Snell v. Norwalk Yellow Cab, Inc. ( 2019 )

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BRENDA SNELL v. NORWALK YELLOW
CAB, INC., ET AL.
(SC 19929)
Palmer, D’Auria, Mullins, Kahn and Ecker, Js.
Syllabus
The plaintiff sought to recover damages from the defendants, a taxicab
company, its owner, and its employee, S, for personal injuries she sus-
tained when she was struck by a taxicab that had been stolen and driven
by two teenagers. The plaintiff alleged that S’s negligence in leaving the
taxicab unattended with the key in the ignition in a high crime area
created the reasonably foreseeable risk that the taxicab would be stolen,
driven in an unsafe manner, and cause injury. The defendants raised as
a special defense the doctrine of superseding cause, claiming that the
intentional, criminal, or reckless acts of the two teenagers had broken
the chain of causation between S’s alleged negligence and the plaintiff’s
injuries and, thus, relieved them of liability. After the close of evidence,
the trial court held a charging conference at which it solicited comments
from counsel regarding its proposed charge on superseding cause, which
instructed the jury that, if it found that the theft of the taxicab and the
resulting accident involved intentional acts that were outside the scope
of the risk created by S’s conduct, the defendants could not be held liable
for the plaintiff’s injuries. The court also proposed a related interrogatory
asking the jury whether the defendants had proven that the accident
was outside the scope of the risk created by S’s conduct. The plaintiff
objected to the instruction and interrogatory regarding the scope of the
risk, but the court overruled the plaintiff’s objection and instructed the
jury on superseding cause. Thereafter, the jury returned a verdict for
the defendants, indicating in two separate interrogatories that, although
S’s negligence was a proximate cause of the plaintiff’s injuries, the
accident that ensued was outside the scope of the risk created by S’s
negligence and, therefore, that the defendants were not liable for the
plaintiff’s injuries. Subsequently, the plaintiff filed a motion to set aside
the verdict and for a new trial on the grounds that the court should not
have submitted the doctrine of superseding cause to the jury because
it was inapplicable and that the jury’s answers to the interrogatories were
inconsistent. The trial court denied the motion and rendered judgment
in accordance with the verdict, from which the defendants appealed to
the Appellate Court. On appeal to that court, the defendants claimed,
inter alia, that the doctrine of superseding cause was not applicable
because the teenagers were merely criminally reckless and the doctrine
applies only to intervening acts that are unforeseeable and intended to
cause harm, and that the trial court improperly denied her motion to
set aside the verdict and for a new trial because the jury’s responses
to the interrogatories that S’s conduct was a proximate cause of the
plaintiff’s injuries but that the manner in which her injuries occurred
was outside the scope of the risk created by S’s negligence were inconsis-
tent. The Appellate Court affirmed the judgment of the trial court, con-
cluding that, although this court in Barry v. Quality Steel Products,
Inc. (263 Conn. 424) abrogated the doctrine of superseding cause in
cases in which intervening acts merely were negligent, it retained the
doctrine for unforeseeable intentional torts, forces of nature, and crimi-
nal events, which encompassed the acts of the teenagers. The Appellate
Court also rejected the plaintiff’s contention that the jury’s answers to
the interrogatories were inconsistent. On the granting of certification,
the plaintiff appealed to this court. Held:
1. The Appellate Court correctly concluded that the doctrine of superseding
cause applies in cases in which the conduct of a third party is criminally
reckless: a review of the case law addressing the doctrine of superseding
cause and the history of tort reform in this state led this court to conclude
that the doctrine applies to criminally reckless conduct, as the concerns
that led this court in Barry to abrogate the doctrine in cases in which
a defendant alleges that his negligent conduct is superseded by a third
party’s subsequent negligent act were not implicated in cases, like the
present one, involving a third party’s subsequent criminally reckless act,
because apportionment of liability is unavailable under such circum-
stances pursuant to statute (§ 52-572h [o]); accordingly, the doctrine of
superseding cause is not limited to a third party’s intervening act that
was intended to cause harm and remains a viable defense in cases in
which apportionment is unavailable, but a negligent defendant will not
be relieved of liability by virtue of a third party’s reckless or intentional
conduct if the type of harm sustained by the plaintiff is within the scope
of the risk that was created by the defendant’s negligent conduct.
2. The Appellate Court incorrectly determined that that the jury’s responses
to the interrogatories were legally consistent and, therefore, improperly
upheld the trial court’s denial of the plaintiff’s motion to set aside the
verdict and for a new trial: under this court’s precedent, a finding that
a third party’s conduct constitutes a superseding cause precludes the
defendant’s negligence from being deemed a proximate cause of those
injuries, and, because the jury found in its interrogatories both that S’s
negligence was a proximate cause of the plaintiff’s injuries and that the
teenagers’ actions were a superseding cause of those injuries, this court
could not conclude that the jury followed the trial court’s instructions
with respect to the issue of causation; accordingly, the plaintiff was
entitled to a new trial.
(One justice concurring separately)
Argued September 13, 2018—officially released August 13, 2019
Procedural History
Action to recover damages for the alleged negligence
of the defendant Johnley Sainval, and for other relief,
brought to the Superior Court in the judicial district of
Stamford-Norwalk and tried to the jury before Povoda-
tor, J.; verdict for the defendants; thereafter, the court,
Povodator, J., denied the plaintiff’s motion to set aside
the verdict and for a new trial, and rendered judgment
in accordance with the verdict, from which the plain-
tiff appealed to the Appellate Court, Keller, Prescott
and Harper, Js., which affirmed the trial court’s judg-
ment, and the plaintiff, on the granting of certification,
appealed to this court. Reversed; new trial.
Adam J. Blank, with whom was Sarah Gleason, for
the appellant (plaintiff).
Laura Pascale Zaino, with whom were Gregory S.
Kimmel and, on the brief, Kevin M. Roche, Logan A.
Carducci and Zachary M. Dunn, for the appellees
(named defendant et al.).
Jeffrey R. Babbin and Christopher P. Kriesen filed
a brief for the Connecticut Defense Lawyers Associa-
tion as amicus curiae.
Opinion
PALMER, J. The plaintiff, Brenda Snell, brought this
negligence action against the defendants, Johnley Sain-
val, a taxicab driver, his employer, Norwalk Yellow Cab,
Inc. (Yellow Cab), and Vito Bochicchio, Jr., the sole
shareholder of Yellow Cab, seeking damages for serious
injuries she sustained when she was struck by a taxi-
cab that had been stolen from Sainval by two teenagers
after Sainval left the vehicle unattended with the key
in the ignition in a Norwalk neighborhood known to
have a higher than average crime rate. A jury trial
ensued at which the defendants claimed, inter alia, that
the conduct of the two thieves was a superseding cause
that relieved Sainval of any liability to the plaintiff for
his alleged negligence. At the conclusion of the trial,
the jury, in response to interrogatories submitted to it
by the trial court, found that Sainval was negligent in
leaving the taxicab unattended with the key in the igni-
tion; that, in light of the surrounding neighborhood, it
was reasonably foreseeable that the vehicle would be
stolen and operated in an unsafe manner; and that Sain-
val’s negligence was a proximate cause of some or all of
the plaintiff’s injuries. The jury also found, nevertheless,
that the defendants were not liable for the plaintiff’s
injuries because the accident that occurred was not
within the scope of the risk created by Sainval’s neg-
ligence.
The plaintiff thereafter filed a motion to set aside the
verdict and for a new trial claiming, inter alia, that the
jury’s finding that Sainval’s negligence constituted a
proximate cause of the accident was legally inconsis-
tent with its finding that the accident was outside the
scope of the risk created by Sainval’s negligence. The
court denied the motion and rendered judgment in
accordance with the jury’s verdict. The plaintiff then
appealed to the Appellate Court, claiming that (1) it
was improper for the trial court to instruct the jury
on the doctrine of superseding cause, (2) even if the
doctrine were properly submitted to the jury, the court’s
instructions and interrogatories misled the jury, and (3)
the trial court improperly denied the plaintiff’s motion
to set aside the verdict and for a new trial on the ground
that the jury’s verdict was irreconcilable with its
responses to the interrogatories. Snell v. Norwalk Yel-
low Cab, Inc., 172 Conn. App. 38, 41, 158 A.3d 787 (2017).
The Appellate Court rejected the plaintiff’s claims; id.,
41–42; and we granted the plaintiff’s petition for certifi-
cation to appeal, limited to the following issues: (1)
‘‘Did the Appellate Court correctly determine that the
judgment of the trial court should be affirmed on the
basis that the doctrine of superseding cause applies in
cases in which the conduct of a third party is criminally
reckless?’’ Snell v. Norwalk Yellow Cab, Inc., 325 Conn.
927, 927–28, 169 A.3d 232 (2017). And (2) ‘‘Did the Appel-
late Court correctly determine that the trial court did
not abuse its discretion when it denied the plaintiff’s
motion to set aside the verdict and for a new trial?’’
Id., 928. Although we answer the first question in the
affirmative, we answer the second in the negative and,
accordingly, reverse the judgment of the Appellate
Court.
The opinion of the Appellate Court sets forth the
following relevant facts, which the jury reasonably
could have found, and procedural history. ‘‘On Decem-
ber 3, 2009, Sainval, who was employed by Yellow Cab
as a taxicab driver, was operating a taxicab owned by
Yellow Cab in Norwalk. In the early evening, he drove
the taxicab to Monterey Village, a housing complex
located in an area of the city with significant criminal
activity. Sainval parked the taxicab and went inside one
of the apartments, leaving the taxicab unlocked and
unattended with the keys in the ignition.
‘‘Two teenagers, Shaquille Johnson and Deondre
Bowden, who that afternoon had been consuming alco-
hol and smoking marijuana, noticed the parked taxicab.
Although they initially intended to steal anything of
value that they could find inside the unlocked taxicab,
once they observed the keys in the ignition, the two
teens decided to steal the taxicab and to go on a ‘joy-
ride.’ They drove the taxicab from Norwalk to Stamford,
making one brief stop in between, with each of the
teens taking a turn driving the vehicle.
‘‘When they reached Stamford, they [encountered]
traffic. At that time, Bowden was driving the taxicab.
He ‘kind of nodded off’ and rear-ended the vehicle in
front of him. Bowden, who was both ‘tipsy’ and ‘high,’
then attempted to flee the scene. In order to maneuver
the taxicab around the vehicle he had struck, Bowden
drove the taxicab up over the curb of the road and onto
the adjoining sidewalk. In doing so, Bowden first hit a
fire hydrant before striking the plaintiff with the taxi-
cab.
‘‘The plaintiff sustained severe physical injuries, par-
ticularly to her midsection, requiring millions of dollars
in medical expenditures as of the time of trial, with
additional treatments and surgeries expected. After hit-
ting the plaintiff, Bowden never attempted to stop the
vehicle; he and Johnson exited the stolen taxicab while
it was still moving and fled the scene on foot, returning
home by train. The police later identified the teens as
the individuals involved in the hit and run of the plaintiff
and arrested them.1
‘‘The plaintiff initially commenced this action solely
against Sainval and Yellow Cab.2 Johnson and Bowden
were not named by the plaintiff as defendants in the
civil action. Although the defendants filed an apportion-
ment complaint against the two teens, the court later
granted the plaintiff’s motion to strike the apportion-
ment complaint, agreeing with the plaintiff that appor-
tionment was unavailable in the present case because
the misconduct of the teenagers was not pleaded as
mere negligence but as reckless or intentional conduct.
See General Statutes § 52-572h (o) (‘there shall be no
apportionment of liability or damages between parties
liable for negligence and parties liable on any basis
other than negligence including, but not limited to,
intentional, wanton or reckless misconduct’); Allard v.
Liberty Oil Equipment Co., 253 Conn. 787, 801, 756
A.2d 237 (2000) (recognizing that § 52-575h [o] was
enacted to expressly overrule in part Bhinder v. Sun
Co., 246 Conn. 223, 234, 717 A.2d 202 [1998], in which
[this court] had recognized [common-law] extension
of statutory apportionment liability for parties whose
conduct was reckless, wilful and wanton).
