Argued
September 13, 2018
Appeal
from the Superior Court, Judicial District of
Stamford-Norwalk, Povodator, J.
Page 647
[Copyrighted Material Omitted]
Page 648
Adam
J. Blank, Stamford, with whom was Sarah Gleason, for the
appellant (plaintiff).
Laura
Pascale Zaino, Hartford, with whom were Gregory S. Kimmel,
Westport, and, on the brief, Kevin M. Roche, Hartford, Logan
A. Carducci and Zachary M. Dunn, Hartford, for the appellees
(named defendant et al.).
Jeffrey
R. Babbin, New Haven, and Christopher P. Kriesen, Hartford,
filed a brief for the Connecticut Defense Lawyers Association
as amicus curiae.
Palmer,
DAuria, Mullins, Kahn and Ecker, Js.
OPINION
PALMER,
J.
[332
Conn. 723] The plaintiff, Brenda Snell, brought this
negligence action against the defendants, Johnley Sainval, a
taxicab driver, his employer, Norwalk Yellow Cab, Inc.
(Yellow Cab), and Vito Bochicchio, Jr., the sole shareholder
of Yellow Cab, seeking damages for serious injuries she
sustained when she was struck by a taxicab that had been
stolen from Sainval by two teenagers after Sainval left the
vehicle unattended with the key in the ignition in a Norwalk
neighborhood known to have a higher than average crime rate.
A jury trial ensued at which the defendants claimed, inter
alia, that the conduct of the two thieves was a superseding
cause that relieved Sainval of any liability to the plaintiff
for his alleged negligence. At the conclusion of the trial,
the jury, in response to interrogatories submitted to it by
the trial court, found that Sainval was negligent in leaving
the taxicab unattended with the key in the ignition; that, in
light of the surrounding neighborhood, it was reasonably
foreseeable that the vehicle would be stolen and operated in
an unsafe manner; and that Sainvals negligence was a
proximate cause of some or all of the plaintiffs injuries.
The jury also found, nevertheless, that the defendants were
not liable for the plaintiffs injuries because the accident
that occurred was not within the scope of the risk created by
Sainvals negligence.
The
plaintiff thereafter filed a motion to set aside the verdict
and for a new trial claiming, inter alia, that the jurys
finding that Sainvals negligence constituted a proximate
cause of the accident was legally inconsistent with its
finding that the accident was outside the scope of the risk
created by Sainvals negligence. The court denied the motion
and rendered judgment in accordance with the jurys verdict.
The plaintiff then appealed to the Appellate Court, claiming
that (1) it was improper for the trial court to instruct the
jury on the doctrine of superseding cause, (2) even if the
[332 Conn. 724] doctrine were properly submitted to the jury,
the courts instructions and interrogatories misled the jury,
and (3) the trial court improperly denied the plaintiffs
motion to set aside the verdict and for a new trial on the
ground that the jurys verdict was irreconcilable with its
responses
Page 649
to the interrogatories. Snell v. Norwalk Yellow Cab,
Inc., 172 Conn.App. 38, 41, 158 A.3d 787 (2017). The
Appellate Court rejected the plaintiffs claims;
id., at 41-42, 158 A.3d 787; and we granted the
plaintiffs petition for certification to appeal, limited to
the following issues: (1) "Did the Appellate Court
correctly determine that the judgment of the trial court
should be affirmed on the basis that the doctrine of
superseding cause applies in cases in which the conduct of a
third party is criminally reckless?" Snell v.
Norwalk Yellow Cab, Inc., 325 Conn. 927, 927-28, 169
A.3d 232 (2017). And (2) "Did the Appellate Court
correctly determine that the trial court did not abuse its
discretion when it denied the plaintiffs motion to set aside
the verdict and for a new trial?" Id., at 928,
169 A.3d 232. Although we answer the first question in the
affirmative, we answer the second in the negative and,
accordingly, reverse the judgment of the Appellate Court.
