VINCENT BIFOLCK, EXECUTOR (ESTATE OF JEANETTE D. BIFOLCK), ET AL. v. PHILIP MORRIS, INC.
(SC 19310)
Supreme Court of Connecticut
Argued September 13—officially released December 29, 2016*
Rogers, C. J., and Zarella, Eveleigh, McDonald, Espinosa, Robinson and Vertefeuille, Js.
* The ‘‘officially released’’ date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ‘‘officially released’’ date appearing in the opinion. In no event will any such motions be accepted before the ‘‘officially released’’ date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.
John C. Massaro, with whom were Francis H. Morrison III and, on the brief, Anthony J. Franze, pro hac vice, John B. Daukas, pro hac vice, John M. Tanksi and Michael K. Murray, for the appellee (defendant).
Jonathan M. Hoffman, pro hac vice, Cristin E. Sheehan and Kaelah M. Smith filed a brief for the Product Liability Advisory Council, Inc., as amicus curiae.
Daniel S. Rawner and Kenneth J. Parsigian, pro hac vice, filed a brief for the Chamber of Commerce of the United States of America as amicus curiae.
George Jepsen, attorney general, Gregory T. D’Auria, solicitor general, and Phillip Rosario, Jonathan J. Blake and
John J. Robinson and Cullen W. Guilmartin filed a brief for the Connecticut Defense Lawyers Association as amicus curiae.
Randall L. Goodden filed a brief for the International Product Safety and Liability Prevention Association as amicus curiae.
Jennifer M. DelMonico, Proloy K. Das, Eric B. Miller and Terence J. Brunau filed a brief for the Connecticut Business and Industry Association et al. as amici curiae.
Brenden P. Leydon filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.
Larry A. Tawwater, Alinor Sterling and Jeffrey R. White filed a brief for the American Association for Justice as amicus curiae.
Michael G. Rigg filed a brief for Aaron D. Twerski et al. as amici curiae.
Opinion
McDONALD, J. This case is the second of two diversity actions in which the federal courts certified questions for this court’s advice regarding the viability of an action under
In the present action, this court considers three substantive questions: (1) whether, for claims alleging design defects, we should abandon our dual tests based on
For the reasons that follow, we decline at this time to adopt the Restatement (Third). Nonetheless, we are persuaded that modest refinements to our product liability tests under the Restatement (Second) will clarify the plaintiff’s burden of proof in strict liability cases and provide a better guide to any necessity for adopting the Restatement (Third) or any other substantive change. We further conclude that, although all product liability claims require proof of a ‘‘defective condition unreasonably dangerous’’ to the user or consumer, unreasonably dangerous is not determined by consumer expectations under comment (i) to § 402A when such a claim may be brought under a theory of negligence. Finally, we conclude that punitive damages under the act are not limited by the common-law rule. Accordingly, we answer both of the certified questions ‘‘No.’’
I
BACKGROUND OF THE PRESENT CASE
The following facts and procedural history gave rise to the issues presently before us. The plaintiff, Vincent Bifolck, individually and as executor of the estate of his wife, Jeanette D. Bifolck (decedent), commenced this action in the District Court against the defendant, Philip Morris, Inc., after the decedent succumbed to lung cancer at the age of forty-two. The principal thrust of the complaint is that the Marlboro and Marlboro Light cigarettes manufactured by the defendant and smoked by the decedent were defectively designed and that this defective design was responsible for her lung cancer and death from that disease. The plaintiff sought compensatory damages, as well as statutory punitive damages under
One count of the complaint asserted a product liability claim under the act, but set forth separate allegations in support of theories of strict liability and negligence.3 With respect to strict liability, the plaintiff alleged that the defendant’s cigarettes were defective and unreasonably dangerous in that their design rendered the cigarettes unnecessarily addictive and unnecessarily carcinogenic. Specifically, the plaintiff alleged that the defendant had (1) added ingredients, including carcinogenic ingredients, that altered the natural form of the tobacco in the cigarettes, and (2) utilized manufacturing processes that affected the composition and form of the tobacco and nicotine, as well as the manner
After the plaintiff commenced the present action, judgment was rendered in the District Court in another action against a different cigarette manufacturer on the basis of similar allegations of strict liability and negligence. See Izzarelli v. R.J. Reynolds Tobacco Co., 806 F. Supp. 2d 516, 519–20 (D. Conn. 2011). Following the appeal by the defendant, R.J. Reynolds Tobacco Company, from that judgment to the United States Court of Appeals for the Second Circuit, that court certified the following question to this court: ‘‘Does [comment (i)] to § 402A of the Restatement (Second) of Torts preclude a suit premised on strict products liability against a cigarette manufacturer based on evidence that the defendant purposefully manufactured cigarettes to increase daily consumption without regard to the resultant increase in exposure to carcinogens, but in the absence of evidence of adulteration or contamination?’’ (Emphasis added.) Izzarelli v. R.J. Reynolds Tobacco Co., 731 F.3d 164, 169 (2d Cir. 2013). A particular focus of that question related to an example in comment (i) providing that ‘‘good tobacco’’ is not unreasonably dangerous. See footnote 2 of this opinion.
