Hoelter v. Mohawk Service, Inc.

Decision Date06 April 1976
Citation170 Conn. 495,365 A.2d 1064
CourtConnecticut Supreme Court
PartiesGerhard HOELTER v. MOHAWK SERVICE, INC., et al.

Bernard J. Virshup, New Haven, with shom was Geoffrey A. Hecht, New Haven, for appellant (plaintiff).

William B. Rush, Bridgeport, with whom was Kay Parker Jex, Bridgeport, for appellee (named defendant).

Gregory C. Willis, Bridgeport, with whom was John P. Chiota, Bridgeport, for appellee (defendant Perelli Atlantic, Inc.).


HOUSE, Chief Justice.

This appeal arose from a one-car accident which happened in January, 1971. We begin our consideration of the merits of the appeal by a brief recital of the facts which the jury could have found from the evidence viewed in the light most favorable to sustaining the verdict which was in favor of both defendants. Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 555, 316 A.2d 394; Hally v. Hospital of St. Raphael, 162 Conn. 352, 359, 294 A.2d 305.

On January 21, 1971, the plaintiff, aged 64, was operating his 1964 MBG sports car in an easterly direction on the Merritt Parkway in Greenwich, returning home from work. A coworker, Charles Ehrlinger, was a passenger in the front seat beside him. The posted speed limit was 55 miles per hour, the weather was clear and the road was dry. At a point east of the North Street overpass, the plaintiff passed a car being operated by Lawrence J. Albertini who was traveling approximately 55 to 58 miles per hour. The Hoelter vehicle shot past the Albertini car 'as though he were standing still' and was traveling in excess of 70 miles per hour. Immediately before this passing, Ehrlinger was yelling at the plaintiff to slow down and as they passed the Albertini car he looked at the speedometer which read 80 miles per hour. At this point, the parkway was on a downgrade with a sharp left-hand curve. After passing the Albertini car, the plaintiff maintained his speed and when he was 5 to 8 car lengths ahead attempted to cut over from the left-hand lane into the right-hand lane at too sharp an angle. At this point, the Hoelter vehicle started to fishtail. Hoelter applied his brakes and the car went out of control, headed left, then turned right across the highway, struck a guardrail on the right-hand side of the road and then traveled diagonally across the road to the left, striking the median divider and coming to rest at a point 340 to 350 feet from where the fishtailing started. Both the plaintiff and Ehrlinger sustained injuries in the crash.

At the time of the accident, Hoelter's MGB was equipped with 5.60.14 Perelli 1 studded snow tires known as Inverno Etnas, manufactured by the defendant Perelli Atlantic, Inc. He had purchased them from the defendant Mohawk Service, Inc. The stud holes in the tires were predrilled by Perelli during the manufacturing process and the studs were installed by Mohawk, being inserted into the stud holes by means of an air pressure gun. Hoelter used the tires for seven days before the accident, driving approximately 400 miles.

Hoelter sued both Perelli and Mohawk claiming that he was operating his car at less than 55 miles an hour and that the accident was caused by the manner in which the metal studs had been inserted. Both defendants claimed that the accident was caused by the manner in which Hoelter operated his vehicle under the circumstances existing at the time of the accident. The jury returned a verdict in favor of both defendants.

Hoelter's passenger, Ehrlinger, sued Hoelter, Mohawk and Perelli. The two cases were consolidated and tried together. In Ehrlinger's case, the jury returned a verdict in favor of Ehrlinger against Hoelter and Mohawk and in favor of Perelli.

We are not concerned with the Ehrlinger case except as the evidence introduced in that consolidated case may be relevant on the present appeal which has been taken by Hoelter from the judgment rendered on the verdict in favor of the defendants Mohawk and Perelli.

It is unnecessary to summarize the pleadings in greater detail than to note that the plaintiff's cause of action against both defendants sounded, in separate counts, in negligence and in strict liability and that in addition to denials both defendants pleaded that the plaintiff's own negligence was a proximate cause of any injuury or damages he had sustained.