The
opinion of the Appellate Court sets forth the following
relevant facts, which the jury reasonably could have found,
and procedural history. "On December 3, 2009, Sainval,
who was employed by Yellow Cab as a taxicab driver, was
operating a taxicab owned by Yellow Cab in Norwalk. In the
early evening, he drove the taxicab to Monterey Village, a
housing complex located in an area of the city with
significant criminal activity. Sainval parked the taxicab and
went inside one of the apartments, leaving the taxicab
unlocked and unattended with the keys in the ignition.
"Two teenagers, Shaquille Johnson and Deondre Bowden,
who that afternoon had been consuming alcohol and smoking
marijuana, noticed the parked taxicab. Although they
initially intended to steal anything of [332 Conn. 725] value
that they could find inside the unlocked taxicab, once they
observed the keys in the ignition, the two teens decided to
steal the taxicab and to go on a joy-ride. They drove the
taxicab from Norwalk to Stamford, making one brief stop in
between, with each of the teens taking a turn driving the
vehicle.
"When they reached Stamford, they [encountered] traffic.
At that time, Bowden was driving the taxicab. He kind of
nodded off and rear-ended the vehicle in front of him.
Bowden, who was both tipsy and high, then attempted to
flee the scene. In order to maneuver the taxicab around the
vehicle he had struck, Bowden drove the taxicab up over the
curb of the road and onto the adjoining sidewalk. In doing
so, Bowden first hit a fire hydrant before striking the
plaintiff with the taxicab.
"The
plaintiff sustained severe physical injuries, particularly to
her midsection, requiring millions of dollars in medical
expenditures as of the time of trial, with additional
treatments and surgeries expected. After hitting the
plaintiff, Bowden never attempted to stop the vehicle; he and
Johnson exited the stolen taxicab while it was still moving
and fled the scene on foot, returning home by train. The
police later identified the teens as the individuals involved
in the hit and run of the plaintiff and arrested
them.[1]
"The
plaintiff initially commenced this action solely against
Sainval and Yellow Cab.[2] Johnson and Bowden [332 Conn. 726]
were not
Page 650
named by the plaintiff as defendants in the civil action.
Although the defendants filed an apportionment complaint
against the two teens, the court later granted the
plaintiffs motion to strike the apportionment complaint,
agreeing with the plaintiff that apportionment was
unavailable in the present case because the misconduct of the
teenagers was not pleaded as mere negligence but as reckless
or intentional conduct. See General Statutes § 52-572h (o)
(there shall be no apportionment of liability or damages
between parties liable for negligence and parties liable on
any basis other than negligence including, but not limited
to, intentional, wanton or reckless misconduct); Allard
v. Liberty Oil Equipment Co., 253 Conn. 787, 801, 756
A.2d 237 (2000) (recognizing that § 52-575h [o] was enacted
to expressly overrule in part Bhinder v. Sun Co.,
246 Conn. 223, 234, 717 A.2d 202');">717 A.2d 202 [1998], in which [this
court] had recognized [common-law] extension of statutory
apportionment liability for parties whose conduct was
reckless, wilful and wanton).
"The
operative second amended complaint contains two counts
relevant to the issues on appeal.[3] Count one sounds in
negligence against Sainval. According to the plaintiff,
Sainval acted negligently by leaving his taxicab in an
unguarded public parking lot in a high crime area with the
keys in the ignition, which created the reasonably
foreseeable risk that the taxicab would be stolen and that a
thief would drive the taxicab in an [332 Conn. 727] unsafe
manner and cause injury to a person or to property. Count two
alleges that Yellow Cab was vicariously liable for Sainvals
negligence on a theory of respondeat superior. Prior to
trial, Yellow Cab conceded that it would be liable to the
same extent that Sainval was found liable on count one.
"In
their amended answer, the defendants, by way of a special
defense, raised the doctrine of superseding cause. The
defendants pleaded that, [i]f the plaintiff sustained the
injuries and losses as alleged in her complaint, said
injuries and losses were the result of the intentional,
criminal, reckless and/or negligent conduct of a third party,
which intervened to break the chain of causation between
[Sainvals] alleged negligence and/or carelessness and the
plaintiffs alleged injuries and losses. " (Footnotes
altered; footnote in original, footnotes omitted.) Snell
v. Norwalk Yellow Cab, Inc., supra, 172 Conn.App. at
42-45, 158 A.3d 787.
