White v. Mazda Motor of America, Inc. ( 2014 )

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WHITE v. MAZDA MOTOR OF AMERICA, INC.—DISSENT
EVELEIGH, J., with whom ESPINOSA, J., joins, dis-
senting. I respectfully dissent. I disagree with the major-
ity opinion in all material respects. First, in my view, the
plaintiff, Roland Todd White, pleaded sufficient facts to
alert both the defendants, Mazda Motor of America,
Inc. (Mazda), and Cartwright Auto, LLC (dealership),
and the trier of fact to the potential invocation of the
malfunction theory of products liability. Second, the
procedural posture of this case does not lend itself to
a resolution on the pleadings. This is not a motion to
strike. Rather, in the context of a summary judgment
motion, we consider all of the pleadings, affidavits and
material submitted at summary judgment. Third, the
issue was functionally preserved when the plaintiff
cited two cases which held that expert testimony was
not necessary in order to prove a design defect. Fourth,
in my view, the issue was preserved when the trial
judge ruled on the specific issue relating to the need
to produce an expert in a design defect case. For these
reasons, I respectfully dissent. Further, in view of my
conclusion, unlike the majority opinion, it is necessary
for me to discuss, in part II of this opinion, the applica-
bility of the malfunction doctrine to this case.
In order to present the first argument, it is necessary
to begin with a review of the legal principles governing
product liability actions and the malfunction doctrine.
In Metropolitan Property & Casualty Ins. Co. v. Deere &
Co., 302 Conn. 123, 131, 25 A.3d 571 (2011), we recently
explained these legal principles as follows: ‘‘To recover
under the doctrine of strict liability in tort, a ‘plaintiff
must prove that: (1) the defendant was engaged in the
business of selling the product; (2) the product was in
a defective condition unreasonably dangerous to the
consumer or user; (3) the defect caused the injury for
which compensation was sought; (4) the defect existed
at the time of the sale; and (5) the product was expected
to and did reach the consumer without substantial
change in condition.’ . . . Potter v. Chicago Pneu-
matic Tool Co., 241 Conn. 199, 214, 694 A.2d 1319 (1997);
accord Giglio v. Connecticut Light & Power Co., 180
Conn. 230, 234, 429 A.2d 486 (1980); see also 2
Restatement (Second), Torts § 402A, pp. 347–48 (1965).
For a product to be ‘unreasonably dangerous,’ it ‘must
be dangerous to an extent beyond that which would
be contemplated by the ordinary consumer who pur-
chases it, with the ordinary knowledge common to the
community as to its characteristics.’ . . . Potter v. Chi-
cago Pneumatic Tool Co., supra, 214–15, quoting 2
Restatement (Second), supra, § 402A, comment (i), p.
352.’’
‘‘The absence of direct evidence of a specific product
defect is not, however, fatal to a plaintiff’s claims, and
a plaintiff, under certain circumstances, may establish
a prima facie case using circumstantial evidence of a
defect attributable to the manufacturer. See Potter v.
Chicago Pneumatic Tool Co., supra, 241 Conn. 218;
Giglio v. Connecticut Light & Power Co., supra, 180
Conn. 234–35; see also Living & Learning Centre, Inc.
v. Griese Custom Signs, Inc., 3 Conn. App. 661, 664,
491 A.2d 433 (1985) (permitting fact finder to infer
defect from fact that malfunction occurred in absence
of other possible causes); Liberty Mutual Ins. Co. v.
Sears, Roebuck & Co., [35 Conn. Supp. 687, 691, 406
A.2d 1254, cert. denied, 177 Conn. 754, 399 A.2d 526(1979)] (same). In addition, a plaintiff need not present
evidence to establish a specific defect, ‘[as] long as there
is evidence of some unspecified dangerous condition.’
Liberty Mutual Ins. Co. v. Sears, Roebuck & Co.,
supra, 691.
‘‘Although this court has not examined the precise
contours of those circumstances in which this principle
might apply, the Appellate and Superior Courts have
used the ‘malfunction theory’ of products liability to
permit a jury to infer the existence of a product defect
that existed at the time of sale or distribution on the
basis of circumstantial evidence alone. See Potter v.
Chicago Pneumatic Tool Co., supra, 241 Conn. 218 (cit-
ing cases from Appellate Court and Superior Court con-
cluding that plaintiff may use fact of malfunction as
evidence of defect when other potential causes are
absent); see also Living & Learning Centre, Inc. v.