The trial in the present case was postponed to await this court’s response to that question. In the intervening period, the District Court certified two additional questions to this court for advice: (1) ‘‘Does [§] 402A of the Restatement (Second) of Torts (and comment [i] to that provision) apply to a product liability claim for negligence under [the act]?’’; and (2) ‘‘Does Connecticut’s [common-law] rule of punitive damages as articulated in Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208 [477 A.2d 988] (1984), apply to an award of statutory punitive damages pursuant to [General Statutes] § 52-240b, the punitive damages provision of the [act]?’’ Bifolck v. Philip Morris, Inc., supra, 2014 WL 585325, *8.
After oral argument to this court on both cases, we issued our decision in Izzarelli, in which we advised that comment (i) to § 402A did not preclude the strict liability theory advanced. Izzarelli v. R.J. Reynolds Tobacco Co., supra, 321 Conn. 177. We clarified that, although the two tests available under our law—the ordinary consumer expectation test and the modified consumer expectation test—both apply § 402A’s unreasonably dangerous standard, ‘‘the modified consumer expectation test is our primary strict product liability test, and the sole test applicable to the present case. Because the obvious danger exceptions to strict liability in comment (i) to § 402A of the Restatement (Second), including ‘[g]ood tobacco,’ are not dispositive under the multifactor modified consumer expectation test, we answer the certified question in the negative.’’ Id.
The jury in Izzarelli had been instructed on both strict liability tests and rendered a general verdict in favor of the plaintiff. Id., 182. Neither party had advocatеd for application of any test other than one of the two tests based on the Restatement (Second) recognized by this court. Id., 192 n.11. Nonetheless, a concurring opinion took the position that we should adopt and apply to the certified question in that case the standard
Although that position did not garner majority support in that case, the posture of the present case is more conducive to consideration of this issue. Unlike Izzarelli, this case has not yet proceeded to trial. Accordingly, the issue raised by the Izzarelli concurrence can be considered with the benefit of supplemental briefing, but without the possibility of disturbing a presumptively valid verdict under the existing standards in the absence of a challenge to those standards.
In light of these considerations, we issued an order to the parties in the present case, concurrently with the issuance of our decision in Izzarelli, seeking supplemental briefs on the following questions: (1) whether, for product liability actions premised on design defects, this court should abandon the ordinary consumer expectation test/modified consumer expectation test and adopt §§ 1, 2 (b) and 4 of the Restatement (Third), with or without the associated commentary;4 and (2) if so, whether there is any reason why this court should not apply the Restatement (Third) standard to cases pending before a trial court, like the present case. We also invited professional organizations to submit amicus briefs on the first question. Pursuant to the parties’ joint request, the court heard oral argument on these questions.
II
WHETHER TO ABANDON THE RESTATEMENT (SECOND) IN FAVOR OF THE RESTATEMENT (THIRD) FOR DESIGN DEFECT CLAIMS5
We begin with the question that this court raised because its answer could be dispositive of the first certified question regarding whether consumer expectations under comment (i) to § 402A govern recovery for a defective design under a theory of negligence. See Restatement (Third), supra, § 2, comment (g), pp. 27–28 (explaining that ‘‘consumer expectations do not constitute an independent standard for judging the defectiveness of product designs’’ and that such expectations are ‘‘relevant’’ but not controlling).
A
Parties’ Positions
The parties and the amici supporting their respective positions take sharply divergent views on every consideration relevant to this issue. The plaintiff urges us not to abandon our dual Restatement (Second) tests, characterizing the Restatement
B
Current Standard under Our Law6
Prior to 1965, plaintiffs in Connecticut relied on theories of negligence and breach of warranty in actions to recovery for injuries caused by defective products.7 In 1965, Connecticut adopted the strict liability standard for product liability actions under
Originally, this court defined unreasonably dangerous solely by reference to consumer expectations as set forth in comment (i)—the ordinary consumer expectation
In 1997, this court rejected the argument that, for design defects, we should adopt the standard in the draft Restatement (Third), requiring proof of a reasonable alternative design, instead of § 402A’s unreasonably dangerous standard. See Potter v. Chicago Pneumatic Tool Co., supra, 241 Conn. 215. In Potter, the court acknowledged a concern expressed by one court that design defects lacked an objective standard by which they may be proved, whereas manufacturing defects could be objectively evaluated against the intended design of the product. Id., 211, citing Caterpillar Tractor Co. v. Beck, 593 P.2d 871, 880 (Alaska 1979). Nonetheless, the court declined to adopt the alternative design requirement, noting that the majority of jurisdictions had not imposed such an absolute requirement. Potter v. Chicago Pneumatic Tool Co., supra, 216. More fundamentally, the court rejected this requirement
because it ‘‘imposes an undue burden on plaintiffs that might preclude otherwise valid claims from jury consideration.’’ Id., 217. The court posited that the rule would require expert witnesses, even when the jury could infer a design defect from circumstantial evidence, in contravention to our case law. Id., 217–18. It also posited that a product could be unreasonably dangerous to the consumer even when there is no alternative, safer design. Id., 219.
