Opinion
Thе plaintiffs, Thomas Mahon III, administrator of the estate of Sandra Bowers, William Bowers, administrator of the estate of Robert W. Bowers, Richard Kopf and Karen Kopf, brought these consolidated product liability actions pursuant to the Connecticut Product Liability Act, General Statutes § 52-572m et seq., against, inter alia, Brunswick Corporation doing business as Mercury Marine (Mercury Marine).
1
The actions arise out of an accident in which Robert W. Bowers (decedent) and Sandra Bowers were killed, and Richard Kopf and Karen Kopf were seriously injured, when the motorboat in which they
The jury reasonably could have found the following facts. On August 17, 1996, at approximately 10 p.m., Sandra Bowers and her husband, the decedent, and Karen Kopf and her husband, Richard Kopf, were having a picnic dinner on the decedent’s motorboat on Lake Housatonic in Shelton when the boat’s power suddenly failed, causing all of the lights to go out. Almost immediately thereafter, as the decedent was attempting to ascertain the reason for the power failure, a motorboat operated by John Hay 3 crashed into the back of the decedent’s boat, throwing both the decedent and Sandra Bowers into the lake, where they drowned. The Kopfs survived the accident but sustained serious injuries.
Subsequent investigation revealed that the boat’s power failure was attributable to a defect in the main engine harness connector, which conducts power to the boat’s lights and electrical equipment. William Kohl, a marine mechanic for the state department of environmental protection, inspectеd the boat after the accident and determined that the power had failed due to a poor connection in the multi-pin plug and matching socket that forms part of the main engine harness. Kohl also discovered a small rubber flap inside one of the socket receptacles that may have caused the bad connection. The defective socket was manufactured by Mercury Marine.
Following the accident, investigators recovered a flashlight and horn from the decedent’s boat that subsequently were determined to be inoperable. In addition, several safety flares found on the boat also were determined to be past their expiration dates.
The plaintiffs thereafter filed these consolidated actions. In its answer to the amended complaint of the decedent’s estate,
4
Mercury Marine raised a special defense
At trial, Mercury Marine introduced evidence of the expired flares and the inoperable horn and flashlight. Mercury Marine also adduced evidence that, at the time of the accident, the decedent’s boat was anchored toward the center of the lake, rather than to the side, and that the stem light, which is located at the rear of a boat and which is required equipment that permits a boat to be seen from a 360 degree angle, had been partially covered with tape to keep the light from shining into the boat. The decedent’s estate, however, adduced evidence indicating that the light was visible from a 180 degree angle and that, if the power on the boat had not failed, the light would have been visible to boats approaching from behind, the direction from which the Hay boat had approached and stmck the decedent’s boat.
Prior to closing arguments, Mercury Marine filed a supplemental request to charge on its special defense of comparative negligence. In its request, Mercury Marine sought a jury instruction explaining that the duty of care applicable to the decedent’s operation of his motorboat was “the care which an ordinarily pmdent person would use in view of the surrounding circumstances.”
Thereafter, in its charge to the jury, the trial court properly explained that the standard of care applicable to the plaintiffs’ product liability claims was strict liability. Specifically, the court stated: “In order to prove [their] claimfs] under the [Connecticut] [Product] Liability Act, the plaintiffs] must prove each one of the following four elements by a fair preponderance of the evidence: [1] [Mercury Marine] was a product seller within the terms of [the] statute; [2] the product was defective; [3] the defect in the product existed at the time the product left [Mercury Marine], that it was expected to reach the user without substantial change in its condition and that it did, in fact, reach the user— in this case, [the decedent] — without substantial change in [its] condition . . . and [4] [the] defect caused injury to these plaintiffs.” As to the principle of strict liability, the trial court explained: “It is the unreasonably dangerous condition of the product that makes [a] defendant responsible. It is not whether the defendant knew of the defect or had notice that the product was defective, and it is not whether the defendant was negligent in selling the product.”