Griese Custom Signs, Inc., supra, 3 Conn. App. 664(applying malfunction theory to permit inference of
defect); Fallon v. Matworks, [50 Conn. Supp. 207, 215–
16, 918 A.2d 1067 (2007)] (same); O’Connor v. General
Motors Corp., Superior Court, judicial district of Anso-
nia-Milford, Docket No. CV 89-028104 (April 25, 1997)
(21 Conn. L. Rptr. 151) (same); Liberty Mutual Ins.
Co. v. Sears, Roebuck & Co., supra, 35 Conn. Sup. 691(same).’’ Metropolitan Property & Casualty Ins. Co. v.
Deere & Co., supra, 302 Conn. 132–33.
‘‘Most states have adopted some form of the malfunc-
tion theory. 1 L. Frumer & M. Friedman, Products Liabil-
ity (2010) § 8.06 [3], pp. 8-262 through 8-270 and nn.
22–48 (collecting cases); D. Owen, ‘Manufacturing
Defects,’ 53 S.C. L. Rev. 851, 874 n.128 (2002) (same).
Although this theory does not relieve a plaintiff of the
burden to prove all elements of a product liability claim;
see 1 L. Frumer & M. Friedman, supra, § 8.06 [1], pp.
8-257 through 8-258; it does help to establish a prima
facie product liability case by permitting the jury to
infer the existence of a defect attributable to the manu-
facturer. According to § 3 of the Restatement (Third)
of Torts, Products Liability, in a product liability action,
the malfunction theory permits a jury to infer ‘that the
harm sustained by the plaintiff was caused by a product
defect existing at the time of sale or distribution, with-
out proof of a specific defect, when the incident that
harmed the plaintiff . . . was of a kind that ordinarily
occurs as a result of product defect . . . and . . . was
not, in the particular case, solely the result of causes
other than product defect existing at the time of sale
or distribution.’ Restatement (Third), Torts, Products
Liability § 3, p. 111 (1998). This theory is based on
the same principles underlying the doctrine of res ipsa
loquitur, which permits a fact finder to infer negligence
from the circumstances of the incident, without resort
to direct evidence of a specific wrongful act. Id., com-
ment (a); see also id., reporters’ note to comment (a),
p. 115; 1 L. Frumer & M. Friedman, supra, § 8.06 [1], p. 8-
258; J. Henderson & A. Twerski, ‘The Products Liability
Restatement in the Courts: An Initial Assessment,’ 27
Wm. Mitchell L. Rev. 7, 22 (2000); cf. Boone v. William
W. Backus Hospital, 272 Conn. 551, 575–76, 864 A.2d
1 (2005) (‘[t]he doctrine of res ipsa loquitur, literally the
thing speaks for itself, permits a jury to infer negligence
when no direct evidence of negligence has been intro-
duced’ . . .). Indeed, when a relatively new product
fails to perform its intended function, the fact that the
product failed may be said to ‘speak for itself’ and
provide support for an inference that the product was
defective. J. Henderson & A. Twerski, supra, 22; see J.
Hoffman, ‘Res Ipsa Loquitur and Indeterminate Product
Defects: If They Speak for Themselves, What Are They
Saying?,’ 36 S. Tex. L. Rev. 353, 355–57 (1995).’’ (Foot-
notes omitted.) Metropolitan Property & Casualty Ins.
Co. v. Deere & Co., supra, 302 Conn. 133–35.
I
A
With this background in mind, I turn to the majority’s
opinion that the Appellate Court properly concluded
that the plaintiff’s claim regarding the malfunction doc-
trine was not properly raised at the trial court. I agree
with the majority that ‘‘ ‘[i]t is well established that an
appellate court is under no obligation to consider a
claim that is not distinctly raised at the trial level. . . .
[B]ecause our review is limited to matters in the record,
we [also] will not address issues not decided by the
trial court.’ . . . Burnham v. Karl & Gelb, P.C., 252
Conn. 153, 170–71, 745 A.2d 178 (2000); see also Practice
Book § 60-5 (‘[t]he court shall not be bound to consider
a claim unless it was distinctly raised at the trial or
arose subsequent to the trial’). ‘The requirement that
[a] claim be raised distinctly means that it must be so
stated as to bring to the attention of the court the precise
matter on which its decision is being asked.’ . . . State
v. Colon, 82 Conn. App. 658, 659, 847 A.2d 315, cert.
denied, 269 Conn. 915, 852 A.2d 745 (2004); accord
Sgueglia v. Milne Construction Co., 212 Conn. 427, 432
n.5, 562 A.2d 505 (1989); see also McKiernan v. Caldor,
Inc., 183 Conn. 164, 166, 438 A.2d 865 (1981) (issue
‘briefly suggested’ in trial court is not distinctly raised).