The court’s review of the various tests adopted by other jurisdictions convinced it, however, that our singularly focused consumer expectation test might also preclude some valid claims. Id. Therefore, instead of imposing a more stringent standard of proof, the court established an alternative means of proving that a design defect is unreasonably dangerous—the modified consumer expectation test. Id., 220. Under this test, a product is unreasonably dangerous if a reasonable, informed consumer would conclude that its risks outweigh its utility. Id., 220–21. This is a multifactor test, under which no single factor is per se determinative. See id., 221 n.15 (citing nonexclusive list of factors, including ‘‘the usefulness of the product, the likelihood and severity of the danger posed by the design, the feasibility of an alternative design, the financial cost of an improved design, the ability to reduce the product’s danger without impairing its usefulness or making it too expensive, and the feasibility of spreading the loss by increasing the product’s price or by purchasing insurance’’ [internal quotation marks omitted]). Evidence that an alternative design was available that would have reduced or avoided the danger may be proffered, but it is not a mandatory element of the plaintiff’s case. Id., 221. The court emphasized in adopting this test that it maintained its allegiance to a strict liability regime that focuses on the product’s danger and not the manufacturer’s culpability. Id., 221–22.
Whereas Potter established dual tests to prove that a design defect is unreasonably dangerous, our recent decision in Izzarelli clarified the circumstances under which each test applies. See Izzarelli v. R.J. Reynolds Tobacco Co., supra, 321 Conn. 192, 202–203. The modified consumer expectation test is our primary test. Id., 194. The ordinary consumer expectation test is reserved for those cases in which the product failed to meet consumers’ legitimate, commonly accepted, minimum safety expectations. Id., 202–203. The defect in such cases is so obvious that expert testimony is not needed to establish it and the utility of the product is not an excuse for the undisclosed defect. Id., 194, 202–203.
In sum, under either test, § 402A provides the elements of a strict product liability claim; see footnote 8 of this opinion; but the unreasonably dangerous element is determined by minimum safety expectations in one and by balancing risks and utility in the other. Izzarelli v. R.J. Reynolds Tobacco Co., supra, 321 Conn. 193, 208–209.
C
Standard under the Restatement (Third)
Unlike § 402A’s ‘‘unreasonably dangerous’’ standard, which applies to any type of product defect, § 2 of the Restatement (Third) prescribes different standards for each of the three categories of product defects—design defects, manufacturing defects and defects due to inadequate instructions/warnings. A product ‘‘is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe . . . .’’9 Restatement (Third), supra, § 2 (b), p. 14.
The comments elaborate on the practical application of this standard. They explain that this standard ‘‘adopts a reasonableness (‘risk-utility balancing’) test as the standard for judging . . . defectiveness . . . .’’
The design defect standard under § 2 is not the exclusive means of establishing liability for a design defect. The Restatement (Third) acknowledges three other standards under which a design defect could be established.
A comment to § 2 recognizes the possibility that courts could determine that
alleges that the category of product sold by the defendant is so dangerous that it should not have been marketed at all.’’
In addition, § 3 recognizes that circumstantial evidence alone may support the inference of a product defect.10
Also, § 4 (a) of the Restatement (Third) provides that ‘‘a product’s noncompliance with an applicable product safety statute or administrative regulation renders the product defective with respect to the risks sought to be reduced by the statute or regulation . . . .’’ Liability may not be assessed if the law is unclear as to its meaning or purpose, or conflicts with other safety laws with which the manufacturer must comply.
It is evident that these three alternatives to the standard under § 2 (b) have a narrow field of operation. Few products will have such a marginal utility and such a high degree of risk akin to the cartoonish example of the exploding cigar that will satisfy the manifestly unreasonable standard. See A. Twerski & J. Henderson, Jr., ‘‘Manufacturers’ Liability for Defective Product Designs: The Triumph of Risk-Utility,’’ 74 Brook. L. Rev. 1061, 1071 (2009) (authors who served as coreporters of Restatement [Third] acknowledged that ‘‘comment [(e) to § 2] speaks merely of the possibility that courts might encounter
As such, we focus our attention on the differences between this predominant standard and our tests under
§ 402A. Section 2 (b) imposes two requirements that are not mandated under our § 402A tests: (1) proof that the harm was foreseeable; and (2) proof that а reasonable alternative design existed that would have reduced or avoided the danger. Restatement (Third), supra, § 2 (b), p. 14. The comments explain that the rule under § 2 (b) is stated in functional terms rather than traditional doctrinal categories (i.e., strict liability, negligence, implied warranty).
Section 402A is a true strict liability standard. A product seller is ‘‘subject to liability to the user or consumer even though he has exercised all possible care in the preparation and sale of the product.’’
Although the availability of an alternative design could be relevant under either of our tests under § 402A, neither requires such proof. Indeed, under our primary
modified consumer expectation test, a plaintiff may establish liability solely by reference to the product sold, upon proof that its risks outweigh its utility. It bears emphasizing that this risk-utility balancing does not limit liability to products that are of excessively low utility and exceedingly high risk, as does the ‘‘manifestly’’ unreasonable standard in the Restatement (Third).