‘‘The operative second amended complaint contains
two counts relevant to the issues on appeal.3 Count one
sounds in negligence against Sainval. According to the
plaintiff, Sainval acted negligently by leaving his taxicab
in an unguarded public parking lot in a high crime
area with the keys in the ignition, which created the
reasonably foreseeable risk that the taxicab would be
stolen and that a thief would drive the taxicab in an
unsafe manner and cause injury to a person or to prop-
erty. Count two alleges that Yellow Cab was vicariously
liable for Sainval’s negligence on a theory of respondeat
superior. Prior to trial, Yellow Cab conceded that it
would be liable to the same extent that Sainval was
found liable on count one.
‘‘In their amended answer, the defendants, by way
of a special defense, raised the doctrine of superseding
cause. The defendants pleaded that, ‘[i]f the plaintiff
sustained the injuries and losses as alleged in her com-
plaint, said injuries and losses were the result of the
intentional, criminal, reckless and/or negligent conduct
of a third party, which intervened to break the chain
of causation between [Sainval’s] alleged negligence and/
or carelessness and the plaintiff’s alleged injuries and
losses.’ ’’ (Footnotes altered; footnote in original, foot-
notes omitted.) Snell v. Norwalk Yellow Cab, Inc., supra,
172 Conn. App. 42–45.
‘‘[T]he court initially indicated to the parties that it
was not inclined to give a superseding cause instruction
to the jury because, on the basis of its reading of . . .
Barry v. Quality Steel Products, Inc., [263 Conn. 424,
820 A.2d 258 (2003)], superseding cause was no longer
part of our tort jurisprudence except in limited circum-
stances, specifically, cases involving either an interven-
ing intentional tort, act of nature, or criminal event
that was unforeseeable to the defendant. The court
suggested that the exception was not at issue in the
present case because, under the plaintiff’s theory of
liability, the intervening theft of the car was entirely
foreseeable.
‘‘The defendants, however, argued that the court was
focusing on the wrong criminal act. They indicated that
it was not necessarily the theft of the taxicab in this case
that warranted an instruction on superseding cause but
the unforeseeability of the thieves’ subsequent criminal
conduct, namely, intentionally driving the taxicab up
onto a sidewalk to evade responsibility for a rear-end
collision and the ensuing criminal assault on the plain-
tiff. Furthermore, the defendants noted that part of the
court’s rationale in Barry for abandoning the doctrine
of superseding cause in cases alleging that an interven-
ing negligent act or acts contributed to a plaintiff’s
injuries was that apportionment of liability between
tortfeasors was permitted, which would prevent a less
culpable defendant from inequitably shouldering full
responsibility for injuries that resulted from multiple
negligent acts. The defendants contended that, unlike
Barry, this case involved intervening actions of other
tortfeasors that were not merely negligent but reckless
and criminal. In such a case, the defendants argued,
apportionment of liability is unavailable by statute; see
General Statutes § 52-572h (o); and, thus, the primary
policy rationale underlying the abolishment of the doc-
trine of superseding cause was absent. The court indi-
cated that it would review the case law and give the
issue further consideration in light of these arguments.
‘‘[Subsequently], the court provided counsel with the
latest draft of its jury instructions and also with copies
of draft interrogatories that the court intended to submit
to the jury. The court indicated that the current version
of the instructions included a new paragraph that the
court had decided to add after further consideration
of the case law concerning superseding cause and its
discussions with the parties. That paragraph instructed
the jury to consider whether the theft of the taxicab
and the resulting accident involved intentional acts that
were outside the scope of the risk created by Sainval’s
conduct, and that if the jury found this to be so, then
the defendants should not be found responsible for the
plaintiff’s injuries because the conduct of the two teens
would have been the proximate cause of those injuries,
thus relieving the defendants of any liability. The court
also drafted a new, related interrogatory that asked the
jury to state whether the ‘accident’ that occurred was
outside the scope of the risk created by Sainval’s act
of leaving the keys in the ignition of the taxicab. The
court directed the jury to return a verdict for the defen-
dants if the answer to that inquiry was yes.
‘‘Following the close of evidence later that day, the
court held a charging conference. At the charging con-
ference, the plaintiff stated that it believed the addi-
tional paragraph added by the court to its latest draft
instructions was unnecessary and confusing and that,
in defining and explaining the concept of proximate
cause, the court adequately had covered both foresee-
ability and whether Sainval’s conduct was a substantial
factor in causing the plaintiff’s injuries. The plaintiff
also stated that she did not think there was any evidence
from which the jury could construe that the teens had
intentionally sought to harm her. The court suggested
that the additional instruction was necessary to com-
port with case law, referring in particular to Sullivan
v. Metro-North Commuter Railroad Co., 292 Conn. 150,
971 A.2d 676 (2009). It indicated its belief that foresee-
ability for purposes of determining negligence and
scope of the risk for purposes of applying superseding
cause, although closely related, were slightly different
concepts.4 The court agreed that there was nothing in
the record to support a finding that the assault on the
plaintiff was intentional but noted that the two teens
had also engaged in other criminal conduct, including
intentionally stealing the taxicab and intentionally flee-
ing the scene to evade responsibility after striking
the plaintiff.
‘‘The defendants noted that, although the court’s pro-
posed jury instruction made reference to a special
defense, it never identified that defense; in fact, the
term ‘superseding cause’ was never used by the court.
The defendants argued that they intended to reference
that term in . . . closing arguments and that they were
entitled to a separate charge addressing their supersed-
ing cause defense. The defendants also took the posi-
tion that, unlike in criminal law, tort law made no
meaningful distinction between reckless and inten-
tional conduct, and, thus, they asserted that it was
inconsequential whether the criminal assault on the
plaintiff was the result of intentional or reckless con-
duct for purposes of applying the doctrine of supersed-
ing cause.
‘‘On December 11, 2014, prior to closing arguments,
the plaintiff requested that the court change the order
of the proposed interrogatories. The interrogatory that
the court had added regarding scope of the risk, which
the court indicated related to the special defense of
superseding cause, was, at the time, interrogatory num-
ber four. Interrogatory number five at that time asked
whether the plaintiff had proven that some or all of
her injuries were proximately caused by Sainval. The
plaintiff argued that because proximate cause was an
element of her prima facie case, it made more sense
for the jury to answer that interrogatory and fully estab-
lish a prima facie case before turning to any consider-
ation of a special defense. According to the plaintiff,
this would also negate the need for a retrial in the event
there was a defendants’ verdict on the special defense
that was overturned later on appeal; all that would be
required would be a hearing in damages. The defendants
did not agree that a switch was necessary. The court
nevertheless indicated that it would most likely make
the switch and later incorporated the change in the
interrogatories it submitted to the jury. The court also
indicated that it had made some additional changes
based [on] the positions of the parties at the charging
conference, including referring to the doctrine of super-
seding cause by name.
‘‘After the parties concluded their closing arguments,
the court read its instructions to the jury. The relevant
portions of the court’s instructions for purposes of the
present appeal are those addressing proximate causa-
tion, which provided in relevant part as follows: ‘Once
you’ve gotten past factual causation, you need to
address proximate cause. Proximate cause means that
there must be a sufficient causal connection between
the act or omission alleged, and any injury or damage
sustained by the plaintiff.
‘‘ ‘An act or omission is a proximate cause if it was
a substantial factor in bringing about or actually causing
the injury. That is, if the injury or damage was a direct
result, or a reasonable and probable consequence of
the defendant’s act or omission, it was proximately
caused by such an act or omission.
‘‘ ‘In other words, if an act had such an effect in pro-
ducing the injury that reasonable persons would regard
it as being a cause of the injury, then the act or omission
is a proximate cause. In order to recover damages for
any injury, the plaintiff must show by a preponder-
ance of the evidence that such injury would not have
occurred without the negligence of the defendant.
‘‘ ‘If you find that the plaintiff complains about an
injury which would have occurred even in the absence
of the defendant’s conduct, or is not causally connected
to this accident, you must find that the defendant did
not proximately cause that injury.
‘‘ ‘Under the definitions I have given you, negligent
conduct can be a proximate cause of an injury, if it is
not the only cause, or even the most significant cause
of the injury, provided it contributes materially to the
production of the injury, and thus is a substantial factor
in bringing it about.
‘‘ ‘Therefore, when a defendant’s negligence com-
bines together with one or more other causes to pro-
duce an injury, such negligence is a proximate cause
of the injury if its contribution to the production of the
injury, in comparison to all other causes, is material
or substantial.
‘‘ ‘When, however, some other causal causes contri-
butes so powerfully to the production of an injury, as
to make the defendant’s negligent contribution to the
injury merely trivial or inconsequential, the defendant’s
negligence must be rejected as a proximate cause of
the injury, for it has not been a substantial factor in
bringing the injury about.5
‘‘ ‘Or to put it another way, if you find that the injury
would have been sustained, whether or not the defen-
dant had been negligent, his negligence would not have
been a proximate cause of the accident. It is your
responsibility to determine which, if any, of the injuries
and damages claimed by the plaintiff were proximately
caused by the conduct of the defendant.
‘‘ ‘The defendants have claimed that the theft and
operation of the car by [Johnson] and [Bowden], and
the resulting accident, constituted such an event, an
event that was so overpowering in consequence as to
render any possible negligence on the part of defendant
Sainval relatively insignificant, and therefore not a prox-
imate cause of the injuries sustained by plaintiff.
‘‘ ‘Foreseeability of the car being stolen, something
you would have considered in connection with deter-
mining whether [Sainval] was negligent, also may be
considered in this regard. It is for you to decide whether
the theft of the car and subsequent manner of operation
[were] so overwhelming in significance, or whether they
constituted a concurrent proximate cause but not of
sufficient magnitude as to render [Sainval’s] negligence
inconsequential.
‘‘ ‘To put it another way, if you find that the theft
of the car and subsequent driving of the vehicle and
resulting accident were intentional acts that were not
within the scope of the risk which was created by [Sain-
val’s] conduct, then the defendant[s] could not be found
responsible for the injuries to the plaintiff as the con-
duct of [Johnson] and [Bowden] would have been the
proximate cause of the injuries sustained by the plain-
tiff, thereby relieving the defendant[s] of any liability.
‘‘ ‘To the extent that you find that the plaintiff has
proven, by a preponderance of the evidence, that the
negligence of defendant Sainval was a proximate cause
of any or all of the injuries and damages claimed to
have been sustained by the plaintiff, as I have defined
proximate cause to you, you are to proceed to deter-
mine the issues as to the amount of damages, following
the rules I’m about to give you.’
‘‘Following the jury charge, the court inquired
whether the parties had any additional objections to the
charge other than those raised at the charge conference.
Neither party raised any additional objections. A writ-
ten copy of the court’s charge was made an exhibit and
provided to the jury.
‘‘The following day, the jury returned a verdict in
favor of the defendants. The relevant interrogatories
submitted to the jury, and the jury’s response[s], are
as follows: ‘1. Did [the] plaintiff . . . prove, by a pre-
ponderance of the evidence, that . . . Sainval failed to
exercise reasonable care when he left the keys to his
taxicab in the vehicle, when he went inside the apart-
ment complex at Monterey Village on the evening of
December 3, 2009? [Answer] Yes . . . [If the answer
is ‘YES,’ go to interrogatory #2; if the answer is ‘NO,’
sign and date this form and the defendants’ verdict
form, and then report that you have reached a verdict.]