‘The reason for the rule is obvious: to permit a party
to raise a claim on appeal that has not been raised at
trial—after it is too late for the trial court . . . to
address the claim—would encourage trial by ambus-
cade, which is unfair to both the trial court and the
opposing party.’ . . . State v. Dalzell, 282 Conn. 709,
720, 924 A.2d 809 (2007).’’ (Emphasis in original.) Remil-
lard v. Remillard, 297 Conn. 345, 351–52, 999 A.2d
713 (2010).
‘‘ ‘These requirements are not simply formalities.
They serve to alert the trial court to potential error
while there is still time for the court to act. . . .
Assigning error to a court’s evidentiary rulings on the
basis of objections never raised at trial unfairly subjects
the court and the opposing party to trial by ambush.’
. . . State v. Johnson, 289 Conn. 437, [461], 958 A.2d
713 (2008); see also Council v. Commissioner of Cor-
rection, 286 Conn. 477, 498, 944 A.2d 340 (2008) (‘[A]
party cannot present a case to the trial court on one
theory and then seek appellate relief on a different one
. . . . For this court to . . . consider [a] claim on the
basis of a specific legal ground not raised during trial
would amount to trial by ambuscade, unfair both to the
[court] and to the opposing party.’ . . .). Thus, because
the sina qua non of preservation is fair notice to the
trial court; see, e.g., State v. Ross, 269 Conn. 213, 335–36,
849 A.2d 648 (2004) (‘the essence of the preservation
requirement is that fair notice be given to the trial
court of the party’s view of the governing law’ . . .);
the determination of whether a claim has been properly
preserved will depend on a careful review of the record
to ascertain whether the claim on appeal was articu-
lated below with sufficient clarity to place the trial
court on reasonable notice of that very same claim.’’
(Emphasis in original.) State v. Jorge P., 308 Conn. 740,
753–54, 66 A.3d 869 (2013).
The majority states that ‘‘[t]o put the defendants on
notice that the plaintiff intended to pursue an alterna-
tive theory of liability under the malfunction theory,
the plaintiff needed to plead this theory in his amended
complaint.’’ I respectfully disagree with the majority’s
emphasis on the pleadings in the present case. I agree
that the pleadings are one factor in the analysis. How-
ever, in a summary judgment motion, as opposed to a
motion to strike, they do not represent the sine qua
non. ‘‘Practice Book [§ 17-49] provides that summary
judgment shall be rendered forthwith if the pleadings,
affidavits and any other proof submitted show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
. . . In deciding a motion for summary judgment, the
trial court must view the evidence in the light most
favorable to the nonmoving party. . . . The party seek-
ing summary judgment has the burden of showing the
absence of any genuine issue [of] material facts which,
under applicable principles of substantive law, entitle
him to judgment as a matter of law . . . and the party
opposing such a motion must provide an evidentiary
foundation to demonstrate the existence of a genuine
issue of material fact. . . . A material fact . . . [is] a
fact which will make a difference in the result of the
case. . . . Finally, the scope of our review of the trial
court’s decision to grant the plaintiff’s motion for sum-
mary judgment is plenary.’’ (Internal quotation marks
omitted.) DiPietro v. Farmington Sports Arena, LLC,
306 Conn. 107, 116, 49 A.3d 951 (2012).
Assuming, arguendo, that the majority is correct that
sufficient facts had to be pleaded, in my view, the com-
plaint was sufficient. The complaint sets forth that the
plaintiff bought a new 2007 Mazda3 automobile (vehi-
cle) on October 16, 2006, and that, on November 15,
2006, the vehicle erupted in flames. The plaintiff further
alleges that at all times the vehicle was used and
employed by the plaintiff for the purpose for which it
had been designed, produced, manufactured and sold.
The plaintiff further alleges that there was a defect in
the vehicle and that it was not merchantable for the
purpose for which it was sold. The fact that a fire does
not ordinarily occur in a vehicle less than one month
old is a matter of common knowledge for a jury to find
when considering the doctrine. Further, the allegations
to the effect that the product was used for the manner
intended and that there was a defect when sold are
sufficient, in my view, to establish that there were no
other causes which started the fire. Therefore, I would
conclude that the allegations contained within the com-
plaint are sufficient to invoke the doctrine. Cf. Malvic-
ini v. Stratfield Motor Hotel, Inc., 206 Conn. 439, 444,
538 A.2d 690 (1988) (‘‘as a matter of common experi-
ence, it can be said that a shower does not ordinarily
turn suddenly hot in the absence of negligence’’).
