Bifolck v. Philip Morris, Inc. , 324 Conn. 362 ( 2017 )

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VINCENT BIFOLCK, EXECUTOR (ESTATE OF
JEANETTE D. BIFOLCK), ET AL. v.
PHILIP MORRIS, INC.
(SC 19310)
Rogers, C. J., and Zarella, Eveleigh, McDonald, Espinosa, Robinson and
Vertefeuille, Js.
Argued September 13—officially released December 29, 2016*
David S. Golub, with whom were Jonathan M. Levine
and, on the brief, Marilyn J. Ramos, for the appel-
lants (plaintiffs).
John C. Massaro, with whom were Francis H. Mor-
rison 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. Shee-
han 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 Thomas J. Saadi, assistant attorneys general,
filed a brief for the state of Connecticut et al. as
amici curiae.
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 diver-
sity actions in which the federal courts certified ques-
tions for this court’s advice regarding the viability of an
action under Connecticut’s Product Liability Act (act)1
alleging that a cigarette’s design had increased consum-
ers’ risk of cancer. The courts sought advice whether
specific theories advanced in those actions are pre-
cluded by this court’s adoption of § 402A of the
Restatement (Second) of Torts, which imposes liability
for defective products that are ‘‘unreasonably danger-
ous,’’ and more particularly, our adoption of comment
(i) to § 402A, which defines that term in relation to
consumers’ knowledge of the danger.2 In the first of
these actions, this court advised that the strict liability
theory advanced was not precluded because it required
application of our modified consumer expectation test,
under which the obviousness of the danger is only one
of many factors that the trier of fact may consider.
Izzarelli v. R.J. Reynolds Tobacco Co., 321 Conn. 172,
177, 136 A.3d 1232 (2016).
In the present action, this court considers three sub-
stantive questions: (1) whether, for claims alleging
design defects, we should abandon our dual tests based
on § 402A of the Restatement (Second) of Torts and
adopt the standards under the Restatement (Third) of
Torts, Products Liability; (2) if not, whether § 402A and
comment (i) provide a single, unitary definition for all
theories under which product liability claims may be
brought, including negligence; and (3) whether the puni-
tive damages available in the act are limited to litigation
costs under our common-law punitive damages rule.
This court raised the first question; we accepted certifi-
cation with respect to the second and third questions,
pursuant to General Statutes § 51-199b (d), from the
United States District Court for the District of Connecti-
cut. See Bifolck v. Philip Morris, Inc., Docket No.
3:06cv1768 (SRU), 2014 WL 585325 (D. Conn. February
14, 2014).
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 lia-
bility 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. Accord-
ingly, 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 General Statutes § 52-240b.
One count of the complaint asserted a product liabil-
ity 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 unreason-
ably dangerous in that their design rendered the ciga-
rettes unnecessarily addictive and unnecessarily
carcinogenic. Specifically, the plaintiff alleged that the
defendant had (1) added ingredients, including carcino-
genic 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 in which
the cigarette smoke was transmitted to the smoker.
With respect to negligence, the plaintiff alleged that
the defendant had failed to conform to the applicable
standard of care by knowingly designing the cigarettes
in a manner that enhanced their addictive and cancer
causing nature and by failing to take available measures
to reduce the cigarettes’ addictive, toxic, and cancer
causing ingredients/properties.
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 negli-
gence. 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 evi-
dence 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 con-
tamination?’’ (Emphasis added.) Izzarelli v. R.J. Rey-
nolds 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 ques-
tions 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 Connecti-
cut’s [common-law] rule of punitive damages as articu-
lated 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 pursu-
ant to [General Statutes] § 52-240b, the punitive dam-
ages 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 unrea-
sonably 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 advo-
cated for application of any test other than one of the
two tests based on the Restatement (Second) recog-
nized by this court. Id., 192 n.11. Nonetheless, a concur-
ring opinion took the position that we should adopt
and apply to the certified question in that case the
standard for design defects under the Restatement
(Third). Id., 211 (Zarella, J., concurring).
Although that position did not garner majority sup-
port 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 concur-
rence can be considered with the benefit of supplemen-
tal briefing, but without the possibility of disturbing a
presumptively valid verdict under the existing stan-
dards 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 supple-
mental 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 ami-
cus 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 expec-
tations 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 consti-
tute an independent standard for judging the defec-
tiveness 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 consid-
eration relevant to this issue. The plaintiff urges us
not to abandon our dual Restatement (Second) tests,
characterizing the Restatement (Third) as a significant
departure from our long-standing strict liability stan-
dard and the public policies that this standard advances.
Conversely, the defendant urges us to adopt the
Restatement (Third), characterizing it as consistent
with our case law, our act, and litigation practice. To
the extent that both parties acknowledge that the
Restatement (Third) will make some change to our
product liability law, they point to different effects of
those changes. The plaintiff contends that these
changes will have a detrimental, unfair effect on injured
consumers, whereas the defendant contends that these
changes will provide greater clarity and objectivity with-
out such effects. The plaintiff contends that the task
of weighing the numerous policy considerations impli-
cated is better left to the legislature, whereas the defen-
dant contends that the issue should be resolved by
B
Current Standard under Our Law6
Prior to 1965, plaintiffs in Connecticut relied on theo-
ries 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 § 402A of the
Restatement (Second), under which a plaintiff need not
establish the manufacturer’s fault. See Garthwait v.
Burgio, 153 Conn. 284, 289–90, 216 A.2d 189 (1965); 2
Restatement (Second), Torts, § 402A, comment (a), p.
348 (1965) (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 prod-
uct’’). Under that standard, a manufacturer or seller of
a product may be held liable if the product is ‘‘unreason-
ably dangerous . . . .’’8 2 Restatement (Second), supra,
§ 402A (1), p. 347. A primary justification for imposing
strict liability has been that, as between the injured
consumer and the manufacturer who has derived the
economic benefits from the sale of the product, the
latter is better able to insure against the risk and can
pass that cost along to all consumers. See Potter v.
Chicago Pneumatic Tool Co., 241 Conn. 199, 209, 694
A.2d 1319 (1997).
Originally, this court defined unreasonably danger-
ous solely by reference to consumer expectations as
set forth in comment (i)—the ordinary consumer expec-
tation test. See id., 214–15 (‘‘[T]he article sold must be
dangerous to an extent beyond that which would be
contemplated by the ordinary consumer . . . with the
ordinary knowledge common to the community as to its
characteristics. 2 Restatement [Second], supra, § 402A,
comment [i].’’ [Internal quotation marks omitted.]); see
also Giglio v. Connecticut Light & Power Co., 180 Conn.
230, 234, 429 A.2d 486 (1980); Slepski v. Williams Ford,
Inc., 170 Conn. 18, 23, 364 A.2d 175 (1975).
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 reason-
able alternative design, instead of § 402A’s unreason-
ably 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 Caterpil-
lar 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 jurisdic-
tions 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 consid-
eration.’’ 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 contra-
vention 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 sin-
gularly 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 out-
weigh 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 insur-
ance’’ [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 manufac-
turer’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 modi-
fied 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 ele-
ments 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 inad-
equate 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 . . . .’’ Id.,
comment (d), p. 19. ‘‘A broad range of factors may
be considered in determining whether an alternative
design is reasonable and whether its omission renders a
product not reasonably safe. The factors include, among
others, the magnitude and probability of the foreseeable
risks of harm, the instructions and warnings accompa-
nying the product, and the nature and strength of con-
sumer expectations regarding the product, including
expectations arising from product portrayal and mar-
keting. . . . The relative advantages and disadvantages
of the product as designed and as it alternatively could
have been designed may also be considered. Thus, the
likely effects of the alternative design on production
costs; the effects of the alternative design on product
longevity, maintenance, repair, and esthetics; and the
range of consumer choice among products are factors
that may be taken into account.’’ (Citation omitted.)
Id., comment (f), p. 23.
The design defect standard under § 2 is not the exclu-
sive means of establishing liability for a design defect.