With respect to Mercury Marine’s special defense of comparative negligence, the trial court did not instruct the jury in accordance with Mercury Marine’s request to charge. Rather, the court instructed the jury in relevant part: “[The] product liability statute provides [that] the comparative responsibility or fault of a plаintiff shall not bar that plaintiffs recovery, but it shall diminish or reduce that plaintiffs damages proportionately according to the degree of fault that you find is properly attributable to the plaintiff. . . . You will not apply the concept of comparative responsibility unless you have first found, by a fair preponderance of the evidence, that both [the decedent] and [Mercury Marine]
After the trial court finished instmcting the jury, counsel for the decedent’s estate took exception to the court’s instructions on Mercury Marine’s speсial defense of comparative negligence, claiming that the trial court had failed to define the standard of care applicable to the decedent’s allegedly negligent conduct. The trial court, however, declined to reinstruct the jury.
The jury returned verdicts in favor of the plaintiffs. With respect to the decedent’s estate, the jury found damages in the amount of $195,000 but determined that the decedent was 33 V3 percent contributorily negligent. Accordingly, the jury proportionally reduced its award of damages, for a total net award of $130,000. The jury also awarded $150,000 to the estate of Sandra Bowers, $175,000 to Karen Kopf and $45,000 to Richard Kopf.
Thereafter, the decedent’s estate filed a motion to set aside the verdict, claiming, inter alia, that the trial court’s jury instmctions as to Mercury Marine’s special defense of comparative negligence were improper. In support of its motion, the decedent’s estate maintained that the trial court had failed to explain the standard of care applicable to the decedent’s allegedly negligent conduct.
Mercury Marine filed motions for remittitur; see General Statutes § 52-216a;
5
seeking a reduction in the damages that the jury had awarded in an amount equal
The trial court denied the parties’ motions, 7 and these consolidated appeals followed. On appeal, the decedent’s estate challenges the trial court’s denial of its motion to set aside the verdict on the basis of the court’s allegedly improper jury instructions on comparative negligence. Mercury Marine challenges the trial court’s denial of its motions for remittitur in an amount equal to the settlement payments that the plaintiffs had received from other alleged tortfeasors. We consider each appeal in turn.
I
We first address the appeal of the decedent’s estate, which claims that the trial court improperly failed to instruct the jury on the standard of care applicable to the decedent’s conduct in connection with Mercuiy Marine’s special defense of comparative negligence. The decedent’s estate contends that because the trial court’s jury charge contained no definition of negligence, it provided the jury with inadequate guidance for resolving Mercury Marine’s claim that the accident was caused, at least in part, by the decedent’s negligence. 8 We agree with the decedent’s estate that the trial court’s instructions failed to apprise the jury of the standard of care applicаble to the decedent’s conduct and conclude that the decedent’s estate is therefore entitled to a new trial.
“Our analysis begins with a well established standard of review. When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and
Moreover, not every improper jury instruction requires a new trial because not every improper instruction is harmful. “[W]e have often stated that before a party is entitled to a new trial ... he or she has the burden of demonstrating that the error was harmful. ... An instructional impropriety is harmful if it is likely that it affected the verdict.” (Citation omitted; internal quotation marks omitted.)
Scanlon
v.
Connecticut Light & Power Co.,
Recently, we explained that “[General Statutes] § 52-572o
9
incorporates the idea of pure comparative respon
sibility into our product liability law. We have explained this notion previously, summarizing the effect of a system of pure comparative responsibility as follows: [A] partial recovery is allowed even if the claimant’s injury is attributable mostly to his or her conduct. . . . Subsection (a) of § 52-572o makes this clear by providing that the comparative responsibility of, or attributed to, the claimant, shall not bar recovery but shall diminish the award of compensatory damages proportionately, according to the measure of responsibility attributed to the claimant. As for guidance in determining what type of conduct justifies a finding of comparative responsibility on the part of a plaintiff, subsection (c) of § 52-572o provides that the fact finder shall consider both the nature and quality of the conduct of [each] party. Other than that, the statute does not limit the type of conduct that may be considered in determining a plaintiffs measure of comparative responsibility.” (Citation omitted; internal quotation marks omitted.)
Barry
v.
Quality Steel Products, Inc.,
Thus, in
Champagne
v.
