476 A.2d 149 | Conn. Super. Ct. | 1983
The plaintiff, Frederick S. DeSantis, was injured while in the course of employment when a ditch in which he was working collapsed. He was compensated for those injuries by his employer, Superior *223
Homes, Inc. (Superior), under the workers' compensation act. The plaintiff now sues the defendant, John Gaudioso, alleging that the ditch collapsed because of the defendant's negligence. Superior has intervened pursuant to General Statutes §
The workers' compensation act exists to compensate employees for injuries arising out of and in the course of employment through a guaranteed, fixed schedule recovery system. Klapproth v. Turner,
Under General Statutes §
The employer's substantive right to reimbursement under §
In Perruccio v. Nadeau,
It is submitted that Cirrito represents a more equitable and better reasoned result. If the employer's reimbursement is not reduced to reflect his percentage of negligence, the third party, in effect, "is forced to subsidize a workers' compensation system in a proportion greater than his own fault and at a financial level far in excess of the workers' compensation schedule."Lambertson v. Cincinnati Corporation, supra, 120.
It is submitted that it is contrary to public policy to allow an employer to commit negligence with absolute impunity by forcing a third party to bear the full cost of a common law judgment, despite the possibly greater fault on the part of the employer. Witt v. Jackson,
It is submitted that allowing the third party tortfeasor to assert the intervening employer's negligence as a defense to reduce the employer's reimbursement will not violate Connecticut's prohibition against contribution between joint tortfeasors. Therrien v. SafeguardMfg. Co.,
"As applied to the law of torts, contribution distributes the amount of damages paid to the plaintiff among the tort-feasors by requiring each to pay his proportionate share." 1 Dooley, Modern Tort Law (Rev. 1982) § 26.20; Kaplan v. Merberg Wrecking Corporation,
Likewise, Superior cannot be considered a joint tortfeasor with the defendant. "The ground is a simple one: the employer is not jointly liable to the employee in tort; *227
therefore he cannot be a joint tortfeasor. The liability that rests upon the employer is an absolute [statutory] liability irrespective of negligence." 2A Larson, Workmen's Compensation § 76.20; A. A. Equipment, Inc. v.Farmoil, Inc.,
It is submitted that the defendant's special defense of contributory negligence against the intervening employer, Superior, is cognizable under Connecticut law, and therefore Superior's motion to strike should be denied.
If the court applies the principles of the comparative negligence statute, General Statutes §
The court can use instructive interrogatories in a jury case to determine each party's percentage of a comparative negligence. See Berdon, "Instructive Interrogatories: Helping the Civil Jury To Understand," 55 Conn. B.J. 179 (1981). The court may also use a special verdict form wherein the amount of the award should be specifically itemized between pain and suffering, permanency and specific damages thereby providing a reasonable and fair basis for the court to make apportionment by and between an employer and employee in accordance with §
It is submitted that the defendant should be allowed to assert Superior's negligence as a special defense under Connecticut law, and accordingly, the motion to strike the special defense is denied.