The Restatement (Third) acknowledges three other
standards under which a design defect could be estab-
lished.
A comment to § 2 recognizes the possibility that
courts could determine that some products were ‘‘so
manifestly unreasonable, in that they have low social
utility and high degree of danger, that liability should
attach even absent proof of a reasonable alternative
design.’’ Id., comment (e), pp. 21–22. The example pro-
vided of a product that would satisfy this standard is
an exploding novelty cigar that causes burns to the
user’s face. Id., illustration (5), p. 22. This standard will
not apply ‘‘in most instances even though the plaintiff
alleges that the category of product sold by the defen-
dant is so dangerous that it should not have been mar-
keted at all.’’ Id., comment (d), p. 20.
In addition, § 3 recognizes that circumstantial evi-
dence alone may support the inference of a product
defect.10 Id., § 3, p. 111. Essentially, this section states
the contours of the ‘‘malfunction’’ theory that has long
been recognized under Connecticut’s § 402A case law.11
See Metropolitan Property & Casualty Ins. Co. v.
Deere & Co., 302 Conn. 123, 132–33, 25 A.3d 571 (2011);
see also Living & Learning Centre, Inc. v. Griese Cus-
tom Signs, Inc., 3 Conn. App. 661, 664, 491 A.2d 433
(1985) (‘‘It is not necessary that the plaintiff in a strict
tort action establish a specific defect as long as there
is evidence of some unspecified dangerous condition.
In the absence of other identifiable causes, evidence
of malfunction is sufficient evidence of a defect under
§ 402A of the [Restatement (Second) of Torts].’’). This
standard ‘‘most often [will] apply to manufacturing
defects, [but] occasionally a product design causes the
product to malfunction in a manner identical to that
which would be caused by a manufacturing defect.’’
Restatement (Third), supra, § 3, comment (b), p. 112.
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. Id., com-
ment (d), p. 121.
It is evident that these three alternatives to the stan-
dard 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 an unusual case in the future—it does
not endorse or recommend the imposition of category
liability’’ and that coreporters hoped to ‘‘disarm [that
possibility] by dealing with it forthrightly [and narrowly]
in comment [e]’’). Only occasionally will a design defect
cause a product to malfunction in a manner identical
to a manufacturing defect. Rarely will manufacturers
wholly disregard plain and unambiguous product safety
laws. Therefore, it is clear that the standard under § 2
(b) is intended to apply in all but the rarest cases.12
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 a
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). Id., § 2, comment (n), p.
35. Nonetheless, the comments also acknowledge that
§ 2 (b) ‘‘achieve[s] the same general objectives as does
liability predicated on negligence’’; id., comment (a), p.
16; undertakes the same comparative approach that
is used in negligence; id., comment (d), p. 19; and is
supported by the same policy considerations that sup-
port use of a reasonable person perspective in negli-
gence. Id. Accordingly, while there are nominal
differences, many courts and commentators view § 2
(b) as effectively requiring proof of negligence. See,
e.g., Aubin v. Union Carbide Corp., 177 So. 3d 489, 506
(Fla. 2015); Wright v. Brooke Group Ltd., 652 N.W.2d
159, 168 (Iowa 2002); Godoy v. E.I. du Pont de Nem-
ours & Co., 319 Wis. 2d 91, 124, 768 N.W.2d 674 (2009)
(Bradley, J., concurring); 2 D. Dobbs, Law of Torts
(2001) § 353, p. 977; R. Cupp, Jr. & D. Polage, ‘‘The
Rhetoric of Strict Products Liability Versus Negligence:
An Empirical Analysis,’’ 77 N.Y.U. L. Rev. 874, 883
(2002); F. Hubbard, ‘‘ ‘Sophisticated Robots’: Balancing
Liability, Regulation, and Innovation,’’ 66 Fla. L. Rev.
1803, 1821 (2014); F. Vandall & J. Vandall, ‘‘A Call for
an Accurate Restatement (Third) of Torts: Design
Defect,’’ 33 U. Mem. L. Rev. 909, 921 (2003).
Section 402A is a true strict liability standard. A prod-
uct 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.’’ 2 Restatement
(Second), supra, § 402A, comment (a), p. 348. Foresee-
ability of harm is not an element of the plaintiff’s prima
facie case. See Vendrella v. Astriab Family Ltd. Part-
nership, 311 Conn. 301, 307 n.7, 87 A.3d 546 (2014)
(‘‘[s]trict liability means liability without proof that the
defendant was negligent, i.e., that the defendant failed
to take reasonable steps to prevent a foreseeable
harm’’). Foreseeability is only relevant to a defense that
the product was not put to a foreseeable use; see Gen-
eral Statutes § 52-572l (codifying common-law defense
of misuse); Norrie v. Heil Co., 203 Conn. 594, 600, 525
A.2d 1332 (1987) (‘‘[m]isuse occurs when a product is
not used in a manner which should have been foreseen
by the defendant’’ [internal quotation marks omitted]);
or to a request for a reduction of damages due to the
plaintiff’s comparative responsibility for his injuries.
See General Statutes § 52-572o.
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 ‘‘mani-
festly’’ 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 estab-
lish 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, regard-
less 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 fol-
lowing 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 opera-
tion 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 atten-
tion demonstrating either that a jury had difficulty
applying our law or that a jury’s verdict yielded a bizarre
or unconscionable result. Indeed, we noted in Izzarelli
that we would trust our trial courts to safeguard against
any such result. See id., 205.
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 require-
ment. See footnote 12 of this opinion; see also
Restatement (Third), supra, § 2, reporters’ note, com-
ment (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 leg-
islatively. Shortly before the court’s decision in Potter,
the Connecticut Business and Industry Association
drafted a bill that sought to amend our act to incorpo-
rate 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 legis-
lation has been proposed to amend the act; see Raised
Bill No. 5731, 2002 Sess. (proposing to preclude evi-
dence of subsequent remedial measures in product lia-
bility 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-mak-
ing 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 deci-
sion-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 impos-
sible. 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 workable.
See 2 Restatement (Second), supra, § 291, p. 54
(‘‘[w]here an act is one which a reasonable man would
recognize as involving a risk of harm to another, the
risk is unreasonable and the act is negligent if the risk
is of such magnitude as to outweigh what the law
regards as the utility of the act or of the particular
manner in which it is done’’); see also Rodriguez v.
Suzuki Motor Corp., 996 S.W.2d 47, 65 (Mo. 1999) (‘‘the
term unreasonably dangerous, as used in [§] 402A and
[the model jury instructions], needs no judicial defini-
tion, whether derived from consumer expectations,
risk-utility, or otherwise’’ [internal quotation marks
omitted]). Indeed, even under the Restatement (Third),
the fact finder weighs the risks and utility of each
respective design before comparing the alternative
design to the product sold.13
We also note that Connecticut’s standard is hardly
an outlier. It is not a fruitful exercise to attempt to
obtain a precise count of how many jurisdictions have
adopted or rejected the Restatement (Third) standard.
Like every other aspect of this area of the law, parties
on each side of this debate disagree about what legal
standard has been adopted in the various jurisdictions
and whether that determination should be made on the
basis of how the court has articulated its standard or
how the cases have been litigated.14 It suffices for our
purposes that several other jurisdictions apply similar
standards to ours, some for many years. See, e.g.,
Barker v. Lull Engineering Co., 20 Cal. 3d 413, 430,
573 P.2d 443, 143 Cal. Rptr. 225 (1978); Tabieros v.
Clark Equipment Co., 85 Haw. 336, 367–68, 944 P.2d
1279 (1997); Delaney v. Deere & Co., 268 Kan. 769,
792–93, 999 P.2d 930 (2000); Bustos v. Hyundai Motor
Co., 149 N.M. 1, 13, 243 P.3d 440 (App. 2010). The juris-
dictions that have most recently considered this issue
have declined to adopt the Restatement (Third). See
Aubin v. Union Carbide Corp., supra, 177 So. 3d 510
(‘‘In considering which approach is in line with our
prior strict liability jurisprudence, we are in accord
with those state supreme courts that have thoughtfully
considered this issue and determined that the Third
Restatement’s new approach is inconsistent with the
rationale behind the adoption of strict products liability.