Further, in the present case, a review of both the
pleadings and the transcripts of the trial court argu-
ments reveal that the plaintiff sufficiently raised a claim
under the malfunction doctrine at the trial court. The
pleadings and documents establish that: (1) the plaintiff
purchased the vehicle when it was still new; (2) the
vehicle had 2800 miles on it at the time of the accident;
(3) the plaintiff had no problems with the vehicle prior
to the accident; (4) the plaintiff only drove the vehicle
to and from work; (5) the plaintiff owned the vehicle
less than one month prior to the accident; (6) neither
the plaintiff nor anyone else ever opened the hood prior
to the accident; (7) the plaintiff alleged a product liabil-
ity defect; and (8) the defendants breached the statutory
duty of merchantability.
This evidence certainly suffices to establish a mal-
function doctrine claim. The harm ordinarily occurs as
a result of a product defect and was not solely the result
of causes other than product defect existing at the time
of sale or distribution. The doctrine is one of inference.
Restatement (Third), supra, § 3. That inference should
come from the fact finder. It is not appropriate to make
negative inferences, at the level of a motion for sum-
mary judgment, when all of the evidence has not been
presented. This case is not before us on a motion to
strike. We consider all of the pleadings, affidavits and
documents presented to the court at this stage and we
are viewing this evidence in a light most favorable to
the nonmoving party. In addition, in the amended com-
plaint, the plaintiff alleged, inter alia, the following: (1)
‘‘[Mazda] negligently failed to design [the vehicle] and
its component parts in such a manner so that the [vehi-
cle] would not be a hazard to a consumer who pur-
chased the [vehicle]’’; (2) ‘‘[Mazda] negligently failed to
test and/or inspect [the vehicle] and its component
parts, thereby causing [the vehicle] to be hazardous to
persons such as the plaintiff’’; (3) ‘‘[Mazda] manufac-
tured and/or sold [the vehicle] with defective compo-
nent parts and/or engine thereby causing a hazard to
users’’; (4) ‘‘[Mazda] failed to warn the plaintiff of the
aforesaid conditions’’; (5) ‘‘[Mazda] breached its statu-
tory warranty of merchantability in that [the vehicle]
was not fit for the ordinary purposes for which it was
sold’’; and (6) ‘‘[Mazda] sold [the vehicle] in the afore-
said defective, unsafe and dangerous condition, thereby
subjecting the plaintiff to an unreasonable risk of
injury.’’ The plaintiff repeated these same allegations
against the dealership. These allegations in the plain-
tiff’s complaint do not raise claims related to a specific
defect, but raise claims that could be proven by the
malfunction doctrine.
B
The majority states that ‘‘even if we suspend our
pleading rules for the sake of argument, a review of
the plaintiff’s memorandum in opposition to the defen-
dants’ summary judgment motion reveals that he did
not raise a claim of an unspecified defect under the
malfunction theory and, again, did not even address
its elements.’’ I respectfully disagree. A review of the
plaintiff’s objection to the defendants’ motion for sum-
mary judgment and the accompanying memorandum
of law also demonstrates, in my view, that the plaintiff
sufficiently raised the malfunction doctrine. First, in
his objection, the plaintiff asserted that ‘‘[t]he plaintiff
has provided sufficient evidence that the vehicle at issue
harbored a defective design and/or improper installa-
tion of automotive parts that ultimately caused a car
fire, and, subsequently, the plaintiff’s injuries. There-
fore, the plaintiff has set forth a prima facie case for
his claim under [the Connecticut Product Liability Act,
General Statutes § 52-572m et seq. (act)].’’ Second, in
his memorandum of law in support of his objection, the
plaintiff further explained as follows: ‘‘Even assuming
arguendo [Richard E.] Morris [a fire investigator] does
not qualify as an expert witness, there still exists a
genuine issue of material fact as to whether the defec-
tive condition of the vehicle was the proximate cause
of the plaintiff’s harm. . . . While causation can be
proven by circumstantial evidence or expert testimony,
the jury is free to accept or reject each expert’s opinion
in whole or in part. Birgel v. Heintz, 163 Conn. 23, 30,
301 A.2d 249 (1972). The plaintiff has provided eyewit-
ness testimony at his deposition as to the events sur-
rounding the fire and his actions immediately leading
up to said fire. It is the proper role of the jury to make
a factual determination by weighing any potentially con-
flicting testimony from the plaintiff against that of an
expert witness for the defendants.’’ (Citation omitted;
internal quotation marks omitted.) The plaintiff then
went on to cite Lewis v. North American Philips Corp.,
Superior Court, judicial district of New Haven, Docket
No. CV-91-0315792-S (April 6, 1994). The plaintiff
explained as follows: ‘‘In Lewis, the [Superior Court]
denied the defendant’s motion for summary judgment
for precisely this reason, as conflicting testimony
between the plaintiff and the defendant’s multiple
experts created a genuine issue of material fact as to
whether an alleged defective television set which
caught fire was the proximate cause of the plaintiff’s
harm.’’ At the oral argument on the motion for summary
judgment, the plaintiff also asserted that the plaintiff’s
own eyewitness testimony was sufficient to support
his claim.
