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3.5-7  Apportionment  - One Defendant (With Special Defense of Comparative Negligence) and One Non-Defendant Apportionment Respondent

Revised to January 1, 2008

Note:  This charge is designed to be used when there is one plaintiff and one defendant who has filed both a special defense of comparative negligence and a notice of apportionment concerning a respondent who is not a party in the case.  It is designed to be given immediately following Comparative Negligence – General, Instruction 3.5-1. 

In addition to the defendant's claim that the plaintiff contributed to (her/his) own injuries through (her/his) own negligence, the defendant makes a claim regarding the negligence of another person/driver,<insert name of apportionment respondent, hereafter "AR">, who has not been sued in this case.  Because the plaintiff has not sued AR, AR is not liable to pay money damages to the plaintiff, but the conduct of AR has been put in issue by the defendant.  The defendant claims that AR was also negligent and that, if the plaintiff suffered injury, it was AR's negligence that legally caused injury to the plaintiff.  Here are the defendant's claims concerning AR's conduct:

<Charge on the specifications of negligence against AR.>

I have previously explained to you how to analyze claims of negligence and causation.  The same analysis applies with respect to the defendant's claim against AR; and, as with the defendant's claim of comparative negligence against the plaintiff, the defendant bears the burden of proof.

As to this claim that AR's negligence was a cause of injury to the plaintiff, unless you first determine that there will be a verdict in favor of the plaintiff, you need not evaluate the claim of the defendant about AR's conduct.  That is because a finding that AR was negligent and that AR's negligence caused injury to the plaintiff serves only to reduce any damages to the plaintiff from the defendant and not to relieve the defendant of liability. 

If you find that the plaintiff has proved the claims against the defendant so that there will be a verdict in plaintiff's favor and that the defendant has proved one or more of (his/her) claims against the plaintiff or AR, or as to both the plaintiff and AR, you will have to apportion the percentage of negligence attributable to the defendant and that attributable to the plaintiff or to AR, or to both the plaintiff and AR, with the total amount of negligence equaling 100%.

As I explained in my comparative negligence instruction, you must then reduce the amount of damages to be awarded to the plaintiff from the defendant by any percentage not attributable to the defendant but rather attributable to the plaintiff or to AR or both.  I will give you two examples to illustrate these concepts.

EXAMPLE #1 – A finding that both the defendant and AR were at fault
For example, assume you find that the plaintiff has proved negligence and causation against the defendant and that the defendant has proved NO negligence and causation against the plaintiff – that is, no comparative fault on the plaintiff.  You must still determine if the defendant has proved negligence and causation against AR.  If so, you determine what percentage of negligence is attributable to the defendant and what percentage is attributable to AR.  If the defendant has proved that AR's negligence caused injury to the plaintiff and that AR's negligence constituted 25% of all proven negligence that caused plaintiff's injury, you would then reduce your award to the plaintiff by that percentage – 25% – that was attributable to AR.  If you determined that the plaintiff was entitled to damages in the amount of $100, then you would reduce the damages by 25% and your award to the plaintiff against the defendant would be $75.  If you were to find that all of the plaintiff's injuries – 100% – were the fault of AR, then that would mean you have found that the defendant is not liable at all and your verdict must be in favor of the defendant.

EXAMPLE #2 – A finding that the defendant and AR and the plaintiff were all at fault
Assume that you find another set of facts.  Assume you find that the defendant and AR and the plaintiff were all negligent to some degree in causing the plaintiff's injury.  The rule still remains that if the plaintiff is more than 50% negligent, the plaintiff cannot recover any damages from the defendant regardless of the relative fault of AR.  Therefore, the analysis I am now describing only comes into play if you determine that the plaintiff is 50% or less at fault and that AR's negligence also caused injury to the plaintiff.   You determine what the percentage of negligence is for each, and you "apportion" damages against the defendant by reducing the damages to which the plaintiff is entitled by the percentages that are not attributable to the defendant. 

Assume, for example, that the defendant has proved that the plaintiff's negligence was 25% and that AR's negligence was 50% of the negligence that caused injury to the plaintiff.  If your finding of damages were $100, you subtract $25 for the plaintiff's own negligence and subtract $50 for AR's negligence, and the plaintiff is entitled to an award of damages of $25 from the defendant.  The verdict form I give to you will provide a guide for you with spaces to fill in the blanks so that you can report your findings. 

Notes

See Sample Apportionment Verdict Form (Plaintiff), Instruction 6.1.  The judge should consider distributing copies of the verdict forms to the jury in conjunction with the delivery of this charge so that the jury can see the practical effect of the charge before they begin their deliberations.  General Statutes §§ 52-102b, 52-572h; Carlson v. Waterbury Hospital, 280 Conn..125 (2006).

 


 

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