On its face, therefore, the Restatement (Third) would appear to make consequential changes to our product liability law. According to the plaintiff, adopting the Restatement (Third) would make product liability cases significantly more expensive to litigate; in many cases requiring expert testimony/product prototypes to establish that the alternative design is reasonable. As such, he contends it will be more likely that cases will be decided on pretrial motions testing the adequacy of this proof and that injured consumers with smaller damages will be unable to bring product liability actions at all.
In response, the defendant and some of the amici contend that adoption of the Restatement (Third) would not significantly alter our law in practice, because plaintiffs typically elect to proffer proof of an alternative design. The defendant does not, and could not, claim, however, that plaintiffs have ever assumed the burden of proving that the harm was foreseeable. Moreover, the defendant’s argument does not account for the fact that the adequacy of this proof has generally not been the subject of serious controversy and pretrial motions because plaintiffs have not been required to prove the reasonableness of the alternative design to prevail.
D
Whether the Restatement (Third) Should Be Adopted
In his concurring opinion in Izzarelli, Justice Zarella set forth several reasons why he believes that, regardless of the degree of difference, the greater clarity and objectivity that the Restatement (Third) provides over our current standards favors its adoption. See Izzarelli v. R.J. Reynolds Tobacco Co., supra, 321 Conn. 217–43 (Zarella, J., concurring). Putting aside the question of any purported advantages that could be gained from adoption of the Restatement (Third), we note the following considerations that weigh against its adoption.
We have followed § 402A’s strict liability standard for more than five decades. We have only modified that standard to the extent that it was necessary to fill a gap in our law; Potter v. Chicago Pneumatic Tool Co., supra, 241 Conn. 219–20; or to clarify the field of operation of those tests to a case before us. Izzarelli v. R.J. Reynolds Tobacco Co., supra, 321 Conn. 192.
In the almost two decades since this court adopted our modified consumer expectation test in Potter, there has been no evidence that our § 402A strict liability tests have proved to be unworkable. Not a single case
applying Connecticut law has been brought to our attention demonstrating either that a jury had difficulty applying our law or that a jury’s verdict yielded
In those two decades since Potter, there is also no indication that any action has been undertaken to seek changes to our tests. No party has ever asked this court to modify those tests, or to reconsider the Restatement (Third) in light of the failure of the court in Potter to address its exceptions to the alternative design requirement. See footnote 12 of this opinion; see also Restatement (Third), supra, § 2, reporters’ note, comment (d), part II C, pp. 72–73 (asserting that Potter had misinterpreted Restatement [Third] to impose per se requirement). No interest group has sought change legislatively. Shortly before the court’s decision in Potter, the Connecticut Business and Industry Association drafted a bill that sought to amend our act to incorporate the definition of design defect in the draft Restatement (Third). See Raised House Bill No. 5709, 1996 Sess.; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 5, 1996 Sess., p. 1119, remarks of Elizabeth Gara, assistant counsel for the Connecticut Business and Industry Association. That bill was not acted on by the Judiciary Committee after it heard competing views on it at a public hearing. Since Potter, other legislation has been proposed to amend the act; see Raised Bill No. 5731, 2002 Sess. (proposing to preclude evidence of subsequent remedial measures in product liability actions); see also Public Acts 2011, No. 11-200, § 1 (amending limitation period for asbestos related product liability claims); but none that would have changed our product liability standards.
An argument that our standard is unworkable because it lacks an ‘‘objective’’ basis for decision-making was implicitly rejected in Potter, and is both circular and contradicted by experience. The presumption on which this argument rests is that failing to require proof of a reasonable alternative design in a risk-utility test deprives the fact finder of an objective basis for decision-making because it lacks an alternative against which to compare the marketed product. The flaw in this argument is that it assumes that a product cannot be unsafe unless it can be made safer. If the fact finder’s task is to determine whether the defendant could have made a safer product, it necessarily follows that the absence of an alternative design makes this task impossible. If, however, the fact finder’s task is to assess whether the product is unreasonably dangerous because its risks exceed its utility, no comparison to an alternative is necessary. The fact that jurors commonly engage in such a balancing test whenever they are called upon to assess reasonableness, such as in a claim of negligence, evidences that such weighing is wоrkable.