Raybestos-Manhattan, Inc.,
By contrast, in the present case, the trial court provided no guidance with respect to the standard that the jury was required to apply in determining whether the decedent was negligent and, if so, the extent to which his negligence was a contributing factor in the accident that resulted in his death. Indeed, the trial court made only one reference to the concept of negligence in its entire jury charge, explaining that strict liability did not require proof that Mercury Marine had been “negligent in selling the product” at issue. At no time, however, did the trial court explain that negligence is the failure to exercise the care that an ordinarily prudent person would use under the circumstanсes. Although the trial court directed the jury to ascertain the “comparative responsibility or fault” of the decedent, if any, the court provided no explanation to the jury as to how it was to determine whether the decedent bore any such responsibility or fault for the accident. Without an explanation by the court of the applicable legal stan
dard — in this case, negligence — the jury essentially was left to evaluate the decedent’s conduct by whatever standard it deemed appropriate. The trial court’s instructions, therefore, were plainly inadequate to guide the jury in its deliberations on Mercury Marine’s special defense of comparative negligence. Because the jury decided the issue of the decedent’s comparative negligence in an instructional vacuum, we cannot conclude that the tiial court’s instruction fairly presented Mercury Marine’s comparative negligence claim to the jury in such a way that injustice was not done to the decedent’s estate.
Scanlon
v.
Connecticut Light & Power Co.,
supra,
Mercury Marine contends, however, that, even if the instruction was harmful, a retrial on liability and damages is unwarranted because neither the decedent’s estate nor Mercury Marine has appealed from the jury’s findings on those issues. In support of its claim, Mercuiy Marine contends that any impropriety in the trial court’s instructions on comparative negligence tainted the jury’s finding on that issue only, and not the jury’s threshold findings on liability and damages. Thus, Mercury Marine asserts that the scope of any retrial should be limited to a determination of the decedent’s comparative fault. We disagree.
“Ordinarily the reversal of a jury verdict requires a new trial of all the issues in the case. ... In other words, [a]n order restricting the issues [of a new trial] is the exception, not the rule. . . . When, however, the error as to one issue ... is separable from thе general issues,
Mercury Marine has provided no persuasive reason why the present case constitutes an exception to the rule that a judgment ordering a new trial ordinarily requires a retrial on all contested issues. We have no way of knowing whether the jury rendered a compromise verdict, with some of the jurors agreeing to a finding of liability only because other jurors were willing to compromise on the amount of damages. If the verdict was the product of such a compromise, the comparative negligence finding and award may have been a component of the jurors’ agreement. We therefore cannot discount the possibility that the jury’s resolution of the issue of comparative negligence was directly related to its resolution of the issues of liability and damages. Accordingly, we conclude that the decedent’s estate is entitled to a new trial on all of those issues.
II
In its appeal, Mercury Marine contends that the trial court improperly denied its motions for remittitur. In support of its claim, Mercury Marine asserts that, under § 52-216a, the trial court was required to reduce the damages that the jury had awarded to each of the plaintiffs in an amount equal to the settlement payments that each of the plaintiffs previously had received from other alleged tortfeasors. Mercury Marine makes two arguments in support of its claim. First, Mercury Marine contends that the trial court’s failure to grant its motions for remittitur violated the one satisfaction rule, a common-law rule that provides that “[a] plaintiff may be compensated only once for his just damages for the same injury.” (Intеrnal quotation marks omitted.)
Gionfriddo
v.
Gartenhaus Cafe,
We first address Mercury Marine’s claim that the trial court improperly denied its motions for remittitur in violation of the one satisfaction rule. Our analysis of this claim is guided by certain governing principles. “First, the amount of an award [of damages] is a matter peculiarly within the province of the trier of facts. . . . Second, the court should not interfere with the jury’s determination except when the verdict is plainly exces
sive or exorbitant. . . . The ultimate test which must be applied to the verdict by the trial court is whether the jury’s award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury [was] influenced by partiality, prejudiсe, mistake or corruption. . . . Third, the ruling of the trial court on the motion to set aside the verdict as excessive is entitled to great weight and every reasonable presumption should be given in favor of its correctness. . . . The court’s broad power to order a remittitur should be exercised only when it is manifest that the jury [has] included items of damage which are contrary to law, not supported by proof, or contrary to the court’s explicit and unchallenged instructions. . . . The relevant inquiry is whether the verdict falls within the necessarily uncertain limits of fair and reasonable compensation or whether it so shocks the conscience as to compel the conclusion that it was due to partiality, prejudice or mistake.” (Citations omitted; internal quotation marks omitted.)