On his appeal, the plaintiff has briefed four claims of error: (1) that the court erred in charging that contributory negligence in the sense of failure to operate a motor vehicle, as to control and speed, with the care of a reasonably prudent person constituted a defense to an action in strict tort liability; (2) that it erred in charging that the jury could infer from damage and distance traveled the rate of speed of the plaintiff's vehicle without benefit of expert testimony; (3) that the court erred in failing in its charge to the jury to define the phrase 'prima facie evidence' and to apply it to the evidence in the case; and (4) that the court erred in denying the plaintiff's motion to set aside the verdict on the grounds that the plaintiff did not receive a fair trial because 'the court's interplay with the jury, during the course of the jury deliberations, (1) was tantamount to coercion and (2) constituted an impermissible invasion of the jury function.'

The question whether the negligence of a plaintiff which is a proximate cause of injuries which he has sustained is a defense to his action in strict tort liability has not previously been decided by this court. In Rossignol v. Danbury School of Aeronautics, Inc., 154 Conn. 549, 227 A.2d 418, and Garthwait v. Burgio, 153 Conn. 284, 216 A.2d 189, we recognized the existence of a right of action sounding in tort based 'on the public policy of protecting an innocent buyer from harm rather than on the ensuring of any contractual rights.' Hamon v. Digliani, 148 Conn. 710, 716, 174 A.2d 294, 296. We expressed ourselves as in accord with the rule adopted in § 402A of the Restatement (Second) of Torts. The basic principle underlying strict tort liability is the recognition of the existence of a duty on the part of the seller of a product not to sell any product in a defective condition unreasonably dangerous to the user or consumer or to his property and that a seller who breaches this duty is subject to liability for physical harm caused thereby to the ultimate user or consumer or to his property if the seller is engaged in the business of selling such a product and it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. Liability to the user or consumer for breach of this duty attaches regardless of whether or not there exists any contractual relation or privity of contract between the seller and the user or consumer. Restatement (Second), 2 Torts § 402A.

When we recognized the validity of the principle of strict liability in tort as set out in § 402A of the Restatement, the rule of contributory negligence in tort actions was already well settled. It is predicated on the settled principle that it is 'elementary that one cannot recover for a wrong brought about by his own acts.' Cardona v. Valentin, 160 Conn. 18, 27, 273 A.2d 697, 701. It is incumbent upon every person to use reasonable care under the circumstances, that is, the care which a reasonably prudent person would use under the circumstances. Darling v. Burrone Bros., Inc., 162 Conn. 187, 198, 292 A.2d 912; Dokus v. Palmer, 130 Conn. 247, 251, 33 A.2d 315; Marfyak v. New England Transportation Co., 120 Conn. 46, 48, 179 A. 9; Farrell v. Waterbury Horse R. Co., 60 Conn. 239, 248, 21 A. 675, 22 A. 544; Dexter v. McCready, 54 Conn. 171, 172, 5 A. 855. Negligence is the failure to use such care and the engaging in conduct which creates an undue risk of harm. 'Negligence is conduct which creates an undue risk of harm to others. Contributory negligence is conduct which involves an undue risk of harm to the person who sustains it.' Restatement (Second), 2 Torts § 463, comment b. The concept is well expressed in 57 Am.Jur.2d, Negligence, § 288, p. 685: 'Contributory negligence differs from primary negligence, which involves a breach of duty to others, in that contributory negligence involves an undue risk of harm to the actor himself, and might better be described as contributory fault, or contributory misconduct.'

That such contributory fault or misconduct which is a proximate cause of injuries which a plaintiff has sustained will bar his recovery of damages from a defendant who is also guilty of a breach of duty which has proximately caused his injuries is well settled. It appears to have been first enunciated in Butterfield v. Forrester, 11 East 60, 103 Eng.Reprint 926 (1809) in which case Lord Ellenborough, C.J., observed: 'A party is not to cast himself upon an obstruction, which has been made by the fault of another, and avail himself of it, if he does not himself use common and ordinary caution to be in the right. One person being in fault will not dispense with another's using ordinary care for himself. Two things must concur to support this action; an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it, on the part of the plaintiff.' The Butterfield decision was cited with approval by this court in Beers v. Housatonic R. Co., 19 Conn. 566, 573, and, forty years later in 1890, in Broschart v. Tuttle, 59 Conn. 1, 20, 21 A. 925, 930, this court stated: 'The principle that negligence on the part of the plaintiff contributing to his injury will prevent a recovery, is universally accepted. There can be no good ground for distinction in this respect between negligence and any illegal act which is a contributing cause of the injury.' The court also made the following pertinent observation: 'It is no more unjust in principle to allow an injured person to recover compensation in...

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