See
In addition to the lack of evidence that our Restatement (Second) standard is unworkable, we are not persuaded that the Restatement (Third) fully addresses all of the concerns that previously led this court to reject the draft Restatement (Third). The court in Potter did not address whether it would be appropriate to require plaintiffs to prove that the risk of harm was foreseeable. Nonetheless, such a requirement would be manifestly inconsistent with the court’s concern in Potter about the burdens of expert testimony; Potter v. Chicago Pneumatic Tool Co., supra, 241 Conn. 217–18; and its unequivocal determination that policy considerations favored adherence to strict liability.16 Id., 221–22. In some cases, plaintiffs would have to obtain expert testimony to prove that the risk was foreseeable in light of the state of scientific and technical knowledge at the time the product was manufactured. Moreover, the court’s allegiance in Potter to § 402A reflects that, as between injured consumers who lack the ability to protect themselves physically and/or financially from the product’s danger and a manufacturer who might not be able to foresee the risk of harm, Connecticut would strike the balance in favor of injured consumers. See id., 209; see also Wagner v. Clark Equipment Co., 243 Conn. 168, 194, 700 A.2d 38 (1997) (‘‘[s]trict products liability is based on a policy that assumes that certain losses are better distributed in our society not on the basis of
With respect to the reasonable alternative design requirement, the court in Potter expressed a concern that such a rule would preclude valid claims for products for which there is no alternative design. Potter v. Chicago Pneumatic Tool Co., supra, 241 Conn. 217–19. Although the Restatement (Third) provides some exceptions to this requirement, they are exceedingly limited in their operation. Of particular concern is the narrow scope of manifestly unreasonable designs, which excuses this requirement only for products of negligible utility. This standard will not apply ‘‘in most instances even though the plaintiff alleges that the category of product sold by the defendant is so dangerous that it should not have been marketed at all.’’ Restatement (Third), supra, § 2, comment (d), p. 20. Thus, proof of a reasonable alternative design would be required even if the design creates a risk of grave injury or death, as long as the product has some appreciable utility. Moreover, the Restatement (Third) would
seem to immunize certain classes of products, like novel products for which there is no alternative design. See Tincher v. Omega Flex, Inc., supra, 628 Pa. 408 (declining to adopt Restatement [Third] in part because ‘‘[t]he approach suggests a priori categorical exemptions for some products—such as novel products with no alternative design—but not others,’’ citing similar concern expressed by this court in Potter as support).
The court’s concerns in Potter are not ameliorated by the argument of the defendant and some of the amici that evidence of a reasonable alternative design is routinely presented. As the Pennsylvania Supreme Court recently explained: ‘‘[R]elying upon a confined universe of reported appellate cases to draw evidence-based (versus principle-based) rules is problematic as a general matter in our mature legal system. This is so because the small class of cases posing issues of sufficient consequence to result in reported, precedential decisions naturally tends to raise narrow unsettled issues and/or fact-sensitive applications, rather than to provide vehicles to illustrate those parts of the law that are so ‘well accepted’ as to reflect emergent general rules. Of course, these cases may, by analogy and distinction, illuminate general principles at issue; but, purporting to limit the general rule to the facts of those cases is anathema to the common law. Stated otherwise, simply because in cases of factually-marginal applications courts have found evidence relating to alternative designs to be particularly probative and persuasive, in our minds, does not necessarily support a thesis that adducing such evidence is dispositive of whether a plaintiff has carried his/her burden of proof. . . . And, if adopted as a broadly applicable legal regime, the Third Restatement would engender a self-fulfilling prophecy by providing for a future restatement, going forward, of only those cases that meet the evidentiary threshold the regime permits.’’ (Citation omitted.) Id., 413–14.
Indeed, even the product liability defense bar has admitted that the controversy surrounding adoption of the Restatement (Third) has not abated. See M. McWilliams & M. Smith, ‘‘An Overview of the Legal Standard Regarding Product Liability Design Defect Claims and a Fifty State Survey on the Applicable Law in Each Jurisdiction,’’ 82 Def. Couns. J. 80, 83 (2015) (‘‘[a] survey of the fifty states reveals no consensus with respect to application of either the consumer expectations test or the risk-utility test’’); A. Purvis & S. Bailey, ‘‘Alternative Approaches to Alternative Design: Understanding the
a requirement at all’’).
We also observe that if we defer further consideration of the Restatement (Third) until such time as we have a case in which our current standards have demonstrated themselves to be unworkable or result in a manifest injustice, not only might we make a better informed decision, but the legislature might, in the interim, initiate its own reforms. The parties on each side of this issue have raised legitimate policy arguments in support of their respective positions. Public hearings on this issue and further study might yield the best result. We underscore that we do not conclude that this court cannot adopt the Restatement (Third), but simply that we should not do so at the present juncture. See Tincher v. Omega Flex, Inc., supra, 628 Pa. 338 (‘‘This [c]ourt has grown more careful over the years when presented with invitations to issue broad-based pronouncements in areas where it is apparent that such pronouncements are better suited to the information-gathering and give-and-take balancing of competing concerns available in the legislative arena. . . . That being said, the fact is that, in this particular area of the law, the [c]ourt has played a major developmental role; and when an issue is properly joined in a case, we are of course duty bound to resolution and explication of the matter.’’).
Finally, although the defendant’s arguments have not persuaded us that we should adopt the Restatement (Third) at this time, we have reexamined our standards in light of the concerns expressed by both parties to consider whether we could make refinements to our current strict liability standard to provide greater clarity. Having undertaken that inquiry, we make the following clarifications.
First, we agree that the labels of ordinary consumer expectation test and modified consumer expectation test are at best unhelpful and at worst misleading. To distinguish the tests in a manner more reflective of their application, we will call them the consumer expectation test and the risk-utility test. These labels also more closely conform to those used by many other jurisdictions.