"[T]he
court initially indicated to the parties that it was not
inclined to give a superseding cause instruction to the jury
because, on the basis of its reading of ... Barry v.
Quality Steel Products, Inc., [ 263 Conn. 424, 820 A.2d
258 (2003)], superseding cause was no longer part of our tort
jurisprudence except in limited circumstances,
Page 651
specifically, cases involving either an intervening
intentional tort, act of nature, or criminal event that was
unforeseeable to the defendant. The court suggested that the
exception was not at issue in the present case because, under
the plaintiffs theory of liability, the intervening theft of
the car was entirely foreseeable.
"The
defendants, however, argued that the court was focusing on
the wrong criminal act. They indicated that it was not
necessarily the theft of the taxicab in this case that
warranted an instruction on superseding cause but the
unforeseeability of the thieves subsequent criminal [332
Conn. 728] conduct, namely, intentionally driving the taxicab
up onto a sidewalk to evade responsibility for a rear-end
collision and the ensuing criminal assault on the plaintiff.
Furthermore, the defendants noted that part of the courts
rationale in Barry for abandoning the doctrine of
superseding cause in cases alleging that an intervening
negligent act or acts contributed to a plaintiffs injuries
was that apportionment of liability between tortfeasors was
permitted, which would prevent a less culpable defendant from
inequitably shouldering full responsibility for injuries that
resulted from multiple negligent acts. The defendants
contended that, unlike Barry, this case involved
intervening actions of other tortfeasors that were not merely
negligent but reckless and criminal. In such a case, the
defendants argued, apportionment of liability is unavailable
by statute; see General Statutes § 52-572h (o); and, thus,
the primary policy rationale underlying the abolishment of
the doctrine of superseding cause was absent. The court
indicated that it would review the case law and give the
issue further consideration in light of these arguments.
"[Subsequently], the court provided counsel with the
latest draft of its jury instructions and also with copies of
draft interrogatories that the court intended to submit to
the jury. The court indicated that the current version of the
instructions included a new paragraph that the court had
decided to add after further consideration of the case law
concerning superseding cause and its discussions with the
parties. That paragraph instructed the jury to consider
whether the theft of the taxicab and the resulting accident
involved intentional acts that were outside the scope of the
risk created by Sainvals conduct, and that if the jury found
this to be so, then the defendants should not be found
responsible for the plaintiffs injuries because the conduct
of the two teens would have been the proximate cause of those
injuries, thus relieving the defendants of any liability. The
court [332 Conn. 729] also drafted a new, related
interrogatory that asked the jury to state whether the
accident that occurred was outside the scope of the risk
created by Sainvals act of leaving the keys in the ignition
of the taxicab. The court directed the jury to return a
verdict for the defendants if the answer to that inquiry was
yes.
"Following
the close of evidence later that day, the court held a
charging conference. At the charging conference, the
plaintiff stated that it believed the additional paragraph
added by the court to its latest draft instructions was
unnecessary and confusing and that, in defining and
explaining the concept of proximate cause, the court
adequately had covered both foreseeability and whether
Sainvals conduct was a substantial factor in causing the
plaintiffs injuries. The plaintiff also stated that she did
not think there was any evidence from which the jury could
construe that the teens had intentionally sought to harm her.
The court suggested that the additional instruction was
necessary to comport with case law, referring in particular
to
Page 652
Sullivan v. Metro-North Commuter Railroad Co., 292
Conn. 150, 971 A.2d 676 (2009). It indicated its belief that
foreseeability for purposes of determining negligence and
scope of the risk for purposes of applying superseding cause,
although closely related, were slightly different
concepts.[4] The court agreed that there was
nothing in [332 Conn. 730] the record to support a finding
that the assault on the plaintiff was intentional but noted
that the two teens had also engaged in other criminal
conduct, including intentionally stealing the taxicab and
intentionally fleeing the scene to evade responsibility after
striking the plaintiff.