2. Did [the] plaintiff prove that it was reasonably fore-
seeable that a motor vehicle, left in a parking area of
Monterey Village with the key in the ignition on the
evening of December 3, 2009, might be stolen? [Answer]
Yes . . . [If the answer is ‘YES,’ go to interrogatory #3;
if the answer is ‘NO,’ sign and date this form and the
defendants’ verdict form, and then report that you have
reached a verdict.] 3. Did [the] plaintiff prove that it
was reasonably foreseeable that if a motor vehicle were
to be stolen from the parking area at Monterey Village,
it might be in an accident, causing injury? [Answer] Yes
. . . [If the answer is ‘YES,’ go to interrogatory #4; if
the answer is ‘NO,’ sign and date this form and the
defendants’ verdict form, and then report that you have
reached a verdict.] 4. Did [the] plaintiff . . . prove that
some or all of the injuries she sustained on the evening
of December 3, 2009, were proximately caused by the
negligence of . . . Sainval? [Answer] Yes . . . [If the
answer is ‘YES,’ go to interrogatory #5; if the answer
is ‘NO,’ sign and date this form and the defendants’
verdict form, and then report that you have reached a
verdict.] 5. Did [the] defendant[s] prove that the acci-
dent that occurred on December 3, 2009 was outside
the scope of risk created by [Sainval’s] leaving his key
in the ignition of a car parked at Monterey Village?
[Answer] Yes . . . .’6 The directions contained in the
interrogatories instructed the jury to return a defen-
dants’ verdict if it answered interrogatory five in the
affirmative, and, therefore, the jury did not respond
to the remainder of the interrogatories submitted. The
court accepted the jury’s verdict.
‘‘The plaintiff filed a postjudgment motion asking the
court to set aside the verdict and to order a new trial.
The plaintiff argued that, despite the jury having found
that the theft of the taxicab and the subsequent accident
resulting in injuries were foreseeable and that Sainval’s
actions were a proximate cause of her injuries, the jury
instructions and attendant interrogatories permitted the
jury to simultaneously and inconsistently find that her
being struck by the taxicab in the manner that occurred
nevertheless was outside the scope of the risk created
by Sainval’s negligence.
‘‘The court issued a detailed and thorough memoran-
dum of decision denying the plaintiff’s motion. The
court found that there was no basis for concluding that
it should not have submitted the doctrine of superseding
cause to the jury in this case or that the resulting verdict
and interrogatories were fatally inconsistent. The court
explained that it saw ‘nothing inherently inconsis-
tent with a jury finding a ‘‘standard’’ proximate cause
instruction satisfied, while also later finding supersed-
ing cause established when viewed from the [alterna-
tive] perspective of a charge on that point.’ ’’ (Footnotes
added; footnotes omitted.) Snell v. Norwalk Yellow Cab,
Inc., supra, 172 Conn. App. 46–54.
On appeal to the Appellate Court, the plaintiff claimed
that the doctrine of superseding cause should not have
been submitted to the jury because it applies only to
superseding acts that were unforeseeable and intended
to cause harm, and Bowden’s reckless operation of
the taxicab satisfied neither of those requirements. Id.,
54–55. The plaintiff also argued that, even if the super-
seding cause doctrine were applicable, the trial court’s
instructions misled the jury by failing to adequately
define the phrase ‘‘scope of the risk’’ in the context of
determining whether Bowden’s actions were a super-
seding cause of the plaintiff’s injuries. Id., 68–70. Finally,
the plaintiff maintained that the trial court improperly
had denied her motion to set aside the verdict and for
a new trial on the ground that the jury’s finding of a
superseding cause was irreconcilable with its finding
that Sainval’s negligence was the proximate cause of
some or all of the plaintiff’s injuries. Id., 71–73.
The Appellate Court rejected the plaintiff’s claims.
Id., 41–42. With respect to her contention that the doc-
trine of superseding cause applies only to intervening
acts that were intended to cause harm, the Appellate
Court explained that when this court abolished the
superseding cause doctrine in cases involving interven-
ing acts of negligence, it expressly exempted from its
holding, among other types of intervening forces,
unforeseeable ‘‘criminal event[s]’’; Barry v. Quality
Steel Products, Inc., supra, 263 Conn. 439 n.16; a cate-
gory that, in the view of the Appellate Court, included
the actions of Bowden and Johnson. Snell v. Norwalk
Yellow Cab, Inc., supra, 172 Conn. App. 64–65. With
respect to the plaintiff’s claim that the doctrine should
not have been submitted to the jury because it applies
only to superseding acts that were unforeseeable, and
Bowden’s recklessness represented the kind of risk that
made Sainval’s conduct negligent in the first place, the
Appellate Court responded that, ‘‘even in cases in which
the risk of a third party’s intervention is a generally
foreseeable consequence of a defendant’s actions, it is
a question of fact whether the third party’s intervening
actions fall somewhere within the hazard created by
the defendant’s negligence, i.e., within the scope of the
risk. Only if the answer to that question is so abundantly
clear as to be determinable as a matter of law should
the court decline to give an instruction on superseding
cause. Otherwise, the inquiry is a factual issue that
should be presented to and decided by a jury.’’ Id., 61.
The Appellate Court also rejected the plaintiff’s con-
tention that the trial court’s instructions on superseding
cause were so misleading as to necessitate a new trial;
id., 68; concluding that, ‘‘although perhaps not perfect
in all respects, the instructions were sufficient to inform
the jury of the doctrine of superseding cause as pleaded
and to guide the jury through its deliberation to a proper
verdict.’’ Id., 71. Finally, the Appellate Court disagreed
with the plaintiff that the trial court improperly denied
her motion to set aside the verdict and for a new trial
on the ground that the jury’s response to the fourth
interrogatory, that is, that some or all of the plaintiff’s
injuries were proximately caused by Sainval’s negli-
gence, was irreconcilable with its response to the fifth
interrogatory, that is, that the accident that occurred
was outside the scope of risk created by Sainval’s negli-
gence. Id., 71–73. In reaching its determination, the
Appellate Court relied on the definition of superseding
cause set forth in § 440 of the Restatement (Second)
of Torts, which ‘‘defines a superseding cause as ‘an act
of a third person or other force which by its intervention
prevents the actor from being liable for harm to another
which his antecedent negligence is a substantial factor
in bringing about.’ . . . 2 Restatement (Second),
Torts § 440, p. 465 (1965).’’ (Emphasis in original.) Snell
v. Norwalk Yellow Cab, Inc., supra, 172 Conn. App. 58.
The Appellate Court also relied on § 442 B of the
Restatement (Second) of Torts; id., 59–61; which states
that, ‘‘[if] the negligent conduct of the actor creates or
increases the risk of a particular harm and is a substan-
tial factor in causing that harm, the fact that the harm
is brought about through the intervention of another
force does not relieve the actor of liability, except where
the harm is intentionally caused by a third person
and is not within the scope of the risk created by the
actor’s conduct.’’ (Emphasis added.) 2 Restatement
(Second), supra, § 442 B, p. 469. Reading §§ 440 and
442 B together, the Appellate Court reasoned that,
because the test for proximate cause is whether the
defendant’s conduct was ‘‘a substantial factor’’ in pro-
ducing the plaintiff’s injury; (internal quotation marks
omitted) Ruiz v. Victory Properties, LLC, 315 Conn.
320, 329, 107 A.3d 381 (2015); the jury properly could
have found both that Sainval’s negligence was a proxi-
mate cause of the plaintiff’s injuries, that is, it was
a substantial factor in producing them, and that the
accident that occurred was outside the scope of the
risk created by Sainval’s negligence. Snell v. Norwalk
Yellow Cab, Inc., supra, 172 Conn. App. 61; see id. (‘‘even
in cases in which the risk of a third party’s intervention
is a generally foreseeable consequence of a defendant’s
actions, it is a question of fact whether the third party’s
intervening actions fall somewhere within the hazard
created by the defendant’s negligence, i.e., within the
scope of the risk’’).
In reaching its determination, the Appellate Court
recognized the inherent tension between the Restate-
ment’s definition of superseding cause, which this court
has never formally adopted,7 and our statement in Barry
that, ‘‘[i]f a third person’s [negligence] is found to be
the superseding cause of the plaintiff’s injuries, that
[negligence], rather than the negligence of the party
attempting to invoke the doctrine of superseding cause,
is said to be the sole proximate cause of the injury.’’
(Emphasis added; internal quotation marks omitted.)
Id., 58–59 and n.15, quoting Barry v. Quality Steel Prod-
ucts, Inc., supra, 263 Conn. 434–35. The Appellate Court
reasoned, however, that, because ‘‘[c]omment (b) of
§ 440 of the Restatement (Second) of Torts clarifies
that ‘[a] superseding cause relieves the actor of liability,
irrespective of whether his antecedent negligence was
or was not a substantial factor in bringing about the
harm’ ’’; (emphasis omitted) Snell v. Norwalk Yellow
Cab, Inc., supra, 172 Conn App. 59 n.15; it was reason-
able to construe the ‘‘sole proximate cause’’ language
in Barry ‘‘not as a repudiation of the Restatement’s
broader definition but simply as a recognition that, in
some cases involving a superseding cause, the super-
seding event may so diminish the impact of the initial
negligence of the defendant that that negligence can
no longer be viewed as a substantial factor in bringing
about the plaintiff’s injury, thus transforming the super-
seding cause into the sole proximate cause of the harm.
This iteration of the doctrine, however, does not
expressly preclude that, in certain cases factually dis-
tinct from that considered by the court in Barry, the
impact of the defendant’s initial negligence will not be
so diminished by the later intervening act as to fully
negate the initial negligence as a substantial factor in
causing the harm at issue. In such cases, application
of the doctrine of superseding cause may nonetheless
be justified to prevent an otherwise inequitable determi-
nation regarding liability.’’ Id.
On appeal following our grant of certification, the
plaintiff contends that the Appellate Court incorrectly
held that the doctrine of superseding cause applies to
criminally reckless conduct. In support of this conten-
tion, the plaintiff asserts that the Appellate Court’s
determination conflicts with § 442 B of the Restatement
(Second) of Torts, which this court has adopted, and
with the Judicial Branch’s model civil jury instruction
on superseding causes; Connecticut Civil Jury Instruc-
tions 3.1-5, available at http://www.jud.ct.gov/JI/Civil/
Civil.pdf (last visited August 5, 2019);8 both of which,
the plaintiff maintains, indicate that, for a third party’s
conduct to qualify as a superseding cause, he or she
must have acted with the specific intent to cause injury.
The plaintiff further contends that the Appellate Court
incorrectly determined that the trial court properly
denied the plaintiff’s motion to set aside the verdict
and for a new trial on the basis of its determination that
an intervening force can be foreseeable for purposes
of determining proximate cause but not within the
scope of the risk for purposes of applying the supersed-
ing cause doctrine. The plaintiff argues that, under this
state’s well established precedent—precedent on which
the trial court’s jury instructions were predicated—if
Sainval’s negligence proximately caused some or all
of the plaintiff’s injuries, then the accident was, by
definition, within the scope of the risk created by his
negligence. See, e.g., Sapko v. State, 305 Conn. 360,
373, 44 A.3d 827 (2012) (‘‘[t]he fundamental inquiry of
proximate cause is whether the harm that occurred was
within the scope of foreseeable risk created by the
defendant’s negligent conduct’’ [internal quotation
marks omitted]).
The defendants counter that the Appellate Court
correctly determined that the jury’s interrogatory
responses can be reconciled by applying §§ 440 and
442 B of the Restatement (Second) of Torts, pursuant
to which the jury reasonably could have found that
Sainval’s negligence proximately caused the plaintiff’s
injuries and that Bowden’s and Johnson’s actions were
a superseding cause of the accident. The defendants
further argue that, because superseding cause is a spe-
cial defense that admits the allegations of a complaint
but seeks to establish that the plaintiff cannot prevail;
see Coughlin v. Anderson, 270 Conn. 487, 501, 853 A.2d
460 (2004) (‘‘[a]s a general rule, facts must be pleaded
as a special defense when they are consistent with the
allegations of the complaint but demonstrate, nonethe-
less, that the plaintiff has no cause of action’’ [internal
quotation marks omitted]); it makes sense that ‘‘a jury
must first determine that a defendant’s negligence is a
proximate cause of a plaintiff’s injuries before it can
consider whether a superseding cause . . . intervened
to absolve that negligent defendant of liability for those
injuries.’’ For the reasons set forth hereinafter, we con-
clude, contrary to the contention of the plaintiff, that
the superseding cause doctrine is applicable to the pres-
ent case. We also conclude, however, that the plain-
tiff is entitled to a new trial because the interrogatory
responses on which the jury verdict was based are
inconsistent as a matter of law.