The Third Restatement is, in fact, contrary to this state’s
prior precedent.’’); Tincher v. Omega Flex, Inc., 628 Pa.
296, 415, 104 A.3d 328 (2014) (‘‘[T]he Third Restatement
does not offer an articulation of the law sufficient to
persuade us to simply abandon the Second Restatement
formulation of the strict products liability cause of
action and ‘move’ to the Third Restatement. Unlike the
Third Restatement, we believe that the Second
Restatement already adopted, and properly calibrated,
permits the plaintiffs to tailor their factual allegations
and legal argumentation to the circumstances as they
present themselves in the real-world crucible of litiga-
tion, rather than relying upon an evidence-bound stan-
dard of proof.’’). Other jurisdictions rejected the
Restatement (Third) in the years following its final
adoption by the American Law Institute in 1997.15 The
varied standards nationally undermine the defendant’s
argument that Connecticut manufacturers would be at
a competitive disadvantage if we declined to adopt the
Restatement (Third).
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 appro-
priate to require plaintiffs to prove that the risk of
harm was foreseeable. Nonetheless, such a requirement
would be manifestly inconsistent with the court’s con-
cern 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 fore-
seeable 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 finan-
cially 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 Equip-
ment 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 fault, but rather with regard
to the ability of the involved parties to absorb them’’
[internal quotation marks omitted]).
With respect to the reasonable alternative design
requirement, the court in Potter expressed a concern
that such a rule would preclude valid claims for prod-
ucts 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 cate-
gory 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 appre-
ciable 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 (declin-
ing to adopt Restatement [Third] in part because ‘‘[t]he
approach suggests a priori categorical exemptions for
some products—such as novel products with no alter-
native 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, preceden-
tial 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 dis-
tinction, illuminate general principles at issue; but, pur-
porting 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 applica-
tions 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. McWilli-
ams & 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
Reasonable Alternative Design Requirement and Its Dif-
ferent Applications,’’ 82 Def. Couns. J. 185, 191 (2015)
(‘‘[s]eventeen years after the [American Law Institute]
adopted the Third Restatement of Torts on the topic
of product liability, lawyers across the country continue
to wrestle with the reasonable alternative design
requirement, including with whether it is [or should be]
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, initi-
ate 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 clar-
ity. Having undertaken that inquiry, we make the follow-
ing 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 juris-
dictions.
Second, although our risk-utility test permits a plain-
tiff 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 unreason-
ably 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 exclu-
sively on the risks and utility of the product sold. We
underscore that (b) is not limited to products of mar-
ginal 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 unreason-
ably dangerous. By segregating these risk-utility theo-
ries, we may gain a clearer picture of what, if any,
problems these theories present in practical appli-
cation.
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 feature
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 eco-
nomically) 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 desir-
ability 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 regula-
tions or a product seller’s express representations. Such
noncompliance would establish the product’s failure to
meet consumers’ legitimate, commonly accepted, mini-
mum safety expectations. Moreover, the utility of the
product would not excuse such noncompliance.
E
In light of the clarifications in Izzarelli and this opin-
ion, we summarize the standards that govern a product
liability claim, as that term is defined under our act.
See General Statutes § 52-572m (b).17
All such claims, whether alleging a design defect,
manufacturing defect or failure to warn defect, are gov-
erned by the same elements that this court 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. Rey-
nolds 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
may prove this element under the risk-utility test or
under the consumer expectation test.
Under the risk-utility test, which will govern most
cases, a product is in a defective condition unreason-
ably 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 con-
sider 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 cre-
ating 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
product, the utility of the product in relation to the
range of consumer choices among products, and the
nature and strength of consumer expectations regard-
ing 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 theo-
ries are not mutually exclusive. A plaintiff may consis-
tently 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 ‘‘danger-
ous 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 prod-
uct safety laws.19
III
FIRST CERTIFIED QUESTION
Having reaffirmed our allegiance to a strict liability
standard under § 402A of the Restatement (Second),
we turn to the first certified question, which asks: ‘‘Does
[§] 402A of the Restatement (Second) of Torts (and
[c]omment [i] to that provision) apply to a product
liability claim for negligence under [the act]?’’ Bifolck
v. Philip Morris, Inc., supra, 2014 WL 585325, *8. This
question requires us to consider the element of § 402A
that imposes liability only when a product is in a ‘‘defec-
tive condition unreasonably dangerous to the user or
consumer’’; 2 Restatement (Second), supra, § 402A (1),
p. 347; and the definition in comment (i) of unreason-
ably dangerous as limited to products that are ‘‘danger-
ous to an extent beyond that which would be
contemplated by the ordinary consumer who purchases
it, with the ordinary knowledge common to the commu-
nity as to its characteristics.’’ Id., comment (i), p. 352.
Both parties agree that, under the Restatement (Sec-
ond) and our act, a product liability claim may be
brought under theories of strict liability and/or negli-
gence. 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 consis-
tent 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 effec-
tively must prove that the product is in a defective
condition unreasonably dangerous to the user. None-
theless, 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 consum-
ers’ expectations. He contends that to conclude other-
wise 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 condi-
tion 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 adoption of § 402A, no action alleging
injuries caused by the manufacture or design of a prod-
uct based on negligence and/or warranty theories suc-
ceeded without evidence to this effect. See, e.g.,
Handler v. Remington Arms Co., 144 Conn. 316, 321,
130 A.2d 793 (1957) (noting that plaintiffs had proved
that ammunition cartridge was defective and had
offered evidence ‘‘that the defendant, although knowing
that the cartridge, if defective, would be an inherently
dangerous article and a source of unreasonable risk of
injury to those who might use it, permitted it to be
available for future use without indicating by label or
otherwise the danger to which the user would expose
himself’’); Jump v. Ensign-Bickford Co., 117 Conn. 110,
118–19, 167 A. 90 (1933) (considering whether fuse for
dynamite was defect of ‘‘imminently dangerous’’ charac-
ter); Burkhardt v. Armour & Co., 115 Conn. 249, 264–65,
161 A. 385 (1932) (considering seller’s liability for prod-
uct ‘‘in a dangerously defective condition’’). Since this
court adopted § 402A in 1965, and our legislature
required all product liability claims to be brought as a
statutory cause of action in 1979, our case law has
reflected a consistent pattern of claims conforming to
this element. Therefore, we agree that any product lia-
bility claim, no matter the type or theory, is governed
by the same essential elements. See part II E of this
opinion.
Nonetheless, we disagree with the defendant that
there is a single definition for unreasonably dangerous,
as provided in comment (i) to § 402A. The parties did
not have the benefit of our decision in Izzarelli when
they submitted their briefs and provided oral argument
on this issue. Indeed, it is evident from the record that
the parties assumed that the consumer expectation test
would control the plaintiff’s strict liability claim. Our
decision in Izzarelli, however, not only clarified that a
different strict liability test would control the present
case, but also negated an argument that a product is
unreasonably dangerous only when it is dangerous to
an extent beyond that contemplated by the ordinary
consumer.
The court concluded in Izzarelli that the plaintiff in
that case could not proceed under the ordinary con-
sumer expectation test because ‘‘[a] cigarette that expo-
ses the user to carcinogens and the attendant risk of
cancer cannot be said to fail to meet an ordinary con-
sumer’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 § 402A is not a per se
bar to the plaintiff’s recovery under the controlling test:
‘‘Comment (i) to § 402A serves a limited role under
the modified consumer expectation test. Although the
modified test asks the jury to weigh various factors
through the ultimate lens of the consumer’s expecta-
tions, as a functional and practical matter that weighing
process supplants the definition in comment (i) of
unreasonably dangerous. Cf. Wright v. Brooke Group
Ltd., [supra, 652 N.W.2d 169–70] (concluding that com-
ment [i] to § 402A does not apply after court adopted
risk-utility test). In other words, the factors that the
court in Potter identified essentially provide the jury
with information that a fully informed consumer would
know before deciding whether to purchase the product.
