Norrie v. Heil Co., 12851

CourtSupreme Court of Connecticut
Writing for the CourtBefore PETERS; HULL
Citation525 A.2d 1332,203 Conn. 594
Parties, Prod.Liab.Rep. (CCH) P 11,450 James G. NORRIE, et al. v. The HEIL COMPANY.
Docket NumberNo. 12851,12851
Decision Date26 May 1987

Robert J. Sweeney, West Haven, with whom, on the brief, were James F. Early and James D. Horwitz, New Haven, for appellants (plaintiffs).

Joseph A. Moniz, Hartford, with whom was Sally R. Moore, for appellee (defendant).


HULL, Associate Justice.

After a trial to a jury in this strict liability action, judgment was rendered for the defendant. From this judgment, the plaintiffs have appealed, claiming that the trial court erred: (1) in effectively charging the jury that contributory negligence is a defense to an action in strict tort liability; (2) in using special interrogatories which inaccurately described the applicable law and confused the jury; and (3) in accepting a jury verdict finding the conduct of the named plaintiff both foreseeable and not foreseeable.

The jury could reasonably have found the following facts. The plaintiff, James G. Norrie, 1 began working at Connecticut Waste Processing, Inc. (Connecticut Waste), as a driver and unloader of a waste disposal truck in September, 1977. Prior to working for Connecticut Waste, the plaintiff had enrolled in and completed the course at New England Tractor Trailer Training School in Somers to become a licensed tractor trailer truck driver. In addition to this training, the plaintiff had other experience operating tractor trailers. Upon being hired by Connecticut Waste, the plaintiff was trained for two consecutive days in the operation and unloading of a transfer trailer manufactured by the defendant, the Heil Company (Heil), which he was to drive. The training program included, inter alia, instructions on the proper method of unloading the Heil transfer trailer.

The Heil transfer trailer was used to haul trash. The trailer contained two doors at its rear end, a small lower door which was used for loading, and a larger door which was used for unloading trash. The Heil transfer trailer was loaded with trash by first opening the small door and backing the trailer up to a trash compactor, which fit or hitched onto the opening of the small door. The compactor then would push the trash through the small door opening into the empty trailer. The latch mechanism for opening the small door was located in the middle of the rear end of the trailer. This door was properly used only for loading the trash into an empty transfer trailer.

Connecticut Waste did not instruct the plaintiff as to any use for the small door other than for loading the trailer. The plaintiff was instructed by Connecticut Waste that the Heil transfer trailer was unloaded by first opening the large door and then engaging a ram mechanism to push the trash out of the trailer. The large door was opened by pushing down a lever located at the rear end of the trailer, on the passenger's side. Once the lever was in the down position, the driver would then engage the ram mechanism from the cab of the trailer. The ram, which is located at the front end of the trailer, would then push the load out of the large door of the trailer by hydraulic pressure. The load could not be pushed out of the small door.

The plaintiff's exclusive duties at Connecticut Waste consisted of hauling trash from a transfer station in New Haven to various landfill dump sites. Depending upon the location of the dump site, the plaintiff would make three to six trips daily. On each trip the plaintiff would load and then unload the Heil transfer trailer.

The plaintiff was aware of the proper method of loading and unloading the Heil transfer trailer as described above. He claimed, however, that there were times when he found it difficult to release, or shift, the lever for the large door. When this occurred, he sometimes would use a two-by-four to pound at the latch mechanism on top of the large door to force the door open. At other times, he would open the small door to relieve the pressure on the large door, and then he would open the large door in the normal fashion.

On October 17, 1978, the plaintiff had made three trips before the accident occurred. On the fourth trip, the plaintiff was unable to release the latch for the large door and thus opened the small door to relieve the pressure. He claimed that when he opened the small door it sprang out, hitting him in the neck and upper shoulder areas. He then opened the large door by the latch and proceeded to unload the trailer.

The plaintiff completed unloading the trailer and returned to Connecticut Waste. He did not seek medical treatment for his injuries until almost six weeks later, when he was treated for neck injuries. The plaintiff underwent surgery in October, 1979, for a fusion of his cervical spine. He was operated on again for the same condition in June, 1980, because the initial fusion "did not take."