I
Whether the superseding cause doctrine applies to
criminally reckless conduct presents a question of law,
over which we exercise plenary review. See, e.g., Barry
v. Quality Steel Products, Inc., supra, 263 Conn. 433–46
(reviewing de novo trial court’s decision regarding
applicability of superseding cause doctrine). To prop-
erly analyze this question, it is necessary to review the
legal underpinnings of the doctrine. As both the trial
court and the Appellate Court observed, few other areas
of tort law have consistently proven as challenging for
courts to explain and for juries to apply as the principles
underlying the doctrines of proximate cause and super-
seding cause. See, e.g., Cuneo v. Connecticut Co., 124
Conn. 647, 651–52, 2 A.2d 220 (1938) (‘‘Few subjects
have caused more trouble to courts and legal philoso-
phers than [the question of proximate cause]. The cases
on the subject are innumerable and the discussions
interminable.’’); Snell v. Norwalk Yellow Cab, Inc.,
supra, 172 Conn. App. 56 (‘‘although the concepts under-
lying the doctrine of superseding cause may be easy to
identify, their application to the specifics of a particular
case can be a far more difficult task’’). It is well settled
that a negligence action consists of four elements: duty,
breach, causation, and actual injury. See, e.g., Murdock
v. Croughwell, 268 Conn. 559, 566, 848 A.2d 363 (2004)
(identifying essential elements of negligence action).
For purposes of this appeal, the defendants do not dis-
pute that Sainval owed a duty to the plaintiff, that he
breached that duty, and that the plaintiff was seriously
injured. They do dispute, however, that Sainval’s negli-
gence caused the plaintiff’s injuries.9 Causation in a
negligence action has two components, both of which
must be satisfied for the plaintiff to prevail. The first,
‘‘[c]ause in fact, occasionally referred to as actual cause,
asks whether the defendant’s conduct ‘caused’ the
plaintiff’s injury. Thus, if the plaintiff’s injury would not
have occurred ‘but for’ the defendant’s conduct, then
the defendant’s conduct is a cause in fact of the plain-
tiff’s injury. Conversely, if the plaintiff’s injury would
have occurred regardless of the defendant’s conduct,
then the defendant’s conduct was not a cause in fact
of the plaintiff’s injury. [W. Keeton et al., Prosser and
Keeton on the Law of Torts] (5th Ed. 1984) § 41, p. 266.’’
Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597,
605, 662 A.2d 753 (1995). In the present case, it is undis-
puted that Sainval’s conduct was a cause in fact of the
plaintiff’s injuries because, if he had not left the taxicab
unattended with the key in the ignition, the vehicle
would not have been stolen and the plaintiff would not
have been injured.
The second component of causation is proximate
cause. ‘‘Philosophically, cause in fact is limitless; but
for the creation of this world, no crime or injury would
ever have occurred. [W. Keeton, supra, § 41] p. 264.
The philosophical sense of causation includes the great
number of events without which any happening [of an
injury] would not have occurred . . . yet the effect of
many of them is so insignificant that no ordinary mind
would think of them as causes. 2 Restatement (Second),
[supra] § 431, comment (a) [p. 429].’’ (Internal quotation
marks omitted.) Stewart v. Federated Dept. Stores, Inc.,
supra, 234 Conn. 605. ‘‘Because actual causation . . .
is virtually limitless, the legal construct of proximate
cause serves to establish how far down the causal con-
tinuum tortfeasors will be held liable for the conse-
quences of their actions. . . . The test for proximate
cause is whether the defendant’s conduct was a sub-
stantial factor in producing the plaintiff’s injury. . . .
This substantial factor test reflects the inquiry funda-
mental to all proximate cause questions, namely,
whether the harm [that] occurred was of the same gen-
eral nature as the foreseeable risk created by the defen-
dant’s negligence.’’ (Citation omitted; internal quotation
marks omitted.) Ruiz v. Victory Properties, LLC, supra,
315 Conn. 329.
We often have observed that ‘‘[p]roximate cause
results from a sequence of events unbroken by a super-
seding cause, so that its causal viability continued until
the moment of injury or at least until the advent of the
immediate injurious force. . . . The terms ‘intervening
cause’ and ‘superseding cause’ have been used inter-
changeably. . . . The Restatement [Second] of Torts
makes clear that the doctrine is properly referred to as
‘superseding cause,’ and that it embodies within it the
concept of an ‘intervening force.’ 2 Restatement (Sec-
ond), [supra] §§ 440 through 453 [pp. 465–91].’’ (Cita-
tions omitted; internal quotation marks omitted.)
Wagner v. Clark Equipment Co., 243 Conn. 168, 178–79,
700 A.2d 38 (1997). As we also have explained pre-
viously, ‘‘[c]auses traced clear to the end [that] become
of trivial consequences, mere incidents of the operating
cause, may be, in a sense, factors, but are so insignifi-
cant that the law cannot fasten responsibility [on] one
who may have set them in motion. They are not substan-
tial factors as operative causes. To be factors of this
degree they must have continued down to the moment
of the damage, or, at least, down to the setting in motion
of the final active injurious force [that] immediately
produced (or preceded) the damage.’’ (Internal quota-
tion marks omitted.) Birnie v. Electric Boat Corp., 288
Conn. 392, 411 953 A.2d 28 (2008); see also Paige v. St.
Andrew’s Roman Catholic Church Corp., 250 Conn.
14, 25, 734 A.2d 85 (1999) (‘‘[r]emote or trivial [actual]
causes are generally rejected because the determination
of the responsibility for another’s injury is much too
important to be distracted by explorations for obscure
consequences or inconsequential causes’’ [internal quo-
tation marks omitted]).
Thus, ‘‘[p]roximate cause establishes a reasonable
connection between an act or omission of a defendant
and the harm suffered by a plaintiff. . . . Proximate
cause serves to [temper] the expansive view of causa-
tion [in fact] . . . by the pragmatic . . . shaping [of]
rules [that] are feasible to administer, and yield a work-
able degree of certainty.’’ (Citation omitted; internal
quotation marks omitted.) Stewart v. Federated Dept.
Stores, Inc., supra, 234 Conn. 606.
‘‘[A]lthough nearly every treatise involving the law
of torts acknowledges the existence of the doctrine of
superseding cause, it is defined differently by various
scholars. For example, one treatise notes that the prob-
lem of superseding cause is not primarily one of causa-
tion but, rather, ‘one of policy as to imposing legal
responsibility.’ [W. Keeton, supra] § 44, p. 301. . . .
[O]ther treatises support the view that the doctrine of
superseding cause is merely a more complicated analy-
sis of whether the defendant’s actions were the proxi-
mate cause of the plaintiff’s injuries. For example, one
treatise states: ‘[Superseding] cause is merely proxi-
mate cause flowing from a source not connected with
the party sought to be charged. While the term may have
some descriptive value, unduly elaborate discussion of
[superseding] cause as such tends to becloud rather
than clarify the relatively simple idea of causal connec-
tion. When it is determined that a defendant is relieved
of liability by reason of [a superseding] cause, it would
appear to mean simply that the negligent conduct of
someone else—and not that of the defendant—is the
proximate cause of the event.’ . . . 1 T. Shearman & A.
Redfield, Negligence (Rev. Ed. 1941) § 37, pp. 99–100.’’
(Emphasis omitted.) Barry v. Quality Steel Products,
Inc., supra, 263 Conn. 439–40.
Accordingly, ‘‘[i]f the third person’s negligence is
determined to be a superseding cause of the plaintiff’s
injury, that negligence, rather than the negligence of the
party attempting to invoke the doctrine of superseding
cause, is said to be the sole proximate cause of the
injury. . . . The circumstances under which this shift-
ing may take place have been well-defined in our case
law. Even if a plaintiff’s injuries are in fact caused by a
defendant’s negligence, a superseding cause may break
that causal connection if it so entirely supersedes the
operation of the defendant’s negligence that it alone,
without his negligence contributing thereto in any
degree, produces the injury; or it must be the non-
concurring culpable act of a human being who is legally
responsible for such act. . . . If a defendant’s negli-
gence was a substantial factor in producing the plain-
tiff’s injuries, the defendant would not be relieved from
liability for those injuries even though another force
concurred to produce them. . . . Whether a supersed-
ing cause was of such a character as to prevent an act
of negligence of the defendant from being a substantial
factor in producing a plaintiff’s injury is ordinarily a
question of fact [for the jury].’’ (Citations omitted; inter-
nal quotation marks omitted.) Wagner v. Clark Equip-
ment Co., supra, 243 Conn. 179–80.
In Barry, this court determined that the doctrine of
superseding cause had outlived its usefulness in cases
in which ‘‘a defendant claims that a subsequent negli-
gent act by a third party cuts off its own liability for
the plaintiff’s injuries.’’ Barry v. Quality Steel Products,
Inc., supra, 263 Conn. 436. Barry was decided after the
legislature’s enactment of No. 86-338 of the 1986 Public
Acts (Tort Reform I) and No. 87-227 of the 1987 Public
Acts (Tort Reform II), prior to which ‘‘this state followed
the rules of joint and several liability with no contribu-
tion among joint tortfeasors. [Under that system, if]
the illegal conduct of each of the defendants was a
proximate cause of [an injury], they would be liable
jointly and severally, the plaintiff would have a right to
recover the entire amount of damages awarded from
either, and, if he did so, the defendant paying them
would have no right of contribution against the other
[defendants] . . . .
‘‘Under the common law of joint and several liability,
therefore, even a defendant whose degree of fault was
comparatively small could be held responsible for the
entire amount of damages, [as] long as his negligence
was a proximate cause of the plaintiff’s injuries. Thus,
the plaintiff could collect the entire amount of his judg-
ment from the richest defendant, or from the defendant
with the deepest pocket. . . .
‘‘In response largely to these concerns, the legislature
undertook to reform the tort recovery provisions of our
civil system, by enacting [Tort Reform I], which took
effect October 1, 1986. Tort Reform I replaced the com-
mon-law rule of joint and several liability with a system
of apportioned liability, holding each defendant liable
for only his or her proportionate share of damages.’’
(Citations omitted; internal quotation marks omitted.)
Collins v. Colonial Penn Ins. Co., 257 Conn. 718, 729–30,
778 A.2d 899 (2001).
Prior to Barry, the superseding cause doctrine was
applied to any intervening force—be it of nature, man
or beast—that a defendant claimed had superseded his
own tortious conduct to such a degree that it alone was
the sole proximate cause of the plaintiff’s injuries. See,
e.g., Lombardi v. Wallad, 98 Conn. 510, 518, 120 A. 291
(1923) (‘‘the intervening cause either must be a cause,
whether intelligent or not, [that] so entirely supersedes
the operation of the defendant’s negligence that it alone,
without his negligence contributing thereto in any
degree, produces the injury’’); Mahoney v. Beatman,
110 Conn. 184, 205, 147 A. 762 (1929) (Maltbie, J., dis-
senting) (‘‘the circumstances [that] intervene may be
natural phenomena, or the involuntary and unlawful
act of a third person, or his negligent conduct, or his
voluntary but lawful act, or his voluntary and wilfully
wrong act; or some act of the injured party himself may
intervene and it may be a negligent act on his part or
a wilfully wrong act’’).