See Potter v. Chicago Pneumatic Tool Co., supra, 241
Conn. 221. When the consumer has specific product
expectations that differ from those factors, those too
may be factored into the weighing process. It could be
that, in a given case, the consumer’s expectations of
the product would be the determinative factor. See Blue
v. Environmental Engineering, Inc., [215 Ill. 2d 78, 87,
828 N.E.2d 1128 (2005)] ([u]nder the risk-utility test,
the open and obvious nature of the risk is just one factor
to be considered within this range of considerations and
it will only serve to bar the liability of the manufacturer
where it outweighs all other factors to be considered
in weighing the inherent risks against the utility of the
product as manufactured); Delaney v. Deere & Co.,
[supra, 268 Kan. 792–93] (rejecting open and obvious
danger as precluding recovery and instead making that
fact merely one of several informing consumer’s expec-
tations); Evans v. Lorillard Tobacco Co., [465 Mass.
411, 428, 990 N.E.2d 997 (2013)] (noting that under risk-
utility test, because reasonable consumer expectations
are simply one of many factors that may be considered
and not necessarily the determinative factor, the plain-
tiff was not obligated to prove that Newport cigarettes
were more dangerous than consumers reasonably
expected); Tomasino v. American Tobacco Co., [23
A.D. 3d 546, 548–49, 807 N.Y.S.2d 603 (2005)] (The
mere fact that a risk presented by a product design is
open and obvious, or generally known, and that the
product thus satisfies expectations . . . may substan-
tially influence or even be ultimately determinative on
risk-utility balancing in judging whether the omission
of a proposed alternative design renders the product not
reasonably safe. It follows that, while disappointment of
consumer expectations may not serve as an indepen-
dent basis for allowing recovery under [the design
defect theory], neither may conformance with con-
sumer expectations serve as an independent basis for
denying recovery. Such expectations may be relevant
in both contexts, but in neither are they controlling
. . . .).
‘‘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 ordi-
nary 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 negli-
gence 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 General Statutes § 52-572o (a) (‘‘[i]n any
claim under sections 52-240a, 52-240b, 52-572m to 52-
572q, inclusive, or 52-577a, the comparative responsibil-
ity of, or attributed to, the claimant, shall not bar recov-
ery but shall diminish the award of compensatory
damages proportionately, according to the measure of
responsibility attributed to the claimant’’). Thus, in
Izzarelli, we deemed our act to evidence a clear legisla-
tive intent not to preclude recovery due solely to the
fact that the product’s danger is open and obvious.
Accordingly, our decision in Izzarelli makes clear
that comment (i) to § 402A does not provide a unitary
definition of unreasonably dangerous that governs all
product liability claims. See Barker v. Lull Engineering
Co., supra, 20 Cal. 3d 427 (‘‘the term defect as utilized
in the strict liability context is neither self-defining nor
susceptible to a single definition applicable in all con-
texts’’). For purposes of strict liability, a product may
be unreasonably dangerous if it fails to meet consumers’
minimum safety expectations or if its risks exceed its
utility, because the consumer may know of the risk of
danger but fail to fully appreciate that danger or know
how safe the product could be made.
When negligence is a viable theory of recovery, con-
sumer expectations have never been an element of that
theory. Under our common law, ‘‘[t]he essential ele-
ments of a cause of action in negligence are well estab-
lished: 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 ele-
ments 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 prod-
ucts 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
Applying this reasoning to the present case, it is clear
that although § 402A fairly reflects the broad contours
of the elements of all product liability claims, consumer
expectations as set forth in comment (i) do not apply
to a product liability claim premised on negligence,
when such a claim is viable. To the extent that the
defendant argues that many jurisdictions apply a single
standard for all product defect claims, that fact does not
speak to whether they require all claims to be proved in
relation to consumer expectations. The broad accep-
tance of the risk-utility test plainly indicates that they
do not. Indeed, even some courts that apply a consumer
expectation test have not applied comment (i) to a
claim of negligence. See, e.g., Smith v. Central Mine
Equipment Co., 559 Fed. Appx. 679, 681 (10th Cir. 2014)
(summary judgment granted in favor of defendant on
strict liability claim because dangers of drill rig were
obvious but allowing negligence claim based on defec-
tive design for failure to install safety device to be
submitted to jury); Tabieros v. Clark Equipment Co.,
supra, 85 Haw. 369–70 (‘‘The consumer expectation test
for determining the defectiveness of products the use
of which involve open and obvious dangers can result
in finding products to be not defective that could easily
have been designed safer without great expense or
effect on the benefits or functions to be served by the
product. . . . [I]n connection with a claim of negligent
design, the obviousness of [the] peril is [merely] rele-
vant to the manufacturer’s defenses [e.g., contributory
negligence], and not to the issue of duty, and, therefore,
does not, in itself, immunize the manufacturer from
potential liability.’’ [Citations omitted; internal quota-
tion marks omitted.]); Palmer v. Massey-Ferguson,
Inc., 3 Wash. App. 508, 514–15, 476 P.2d 713 (1970) (‘‘We
feel constrained to comment on the proper scope of
instructions setting out negligence in a products liability
setting, since that theory is open as a nonexclusive
alternative to the Restatement [Second] of Torts § 402A
rule of strict liability. Negligence in products liability
cases is unlike the warranty implied in law theory,
which was swallowed up and renamed in the adoption
of § 402A. . . . A beginning point for analysis of the
requisites demanded for recovery in a negligence theory
is Restatement [Second] of Torts § 395 . . . .’’ [Cita-
tions omitted.]); Greiten v. La Dow, 70 Wis. 2d 589,
603, 235 N.W.2d 677 (1975) (‘‘Where a plaintiff proves
negligence—in this case, the lack of ordinary care in
the design of a product—there is no doubt that there
may be recovery in the event the defective design results
in an unreasonably dangerous product, but there may
be recovery for the negligent design of a product even
though it is not unreasonably dangerous in the [§ 402A]
sense. All that it is necessary to prove is that the product
is designed with a lack of ordinary care and that lack
of care resulted in injury.’’ [Footnote omitted.]).
Insofar as courts have concluded that the failure to
prove that the product is in a defective condition unrea-
sonably dangerous to the consumer would equally
doom strict liability and negligence, we agree. We sim-
ply 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.’’23
IV
PUNITIVE DAMAGES
Lastly, we turn to the second certified question, which
asks: ‘‘Does Connecticut’s common-law rule of punitive
damages, as articulated in Waterbury Petroleum Prod-
ucts, Inc. v. Canaan Oil & Fuel Co., [supra, 193 Conn.
208], apply to an award of statutory punitive damages
pursuant to . . . § 52-240b, the punitive damages pro-
vision of the [act]?’’ Bifolck v. Philip Morris, Inc., supra,
2014 WL 585325, *8. This question requires us to con-
sider whether punitive damages under the act are lim-
ited to litigation expenses less costs. We conclude that
they are not.
In considering this issue, we apply general rules of
statutory construction; see General Statutes § 1-2z;
Martel v. Metropolitan District Commission, 275 Conn.
38, 57, 881 A.2d 194 (2005); subject to a significant
qualification. ‘‘While the legislature’s authority to abro-
gate the common law is undeniable, we will not lightly
impute such an intent to the legislature. . . . Thus,
[w]hen a statute is in derogation of common law . . .
it should receive a strict construction and is not to be
extended, modified, repealed or enlarged in its scope
by the mechanics of [statutory] construction. . . . In
determining whether or not a statute abrogates or mod-
ifies a [common-law] rule . . . the operation of a stat-
ute in derogation of the common law is to be limited
to matters clearly brought within its scope.’’ (Internal
quotation marks omitted.) Chadha v. Charlotte Hun-
gerford Hospital, 272 Conn. 776, 788–89, 865 A.2d
1163 (2005).
