Snell v. Norwalk Yellow Cab, Inc.

         Argued September 13, 2018

         Appeal from the Superior Court, Judicial District of Stamford-Norwalk, Povodator, J.

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[Copyrighted Material Omitted]

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          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, D’Auria, 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 Sainval’s negligence was a proximate cause of some or all of the plaintiff’s injuries. The jury also found, nevertheless, that the defendants were not liable for the plaintiff’s injuries because the accident that occurred was not within the scope of the risk created by Sainval’s negligence.

         The plaintiff thereafter filed a motion to set aside the verdict and for a new trial claiming, inter alia, that the jury’s finding that Sainval’s 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 Sainval’s negligence. The court denied the motion and rendered judgment in accordance with the jury’s 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 court’s instructions and interrogatories misled the jury, and (3) the trial court improperly denied the plaintiff’s motion to set aside the verdict and for a new trial on the ground that the jury’s verdict was irreconcilable with its responses

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to the interrogatories. Snell v. Norwalk Yellow Cab, Inc., 172 Conn.App. 38, 41, 158 A.3d 787 (2017). The Appellate Court rejected the plaintiff’s claims; id., at 41-42, 158 A.3d 787; and we granted the plaintiff’s 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 plaintiff’s 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

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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 plaintiff’s 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 Sainval’s 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 [Sainval’s] alleged negligence and/or carelessness and the plaintiff’s 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,

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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 plaintiff’s 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 court’s rationale in Barry for abandoning the doctrine of superseding cause in cases alleging that an intervening negligent act or acts contributed to a plaintiff’s 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 Sainval’s conduct, and that if the jury found this to be so, then the defendants should not be found responsible for the plaintiff’s 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 Sainval’s 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 Sainval’s conduct was a substantial factor in causing the plaintiff’s 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

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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 court’s 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.

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          "After the parties concluded their closing arguments, the court read its instructions to the jury. The relevant portions of the court’s instructions for purposes of the present appeal are those addressing proximate causation, which provided in relevant part as follows: ‘Once you’ve 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 defendant’s 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 defendant’s 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 defendant’s 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 defendant’s negligent contribution to the injury merely trivial or inconsequential, the defendant’s 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 ...