In light of the significant changes to our tort system
implemented by tort reform, however, this court deter-
mined in Barry ‘‘that the doctrine of superseding cause
no longer serves a useful purpose in our jurisprudence
when a defendant claims that a subsequent negligent
act by a third party cuts off its own liability for the
plaintiff’s injuries. [In such] circumstances, superseding
cause instructions serve to complicate what is funda-
mentally a proximate cause analysis. . . . [B]ecause
our statutes allow for apportionment among negli-
gent defendants; see General Statutes § 52-572h; and
because Connecticut is a comparative negligence juris-
diction; General Statutes § 52-572o; the simpler and less
confusing approach to cases . . . [in which] the jury
must determine which, among many, causes contrib-
uted to the [plaintiff’s] injury, is to couch the analysis
in proximate cause rather than allowing the defendants
to raise a defense of superseding cause.’’ (Footnote
omitted.) Barry v. Quality Steel Products, Inc., supra,
263 Conn. 436–39; see also id., 443 n.18 (‘‘[T]he doctrine
of superseding cause is already incorporated into the
test for proximate cause. Repeating the test for super-
seding cause, then, merely adds confusion to an already
confusing subject, and serves no meaningful purpose
in a jurisdiction, such as ours, [in which] a defendant
will be liable only for his or her proportion of the plain-
tiff’s damages.’’)
Under this approach, ‘‘the fact finder need only deter-
mine whether the allegedly negligent conduct of any
actor was a proximate cause, specifically, whether the
conduct was a substantial factor in contributing to the
plaintiff’s injuries. If such conduct is found to be a
proximate cause of the plaintiff’s foreseeable injury,
each actor will pay his or her proportionate share pursu-
ant to our apportionment statute, regardless of whether
another’s conduct also contributed to the plaintiff’s
injury. Put differently, the term superseding cause
merely describes more fully the concept of proximate
cause when there is more than one alleged act of negli-
gence, and is not functionally distinct from the determi-
nation of whether an act is a proximate cause of the
injury suffered by the plaintiff.’’ Id., 440.
In reaching our determination in Barry, we expressly
limited our holding to cases in which ‘‘a defendant
claims that its tortious conduct is superseded by a sub-
sequent negligent act or there are multiple acts of negli-
gence,’’ stating that our decision did ‘‘not necessarily
affect those cases [in which] the defendant claims that
an unforeseeable intentional tort, force of nature, or
criminal event supersedes its tortious conduct.’’ Id., 439
n.16. Later, we made clear that our holding in Barry
did not affect those types of cases. E.g., Sapko v. State,
supra, 305 Conn. 377 (‘‘the superseding cause doctrine
was largely abandoned in Barry in favor of comparative
and contributory negligence . . . subject . . . to cer-
tain narrow exceptions, namely, situations in which
an unforeseeable intentional tort, force of nature or
criminal event supersedes the defendant’s tortious con-
duct’’ [citation omitted; internal quotation marks omit-
ted]); Sullivan v. Metro-North Commuter Railroad Co.,
supra, 292 Conn. 167 (Barry ‘‘specifically limited our
abolishment of the doctrine to the situation in cases
. . . [in which] a defendant claims that its tortious con-
duct is superseded by a subsequent negligent act or
there are multiple acts of negligence’’ [internal quota-
tion marks omitted]).
Although we did not expressly say so at the time,
we exempted unforeseeable intentional torts, forces of
nature and criminal events from our holding in Barry
because, even under our modern tort system, apportion-
ment of liability is not available between parties liable
for negligence and parties liable on any other basis.
See General Statutes § 52-572h (o) (‘‘there shall be no
apportionment of liability or damages between parties
liable for negligence and parties liable on any basis
other than negligence including, but not limited to,
intentional, wanton or reckless misconduct’’); Sapko
v. State, supra, 305 Conn. 377 (Barry ‘‘abrogated the
superseding cause doctrine for negligence cases only
because, in those cases, a jury is tasked with appor-
tioning liability in accordance with our comparative
fault and apportionment statutes’’); Sapko v. State,
supra, 378 (‘‘we abrogated the superseding cause doc-
trine in Barry not because the concept of superseding
cause is inherently incompatible with our proximate
cause jurisprudence but out of concern that a separate
instruction concerning the doctrine might confuse
jurors by causing them to ignore or discount the com-
parative fault and apportionment principles underlying
§§ 52-572h and 52-572o’’). In Sapko, we expanded the
exceptions enumerated in Barry to include certain
workers’ compensation cases in which apportionment
is unavailable and an employer claims that an interven-
ing force—in that case, an employee’s accidental over-
dose on prescription pain medicine—broke the chain
of proximate causation between an employee’s com-
pensable work injury and his death.10 Id., 364–65, 386;
see id., 377 (‘‘[W]e simply did not consider [in Barry]
whether the doctrine should be abolished in workers’
compensation cases. Upon consideration of that ques-
tion in the present case, we agree with the [Compensa-
tion Review Board] that the concerns that caused us
to abrogate the doctrine in Barry simply are not impli-
cated in our workers’ compensation scheme, which, in
contrast to our comparative negligence tort scheme, is
a no-fault compensation system that imposes a form of
strict liability on employers.’’).
In light of the foregoing, the plaintiff cannot prevail
on her claim that the doctrine of superseding cause
applies only to intervening acts that were intended to
cause harm. As our discussion of the relevant case law
makes clear, the superseding cause doctrine has been
applied historically to any independent, intervening
force that a defendant claims was the sole proximate
cause of a plaintiff’s injury. Following tort reform, this
court prohibited the use of the doctrine in cases in
which apportionment of liability is available, not
because it was incompatible with the causation princi-
ples applicable to such cases; see Barry v. Quality Steel
Products, Inc., supra, 263 Conn. 443 n.18 (‘‘the doctrine
of superseding cause is already incorporated into the
test for proximate cause’’); but because we deemed
it unnecessary in light of the statutory apportionment
scheme adopted some fifteen years earlier. See id.
(‘‘[r]epeating the test for superseding cause . . .
merely adds confusion to an already confusing subject,
and serves no meaningful purpose in a jurisdiction, such
as ours, wherein a defendant will be liable only for his
or her proportion of the plaintiff’s damages’’). As we
have explained, because apportionment was unavail-
able prior to tort reform, ameliorative principles such
as the superseding cause doctrine were developed to
mitigate the harshness of a tort system that would hold
a defendant liable for all of a plaintiff’s damages even
though his or her degree of fault may have been rela-
tively small in comparison to other defendants. See id.,
441 (superseding cause doctrine ‘‘was . . . shaped in
response to the harshness of contributory negligence
and joint and several liability’’).
When applicable, the doctrine merely allows a defen-
dant to argue, and to have the jury instructed, that it
is the defendant’s position that some other actor is the
sole legal cause of the plaintiff’s injury such that, even
though the defendant’s conduct may have been a cause
in fact of the injury in a ‘‘but for’’ sense, its conduct
did not contribute to the production of the injury in
any meaningful sense—that is, the defendant’s conduct
was not a substantial factor in producing the injury
and, thus, it was not a proximate cause of that injury.
Furthermore, under our precedent, to say that the
defendant’s conduct was not a substantial factor in
producing an injury is simply another way of saying
that the injury was not within the scope of the risk
created by the defendant’s conduct.11 E.g., Sapko v.
State, supra, 305 Conn. 373 (‘‘ ‘[t]he fundamental inquiry
of proximate cause is whether the harm that occurred
was within the scope of foreseeable risk created by the
defendant’s negligent conduct’ ’’). We agree with the
Appellate Court that, as long as apportionment of liabil-
ity is unavailable in cases in which a defendant claims
that an intervening force is the sole legal cause of the
plaintiff’s injuries, the doctrine of superseding cause
will continue to play a legitimate ameliorative role in
our tort system.12 In such cases, a request to charge on
the doctrine ‘‘that is relevant to the issues in [the] case
and . . . accurately states the applicable law must be
honored . . . .’’ (Internal quotation marks omitted.)
State v. Devalda, 306 Conn. 494, 506, 50 A.3d 882 (2012).
The plaintiff asserts, nonetheless, that our conclusion
that the doctrine retains vitality in such cases is incon-
sonant with our past adoption of the negligence prin-
ciples contained in § 442 B of the Restatement (Sec-
ond) of Torts, which, as we previously indicated, states
that, ‘‘[if] the negligent conduct of the actor creates or
increases the risk of a particular harm and is a substan-
tial factor in causing that harm, the fact that the harm
is brought about through the intervention of another
force does not relieve the actor of liability, except where
the harm is intentionally caused by a third person and
is not within the scope of the risk created by the actor’s
conduct.’’ 2 Restatement (Second), supra, § 442 B,
p. 469. Specifically, the plaintiff argues that, ‘‘under
§ 442 B, in order for another force to relieve the defen-
dant of liability, that force must be both (1) intentionally
caused by a third person and (2) not within the scope
of the risk.’’ To be sure, this court has applied § 442 B
in cases in which a defendant has claimed that his
or her negligence was superseded by the intentionally
harmful acts of a third party. In all of the cases in which
we have applied § 442 B, however, we relied on it solely
for the proposition that the plaintiff could still prevail
if he or she were able to establish that the intentionally
harmful act was within the scope of the risk created
by the defendant’s negligence. See, e.g., Stewart v. Fed-
erated Dept. Stores, Inc., supra, 234 Conn. 608 (‘‘the
plaintiff must show, by a fair preponderance of the
evidence, that harm intentionally caused by a third per-
son is within the scope of the risk created by the defen-
dant’s negligent conduct’’); Doe v. Manheimer, 212
Conn. 748, 759–60, 563 A.2d 699 (1989) (same), over-
ruled in part on other grounds by Stewart v. Federated
Dept. Stores, Inc., 234 Conn. 597, 608, 662 A.2d 753
(1995); Tetro v. Stratford, 189 Conn. 601, 605–606, 458
A.2d 5 (1983) (‘‘[our cases applying § 442 B] make it
clear that the [intervening acts] of [a third party do] not
[necessarily] relieve the [defendant] of liability because
the trier of fact may find that the plaintiff’s injury falls
within the scope of the risk created by [the defendant’s]
negligent conduct’’). As the Appellate Court explained
in rejecting the plaintiff’s argument predicated on
§ 442 B, however, ‘‘[none of these cases supports] the
proposition that a superseding cause ‘can only exist’ in
the face of conduct by a third party intended to cause
harm . . . [because none of them] considered or held
that a specific intent to cause harm is a necessary pre-
requisite to raising the doctrine of superseding cause.
The cases merely recited the standard contained in
§ 442 B of the Restatement (Second) of Torts.’’13 Snell v.
Norwalk Yellow Cab, Inc., supra, 172 Conn. App. 65–66.
We note, moreover, that, although § 442 B is the
Restatement section most often cited in cases involving
intentionally harmful intervening acts, it does not itself
govern when such acts constitute superseding causes.
Sections 302 B,14 44815 and 44916 of the Restatement
(Second) do. Comment (a) to § 442 B provides that the
‘‘rule stated in this [s]ection is a special application of
the principle stated in § 435 (1),17 [namely] that the fact
that the actor neither foresaw nor could have foreseen
the manner in which a particular harm is brought about
does not prevent his liability where the other conditions
necessary to it exist.’’ (Footnote added.) 2 Restatement
(Second), supra, § 442 B, comment (a), p. 469. Comment
(c) to § 442 B, however, provides that ‘‘[t]he rule stated
in this [s]ection does not apply where the harm of which
the risk has been created or increased by the actor’s
conduct is brought about by the intervening act of a
third person which is intentionally tortious or criminal,
and is not within the scope of the risk created by the
original negligence. Such tortious or criminal acts may
in themselves be foreseeable, and so within the scope
of the created risk, in which case the actor may still
be liable for the harm, under the rules stated in §§ 448
and 449.’’ (Emphasis added.) Id., comment (c), p. 471.