We begin therefore with the common-law rule and
then turn to the statute. In Waterbury Petroleum Prod-
ucts, 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 charac-
terizing it as a hybrid between a display of ethical indig-
nation 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 juris-
prudence. . . . 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 lim-
iting such damages as we do, our rule strikes a bal-
ance—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. Fur-
ther, 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 in addition to the compensation of the
victim. Thus, in limiting punitive damage awards to the
costs of litigation less taxable costs, our rule fulfills the
salutary purpose of fully compensating a victim for the
harm inflicted on him while avoiding the potential for
injustice which may result from the exercise of unfet-
tered discretion by a jury.’’ (Citations omitted; footnotes
omitted; internal quotation marks omitted.) Waterbury
Petroleum Products, Inc. v. Canaan Oil & Fuel Co.,
supra, 193 Conn. 236–38.
With the common law in mind, we turn to the punitive
damages provision in the act. Section 52-240b provides:
‘‘Punitive damages may be awarded if the claimant
proves that the harm suffered was the result of the
product seller’s reckless disregard for the safety of
product users, consumers or others who were injured
by the product. If the trier of fact determines that puni-
tive damages should be awarded, the court shall deter-
mine the amount of such damages not to exceed an
amount equal to twice the damages awarded to the
plaintiff.’’
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 dam-
ages are measured in relation to a multiple of compensa-
tory 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 distinc-
tion and citing General Statutes §§ 35-53 [b] and 52-
240b as examples), cert. denied sub nom. Vertrue, Inc.
v. MedValUSA Health Programs, Inc., 546 U.S. 960, 126
S. Ct. 479, 163 L. Ed. 2d 363 (2005). In addition, the
statute vests the court with exclusive authority to deter-
mine the amount of damages, whereas the trier of fact
traditionally had determined the amount of common-
law punitive damages.24 See Matthiessen v. Vanech, 266
Conn. 822, 826, 836 A.2d 394 (2003); Kenny v. Civil
Service Commission, 197 Conn. 270, 277, 496 A.2d 956
(1985); Gionfriddo v. Avis Rent A Car System, Inc.,
192 Conn. 280, 295, 472 A.2d 306 (1984); Vogel v. Sylves-
ter, 148 Conn. 666, 673, 174 A.2d 122 (1961); Hanna
v. Sweeney, supra, 78 Conn. 493; Perkins v. Colonial
Cemeteries, Inc., 53 Conn. App. 646, 647, 734 A.2d 1010
(1999); see also Proto v. Bridgeport Herald Corp., 136
Conn. 557, 571, 72 A.2d 820 (1950).
Indeed, it was precisely because juries assessed the
amount of punitive damages that this court was moti-
vated to adopt the common-law rule, limiting the exer-
cise 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), General Statutes § 42-110a et seq.] should be
submitted to the trial court, and not the jury, because
it believed that the court would be aware of the range
of punitive damages that have been awarded for similar
CUTPA violations, that it would be less likely to be
swayed by appeals to emotion and prejudice, and, there-
fore, it would be less likely to render an award that
was an outlier’’).
There are other factors that inform our conclusion.
If we were to construe the act to equate the statutory
punitive damages to litigation expenses, 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 stat-
ute 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 com-
pensatory damages would frustrate the purpose of com-
mon-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 statu-
tory reduction of compensatory damages in relation to
comparative responsibility.25 See General Statutes § 52-
572o. Attorneys may be disinclined to take complex
design defect cases when the plaintiff’s injuries are
modest, which in turn would remove an incentive for
manufacturers to make safety improvements.
Another factor that has influenced this court to distin-
guish an award of statutory punitive damages from com-
mon-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 com-
mon-law punitive damages. Pursuant to § 52-240a, ‘‘[i]f
the court determines that the claim or defense is frivo-
lous, the court may award reasonable attorney’s fees
to the prevailing party in a products liability action.’’
When an award of attorney’s fees pursuant to § 52-240a
and an award of punitive damages pursuant to § 52-
240b are both applicable, the combined effect of such
awards would be substantially similar to another statute
that this court has interpreted to have punitive damages
not limited by the common-law rule. Smith v. Snyder,
supra, 267 Conn. 469–70 (concluding that punitive dam-
ages awarded under § 35-53 are not common-law puni-
tive damages where statute provided: ‘‘if the court finds
wilful and malicious misappropriation, the court may
award punitive damages in an amount not exceeding
twice any award made under subsection [a] and may
award reasonable attorney’s fees to the prevailing
party’’ [internal quotation marks omitted]).
If punitive damages in § 52-240b were interpreted to
mean common-law punitive damages, then both §§ 52-
240a and 52-240b would provide for attorney’s fees, but
under different conditions. See Berry v. Loiseau, 223
Conn. 786, 832, 614 A.2d 414 (1992) (‘‘[l]itigation
expenses may include not only reasonable attorney’s
fees, but also any other nontaxable disbursements rea-
sonably necessary to prosecuting the action’’). Several
concerns arise from this construction. First, attorney’s
fees under § 52-240a are not capped, as are punitive
damages in § 52-240b. It is difficult to fathom why the
legislature would have deemed the defendant’s asser-
tion of a frivolous defense to merit a harsher penalty
than the defendant’s injury causing reckless disregard
for others’ safety. Second, in cases in which a prevailing
plaintiff has established both reckless disregard of
safety and frivolous litigation conduct, the defendant
would not be penalized for one of those wrongful acts.
Which wrongful act was punished would depend on
which statute provided greater recovery. In either case,
one statute’s purpose would not be fulfilled. Thus,
unsurprisingly, in the only case in which a prevailing
plaintiff sought to recover under both §§ 52-240a and
52-240b, the trial court did not interpret the latter as
subject to the common-law rule. See Roome v. Shop-
Rite Supermarkets, Inc., Docket No. CV-02-0281250-S,
2006 WL 2556572, *4–5 (Conn. Super. August 16, 2006);
see also R.I. Pools, Inc. v. Paramount Concrete, Inc.,
149 Conn. App. 839, 874–75 and nn.18 and 19, 89 A.3d
993 (noting that neither party had taken issue with trial
court’s determination that punitive damages under § 52-
240b follow common-law rule and further noting that
trial court had not considered award of attorney’s fees
under § 52-240a), cert. denied, 312 Conn. 92, 94 A.3d
1200 (2014). In sum, the weight of these inconsistencies
supports a conclusion that punitive damages under § 52-
240b are not measured by the common-law rule. See
Kyrtatas v. Stop & Shop, Inc., 205 Conn. 694, 699–700,
535 A.2d 357 (1988) (because common-law doctrine of
indemnification is inconsistent with provisions of act
concerning comparative responsibility, award of dam-
ages, and contribution, act abrogates common-law
doctrine).
To the extent that the defendant contends that con-
struing 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 sup-
port the defendant’s construction. The punitive dam-
ages 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 damages provision manifestly intended the
broader measure of such damages, not litigation
expenses. The proposed provision was taken almost
verbatim from the Draft Uniform Product Liability Law
published by the United States Department of Com-
merce. 44 Fed. Reg. 2996 (proposed January 12, 1979);
see Elliot v. Sears, Roebuck & Co., 229 Conn. 500, 505–
506, 642 A.2d 709 (1994); compare 44 Fed. Reg. 3002,
§ 120 (January 12, 1979), with Substitute House Bill No.