Second, although our risk-utility test permits a plaintiff to elect whether to proffer evidence of a reasonable alternative design, it would be helpful to require the plaintiff to allege, and thereby put the defendant on notice, whether the product is claimed to be unreasonably dangerous because (a) a reasonable alternative design could have reduced or avoided the danger, or (b) the design of the product marketed is manifestly unreasonable in that the risk of harm from the product so clearly exceeds its utility that a reasonable, informed consumer would not purchase the product, or (c) both. Under either theory, the jury weighs the product’s risks and utility. Only under (a), however, would the jury consider the availability of an alternative design and
compare that design’s risks and utility to that of the product sold. Under (b), the jury would focus exclusively on the risks and utility of the product sold. We underscore that (b) is not limited to products of marginal utility; it applies to any product in which its risks clearly exceed its utility. The greater the utility, the greater the risk must be to render the product unreasonably dangerous. By segregating these risk-utility theories, we may gain a clearer picture of what, if any,
Third, we recognize that, in most cases, plaintiffs will elect to proceed on the theory that the product is unreasonably dangerous because it lacked some featurе that would have reduced or avoided the injury. This narrative is the one that is likely to be most persuasive to a jury, and not many products will be more dangerous than useful or fail to meet minimum safety expectations. Therefore, it would be helpful to clarify the plaintiff’s burden of proof on this theory. In order to state a prima facie case that will permit the case to be submitted to the jury, the plaintiff must simply prove that the alternative design was feasible (technically and economically) and that the alternative would have reduced or avoided the harm. Although other factors may be relevant; see part II E of this opinion; a plaintiff’s failure to present proof on other factors will not preclude the case from being submitted to the jury. We underscore that, as to economic feasibility, the plaintiff need not prove the precise cost of the alternative design. The plaintiff only need proffer sufficient evidence from which a jury could reasonably conclude that any increase in cost would not materially affect the desirability of the product in light of the benefit derived.
Fourth, we conclude that a defect may be established under our consumer expectation test by proof of the product’s noncompliance with safety statutes or regulations or a product seller’s express representations. Such noncompliance would establish the product’s failure to meet consumers’ legitimate, commonly accepted, minimum safety expectations. Moreover, the utility of the product would not excuse such noncompliance.
E
In light of the clarifications in Izzarelli and this opinion, we summarize the standards that govern a product liability claim, as that term is defined under our act. See
All such claims, whether alleging a design defect, manufacturing defect or failure to warn defect, are governed by the same elements that this сourt has applied since it adopted § 402A: ‘‘(1) the defendant was engaged in the business of selling the product; (2) the product was in a defective condition unreasonably dangerous to the consumer or user; (3) the defect caused the injury
for which compensation was sought; (4) the defect existed at the time of the sale; and (5) the product was expected to and did reach the consumer without substantial change in condition.’’ (Emphasis omitted; internal quotation marks omitted.) Izzarelli v. R.J. Reynolds Tobacco Co., supra, 321 Conn. 184–85; Giglio v. Connecticut Light & Power Co., supra, 180 Conn. 234; accord Rossignol v. Danbury School of Aeronautics, Inc., 154 Conn. 549, 562, 227 A.2d 418 (1967).
The plaintiff’s theory of recovery dictates the scope of a further instruction on the second element. For a strict liability claim alleging design defect, the plaintiff
Under the risk-utility test, which will govern most cases, a product is in a defective condition unreasonably dangerous to the consumer or user if:
(1) A reasonable alternative design was available that would have avoided or reduced the risk of harm and the absence of that alternative design renders the product unreasonably dangerous. In considering whether there is a reasonable alternative design, the jury must consider the feasibility of the alternative. Other relevant factors that a jury may consider include, but are not limited to, the ability of the alternative design to reduce the product’s danger without unreasonably impairing its usefulness, longevity, maintenance, and esthetics, without unreasonably increasing cost, and without creating other equal or greater risks of danger; or
(2) The product is a manifestly unreasonable design in that the risk of harm so clearly exceeds the product’s utility that a reasonable consumer, informed of those risks and utility, would not purchase the product.18 The factors that a jury may consider include, but are not limited to, the magnitude and probability of the risk of harm, the instructions and warnings accompanying the produсt, the utility of the product in relation to the range of consumer choices among products, and the nature and strength of consumer expectations regarding the product, including expectations arising from product portrayal and marketing.
Although the fact finder considers under either theory whether the risk of danger inherent in the challenged design outweighs the benefits of that design, these theories are not mutually exclusive. A plaintiff may consistently allege that a product had excessive preventable danger (reasonable alternative design) and that the product was too dangerous to market to the consumer irrespective of whether it could have been designed to be safer (manifestly unreasonable design).
Under the consumer expectation test, our secondary test, a product is in a defective condition unreasonably dangerous to the consumer or user only if it is ‘‘dangerous to an extent beyond that which would be contem-
plated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.‘’ 2 Restatement (Second), supra, § 402A, comment (i), p. 352. The product must fail to meet legitimate, commonly held, minimum safety expectations of that product when used in an intended or reasonably foreseeable manner. Those expectations may be informed by consumers’ experience with the product, the seller‘s express representations, and product safety laws.19
FIRST CERTIFIED QUESTION
Having reaffirmed our allegiance to a strict liability standard under
Both parties agree that, under the Restatement (Second) and our act, a product liability claim may be brought under theories of strict liability and/or negligence. See footnote 17 of this opinion (setting forth statutory definition of product liability claim). The crux of the dispute is whether a single, unitary definition applies to all such claims, no matter the theory of recovery.