The plaintiff subsequently brought suit under our product liability statutes, General Statutes § 52-572l, et. seq. He alleged that the defendant was strictly liable to him because the Heil transfer trailer was defective, unsafe and unreasonably dangerous, and the defects were a direct and proximate cause of his injuries. The defendant raised five special defenses, including product misuse and knowingly using the product in a defective condition. The trial court charged the jury as to the claim of strict product liability and the special defenses. 2 The jury returned a verdict for the defendant. Through the use of special interrogatories, it was shown that the jury found that the defendant had proved "that the misuse or failure to properly load the transfer trailer by the plaintiff was a proximate cause of the plaintiff's injuries." The plaintiff's motion to set aside the verdict was denied.


The plaintiff's first claim is that the trial judge erroneously charged the jury on contributory negligence, which is not a defense to a product liability action. In order to understand the subtle distinction raised in this issue, it is helpful to look briefly at the history of defenses to products liability actions in Connecticut.

Prior to 1977, this court held that contributory negligence in the use of a product, as distinguished from failure to discover a defect, was a defense to a strict product liability claim. See Hoelter v. Mohawk Service, Inc., 170 Conn. 495, 505-506, 365 A.2d 1064 (1976). In 1977, however, the legislature enacted General Statutes § 52-572l. Public Acts 1977, No. 335. The following is the pertinent language of the statute: "In causes of action based on strict tort liability, contributory negligence or comparative negligence shall not be a bar to recovery.... Nothing in this section shall be construed as barring the defense of misuse of the product or the defense of knowingly using the product in a defective condition in an action based on strict tort liability."

This statute, therefore, eliminated contributory negligence as a defense to product liability actions, while expressly allowing the defenses of "misuse of the product" and "knowingly using the product in a defective condition." "[K]nowingly using the product in a defective condition" has been defined narrowly. It "is narrower than the common-law defense of assumption of the risk, which bars recovery when a person knows or as a reasonable person should know that in pursuing a certain course he will expose himself to the risk of injury, comprehends or ought as a reasonable person to comprehend the nature and extent of the risk and voluntarily subjects himself to it. Nally v. Charbonneau, 169 Conn. 50, 53, 362 A.2d 494 (1975)." (Emphasis in original.) Kelly v. Deere & Co., 627 F.Supp. 564, 565 (D.Conn.1986). In other words, the risk must be assumed knowingly and voluntarily. Mere negligence will not be sufficient to deny recovery.

The other valid defense under General Statutes § 52-572l is misuse of the product. "Misuse" occurs when a product is not used "in a manner which should have been foreseen by the defendant." Hoelter v. Mohawk Service, Inc., supra, 170 Conn. at 517, 365 A.2d 1064.

We now turn to the jury instruction in question. After reading to the jury the special defenses, the court instructed in relevant part: "[I]t's basically the defendant's claim that you're not supposed to unload this truck--trailer--that way, and again it's a question of whether or not it was, first of all, a defect unreasonably dangerous and whether or not on the warnings whether or not it was foreseeable by Heil that somebody would get back there and try and open the trailer that way. So that's for you to decide....

"Now, basically, as I said, the special defenses are a claim of the misuse of the product. If you find that the plaintiff was misusing the product at the time of his injury, then as I said before your verdict would have to be for the defendant. Misuse of a product has been defined as 'use in a manner not reasonably foreseen by the manufacturer. A manufacturer or seller is entitled to expect a normal use of his product.' This special defense also incorporates the plaintiff's, again, I suppose, voluntarily proceeding to encounter a known danger. That's the defendant's claim. He'd been dumping these trailers for a long time. He should have known that there was a potential hazard."

The court charged further: "If you find that the plaintiff knew or should have known of a hazard to which he was exposing himself by unloading it as set forth in the third count of the special defense, or again by failing to follow--you know--the instructions that he was given, that's for you to determine what instructions he was given, if any, again, then he may not recover under this complaint.

"If you find that he moved to encounter a known danger, and this moving to encounter a danger which he knew or should have known was a proximate cause...

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