in concluding that (1) contribution is not allowed between joint tortfeasors in Connecticut; (2) intrafamily tort immunity is an effective bar to the third-party action; and (3) a parent's negligent supervision of a child is not actionable in this state. Because the issue of contribution is dispositive of this appeal, we do not address the other two arguments.

The third-party plaintiffs argue that the enactment of General Statutes § 52-572h, which adopted the comparative negligence doctrine, effectively abrogated the doctrine of noncontribution among joint tortfeasors. It is their claim that the express language of General Statutes § 52-572h permits and authorizes the court to hear claims for contribution.

The common law of this state, unlike that of a number of other jurisdictions, does not permit contribution between joint tortfeasors. Fox v. Fox, 168 Conn. 592, 595, 362 A.2d 854 (1975); Rose v. Heisler, 118 Conn. 632, 633, 174 A. 66 (1934); Caviote v. Shea, 116 Conn. 569, 575, 165 A. 788 (1933); 18 Am.Jur.2d, Contribution, § 33. See also a thorough discussion of the subject of contribution in annot., 53 A.L.R.3d 184. Our rule has certain exceptions, notably in the indemnity situation where the liability of a defendant is vicarious or based merely on a relationship, such as that of employer-employee. Kaplan v. Merberg Wrecking Corporation, 152 Conn. 405, 412, 207 A.2d 732 (1965); Preferred Accident Ins. Co. v. Musante, Berman & Steinberg Co., 133 Conn. 536, 542, 52 A.2d 862 (1947); Bailey v. Bussing, 28 Conn. 455 (1859).

In 1973, General Statutes § 52-572h, entitled "Negligence actions. Doctrines applicable," became effective. ¹ The central purpose of the act was to replace the harsh rule that contributory negligence was a complete defense in negligence cases with the rule that contributory negligence merely operates to diminish the amount recovered as damages in proportion to the percentage of negligence attributable to the person recovering. Subsection (a) of the statute sets up the comparative negligence standard in lieu of the common-law contributory negligence doctrine. Subsection (c), which abolished the common-law doctrine of last clear chance and assumption of risk, further effectuates the purpose of the act to modify the contributory negligence doctrine. Nowhere in the wording of the statute is there any indication that the legislature intended to change the longstanding common-law rule against contribution among joint tortfeasors. Indeed, the title of the act states "Doctrines applicable." The only doctrines mentioned in the act are those of contributory negligence, last clear chance and assumption of risk. None of these has any relationship to the question of whether contribution or indemnity will be enforced among joint tortfeasors. The legislative history further demonstrates that the sole intent of the legislature was to modify the doctrine of contributory negligence to allow diminished recovery based on the degree of a plaintiff's own negligence. 16 H.R.Proc., pt. 13, 1973 Sess., p. 6432.

The third-party plaintiffs claim that even if it is found that the legislature did not intend to include a modification of the rule against contribution, it in fact did so by the language it used. It is true that in the interpretation of statutes, the intent of the legislature is to be found not in what it meant to say, but in what it did say. Sillman v. Sillman, 168 Conn. 144, 148, 358 A.2d 150 (1975); Schwab v. Zoning Board of Appeals, 154 Conn. 479, 482, 226 A.2d 506 (1967).

The third-party plaintiffs argue that the use of the phrase "any person" as delineating who can sue under General Statutes § 52-572h and the use of the plural "persons" is deliberate and meaningful. These words, according to the third-party plaintiffs, would be superfluous if contribution between tortfeasors was not allowed. This is not the case. One reason the legislature could have had for using the phrase "any person" in defining who can bring suit is to include a next best friend for a minor or an incompetent. The use of the plural word "persons" cannot, without other apparent intention in the statute, be a basis for abolishing a long-established common-law rule wholly unrelated to the central thrust of the entire act. Courts should not read into clearly expressed legislation provisions which do not find expression in its words. Houston v. Warden, 169 Conn. 247, 251, 363 A.2d 121 (1975). "In the interpretation of a statute, a radical departure from an established policy cannot be implied. It must be expressed in unequivocal language." Jennings v. Connecticut Light & Power Co., 140 Conn....