Tomczuk
v. Alvarez,
Mercury Marine contends that the trial court improperly denied its motions for remittitur because the damages that the jury awarded to each of the plaintiffs, when added to the settlement payments that each of the plaintiffs received, were excessive as a matter of law within the meaning of § 52-216a. Mercury Marine
does
not
claim that those amounts are excessive because they are so great as to be manifestly unjust in view of the nature and severity of the injuries sustained. Rather, Mercury Marine claims that a remittitur is required because the awards violate the one satisfaction rule, a rule that is based on the common law’s disfavor of double recoveries. “[T]he rule precluding double recovery is a simple and time-honored maxim that [a] plaintiff may be cоmpensated only once for his just damages for the same injury. . . . Connecticut courts consistently have upheld and endorsed the principle that a litigant may recover just damages for the same loss only once. The social policy behind this concept is that it is a waste of society’s economic resources to do more than compensate an injured party for a loss and, therefore, that the judicial machinery should not be engaged in shifting a loss in order to create such an economic waste.” (Citation omitted; internal quotation marks omitted.)
Carlson
v.
Waterbury Hospital,
supra,
This court and the Appellate Court previously have addressed the same essential claim that Mercury Marine has raised in the present case, and both courts repeatedly have rejected it, both under the current version of § 52-216a; e.g.,
Black
v.
Goodwin, Loomis & Britton, Inc.,
In light of this long interpretative history, Mercury Marine has a heavy burden of demonstrating why we should not treat the legislative silence in response to our construction of § 52-216a as legislative approval of that construction. Although “we are aware that legislative inaction is not necessarily legislative affirmation ... we also presume that the legislature is aware of [this court’s] interpretation of a statute, and that its subsequent nonaction may be understood as a validatiоn of that interpretation. . . . Time and again, we have characterized the failure of the legislature to take corrective action as manifesting the legislature’s acquiescence in our construction of a statute. . . . Once an appropriate interval to permit legislative reconsideration has passed without corrective legislative action,
the inference of legislative acquiescence places a significant jurisprudential limitation on our own authority to reconsider the merits of our earlier decision.” (Internal quotation marks omitted.)
Hammond
v.
Commissioner of Correction,
Mercury Marine asserts that this court correctly construed § 52-216a in another case, namely,
Alfano
v.
Ins. Center of Torrington,
In
Alfano,
the plaintiff, Raymond G. Alfano, Sr., brought an action against the defendant insurance agency, Insurance Center of Torrington (agency), alleging that the agency negligently had failed to procure fire insurance coverage for a building that Alfano had purchased three days before it was destroyed by fire. Id., 608. Alfano’s complaint also contained a count in which Alfano asserted a malpractice claim against the attorney who had represented him at the closing on the building. Id. Alfano claimed that the attorney failed to advise him of the need to purchase fire insurance for the building. Id. Before trial, Alfano settled the claim against the attorney for $15,000. Id. Thereafter, a jury
returned a verdict against the agency in the amount of $30,000 but also found Alfano 35 percent contributorily negligent and, accordingly, reduced the award to $19,500. Id. The trial court denied thе agency’s
On appeal, Alfano claimed that the remittitur was improper because there was evidence before the jury to support a substantially higher valuation of the building than that found by the jury. Id., 609-10. In rejecting Alfano’s contention, we explained that, although there had been some evidence to support a higher valuation of the building, there also was ample evidence to support the jury’s finding. See id., 610. We further explained that, although Alfano had alleged additional elements of damage, such as the rental value of the building from the date of the fire, interest and attorney’s fees, he had not challenged the trial court’s decision not to submit those items to the jury for its consideration. Id. Thus, we concluded that the jury’s finding of damages “must be deemed a proper basis for the trial court to have relied [on] in ordering the remittitur.” Id. We further explained that, in
Peck
v.