"The defendants noted that, although the courts
proposed jury instruction made reference to a special
defense, it never identified that defense; in fact, the term
superseding cause was never used by the court. The
defendants argued that they intended to reference that term
in ... closing arguments and that they were entitled to a
separate charge addressing their superseding cause defense.
The defendants also took the position that, unlike in
criminal law, tort law made no meaningful distinction between
reckless and intentional conduct, and, thus, they asserted
that it was inconsequential whether the criminal assault on
the plaintiff was the result of intentional or reckless
conduct for purposes of applying the doctrine of superseding
cause.
"On December 11, 2014, prior to closing arguments, the
plaintiff requested that the court change the order of the
proposed interrogatories. The interrogatory that the court
had added regarding scope of the risk, which the court
indicated related to the special defense of superseding
cause, was, at the time, interrogatory number four.
Interrogatory number five at that time asked whether the
plaintiff had proven that some or all of her injuries were
proximately caused by Sainval. The plaintiff argued that
because proximate cause was an element of her prima facie
case, it made more sense for the jury to answer that
interrogatory and fully establish a prima facie case before
turning to any consideration [332 Conn. 731] of a special
defense. According to the plaintiff, this would also negate
the need for a retrial in the event there was a defendants
verdict on the special defense that was overturned later on
appeal; all that would be required would be a hearing in
damages. The defendants did not agree that a switch was
necessary. The court nevertheless indicated that it would
most likely make the switch and later incorporated the change
in the interrogatories it submitted to the jury. The court
also indicated that it had made some additional changes based
[on] the positions of the parties at the charging conference,
including referring to the doctrine of superseding cause by
name.
Page 653
"After the parties concluded their closing arguments,
the court read its instructions to the jury. The relevant
portions of the courts instructions for purposes of the
present appeal are those addressing proximate causation,
which provided in relevant part as follows: Once youve
gotten past factual causation, you need to address proximate
cause. Proximate cause means that there must be a sufficient
causal connection between the act or omission alleged, and
any injury or damage sustained by the plaintiff.
"
An act or omission is a proximate cause if it was a
substantial factor in bringing about or actually causing the
injury. That is, if the injury or damage was a direct result,
or a reasonable and probable consequence of the defendants
act or omission, it was proximately caused by such an act or
omission.
"
In other words, if an act had such an effect in producing
the injury that reasonable persons would regard it as being a
cause of the injury, then the act or omission is a proximate
cause. In order to recover damages for any injury, the
plaintiff must show by a preponderance of the evidence that
such injury would not have occurred without the negligence of
the defendant.
[332
Conn. 732] " If you find that the plaintiff complains
about an injury which would have occurred even in the absence
of the defendants conduct, or is not causally connected to
this accident, you must find that the defendant did not
proximately cause that injury.
"
Under the definitions I have given you, negligent conduct
can be a proximate cause of an injury, if it is not the only
cause, or even the most significant cause of the injury,
provided it contributes materially to the production of the
injury, and thus is a substantial factor in bringing it
about.
"
Therefore, when a defendants negligence combines together
with one or more other causes to produce an injury, such
negligence is a proximate cause of the injury if its
contribution to the production of the injury, in comparison
to all other causes, is material or substantial.
"
When, however, some other causal causes contributes so
powerfully to the production of an injury, as to make the
defendants negligent contribution to the injury merely
trivial or inconsequential, the defendants negligence must
be rejected as a proximate cause of the injury, for it has
not been a substantial factor in bringing the injury
about.[5]
"
Or to put it another way, if you find that the injury would
have been sustained, whether or not the defendant had been
negligent, his negligence would not have been a proximate
cause of the accident. It is your responsibility to determine
which, if any, of the injuries and damages claimed by the
plaintiff were proximately caused by the conduct of the
defendant.
[332
Conn. 733] " The defendants have claimed that the theft
and operation of the car by [Johnson] and [Bowden], and the
resulting accident, constituted such an event, an event that
was so overpowering in consequence as to render any possible
negligence on the part of defendant Sainval relatively
insignificant, and therefore not a proximate cause of the
injuries sustained by plaintiff.
"
Foreseeability of the car being stolen, something you would
have considered in connection with ...