Thus, contrary to the plaintiff’s contentions, § 442 B
establishes that a defendant is liable ‘‘if the plaintiff’s
harm results from a hazard because of which the defen-
dant’s conduct was negligent’’; Cuneo v. Connecticut
Co., supra, 124 Conn. 651; even if the harm is brought
about through the intervention of a third party. As the
commentary to § 442 B makes clear, however, this prin-
ciple is merely an extension of the rule contained in
§ 435 (1) of the Restatement (Second) of Torts, namely,
that, as long as the defendant’s conduct was a substan-
tial factor in producing the harm, the fact that the defen-
dant neither foresaw nor could have foreseen the extent
of the harm, or the manner in which it occurred, does
not prevent him from being liable.18 2 Restatement (Sec-
ond), supra, § 442 B, comment (a), p. 469; see also Pisel
v. Stamford Hospital, 180 Conn. 314, 333, 430 A.2d 1
(1980) (‘‘[as] long as harm of the general nature as
that which occurred is foreseeable there is a basis for
liability even though the manner in which the accident
happens is unusual, bizarre or unforeseeable’’); see also
Lodge v. Arett Sales Corp., 246 Conn. 563, 587, 717 A.2d
215 (1998) (Berdon, J., dissenting) (focus of foreseeabil-
ity inquiry should be ‘‘on the general nature of the harm
and not the specific manner in which the injury
occurred or the conduct of a third party’’). As the com-
mentary also makes clear, however, the manner in
which a particular harm occurred matters greatly when
the harm results from the intentionally harmful act of
a third party. In those circumstances, under the rules
set forth in §§ 302 B, 448 and 449 of the Restatement
(Second), the defendant will be liable only if the risk
created by the defendant’s negligence included the haz-
ard that the defendant’s conduct would induce a third
party to commit such an act.19
Finally, although §§ 302 B, 448 and 449 of the Restate-
ment (Second) delineate when a defendant may be lia-
ble for a third party’s intentionally harmful acts, those
sections merely reiterate the principle set forth in §§ 442
B and 435 (1), which is the same principle that governs
every section of the Restatement (Second) of Torts
relating to proximate causation: liability will attach if
the defendant knew or should have known that his
conduct created or increased the risk that the third
party would act in such a manner. See, e.g., Doe v. Saint
Francis Hospital & Medical Center, 309 Conn. 146,
190–91 n.37, 72 A.3d 929 (2013) (‘‘[Section] 302 B of the
Restatement (Second) of Torts does not establish a
foreseeability standard that is . . . different from the
standard of foreseeability applicable to [other] general
negligence claims. That standard does not differ from
negligence case to negligence case, and there is no
difference in the nature of that test for purposes of a
general negligence claim, on the one hand, and a claim
under § 302 B, on the other. . . . Like all negligence
claims, § 302 B is predicated on the same general princi-
ples that govern other negligence actions, with liability
in such cases depending on the foreseeability of the
third party’s criminal misconduct.’’ [Internal quotation
marks omitted.]).
We also disagree with the plaintiff that the Judicial
Branch’s model civil jury instructions on superseding
cause support the conclusion that the doctrine applies
only to acts that were intended to cause harm. As the
Appellate Court stated in rejecting this contention,
‘‘[t]he model instructions are not intended to be authori-
tative. As provided on their title page, the model instruc-
tions are only meant to provide guidance; their legal
sufficiency is not guaranteed. See Connecticut Civil
Jury Instructions [supra] (‘This collection of Civil Jury
Instructions is intended as a guide for judges and attor-
neys in constructing charges and requests to charge.
The use of these instructions is entirely discretionary
and their publication by the Judicial Branch is not a
guarantee of their legal sufficiency.’ . . .) Rather than
adhering to any particular format, jury instructions
must be appropriately tailored to reflect the circum-
stances of the particular case and to adequately guide
the jury. See Sullivan v. Norwalk, 28 Conn. App. 449,
457, 612 A.2d 114 (1992). The language used in the
model jury instructions, although instructive in consid-
ering the adequacy of a jury instruction; see State v.
Sanchez, 84 Conn. App. 583, 592 n.10, 854 A.2d 778,
cert. denied, 271 Conn. 929, 859 A.2d 585 (2004); is not
binding on this court.’’ (Emphasis omitted.) Snell v.
Norwalk Yellow Cab, Inc., supra, 172 Conn. App. 66–67.
We note, moreover, that the model jury instructions
on superseding cause found on the Judicial Branch
website are revised only to 2008 and, consequently,
do not reflect our subsequent cases clarifying that the
superseding cause doctrine remains a viable defense in
any case in which apportionment is unavailable, and
that even an act of negligence can constitute a supersed-
ing cause in such a case. It is for reasons like these
that we previously have cautioned that the civil jury
instructions found on the Judicial Branch website are
intended as a guide only, and that their publication is
no guarantee of their adequacy. See, e.g., State v. Reyes,
325 Conn. 815, 821–22 n.3, 160 A.3d 323 (2017) (‘‘The
Judicial Branch website expressly cautions that the jury
instructions contained therein ‘[are] intended as a guide
for judges and attorneys in constructing charges and
requests to charge. The use of these instructions is
entirely discretionary and their publication by the Judi-
cial Branch is not a guarantee of their legal suffi-
ciency.’ ’’ [Emphasis omitted.]) We therefore reiterate
that litigants and trial courts alike should review the
relevant case law when fashioning a jury charge,
whether on the basis of the instructions set forth on
the Judicial Branch website or otherwise, to ensure that
it conforms to any recent changes in the law.
II
Having concluded that the Appellate Court correctly
determined that the doctrine of superseding cause
applies to criminally reckless conduct, we now must
consider whether that court also was correct in con-
cluding that the jury’s responses to the fourth and fifth
interrogatories are legally consistent and, therefore,
that the trial court properly denied the plaintiff’s motion
to set aside the verdict and for a new trial. Although
we ordinarily review the denial of a motion to set aside
a verdict under an abuse of discretion standard; e.g.,
Label Systems Corp. v. Aghamohammadi, 270 Conn.
291, 303, 852 A.2d 703 (2004); our review is plenary
when, as in the present case, the trial court’s decision
turned on a question of law. Klein v. Norwalk Hospital,
299 Conn. 241, 250–51 and n.9, 9 A.3d 364 (2010). Fur-
thermore, it is axiomatic that, when a party claims that
the verdict should have been set aside due to the jury’s
inconsistent answers to interrogatories, ‘‘the court has
the duty to attempt to harmonize the answers.’’ Norrie
v. Heil Co., 203 Conn. 594, 606, 525 A.2d 1332 (1987).
As we previously indicated, in concluding that the
jury’s interrogatory responses were reconcilable, the
Appellate Court relied primarily on §§ 440 and 442 B
of the Restatement (Second) of Torts, which it interpre-
ted as establishing that an injury could be proximately
caused by an actor’s negligent conduct but not be within
the scope of the risk created by that conduct. Although
the Appellate Court acknowledged that its interpreta-
tion of these provisions of the Restatement (Second)
was at odds with this court’s statement in Barry that
‘‘superseding cause’’ is simply another way of saying
‘‘sole proximate cause,’’ the court ultimately concluded
that the ‘‘sole proximate cause’’ language in Barry was
not intended ‘‘as a repudiation of the Restatement’s
broader definition’’ of the term and that Barry’s ‘‘itera-
tion of the doctrine . . . does not expressly preclude
that in certain cases factually distinct from that consid-
ered by the court in Barry, the impact of the defendant’s
initial negligence will not be so diminished by the later
intervening act as to fully negate the initial negligence
as a substantial factor in causing the harm at issue.’’
Snell v. Norwalk Yellow Cab, Inc., supra, 172 Conn.
59 n.15.
We do not disagree with the Appellate Court that the
fundamental policy underlying the superseding cause
doctrine is essentially the same under the Restatement’s
explication of the doctrine and under the exposition of
the doctrine found in the governing precedent of this
court. As we explained, however, the terminology
employed by the Restatement (Second) and by this
court in explaining the doctrine are materially different.
In particular, under the Restatement (Second), negli-
gent conduct that is found to be a proximate cause of
the injuries sustained may nevertheless be rendered so
relatively inconsequential in light of a later superseding
cause that that superseding cause is deemed to relieve
the original tortfeasor of liability. Under our precedent,
by contrast, a finding that conduct constitutes a super-
seding cause renders the original negligence so insignif-
icant in relation to that superseding cause that the
original negligence cannot be deemed to be a proximate
cause of the injuries. Thus, our precedent simply does
not contemplate a situation in which the original negli-
gence may be found to be a substantial factor in produc-
ing the injuries if there is a finding of a superseding
cause. Indeed, we consistently have described a super-
seding cause as an intervening force that ‘‘prevent[s]
an act of negligence of the defendant from being a
substantial factor in producing a plaintiff’s injury
. . . .’’ (Emphasis added; internal quotation marks
omitted.) Craig v. Driscoll, 262 Conn. 312, 335, 813 A.2d
1003 (2003); see also Virelli v. Benhattie, Inc., 146 Conn.
203, 209, 148 A.2d 760 (1959) (‘‘the determination
whether negligence of [a third party] was such a super-
seding cause as to prevent the antecedent negligence
of the defendant from being a substantial factor in
producing the plaintiff’s injuries was essential to a
finding [of superseding cause]’’ [emphasis added]); Col-
ligan v. Reilly, 129 Conn. 26, 30, 26 A.2d 231 (1942)
(same). Accordingly, we consistently have held that,
‘‘[i]f a defendant’s negligence was a substantial factor
. . . in producing the plaintiff’s injuries, the defendant
would not be relieved from liability for those injuries
even though another force concurred to produce them.’’
(Emphasis omitted; internal quotation marks omitted.)
Craig v. Driscoll, supra, 335; accord Wagner v. Clark
Equipment Co., supra, 243 Conn. 180.
Although, as the Appellate Court noted, the trial
court’s jury instructions were imperfect, the jury never-
theless was instructed in accordance with this court’s
precedent on the doctrine of superseding cause. Thus,
the jury was not instructed that it could find that Sain-
val’s negligence was a substantial factor in producing
the plaintiff’s injuries and that Bowden’s and Johnson’s
actions were a superseding cause of the injuries. To
the contrary, the jury was instructed that only if it found
that Sainval’s negligence was not a substantial factor
in producing the plaintiff’s injuries could it find that
Bowden’s and Johnson’s actions were a superseding
cause of those injuries. See Suarez v. Dickmont Plastics
Corp., 242 Conn. 255, 270–71, 698 A.2d 838 (1997)
(‘‘[w]hen a claim is made that the jury’s answers to
interrogatories in returning a verdict are inconsistent
. . . we do not read the interrogatories in isolation,
but, rather, in conjunction with the jury instructions’’
[citation omitted; footnote omitted; internal quotation
marks omitted]); Norrie v. Heil Co., supra, 203 Conn.
605 (‘‘interrogatories are not vacuous words, but words
which are amplified and defined in the charge’’). Specifi-
cally, the trial court informed the jury that the ‘‘defen-
dants have claimed that the theft and operation of the
car by [Johnson] and [Bowden], and the resulting acci-
dent, constituted . . . an event . . . that was so over-
powering in consequence as to render any possible
negligence on the part of . . . Sainval relatively insig-
nificant, and therefore not a proximate cause of the
injuries sustained by the plaintiff.’’ (Emphasis added.)
The court further explained that, ‘‘[w]hen . . . some
other causal causes [contribute] so powerfully to the
production of an injury as to make the defendant’s
negligent contribution to the injury merely trivial or
inconsequential, the defendant’s negligence must be
rejected as a proximate cause of the injury, for it has
not been a substantial factor in bringing the injury
about.’’ (Emphasis added.)
To reinforce the latter point, the court explained that
a finding of superseding cause ‘‘precludes a finding
that the defendant’s conduct was a proximate cause
of the plaintiff’s injuries’’ and that, ‘‘[t]o the extent
that you find that the plaintiff has proven, by a prepon-
derance of the evidence, that the negligence of . . .