Jacquemin,
supra,
In view of the requirement of
Peck
that a court shall consider settlements as part of its excessiveness inquiry, we concluded in
Alfano
that the trial court had not abused its discretion in determining that the verdict, when considered with the settlement payment that Alfano had received from the attorney, was excessive.
Alfano
v.
Ins. Center of Torrington,
supra,
Relying primarily on our reasoning in
Alfano
that the jury verdict constituted a “legally unassailable determi
nation of
As we have explained, in
Alfano,
we upheld the trial court’s decision to order a remittitur under § 52-216a. See
Alfano
v.
Ins. Center of Torrington,
supra,
Mercury Marine also claims that, because the plaintiffs’ product liability claims do not implicate our statutory apportionment scheme; see General Statutes § 52-572 (h) (precluding apportionment of damages between parties on any basis other than negligence); we must construe § 52-216a to require an order of remittitur with respect to the pretrial settlement payments that the plaintiffs had received. Mercury Marine contends that such a requirement is necеssary to preserve the one satisfaction rule in a case such as the present one, in which the jury is unable to apportion damages because our statutes do not permit it. Section 52-216a, however, does not distinguish between cases that implicate our statutory apportionment scheme and cases that do not.
Of course, the legislature is free to draw such a distinction, but we will not do so in the absence of an evident legislative intent to accomplish that result.
14
See, e.g.,
State
v. Desimone,
B
Mercury Marine next contends that the trial court’s denial of its motions for remittitur violated the parties’ constitutional right to have a jury determine damages.
In essence, Mercury Marine claims that the jury award represents the constitutional maximum that the plaintiffs may receive. This claim requires little discussion. It is true, of course, that a litigant has a constitutional right tо have issues of fact determined by a jury; e.g.,
Wichers
v.
Hatch,
supra,
With respect to the appeal in Docket No. SC 17410, the judgment in the case of Bowers v. Malibu Boats West, Inc., is reversed and the case is remanded for a new trial; with respect to the appeal in Docket No. SC 17411, the judgments in the cases of Mahon v. B.V. Unitron Mfg., Inc., and Kopf v. Malibu Boats West, Inc., are affirmed.
In this opinion the other justices concurred.
Notes
The actions ar e Mahon v. B.V. Unitron Mfg., Inc., Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. CV-99-0164084-S (filed August 16, 1999); Bowers v. Malibu Boats West, Inc., Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. CV-99-0164438-S (filed August 31, 1999); and Kopf v. Malibu Boats West, Inc., Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. CV-99-0164107-S (filed August 27, 1999). With the exception of Mercury Marine, other defendants in these actions settled with the plaintiffs before the jury returned its verdicts. See footnote 6 of this opinion.
We note that the deсedent’s estate appealed only from the judgment in its case, that is, the second case. Mercury Marine, however, appealed from the judgments in all three cases. The decedent’s estate and Mercury Marine each appealed to the Appellate Court, which consolidated the two appeals. We thereafter transferred the appeals to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.
John Hay was fifteen years old at the time of the accident. The boat that he was operating was owned by his father, Thomas Hay.
The decedent’s estate thereafter filed a substitute amended complaint for the purpose of substituting William Bowers as the administrator of the decedent’s estate. The case name, however, was not changed in the trial court. On September 28, 2005, this court granted William Bowers’ motion to change the case name to William Bowers, Administrator (Estate of Robert W. Bowers) v. Malibu Boats West, Inc.
General Statutes § 52-216a provides: “An agreement with any tortfeasor nоt to bring legal action or a release of a tortfeasor in any cause of action shall not be read to a jury or in any other way introduced in evidence by either party at any time during the trial of the cause of action against any other joint tortfeasors, nor shall any other agreement not to sue or release of claim among any plaintiffs or defendants in the action be read or in any other way introduced to a jury. If the court at the conclusion of the trial concludes that the verdict is excessive as a matter of law, it shall order a remittitur and, upon failure of the party so ordered to remit the amount ordered by the court, it shall set aside the verdict and order a new trial. If the court concludes that the verdict is inadequate as a matter of law, it shall order an additur, and upon failure of the party so ordered to add the amount ordered by the court, it shall set aside the verdict and order a new trial. This section shall not prohibit the introduction оf such agreement or release in a trial to the court.”
