Kyrtatas v. Stop & Shop, Inc., 13164

• Court: Supreme Court of Connecticut
• Writing for the Court: Before PETERS; SHEA
• Citation: 535 A.2d 357,205 Conn. 694
• Decision Date: 05 January 1988
• Docket Number: No. 13164,13164
• Parties: , 56 USLW 2524, Prod.Liab.Rep. (CCH) P 11,705 Socrates KYRTATAS et al. v. STOP & SHOP, INC., et al.

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535 A.2d 357 205 Conn. 694, 56 USLW 2524,
Prod.Liab.Rep. (CCH) P 11,705 Socrates KYRTATAS et al.
v.
STOP & SHOP, INC., et al. No. 13164. Supreme Court of Connecticut. Argued Nov. 6, 1987.
Decided Jan. 5, 1988.

[205 Conn. 695] James R. Hawkins, with whom was Edward V. O'Hanlan, Stamford, for appellant (defendant Shield Packaging Co., Inc.).

Kevin M. Tepas, with whom was Ann Marie W. Vetrosky, Bridgeport, for appellee (named defendant).

Before [205 Conn. 694] PETERS, C.J., and ARTHUR H. HEALEY, SHEA, COVELLO and HULL, JJ.

[205 Conn. 695] SHEA, Associate Justice.

The dispositive issue in this appeal is whether common law indemnity principles based on the concept of active versus passive liability apply in the context of a statutory product liability action. We conclude that these principles do not apply in this area and find error. We set aside the judgment for the named defendant, Stop & Shop, Inc. (Stop & Shop), on its cross complaint for indemnification from the defendant Shield Packaging Company, Inc. (Shield Packaging), and remand the case to the trial court with direction to modify the judgment in accordance with the jury's findings concerning the comparative responsibility among the plaintiff and the defendants.

The plaintiffs, Socrates Kyrtatas and his wife, Fillia Kyrtatas, brought this action as a result of injuries that Socrates suffered when an aerosol can of Stop & Shop window cleaner exploded and struck him in the face. Stop & Shop was the seller and

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distributor of this aerosol can. Shield Packaging designed the formula, and filled the can for Stop & Shop. The defendant Crown, [205 Conn. 696] Cork & Seal Company, Inc. (Crown Cork), manufactured the can, which bore Stop & Shop's label. The plaintiffs brought suit under our product liability act; General Statutes §§ 52-572m through 52-572r; and alleged two basic theories of liability against each of the three defendants: (1) that the Stop & Shop aerosol window cleaner was defective and unreasonably dangerous because a chemical reaction between the can and its contents had caused the explosion, and because it had been sold without adequate warnings, instructions or safety precaution information; and (2) that the defendants had breached an implied warranty that the aerosol window cleaner was "adequately contained, packaged and labelled; fit for its ordinary purpose; and safe for use in a normal manner."

Each defendant denied the plaintiffs' allegations, and alleged in special defenses that Socrates Kyrtatas' own negligence in handling the aerosol can of Stop & Shop window cleaner had caused the explosion. Cross complaints were filed by the defendants Crown Cork and Stop & Shop against each other and against Shield Packaging, seeking indemnity for whatever damages the plaintiffs might recover. Shield Packaging filed a cross complaint seeking indemnity from Crown Cork. Counsel for the defendants agreed prior to trial to limit the grounds of their cross complaints to common law indemnity only; accordingly, no contractual indemnity claims were presented.

At the close of its instructions, the trial court provided the jury with a special verdict form, prepared by counsel and the court, on which to answer special interrogatories relating to the allegations of the complaint and cross complaints. The jury returned its verdict on the special verdict form. The jury found the defendants Stop & Shop and Shield Packaging, but not Crown [205 Conn. 697] Cork, legally responsible for the plaintiffs' injuries, and assigned comparative responsibility as follows:

Stop & Shop 49 percent
                Shield Packaging 49 percent
                Crown Cork 0 percent
                Socrates Kyrtatas 2 percent
                

The last three interrogatories of the special verdict form dealt with the defendants' cross complaints for indemnity. The jury found that Crown Cork was entitled to indemnity as against both Stop & Shop and Shield Packaging, that Stop & Shop was entitled to indemnity as against Shield Packaging, and that Shield Packaging was not entitled to indemnity from Crown Cork. The trial court rendered judgment in accordance with the verdict.

Shield Packaging has reached a settlement with the plaintiffs, and also with Crown Cork. The sole issue remaining is whether Shield Packaging must indemnify Stop & Shop for its liability under the judgment in the case.

Shield Packaging argues that common law indemnification is inapplicable in the context of a suit brought under our product liability act. General Statutes §§ 52-572m through 52-572r. We conclude that the legislature in enacting the act intended to abrogate common law indemnification in this area and replace it with a system of comparative responsibility.

"Ordinarily there is no right of indemnity or contribution between joint tort-feasors. Caviote v. Shea, 116 Conn. 569, 575, 165 A. 788 [1933]." Kaplan v. Merberg Wrecking Corporation, 152 Conn. 405, 412, 207 A.2d 732 (1965). "Where, however, one of the defendants is in control of the situation and his negligence alone [205 Conn. 698] is the direct immediate cause of the injury and the other defendant does not know of the fault, has no reason to anticipate it and may reasonably rely upon the former not to commit a wrong, it is only justice that the former should bear the burden of damages due to the injury." Preferred Accident Ins. Co. v. Musante, Berman & Steinberg Co., 133 Conn. 536, 543, 52 A.2d 862 (1947). Under the circumstances described, we have distinguished between "active or primary negligence," and "passive or secondary negligence."

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Kaplan v. Merberg Wrecking Corporation, supra, 152 Conn. at 415, 207 A.2d 732. Indemnity shifts the impact of liability from passive joint tortfeasors to active ones. Id., at 412-16, 207 A.2d 732.

A plaintiff in an action for indemnification not...