The defendant contends that the sole definition of unreasonably dangerous is a product that is ‘‘dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it . . . .‘’ 2 Restatement (Second), supra, § 402A, comment (i), p. 352. It argues that our case law and the act support a unified definition of product liability, which is consistent with the practice of most jurisdictions. It suggests that negligence allows the plaintiff to elect to prove an additional element of manufacturer fault to provide a more appealing narrative to the jury.
The plaintiff clarified at oral argument before this court that, even under a theory of negligence, he effectively must prove that the product is in a defective condition unreasonably dangerous to the user. Nonetheless, he argues that the proof to establish this fact differs under negligence. He argues that common-law negligence requires proof that the manufacturer breached its duty by failing to exercise reasonable care under the circumstances, not by failing to meet consumers’ expectations. He contends that to conclude otherwise would preclude valid claims for injuries sustained by unintended but foreseeable users, like children who should have been protected by safety features that the ordinary consumer would not expect or require.
We agree with the defendant that no product liability action can succeed without proof of a defective condition unreasonably dangerous to the consumer or user. See Connecticut Civil Jury Instructions (4th Ed. 2012) § 3.10-1, available at http://www.jud.ct.gov/JI/Civil/Civil.pdf; 1 American Law of Products Liability (3d Ed. 2009) § 10:17, p. 37 (‘‘[w]hether a claim of liability against a product manufacturer is based on negligence or on some other theory of liability, the manufacturer is liable only when the product is so defective as to render it ‘unreasonably dangerous’ ‘‘). Indeed, even before this court‘s
Nonetheless, we disagree with the defendant that there is a single dеfinition for unreasonably dangerous, as provided in comment (i) to
The court concluded in Izzarelli that the plaintiff in that case could not proceed under the ordinary consumer expectation test because ‘‘[a] cigarette that exposes the user to carcinogens and the attendant risk of cancer cannot be said to fail to meet an ordinary consumer‘s legitimate, commonly accepted minimum safety expectations.‘’20 Izzarelli v. R.J. Reynolds Tobacco Co., supra, 321 Conn. 203. The court then explained why comment (i) to
‘‘To allow the ordinary consumer‘s awareness of the product‘s potential danger to preclude recovery as a matter of law, however, would make Connecticut an outlier and defeat our intention in relegating the ordinary consumer expectation test to a more limited role.‘’ (Emphasis added; footnote omitted; internal quotation marks omitted.) Izzarelli v. R.J. Reynolds Tobacco Co., supra, 321 Conn. 208–10.
In addition to various policy arguments, the court in Izzarelli pointed to other aspects of our law that would be in tension with a conclusion that an essential element of every product liability action is that the product‘s dangers exceed those known to the consumer. Most significantly, we reasoned that ‘‘[o]ur legislature‘s express rejection of comparative or contributory negligence as a bar to recovery in a strict liability action [under our act] would be in tension with a sweeping immunity based solely on the consumer‘s knowledge.‘’21 Id., 199; see
Accordingly, our decision in Izzarelli makes clear that comment (i) to
When negligence is a viable theory of recovery, consumer expectations have never been an element of that theоry. Under our common law, ‘‘[t]he essential elements of a cause of action in negligence are well established: duty [of care]; breach of that duty; causation; and actual injury. . . . A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act.‘’ (Citations omitted; internal quotation marks omitted.) Sturm v. Harb Development, LLC, 298 Conn. 124, 139–40, 2 A.3d 859 (2010). The Restatement (Second) applies these elements to product liability generally; see 2 Restatement (Second), supra, §§ 394 through 398 (negligence of product manufacturers); 2 Restatement (Second), supra, §§ 399 through 402 (negligence of sellers of products manufactured by third persons); and design defects specifically. See 2 Restatement (Second), supra, § 398, p. 336 (‘‘[a] manufacturer of a chattel made under a plan or design which makes it dangerous for the uses for which it is manufactured is subject to liability to others whom he should expect to use the chattel or to be endangered by its probable use for physical harm caused by his failure to exercise reasonable care in the adoption of a safe plan or design‘‘). These provisions all reflect that it is the defendant‘s actual or imputed knowledge of the danger, not the plaintiff‘s, that is an essential element of negligence, which in turn gives rise to the defendant‘s duty to exercise reasonable care to protect product users from that danger.22
Insofar as courts have concluded that the failure to prove that the product is in a defective condition unreasonably dangerous to the consumer would equally doom strict liability and negligence, we agree. We simply conclude that consumers’ awareness of the danger will not preclude establishing such a condition unless it is an element of the applicable common-law theory. We therefore answer the first certified question ‘‘no.‘’
IV
PUNITIVE DAMAGES
Lastly, we turn to the second certified question, which asks: ‘‘Does Connecticut‘s common-law rule of punitive damages,
In considering this issue, we apply general rules of statutory construction; see
We begin therefore with the common-law rule and then turn to the statute. In Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., supra, 193 Conn. 235, this court declined to reconsider limits that it had placed on the recovery of punitive damages. In doing so, the court explained: ‘‘Long ago, in Hanna v. Sweeney, 78 Conn. 492, 62 A. 785 (1906), this court set forth the rule which we have since followed regarding the appropriate measure of [common-law] punitive damages. In limiting our measure to the expense of litigation less taxable costs, the court noted that under the typical [common-law] rule the jury was permitted to exercise a virtually unchecked discretion to award damages not only to make the injured person whole, but to punish the wrongdoer. . . . The court further recognized that the doctrine of punitive damages which permits recovery beyond compensation prevailed in most jurisdictions, but, nonetheless, it refused to adopt such a rule characterizing it as a hybrid between a display of ethical indignation and the imposition of a criminal fine. . . . Thus, such a rule was found to be at a variance with the generally accepted rule of compensation in civil cases. . . . Since Hanna, we have consistently adhered to this view. . . .