The decedent’s estate and the administrator of the estate of Sandra Bowers each settled with the defendants B.V. Unitron Manufacturing, Inc., for $83,000, Malibu Boats West, Inc., for $425,000, and Thomas Hay and John Hay for $366,000. Karen Kopf and Richard Kopf each settled with B.V. Unitron Manufacturing, Inc., for $41,500, Malibu Boats West, Inc., for $75,000, and Thomas Hay and John Hay for $183,000. In addition, Richard Kopf and Karen Kopf each settled with the decedent’s estate for $42,000. Thus, the decedent’s estate and Sandra Bowers’ estate each received a total of $874,000 in settlement payments, and Richard Kopf and Karen Kopf each received $341,500 in settlement payments. Because the pretrial settlement payments that each of the plaintiffs received exceeded the amount of damages that the jury had awarded to each plaintiff, the reduction in damages that Mercury Marine sought with respect to each plaintiff exceeded the amount that thе jury awarded to each plaintiff. Mercury Marine therefore claimed that it was not required to pay any damages to any of the plaintiffs.
We note that the decedent’s estate and the administrator of the estate of Sandra Bowers filed motions for additur, claiming that the jury awards were inadequate as a matter of law. Upon consideration of the jury award and the settlement payments that the decedent’s estate and the estate of Sandra Bowers received, the trial court denied the motions for additur. The trial court’s rulings on those motions are not the subject of this appeal.
The decedent’s estate maintains that the trial court’s failure to define the standard of care applicable to the decedent’s conduct created an undue risk that the jury would hold the decedent to the strict liability standard applicable to the product liability claim that the decedent’s estate asserted against Mercury Marine because that standard was the only standard about which the jury had been instructed.
General Statutes § 52-572o provides in relevant part: “(a) In any claim under sections 52-240a, 52-240b, 52-572m to 52-572q, inclusive, or 52-577a, the comparative responsibility of, or attributed to, the claimant, shall not bar recovery but shall dimmish the award of compensatory damages proportionately, according to the measure of responsibility attributed to the claimant.
“(b) In any claim involving comparative responsibility, the court may instruct the jury to give answers to special interrogatories, or if there is no jury, the court may make its own findings, indicating (1) the amount of damages each claimant would receive if comparative responsibility were disregarded, and (2) the percentage of responsibility allocated to each party, including the claimant, as compared with the combined responsibility of all parties to the action. For this purpose, the court may decide that it is appropriate to treat two or more persons as a single party.
“(c) In determining the percentage of responsibility, the trier of fact shall consider, on a comparative basis, both the nature and quality of the conduct of the party.
“(d) The court shall determine the award for each claimant according to these findings and shall enter judgment against parties liable on the basis of the common law joint and several liability of joint tortfeasors. The judgment shall also specify the proportionate amount of damages allocated against each party liable, according to the percentage of responsibility established for such party. ...”
We note that, under an earlier version of § 52-216a, although parties were precluded from informing the jury of any pretrial settlement agreements, the court, at the conclusion of the trial, was permitted, in the exercise of its discretion, to deduct from the verdict any pretrial settlement payments that had been received by any party, without any provision for the plaintiff to elect a new trial in lieu of any reduction in the verdict. See, e.g., General Statutes (Rev. to 1981) § 52-216a. In
Seals
v.
Hickey,
We note that, under General Statutes § 52-225a, collateral source payments are to be deducted from an award of economic damages. Under § 52-225b, however, settlement payments are not considered collateral sources. Thus, as in
Bovat
v.
Waterbury,
supra,
We note that both
Peck,
which was decided in 1985, and
Alfano
involved factual scenarios that predated the October 1, 1986 effective date of the amendments to §§ 52-225a and 52-225b pursuant to which settlements were excluded from the definition of collateral sources. See
Alfano
v.
Ins. Center of Torrington,
supra,
We note that, in
Mauro
v.
Yale-New Haven Hospital,
supra,
In support of its argument, Mercury Marine notes that, in
Peck,
this court stated that “nothing we say today in any way changes the time-honored rule that an injured party is entitled to full recovery only once for the harm suffered.”
Peck
v.
Jacquemin,
supra,