5870, § 8; see also footnote 26 of this opinion. The model
provision was based on a newly enacted Minnesota
statute that, like most other jurisdictions, does not fix
punitive damages in relation to litigation expenses. See
44 Fed. Reg. 3019, § 120, analysis (January 12, 1979),
citing Minn. Stat. Ann. § 549.21 (3) (West 1978); see also
MedValUSA Health Programs, Inc. v. MemberWorks,
Inc., supra, 273 Conn. 672 (Zarella, J., dissenting) (‘‘for
nearly a century, we have remained steadfast in our
commitment to a common-law measure of punitive
damages that is indisputably one of the most conserva-
tive in the nation’’). The proposed provision provided no
cap on punitive damages and provided instead various
factors that the court should consider in fixing the
proper award. See Substitute House Bill 5870, § 8; see
also footnote 26 of this opinion. None of these factors
related to litigation costs, but instead related to the
wrongfulness of the defendant’s conduct and the finan-
cial impact of that award and like awards on the defen-
dant.26 Thereafter, an amendment was adopted that
substituted the cap on punitive damages in lieu of the
unbridled discretion applying the various factors. See
Substitute House Bill No. 5870, as amended by House
Amendment A; 22 S. Proc., Pt. 14, 1979 Sess., p. 4626,
remarks of Senator Salvatore C. DePiano (sponsor of
act explaining that amendment would ‘‘place a limita-
tion on the amount of punitive damages that would be
awarded’’). There is nothing to indicate that, in doing
so, the legislature intended to change the meaning of
‘‘punitive damages’’ as used in the proposed bill. No
legislator referred to litigation expenses. In fact, one
of the bill’s sponsors recognized that, despite the
amendment, the bill provided a benefit that had not
previously been available to plaintiffs. See 22 H.R. Proc.,
Pt. 21, 1979 Sess., p. 7285, remarks of Representative
Richard D. Tulisano (explaining that, in amendment,
‘‘we have put a cap on potential punitive damages that
were in there which are a benefit to individuals’’). As
common-law punitive damages already were available
for a tort committed in reckless disregard of another’s
rights, the statute must have provided some recovery
that was not previously available.
We are mindful that the amendment eliminated the
language providing that punitive damages could be
awarded ‘‘in addition to attorney’s fees . . . .’’ House
Bill 5870, House Amendment A. There are numerous
reasons, however, why that phrase may have been
removed—it was not in the model law, it was superflu-
ous because of the provision expressly providing for
attorney’s fees, or it might suggest that attorney’s fees
and punitive damages should be awarded on the same
basis. We are not persuaded that the inclusion and then
removal of this phrase is persuasive evidence either
way. Therefore, we conclude that the legislative history
lends no support to the defendant’s construction and
instead supports what the language of the statute
strongly indicates—that statutory punitive damages are
not measured by the common-law rule.
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.
* December 29, 2016, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
This appeal was originally argued on April 22, 2015. On April 25, 2016,
we ordered the parties to address certain questions in supplemental briefs
and we then granted reargument in this appeal on September 13, 2016.
1
Although the act commonly refers to General Statutes §§ 52-572m
through 52-572q, which sets forth certain procedural and substantive require-
ments of product liability actions, the public act enacting these provisions,
Public Acts 1979, No. 79-483, also enacted provisions codified at General
Statutes § 52-577a, prescribing the statute of limitations and period of repose
for product liability actions, and General Statutes §§ 52-240a and 52-240b,
respectively prescribing attorney’s fees and punitive damages for such
actions. We use the term act to refer to all of these provisions.
2
Comment (i) to § 402A of the Restatement (Second) of Torts provides
in relevant part: ‘‘The rule stated in this [s]ection applies only where the
defective condition of the product makes it unreasonably dangerous to the
user or consumer. Many products cannot possibly be made entirely safe for
all consumption, and any food or drug necessarily involves some risk of
harm, if only from over-consumption. . . . That is not what is meant by
‘unreasonably dangerous’ in this [s]ection. The article sold must be danger-
ous to an extent beyond that which would be contemplated by the ordinary
consumer who purchases it, with the ordinary knowledge common to the
community as to its characteristics. . . . Good tobacco is not unreason-
ably dangerous merely because the effects of smoking may be harmful; but
tobacco containing something like marijuana may be unreasonably danger-
ous. . . .’’ (Emphasis added.)
3
That count also alleged theories of: (1) breach of implied warranty,
predicated on alleged statements by the defendant and its agent that the
defendant would notify the public and make changes to its product if it
learned that its cigarettes contained harmful ingredients; and (2) breach of
express warranty, predicated on the defendant’s allegedly false statements
that Marlboro Light provided lower tar and nicotine than regular cigarettes.
A second count alleged loss of consortium.
4
Section 1 of the Restatement (Third) simply provides that a commercial
seller or distributor is subject to liability for harm caused by defective
products. In part II C of this opinion, we address in further detail § 2, which
defines ‘‘Categories of Product Defect,’’ and § 4, which dictates whether a
product may be deemed defective due to ‘‘Noncompliance and Compliance
with Product Safety Statutes or Regulations . . . .’’
5
We note with regard to our resolution of the first two issues (parts II
and III of this opinion), that, although the act consolidates the various
theories that could support a product liability claim as a statutory cause of
action; see footnote 17 of this opinion; it did not abrogate the common-law
elements of product liability claims under the various theories, except insofar
as it provided certain considerations relevant to failure to warn claims. See
General Statutes § 52-572m. This court previously recognized that, ‘‘because
[the] act does not delineate [the] elements of claims that it consolidates,
[the] common law provides [the] basis for theories of recovery . . . .’’ Potter
v. Chicago Pneumatic Tool Co., 241 Conn. 199, 245 n.34, 694 A.2d 1319
(1997) (citing Second Circuit case for this proposition).
6
For a more comprehensive discussion of the considerations guiding
development of this area of the law, see Izzarelli v. R.J. Reynolds Tobacco
Co., supra, 321 Conn. 184–92.
7
See, e.g., Corneliuson v. Arthur Drug Stores, Inc., 153 Conn. 134, 214
A.2d 676 (1965) (implied warranty); Hamon v. Digliani, 148 Conn. 710, 174
A.2d 294 (1961) (breach of warranties and negligence); Crotty v. Sharten-
berg’s-New Haven, Inc., 147 Conn. 460, 162 A.2d 513 (1960) (implied war-
ranty); Handler v. Remington Arms Co., 144 Conn. 316, 130 A.2d 793 (1957)
(negligence); Gross v. Loft, Inc., 121 Conn. 394, 185 A. 80 (1936) (warranty
and negligence); Burkhardt v. Armour & Co., 115 Conn. 249, 161 A. 385
(1932) (negligence); Wolcho v. Rosenbluth, 81 Conn. 358, 71 A. 566 (1908)
(negligence).
8
‘‘The elements of a strict liability action that this court derived from
§ 402A [of the Restatement [Second]) required the plaintiff to prove: (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.
9
Section 2 of the Restatement (Third) does not expressly exclude any
types of products. The comments, however, explain that another section of
the Restatement (Third), § 6, provides a different standard for two categories
of products, prescription drugs and medical devices. Restatement (Third),
supra, § 2, comment (k), p. 32. We have not asked the parties or amici to
address whether we should adopt § 6.
10
Section 3 of the Restatement (Third) of Torts, Products Liability, pro-
vides: ‘‘It may be inferred that the harm sustained by the plaintiff was caused
by a product defect existing at the time of sale or distribution, without proof
of a specific defect, when the incident that harmed the plaintiff:
‘‘(a) was of a kind that ordinarily occurs as a result of product defect; and
‘‘(b) was not, in the particular case, solely the result of causes other than
product defect existing at the time of sale or distribution.’’
11
See, e.g., Standard Structural Steel Co. v. Bethlehem Steel Corp., 597
F. Supp. 164, 183 (D. Conn. 1984) (recognizing Connecticut law permits fact
finder to draw inference of defect from circumstantial evidence); Kileen v.
General Motors Corp., 36 Conn. Supp. 347, 349, 421 A.2d 874 (1980) (‘‘[t]he
fact finder can find, where other identifiable causes are absent, that the
mere evidence of a malfunction is sufficient evidence of a defect’’); see also
annot., 65 A.L.R. 4th 354–58 (1988) (listing twenty-seven states and District
of Columbia that allow establishment of prima facie case of design defect
based upon inferences from circumstantial evidence).