‘‘The subject of punitive damages has been one of great debate throughout the course of American jurisprudence. . . . Typically, those who disfavor punitive damage awards in civil cases point to the prospect that such damages are frequently the result of the caprice and prejudice of jurors, that such damages may be assessed in amounts which are unpredictable and bear no relation to the harmful act, and that the prospect of such damages assessed in such a manner may have a chilling effect on desirable conduct. . . .
‘‘In permitting awards of punitive damages, but limiting such damages as we do, our rule strikes a balance—it provides for the payment of a victim‘s costs of litigation, which would be otherwise unavailable to him, while establishing a clear reference to guide the jury fairly in arriving at the amount of the award. Further, although our rule is a limited one, when viewed in light of the ever rising costs of litigation, our rule does in effect provide for some element of punishment and deterrence
With the common law in mind, we turn to the punitive damages provision in the act.
Although the statute is consistent with common-law punitive damages in one respect, it is inconsistent in many more. On the one hand, the statutory punitive damages are awarded on the basis of the same conduct that would justify an award of common-law punitive damages—reckless disregard of another‘s rights. See Vandersluis v. Weil, 176 Conn. 353, 358, 407 A.2d 982 (1978) (‘‘[common-law] [p]unitive damages are awarded when the evidence shows a reckless indifference to the rights of others or an intentional and wanton violation of those rights‘‘). On the other hand, the statutory damages are measured in relation to a multiple of compensatory damages, not litigation expenses. See Hylton v. Gunter, 313 Conn. 472, 486 n.14, 97 A.3d 970 (2014) (distinguishing other categories of statutory punitive damages, such as statutes limiting such damages to multiples of compensatory damages, from common-law punitive damages); MedValUSA Health Programs, Inc. v. MemberWorks, Inc., 273 Conn. 634, 672 and n.3, 872 A.2d 423 (Zarella, J., dissenting) (drawing same distinction and citing
Indeed, it was precisely because juries assessed the amount of punitive damages that this court was motivated to adopt the common-law rule, limiting the exercise of the jury‘s discretion by tying such damages to litigation expenses. See Hanna v. Sweeney, supra, 78 Conn. 493. Notably, by vesting the court with authority to determine the amount of punitive damages and by limiting the amount of those damages in the act, the legislature provided an alternative method of reining in excessive punitive damages, the very policy concern that prompted this court to limit common-law punitive damages. Cf. Ulbrich v. Groth, 310 Conn. 375, 451, 78 A.3d 76 (2013) (‘‘[i]t is reasonable to conclude that the legislature provided that a claim for punitive damages under [the Connecticut Unfair Trade Practices Act (CUTPA),
There are other factors that inform our conclusion. If we were to construe the act to equate the statutory punitive damages to litigation еxpenses, in some cases the statute would have no effect or frustrate the purpose of the common-law rule. In any case in which litigation expenses are less than two times the damages, the statute would have no impact whatsoever, as the common-law recovery would already have been available. In any case in which the plaintiff‘s compensatory damages are relatively low in comparison to his or her litigation costs, the cap limiting punitive damages to twice compensatory damages would frustrate the purpose of common-law damages—‘‘fully compensating a victim for the harm inflicted on him.‘’ Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., supra, 193 Conn. 238. This disparity would not be uncommon given the statutory reduction of compensatory damages in relation to comparative responsibility.25 See
Another factor that has influenced this court to distinguish an award of statutory punitive damages from common-law punitive damages is when the statutory scheme also authorizes an award of attorney‘s fees. See Ulbrich v. Groth, supra, 310 Conn. 450–51; Smith v. Snyder, 267 Conn. 456, 469–71, 839 A.2d 589 (2004). Attorney‘s fees also may be awarded under the act, although not under the same circumstances as common-law punitive damages. Pursuant to
If punitive damages in
To the extent that the defendant contends that construing the statute other than by the common-law rule would frustrate the overarching purpose of the act, which is to limit insurance costs for product liability actions, the legislative history of the act does not support the defendant‘s construction. The punitive damages provision was added to the proposed bill after consumer interests spoke in opposition to the original bill, which was far less favorable to the consumer than the final bill in various respects. See Committee Bill No. 5870, 1979 Sess.; Substitute House Bill No. 5870, 1979 Sess.; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 1979 Sess., pp. 591–92. The proposed punitive
We answer the first certified question ‘‘No.‘’
We answer the second certified question ‘‘No.‘’
No costs shall be taxed in this court to either party.
In this opinion ROGERS, C. J., and EVELEIGH and ROBINSON, Js., concurred.