Sainval was a proximate cause of any or all of the
injuries and damages claimed to have been sustained
by the plaintiff, as I have defined proximate cause to
you, you are to proceed to determine the issues as to
the amount of damages, following the rules I’m about
to give you.’’ (Emphasis added.) Notwithstanding these
instructions, the jury found both that Sainval’s negli-
gence was a proximate cause of some or all of the
plaintiff’s injuries and that Bowden’s and Johnson’s
actions were a superseding cause of the injuries. We
cannot say with any confidence, therefore, that the jury
followed the trial court’s instructions with respect to
the issue of causation.20 For this reason, the judgment
cannot stand. See, e.g., Magnan v. Anaconda Indus-
tries, Inc., 193 Conn. 558, 577, 479 A.2d 781 (1984)
(when verdict in civil case ‘‘rests [on] a factual finding
contradictory to another finding of the same issue by
the trier the judgment cannot stand’’); Belchak v. New
York, New Haven & Hartford Railroad Co., 119 Conn.
630, 633, 179 A. 95 (1935) (‘‘The verdict returned by
the jury demonstrated conclusively that, in spite of the
instructions of the court, [it] had made a mistake in the
application of legal principles. Hence it was necessary
to set aside [its] verdict.’’ [Internal quotation marks
omitted.]). Accordingly, we agree with the plaintiff that
she is entitled to a new trial.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
reverse the judgment of the trial court and to remand
the case to that court for a new trial.
In this opinion D’AURIA, MULLINS and KAHN, Js.,
concurred.
1
‘‘Bowden admitted during his trial testimony that he had pleaded guilty
to larceny, assault in the first degree, reckless endangerment, and evading
responsibility with death or serious injury resulting.’’ Snell v. Norwalk Yellow
Cab, Inc., supra, 172 Conn. App. 43 n.3.
2
‘‘The plaintiff filed a separate civil action alleging negligent security
practices by the companies that purportedly owned and managed Monterey
Village. That action was consolidated with the present case but later was
settled and withdrawn prior to trial. The jury nevertheless heard evidence
pertaining to one of those companies, Vesta Management Corporation, and
was instructed that it could consider for apportionment purposes whether
and to what extent its negligence was also a cause of the plaintiff’s injuries.’’
Snell v. Norwalk Yellow Cab, Inc., supra, 172 Conn. App. 43 n.4.
3
‘‘The operative complaint contained four additional counts directed at
Yellow Cab and its owner and sole shareholder, [Bochicchio]. These addi-
tional counts alleged that Bochicchio had, among other things, misdirected
assets away from Yellow Cab’s accounts in an effort to keep funds away
from the plaintiff. The counts sounded in fraud and fraudulent transfer, and
sought to ‘pierce the corporate veil’ between Yellow Cab and Bochicchio
in the event Yellow Cab was found vicariously liable to the plaintiff for
damages. The parties agreed with the court’s decision to proceed with a
bifurcated trial in which the additional counts would be presented to the
jury only if the jury returned a verdict for the plaintiff on the negligence
counts and awarded damages.’’ Snell v. Norwalk Yellow Cab, Inc., supra,
172 Conn. App. 44 n.5.
4
As we explain more fully in part II of this opinion, the trial court deter-
mined that ‘‘foreseeability’’ for purposes of determining negligence and
‘‘scope of the risk’’ for purposes of applying superseding cause were different
concepts, in part, on the basis of § 440 of the Restatement (Second) of Torts,
and the notes accompanying Connecticut Civil Jury Instruction 3.1-5, which
describe ‘‘superseding cause’’ as ‘‘any cause intervening between the time of
the defendant’s allegedly tortious conduct and that of the plaintiff’s claimed
injury [that], although not disproving that the defendant’s conduct proxi-
mately caused the plaintiff’s claimed injury, prevented the defendant’s con-
duct from being considered a legal cause of that injury.’’ Connecticut Civil
Jury Instructions 3.1-5, available at http://www.jud.ct.gov/JI/Civil/Civil.pdf
(last visited August 5, 2019). Specifically, the trial court understood the
latter statement to mean that the superseding cause doctrine is a special
defense that admits the truth of the allegations contained in the plaintiff’s
complaint, including the plaintiff’s contention that the defendant’s negli-
gence proximately caused the plaintiff’s injuries, but seeks to demonstrate
that the plaintiff cannot prevail against the defendant.
5
This paragraph of the jury charge, along with the four paragraphs of the
charge that follow, represents the trial court’s instructions on superseding
cause, even though the court did not expressly use the term ‘‘superseding
cause’’ in those paragraphs.
6
Although the fifth interrogatory contains no express reference to the
term ‘‘superseding cause,’’ it is that doctrine that is the subject thereof.
7
Although we have never adopted the Restatement’s definition of super-
seding cause, we note that it has appeared as dicta in a handful of this
court’s opinions. See, e.g., Levesque v. Bristol Hospital, Inc., 286 Conn. 234,
243 n.12, 943 A.2d 430 (2008); Barry v. Quality Steel Products, Inc., supra,
263 Conn. 434; Board of Education v. St. Paul Fire & Marine Ins. Co., 261
Conn. 37, 46, 801 A.2d 752 (2002).
8
Connecticut Civil Jury Instruction 3.1-5 provides: ‘‘The defendant claims
that he did not legally cause the plaintiff’s alleged injury because that injury
was produced, in material part, by a superseding cause. A superseding
cause is any intentionally harmful act, force of nature, or criminal event,
unforeseeable by the defendant, [that] intervenes in the sequence of events
leading from the defendant’s alleged negligence to the plaintiff’s alleged
injury and proximately causes that injury. Under our law, the intervention
of such a superseding cause prevents the defendant from being held liable
for the plaintiff’s injury on the theory that, due to such superseding cause,
the defendant did not legally cause the injury even though (his/her) negli-
gence was a substantial factor in bringing the injury about. Therefore, when
a claim of superseding cause is made at trial, the plaintiff must disprove at
least one essential element of that claim by a fair preponderance of the
evidence in order to prove, by that standard, its own conflicting claim of
legal causation.
‘‘In this case, the defendant claims, more particularly, that was a superseding cause of the plaintiff’s alleged injury, and thus
that (his/her) own negligence did not legally cause that injury. Because
such intentionally harmful (conduct / force of nature / criminal event), if
unforeseeable by the defendant, would constitute a superseding cause of
the plaintiff’s alleged injury if it occurred as claimed by the defendant and
if it proximately caused the plaintiff’s injury, the plaintiff must disprove at
least one essential element of that claim by a fair preponderance of the
evidence in order to prove that the defendant legally caused that injury.
The plaintiff can meet this burden by proving either 1) that the conduct
claimed to constitute a superseding cause did not occur as claimed by the
defendant, either because it did not occur at all or because it was not
engaged in with the intent to cause harm; or 2) that such conduct was
foreseeable by the defendant, in that the injury in question was within the
scope of the risk created by the defendant’s conduct; or 3) that such conduct
was not a substantial factor in bringing about the plaintiff’s alleged injury.
These, of course, are questions of fact for you to determine based on the
evidence. Keep in mind, however, that the defendant does not have any
burden to prove the existence of a superseding cause. The burden at all
times rests [on] the plaintiff to disprove the defendant’s claim of superseding
cause as a necessary part of (his/her) proof that the defendant legally caused
the plaintiff’s injury.’’ (Emphasis in original.)
9
Although the legal question of whether Sainval owed a duty to the plaintiff
is not before us, we previously have stated that, when a defendant claims
that an independent intervening force superseded his own negligence, ‘‘the
question of legal causation is practically indistinguishable from an analysis
of the extent of the tortfeasor’s duty to the plaintiff.’’ (Internal quotation
marks omitted.) Ruiz v. Victory Properties, LLC, supra, 315 Conn. 345. This
is so because, in determining whether a duty exists, ‘‘our threshold inquiry
has always been whether the specific harm alleged by the plaintiff was
foreseeable to the defendant’’; (internal quotation marks omitted) Mirjavadi
v. Vakilzadeh, 310 Conn. 176, 191, 74 A.3d 1278 (2013); which is the same
inquiry a jury makes in deciding whether a defendant’s actions were the
proximate cause of the harm. Id., 192. As this court, quoting Prosser and
Keeton on the Law of Torts, has explained: ‘‘ ‘[T]he question whether there
is a duty has most often seemed helpful in cases [in which] the only issue
is in reality whether the defendant stands in any such relation to the plaintiff
as to create any legally recognized obligation of conduct for the plaintiff’s
benefit. Or, reverting again to the starting point, whether the interests of
the plaintiff are entitled to legal protection at the defendant’s hands against
the invasion [that] has in fact occurred. Or, again reverting, whether the
conduct is the ‘‘proximate cause’’ of the result. The circumlocution is
unavoidable, since all of these questions are, in reality, one and the same.’
[W. Keeton et al., Prosser and Keeton on the Law of Torts (5th Ed. 1984)]
§ 42, p. 274; see also id., § 53, p. 358.’’ RK Constructors, Inc. v. Fusco Corp.,
231 Conn. 381, 388 n.4, 650 A.2d 153 (1994).
10
We note that several years before we decided Sapko, in Archambault
v. Soneco/Northeastern, Inc., 287 Conn. 20, 37, 946 A.2d 839 (2008), we
rejected a nearly identical claim to that which we found persuasive in Sapko,
namely, that the trial court improperly had denied the defendant’s request
to charge the jury on the doctrine of superseding cause, when the defendant
had argued that the negligence of the plaintiff’s employer was the sole
proximate cause of the plaintiff’s injuries. In that case, the exclusivity provi-
sion of the Workers’ Compensation Act had prevented the defendant from
citing in the plaintiff’s employer as an apportionment defendant. See id.,
26. In support of its claim that the trial court improperly had denied its
request to charge the jury on the superseding cause doctrine, the defendant
argued ‘‘that our holding in Barry is restricted to cases in which the jury
is charged with apportioning liability between multiple defendants and that
. . . the doctrine remains viable when, as in the present case, contributory
negligence and apportionment of liability between two or more defendants
are not at issue.’’ Id., 44. In rejecting this claim, we relied solely on the fact
that the doctrine had been abandoned in Barry, ‘‘subject only to certain
narrow exceptions,’’ which did not include intervening acts of negligence.
Id. We agreed with the defendant, however, that the trial court improperly
had precluded it from presenting evidence and argument to the jury that
the plaintiff’s employer was the sole proximate cause of the plaintiff’s injur-
ies. See id., 33 (‘‘[t]his court has determined that a defendant has the right,
under a general denial, to introduce evidence that the negligence of another
was the sole proximate cause of the plaintiff’s injury’’). Specifically, we
concluded that, ‘‘if the [nonparty] employer’s actions are the sole proximate
cause of the [plaintiff’s] injuries, then it follows that the defendant’s conduct
is not a proximate cause, and the defendant should be entitled to argue and
have the jury instructed accordingly . . . .’’ (Internal quotation marks omit-
ted.) Id., 38, quoting Steele v. Encore Manufacturing Co., 7 Neb. Ct. App. 1, 8, 579
N.W.2d 563 (1998). Of course, it was a legal distinction without a difference
to conclude, on the one hand, that the defendant was prohibited from arguing
that the plaintiff’s employer was a superseding cause of the plaintiff’s injuries
and, on the other hand, that the defendant properly could argue that the
employer was the sole proximate cause of the plaintiff’s injuries and was
entitled to an instruction with respect to this claim. This is so because, as
our discussion of the case law makes clear, when a defendant is relieved
of liability on the basis of a superseding cause, ‘‘it . . . mean[s] simply that
the negligent conduct of someone else—and not that of the defendant—is
the proximate cause of the event.’’ (Emphasis omitted; internal quotation
marks omitted.) Barry v. Quality Steel Products, Inc., supra, 263 Conn. 440;
see also, e.g., Craig v. Driscoll, 262 Conn. 312, 333, 813 A.2d 1003 (2003)
(‘‘[t]o act as an intervening cause, the conduct must entirely [break] the
causal connection between the defendant’s conduct and the plaintiff’s injur-
ies so as to be the sole proximate cause of those injuries’’ [internal quotation
marks omitted]); Wagner v. Clark Equipment Co., supra, 243 Conn. 182
(same); Oberempt v. Egri, 176 Conn. 652, 655, 410 A.2d 482 (1979) (trial
court’s instruction that intervening negligence ‘‘would discharge the defen-
dants [of liability] only if [it] was found to have been the sole proximate
cause of the . . . accident . . . was entirely proper’’ [emphasis omitted]);
Virelli v. Benhattie, Inc., 146 Conn. 203, 209–10, 148 A.2d 760 (1959)
(explaining that superseding cause and sole proximate cause are indistin-
guishable concepts).