12
The draft Restatement (Third) that was considered in Potter provided
these same three alternatives to § 2 (b). See Restatement (Third) of Torts,
Products Liability, § 2 and comments, §§ 3 and 7 (Tentative Draft No. 2,
1995). The court in Potter, however, treated the alternative design require-
ment under § 2 (b) as absolute. See Potter v. Chicago Pneumatic Tool Co.,
supra, 241 Conn. 215–19. It is unclear whether the court did so because
it was unaware of these alternatives, or whether the court intentionally
disregarded them, either because it had not been asked to consider adopting
these provisions/comments or because of their marginal application.
13
The notion that our current approach yields an unjust result because
it dooms an entire product line without objective evidence is similarly
unpersuasive. In any event, a jury verdict in favor of a plaintiff on a design
defect claim does not result in a ban on the sale of the product. The manufac-
turer is free to weigh the risks and costs of injuries against the product’s
profits to determine whether to issue a recall or to continue sales.
14
Although there is general consensus that most jurisdictions apply a risk-
utility test, not every such test is the functional equivalent to the Restatement
(Third). Our own law is a perfect example.
15
See, e.g., Mikolajczyk v. Ford Motor Co., 231 Ill. 2d 516, 545–46, 901
N.E.2d 329 (2008) (‘‘By urging adoption of the Products Liability
Restatement’s formulation of the elements of a strict product liability design
defect claim, [the] defendants seek a change in the substantive law of this
state. This argument goes far beyond their assertion that the jury in this
particular case was not properly instructed and would require our overruling
[three cases], at least in part. We, therefore, decline [the] defendants’ invita-
tion to adopt [§] 2 [b] of the Products Liability Restatement. Thus, the
existence of a feasible alternative design and the balancing of risks and
benefits are relevant considerations in a strict product liability design defect
case, but they are not elements of the claim that the plaintiff is required to
plead and prove in every case.’’); Delaney v. Deere & Co., supra, 268 Kan.
791–92 (declining to adopt Restatement [Third], citing controversy still sur-
rounding it, lack of support from majority of jurisdictions, inconsistency of
requirement of alternative design with Kansas law); Rodriguez v. Suzuki
Motor Corp., supra, 996 S.W.2d 65 (The court rejected the argument that it
should adopt the Restatement [Third], citing case law concluding that ‘‘the
term unreasonably dangerous, as used in [§] 402A and [its model jury instruc-
tions], needs no judicial definition, whether derived from consumer expecta-
tions, risk-utility, or otherwise. . . . Instead, the concept of unreasonable
danger is to be treated as an ultimate issue for the jury. . . . Under this
[c]ourt’s reasoning, [a] signal virtue of such a general instruction is that it
allows the jury to give the concept of unreasonable danger content by
applying their collective intelligence and experience to the broad evidentiary
spectrum of facts and circumstances presented by the parties. . . . Further-
more, the perceived need to define unreasonable dangerousness is largely
satisfied by allowing the litigants to argue that the utility of a design out-
weighs its risks, or that consumer expectations were violated, or any other
theory of unreasonable dangerousness supported by the evidence.’’ [Cita-
tions omitted; internal quotation marks omitted.]); Vautour v. Body Masters
Sports Industries, Inc., 147 N.H. 150, 154–56, 784 A.2d 1178 (2001) (declining
request to adopt Restatement [Third], citing concerns that ‘‘reasonable alter-
native design requirement would impose an undue burden on plaintiffs
because it places a potentially insurmountable stumbling block in the way
of those injured by badly designed products’’; that it ‘‘may be difficult for
courts and juries to apply,’’ and that, while proof of alternative design is
relevant in design defect case, it ‘‘should be neither a controlling factor nor
an essential element that must be proved in every case’’ [internal quotation
marks omitted]); Godoy v. E.I. du Pont de Nemours & Co., supra, 319 Wis.
2d 107 (‘‘Although we have recognized that the Restatement [Third] may
offer new insights into product liability, we have neither adopted nor rejected
it in its entirety. . . . Section 402A of the Restatement [Second] of Torts
has remained the touchstone of our analysis for strict products liability.’’
[Citation omitted; footnote omitted.]); Godoy v. E.I. du Pont de Nemours &
Co., supra, 107 n.8 (‘‘[r]ecently, we stated that the Restatement [Third]’s
definition of ‘defective design’ is ‘fundamentally at odds with current Wiscon-
sin products liability law’ ’’).
16
As such, although the court in Potter identified two specific concerns
relating to the reasonable alternative design requirement, we do not read
that decision to reflect every concern that the court may have had with the
Restatement (Third) standard.
17
General Statutes § 52-572m (b) provides: ‘‘ ‘Product liability claim’
includes all claims or actions brought for personal injury, death or property
damage caused by the manufacture, construction, design, formula, prepara-
tion, assembly, installation, testing, warnings, instructions, marketing, pack-
aging or labeling of any product. ‘Product liability claim’ shall include, but
is not limited to, all actions based on the following theories: Strict liability
in tort; negligence; breach of warranty, express or implied; breach of or
failure to discharge a duty to warn or instruct, whether negligent or innocent;
misrepresentation or nondisclosure, whether negligent or innocent.’’
18
The reasonable consumer standard in relation to a manifestly unreason-
able design refers to the consumer to whom the product is marketed. Thus,
when a product has been designed for and marketed to a limited group
with specialized needs and/or knowledge, such as industrial equipment not
suited for use by the general public, and the product is accompanied by
adequate warnings, whether the product’s design is manifestly unreasonable
is determined by reference to the intended consumer.
19
Other than circumstances in which the product fails to comply with
safety laws or express warranties, we presume that circumstantial evidence
will be used to establish a defect based on consumers’ minimum safety
expectations, under what we have referred to as our ‘‘malfunction theory.’’
White v. Mazda Motor of America, Inc., 313 Conn. 610, 612, 99 A.3d 1079
(2014). Conversely, we presume that a plaintiff seeking to prove a defect
by direct evidence will proceed under our primary risk-utility test. We do
not foreclose, however, the possibility that a plaintiff could proceed under
the consumer expectation test with direct evidence of a defect that does
not require expert testimony should a case arise in which it would be
inappropriate to require the plaintiff to proceed under the risk-utility test.
We are unaware of any such circumstances at the present time.
20
The court recognized, however, ‘‘that a different conclusion might be
warranted in cases in which the plaintiff (or decedent) began smoking
before warning labels were mandated by federal law. See Guilbeault v. R.J.
Reynolds Tobacco Co., 84 F. Supp. 2d 263, 271 (D.R.I. 2000) (‘most of the
courts considering the common knowledge of the general disease-related
health risks of smoking have placed common knowledge at least at 1966
and some before’); see, e.g., Spain v. Brown & Williamson Tobacco Corp.,
363 F.3d 1183, 1194 (11th Cir. 2004); Insolia v. Philip Morris, Inc., 216 F.3d
596, 600 (7th Cir. 2000); Estate of White v. R.J. Reynolds Tobacco Co., 109
F. Supp. 2d 424, 432–33 (D. Md. 2000); Tillman v. R.J. Reynolds Tobacco
Co., 871 So. 2d 28, 33 (Ala. 2003); Miele v. American Tobacco Co., 2 Ohio App.
Div. 3d 799, 802, 770 N.Y.S.2d 386 (2003).’’ Izzarelli v. R.J. Reynolds Tobacco
Co., supra, 321 Conn. 203 n.16.
21
We also explained that ‘‘precluding liability solely because the product’s
dangers were open and obvious would be in tension with’’ this court’s
determination in Potter regarding the scope of admissible state of the art
evidence. Izzarelli v. R.J. Reynolds Tobacco Co., supra, 321 Conn. 199 n.14.