11
Thus, in light of our precedent and the trial court’s instructions predi-
cated on that precedent, we disagree with the Appellate Court that the jury
properly could find simultaneously that Sainval’s actions were a proximate
cause of the plaintiff’s injuries and that Bowden’s and Johnson’s actions
were a superseding cause of those same injuries. As we explain more fully in
part II of this opinion, under our case law, a finding that conduct constitutes
a superseding cause renders the original negligence so insignificant in rela-
tion to that superseding cause that the original negligence cannot be deemed
to be a proximate cause of the injuries and, therefore, cannot be deemed
to be a substantial factor in producing the injuries.
12
We note that the plaintiff urges us to adopt § 34 of the Restatement
(Third) of Torts, published in 2010, which she asserts ‘‘merges the viable
concepts related to superseding cause (foreseeability and proximate cause)
officially into a [single] proximate cause (or scope of liability) analysis
without the confusion and prejudice related to use of the superseding cause
doctrine.’’ Section 34 of the Restatement (Third) provides: ‘‘When a force
of nature or an independent act is also a factual cause of harm, an actor’s
liability is limited to those harms that result from the risks that made the
actor’s conduct tortious.’’ 1 Restatement (Third), Torts, Liability for Physical
and Emotional Harm § 34, p. 569 (2010). Because the plaintiff did not raise
this claim in either the trial court or the Appellate Court, it is not properly
before us. Even if it were, however, as the Appellate Court noted, our
recent case law ‘‘reflects a jurisprudential move toward embracing’’ the more
modern approach to superseding cause prescribed in § 34 of the Restatement
(Third) of Torts. Snell v. Norwalk Yellow Cab, Inc., supra, 172 Conn. App.
57 n.13. Indeed, the reporters’ notes to that section cite this court as one
of several courts that have embraced the modern approach. See, e.g., 1
Restatement (Third), supra, § 34, reporters’ note to comment (c), p. 579.
For the reasons previously set forth, however, we are not prepared to
abandon the superseding cause doctrine even in cases in which apportion-
ment of liability is statutorily prohibited, and we do not read the Restatement
(Third) as advocating its abandonment in such circumstances. To the con-
trary, comment (c) to § 34 provides that ‘‘the advent of comparative princi-
ples has reduced the role for superseding cause’’ such that ‘‘when third
persons . . . are negligent or commit intentional torts, the need for aggres-
sive use of superseding cause to absolve a tortfeasor from liability has
subsided in light of the modification of joint and several liability and of
the trend toward permitting comparative responsibility to be apportioned
among negligent and intentional tortfeasors. Comparative responsibility
permits liability to be apportioned among multiple tortfeasors and to take
account of the causal relationship between each tortfeasor’s conduct and
the harm as well as the culpability of each tortfeasor.’’ (Emphasis added.)
1 Restatement (Third), supra, § 34, comment (c), pp. 571–72.
13
We note that the plaintiff’s argument also founders on Kiniry v. Danbury
Hospital, 183 Conn. 448, 439 A.2d 408 (1981), in which we rejected a claim
that the trial court, by instructing the jury in accordance with § 442 B, had
misled the jury into believing ‘‘that only intentional conduct on the part of
[a third party] would discharge the defendants [of liability for their own
negligent conduct].’’ Id., 456; see id. (‘‘[t]hose portions of the court’s charge
. . . rebut the defendants’ claim that the court charged that only intentional
conduct on the part of [the third party] would discharge the defendants’’);
see also id., 455 (‘‘[t]he court’s charge does not, as the defendants argue,
make the intervenor’s intentional conduct the sole determinant of the liability
of the defendants’’). We rejected the defendant’s claim because the trial
court, in addition to instructing the jury in accordance with § 442 B, also
had instructed the jury that ‘‘[a]ny intervening negligence by [the third
party] would discharge [the defendant of liability] if you were to find
that [the third party’s] negligence was the sole proximate cause of [the
decedent’s] death. . . . Therefore, even though you might find that the
defendant . . . was negligent in one or more of the particulars alleged in
the complaint, if you find that [the defendant’s] negligence ceased to be a
substantial factor in producing [the decedent’s] death and that the negligence
of [the third party] had so superseded that of [the defendant], that [the third
party], without the negligence of [the defendant] contributing to any material
degree, was the real cause for [the decedent’s] death, then the negligence
of [the defendant] would not be a proximate cause of [the decedent’s] death
. . . .’’ (Emphasis added; internal quotation marks omitted.) Id., 455–56 n.2.
Thus, because the trial court’s instructions made clear to the jury that a
superseding cause could be either an intentional or a negligent act under
the defendants’ theory of defense, we affirmed the judgment in favor of
the plaintiff.
14
Section 302 B of the Restatement (Second) of Torts provides: ‘‘An act
or an omission may be negligent if the actor realizes or should realize that
it involves an unreasonable risk of harm to another through the conduct of
the other or a third person which is intended to cause harm, even though
such conduct is criminal.’’ 2 Restatement (Second), supra, § 302 B, p. 88.
15
Section 448 of the Restatement (Second) of Torts provides: ‘‘The act of
a third person in committing an intentional tort or crime is a superseding
cause of harm to another resulting therefrom, although the actor’s negligent
conduct created a situation which afforded an opportunity to the third
person to commit such a tort or crime, unless the actor at the time of his
negligent conduct realized or should have realized the likelihood that such
a situation might be created, and that a third person might avail himself of
the opportunity to commit such a tort or crime.’’ 2 Restatement (Second),
supra, § 448, p. 480.
16
Section 449 of the Restatement (Second) of Torts provides: ‘‘If the
likelihood that a third person may act in a particular manner is the hazard
or one of the hazards which makes the actor negligent, such an act whether
innocent, negligent, intentionally tortious, or criminal does not prevent the
actor from being liable for harm caused thereby.’’ 2 Restatement (Second),
supra, § 449, p. 482.
17
Section 435 of the Restatement (Second) of Torts, entitled ‘‘Foreseeabil-
ity of Harm or Manner of Its Occurrence,’’ provides in relevant part: ‘‘If the
actor’s conduct is a substantial factor in bringing about harm to another,
the fact that the actor neither foresaw nor should have foreseen the extent
of the harm or the manner in which it occurred does not prevent him from
being liable.’’ 2 Restatement (Second), supra, § 435 (1), p. 449.
18
Ruiz v. Victory Properties, LLC, supra, 315 Conn. 320, presents an apt
example of the principle set forth in § 442 B. In Ruiz, a small child was
injured when an older child unintentionally dropped a piece of concrete on
her head from the third floor landing of the apartment building where the
children resided. Id., 323. The older child had obtained the concrete from
the backyard of that apartment building, where he and the victim had been
playing. Id. The trial court granted the defendant landlord’s motion for
summary judgment, concluding that the defendant owed the victim no duty
of care ‘‘because no reasonable juror could find that her injuries were a
foreseeable consequence of the defendant’s [failure to maintain the property
in a clean and safe condition by leaving loose pieces of concrete in the
backyard] and because imposing liability on the defendant would be contrary
to overriding public policy considerations.’’ Id. The Appellate Court reversed
the judgment of the trial court, and we affirmed the Appellate Court’s judg-
ment; id., 323–24; explaining that the defendant ‘‘does not dispute that the
risk of harm created by its failure to remove the buckets, trash, broken
concrete pieces and other debris from the backyard was that children playing
in the area might trip on them or throw them at other children. The types
of injuries one would expect to result from this type of behavior run the
gamut from cuts and bruises to broken bones, concussions and even frac-
tured skulls. [The child’s] injuries, although severe, fall squarely along this
continuum of harm. That they occurred in an unusual manner, namely, by
a child dropping a piece of concrete into the backyard playground from a
third floor balcony instead of throwing it while in the backyard, does not
alter this fundamental fact. We therefore agree with the Appellate Court
that [the child’s] injuries were sufficiently foreseeable that it was inappropri-
ate for the trial court to foreclose the foreseeability question as a matter
of law.’’ Id., 336.
As § 442 B of the Restatement (Second) of Torts indicates, however, if
all of the facts were the same except that an adult intentionally had dropped
the concrete on the child’s head, the defendant’s liability would turn on
whether an adult committing such an act was within the scope of the risk
created by the defendant’s failure to remove the accumulated debris from
its property. Such a case undoubtedly would be resolved in the defendant’s
favor on a motion for summary judgment because it seems clear that a jury
reasonably could not find that such an act was a foreseeable risk of the
defendant’s negligence.
19
Section 442 B provides a good illustration of this principle. ‘‘A negligently
leaves an excavation in a public sidewalk, creating the risk that a traveler
on the sidewalk will fall into it. B, passing C on the sidewalk, negligently
bumps into him, and knocks him into the excavation. A is subject to liability
to C.’’ 2 Restatement (Second), supra, § 442 B, illustration (5), p. 471. If,
however, all of the facts are the same except that B intentionally pushes C
into the hole, A would not be liable. Id., illustration (7), p. 471. This is true
even though the injuries sustained by C in the second example are identical
to the injuries sustained in the first. A is not liable in the second instance
because the hazard that made A’s conduct negligent did not include the risk
that a third party would be induced to push someone into the excavated
area. Cf. Stewart v. Federated Dept. Stores, Inc., supra, 234 Conn. 600–601,
612–13 (when department store negligently failed to provide adequate light-
ing and security in store parking garage located in high crime area, store
may be held liable for murder of customer during botched robbery because
risk that made store’s conduct negligent was opportunity that it presented
to criminals to commit such crimes); Doe v. Manheimer, supra, 212 Conn.
750, 762 (private landowner was not liable for sexual assault that occurred
behind overgrown vegetation on landowner’s property because it was not
reasonably foreseeable that such vegetation would provide incentive and
shield for commission of such assault when ‘‘there was no evidence tending
to demonstrate that the [landowner] had had any past experience that might
reasonably have led him to perceive and act on the atypical association
between ‘natural shields’ such as overgrown vegetation and violent criminal
activity’’); Burns v. Gleason Plant Security, Inc., 10 Conn. App. 480, 486,
523 A.2d 940 (1987) (‘‘When [the driver] left the keys in the unlocked car
in a high crime area, it may well have been a foreseeable risk that the car
would be stolen by a third party and negligently operated so as to cause
harm to an innocent party. . . . It was not also foreseeable, however, that
a third party would steal the car, drive elsewhere, leave the car, enter a
store, commit an armed robbery, and assault an innocent person in the
course of that robbery. To hold otherwise would be to convert the imperfect
vision of reasonable foreseeability into the perfect vision of hindsight.’’
[Citation omitted.])
20
No doubt this problem stems, at least in part, from the admonition at
the conclusion of the fourth interrogatory, which, in direct contradiction to
the court’s charge, effectively instructed the jury to consider, in connection
with the fifth interrogatory, whether ‘‘the accident that occurred . . . was
outside the scope of the risk created by [Sainval’s] leaving his key in the
ignition’’ only if it had found, in response to the fourth interrogatory, that
the plaintiff had proven ‘‘that some or all of the injuries she sustained . . .
were proximately caused by the negligence of . . . Sainval.’’ In accordance
with the court’s charge, however, once the jury found that Sainval’s negli-
gence was a proximate cause of the accident, there could be no finding of
a superseding cause. Thus, the interrogatories merely should have queried
the jury whether the plaintiff had proven that Sainval’s negligence was a
proximate cause of the plaintiff’s injuries or, instead, whether Bowden’s
recklessness in driving onto a sidewalk after striking a vehicle in front of
him fell outside the scope of the risk created by Sainval’s negligence because
it was not reasonably foreseeable that someone stealing the taxicab would
operate it in such a manner.