We noted that Potter had held that ‘‘state of the art refers to what is technolog-
ically feasible, rather than merely industry custom.’’ (Internal quotation
marks omitted.) Id. In Izzarelli, we reasoned that ‘‘[t]he fact that an industry
universally may design a product in a manner that poses a particular danger
may provide notice to consumers of such a danger. To preclude liability
due to such notice would negate the evidentiary value of the state of the
art.’’ Id., 199–200 n.14.
22
Although some comments to the Restatement (Second) sections for
negligence of product sellers acknowledge that contributory fault may arise
when the danger is known to the consumer; see, e.g., 2 Restatement (Sec-
ond), supra, § 398, comment (b), p. 336; such fault is not equivalent to the
consumer expectation definition in comment (i) to § 402A. If legally avail-
able, such fault would be a defense, not an element of the plaintiff’s prima
facie case, and only if the plaintiff had acted unreasonably in the face of
his knowledge. See Stafford v. Roadway, 312 Conn. 184, 191, 93 A.3d 1058
(2014); Mazzucco v. Krall Coal & Oil Co., 172 Conn. 355, 358, 374 A.2d 1047
(1977); Rohloff v. Fair Haven & Westville Railroad Co., 76 Conn. 689, 692–93,
58 A. 5 (1904). Such a defense is not available, however, for a claim under
our act. Our legislature limited application of this common-law defense in
1973, and abolished it for product liability claims in 1979, when adopting
that act. See Public Acts 1973, No. 73-622, § 1, codified at General Statutes
§ 52-572h (b) (limiting defense to preclude recovery only when plaintiff’s
negligence is greater than combined negligence of defendants); Public Acts
1979, No. 79-483, § 4, codified at General Statutes § 52-572o (comparative
responsibility of plaintiff shall not bar recovery, but shall diminish award
of compensatory damages proportionately).
23
We are mindful that numerous courts and commentators have concluded
that a risk-utility balancing test for design defects like that under the
Restatement (Third) is functionally equivalent to the reasonable person
inquiry in negligence, which could give rise to the possibility of inconsistent
verdicts if a jury were to find for the defendant on strict liability and for
the plaintiff on negligence. See Restatement (Third), supra, § 2, comment
(n), pp. 35–36 (‘‘[T]wo or more factually identical design-defect claims . . .
should not be submitted to the trier of fact in the same case under different
doctrinal labels. Regardless of the doctrinal label attached to a particular
claim, design . . . claims rest on a risk-utility assessment. To allow two or
more factually identical risk-utility claims to go to a jury under different
labels, whether ‘strict liability,’ ‘negligence,’ or ‘implied warranty of mer-
chantability,’ would generate confusion and may well result in inconsistent
verdicts.’’); see also id., § 2, reporters’ note, comment (n), pp. 107–109 (citing
cases). Conversely, several courts have concluded that a test that focuses
on consumer expectations is sufficiently different from a negligence claim,
at least when the plaintiff is a foreseeable but unintended user, that different
outcomes would not be inconsistent. See, e.g., Talkington v. Atria Reclamel-
ucifers Fabrieken BV, 152 F.3d 254, 263–64 (4th Cir. 1998) (applying South
Carolina law); Griggs v. BIC Corp., 981 F.2d 1429, 1438–39 (3d Cir. 1992)
(applying Pennsylvania law); Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247,
271–72, 864 N.E.2d 249 (2007); see also Bilotta v. Kelley Co., 346 N.W.2d
616, 622 (Minn. 1984) (‘‘[w]hether strict liability or negligence affords a
plaintiff the broader theory of recovery will depend largely on the scope of
evidence admitted by the trial court and on the jury instructions given under
each theory’’). It appears that, in most cases, this concern has been addressed
in the context of the facts and theories of the particular case rather than
the court’s adoption of a per se rule. See generally annot., 41 A.L.R. 4th
9, Products Liability: Inconsistency of Verdicts on Separate Theories of
Negligence, Breach of Warranty, or Strict Liability (1985 and Supp. 2016)
(citing cases holding that there was no irreconcilable inconsistency in verdict
for defendant on strict liability and verdict for plaintiff on negligence and
cases reaching contrary conclusion).
To the extent that there is a valid concern that a jury should not be
permitted to find that the product is not defective but nonetheless find in
favor of the plaintiff on negligence, we assume that we have foreclosed that
possibility by making clear in this opinion that the elements of a product
liability claim apply to all theories. Moreover, we are unaware of any case
applying our law in which a jury has rendered an inconsistent verdict on
such claims, as plaintiffs have either elected to pursue one theory; see
Coburn v. Lenox Homes, Inc., 186 Conn. 370, 372, 441 A.2d 620 (1982)
(negligent design and construction of septic system); or have jointly pre-
sented both without distinguishing them. See, e.g., Wagner v. Clark Equip-
ment Co., supra, 243 Conn. 190 (allegations that forklift was unreasonably
dangerous because it lacked standardized warning system sufficient for use
in industrial setting was basis for negligence and strict liability claims). If
this court were to place limits on the availability or contours of negligence
to safeguard against inconsistent verdicts, it would behoove us to do so in
the context of a case implicating such concerns and the parties’ arguments
in relation thereto.
24
We note that, despite repeated statements in the past that ‘‘the extent
to which exemplary damages are to be awarded ordinarily rests in the
discretion of the trier of the facts’’; Gionfriddo v. Avis Rent A Car System,
Inc., 192 Conn. 280, 295, 472 A.2d 306 (1984); several more recent decisions
reflect a trend toward having the trial court determine the amount of com-
mon-law punitive damages following a jury trial, thus implicitly limiting this
statement to a determination of the entitlement to such damages. See Harris
v. Bradley Memorial Hospital & Health Center, Inc., 306 Conn. 304, 313,
50 A.3d 841 (2012), cert. denied, U.S. , 133 S. Ct. 1809, 185 L. Ed. 2d
812 (2013); Nelson v. Tradewind Aviation, LLC, 155 Conn. App. 519, 530,
111 A.3d 887 (2015); R.I. Pools, Inc. v. Paramount Concrete, Inc., 149 Conn.
App. 839, 873–74, 89 A.3d 993, cert. denied, 312 Conn. 920, 94 A.3d 1200
(2014); Metcoff v. NCT Group, Inc., 137 Conn. App. 578, 582, 49 A.3d 282
(2012); Bridgeport Harbour Place I, LLC v. Ganim, 131 Conn. App. 99,
165–66, 30 A.3d 703, cert. granted, 303 Conn. 904, 31 A.3d 1179 (2011) (appeal
withdrawn January 27, 2012), cert. granted, 303 Conn. 905, 31 A.3d 1180
(2011) (appeal withdrawn January 26, 2012). We express no opinion on the
plaintiff’s contention that § 52-240b must be construed not to be limited
by the common-law rule because he has a constitutional right to a jury
determination as to the amount of common-law punitive damages.
25
We recognize that a plaintiff could safeguard against such an outcome
by setting attorney’s fees under a contingency fee agreement.
26
Substitute Bill No. 5870, § 8, provides: ‘‘(a) Punitive damages, in addition
to attorney’s fees, may be awarded if the claimant shows by clear and
convincing evidence that the harm suffered was the result of the product
seller’s reckless disregard for the safety of product users, consumers or
others who were injured by the product.
‘‘(b) If the trier of fact determines that punitive damages should be
awarded, it shall determine the amount of such damages. In making such
determination, the court shall consider: (1) The likelihood at the time of
manufacture that a serious harm would arise from the product seller’s
misconduct, (2) the degree of the product seller’s awareness of such likeli-
hood of harm, (3) the profitability of the misconduct to the product seller,
(4) the duration of the misconduct and any concealment of it by the product
seller, (5) the attitude and conduct of the product seller upon discovery of
the misconduct, (6) the financial condition of the product seller, and (7)
the total effect of other punishment imposed or likely to be imposed upon
the product seller as a result of the misconduct, including punitive damage
awards to the persons similarly situated to the claimant and the severity of
criminal penalties to which the product seller has been or may be subjected.’’