The majority argues that the plaintiff only referenced
proximate cause in this argument. However, the plain-
tiff also argued, accompanied by a citation to Potter v.
Chicago Pneumatic Tool Co., supra, 241 Conn. 219,
that: ‘‘The plaintiff is required to provide some form of
evidence, including expert testimony, to quantify the
precise product defect.’’ (Emphasis added.) I would
conclude that the term ‘‘including’’ is being used by the
plaintiff as a term of enlargement, indicating one of the
forms of evidence that may be used, not as a term of
limitation. See Hartford Electric Light Co. v. Sullivan,
161 Conn. 145, 149–53, 285 A.2d 352 (1971) (The court
concluded that, after consulting the legislative history,
the term ‘‘include’’ is a term of limitation as used in
General Statutes § 12-264, but recognized that, although
‘‘[w]e have found . . . that ‘include’ is primarily
defined as a term of limitation,’’ certain ‘‘legal dictionar-
ies also . . . indicat[e] that ‘including’ can be a term
of enlargement. See [Black’s] Law Dictionary [4th Ed.
1968]; [Bouvier’s] Law Dictionary [1934 Rev.]; [Ballen-
tine’s] Law Dictionary [3d Ed. 1969].’’). As Chief Justice
Rogers, joined by Justice Palmer, emphasized in their
concurrence in State v. Rodriguez-Roman, 297 Conn.
66, 101, 3 A.3d 783 (2010), the word ‘‘ ‘including’ ’’ may
reasonably be ‘‘read to ‘express an enlargement’ or to
‘specify a particular thing already included within the
general words’ . . . . This interpretation is compelled
by the grammar and structure of the statute and is
bolstered by the most recent edition of Black’s Law
Dictionary, which defines ‘include’ as: ‘To contain as a
part of something.’’ (Citations omitted.)
The plaintiff also cited Lewis v. North American Phil-
ips Corp., supra, Superior Court, Docket No. CV-91-
0315792-S, as part of the same section of his brief. In
Lewis, the plaintiff purchased a new television set on
March 29, 1989, and, on June 5, 1989, that television
set caught fire. The plaintiff in that case observed only
the television set burning at the start of the fire and
that the initial smoke was dark black. In its discussion,
relating to product defect, the court in Lewis opined
that ‘‘[i]n deciding a motion for summary judgment, the
trial court must view the evidence in the light most
favorable to the nonmoving party. . . . [The] plaintiff
. . . claims that he saw only the television set burning
at the start of the fire and that the initial smoke was
black indicating burning plastic. Moreover, the televi-
sion set, which the fire destroyed, was the only appli-
ance energized at the time of the fire. Furthermore,
common knowledge is that television sets, in normal
use, do not self-ignite . . . . Thus a genuine issue of
material fact exists as to whether the television set was
defective.’’ (Citations omitted; internal quotation marks
omitted.) Id. Lewis is an example of a classic malfunc-
tion doctrine case. The product is new, the fire is some-
thing that would not ordinarily happen in a new product,
and it is within a juror’s common knowledge that a fire
would not ordinarily happen.
The citation to Lewis and Potter should have alerted
the trial court to the fact that an expert was not required
in the case. I further note that, in Lewis, although the
plaintiff had one expert and the defendant had two
experts, the court only discussed the experts’ relation-
ship to the issue of proximate cause.
In consideration of the preservation issue in this case,
I must clarify the issue that must have been preserved,
namely, whether an expert was required to prove a
design defect on a car that caught fire within the first
2800 miles of operation. This question necessarily impli-
cates the malfunction doctrine. The trial court granted
summary judgment on the basis that an expert was
required.
The defendants certainly had fair notice. A review of
the reply brief in support of the summary judgment
motion demonstrates that the defendants were aware of
the plaintiff’s claim regarding the malfunction doctrine.
The defendants stated as follows: ‘‘[The] [p]laintiff’s
reliance on [Lewis] is also misplaced for two reasons.
. . . First, there was no dispute that the plaintiff in that
case had provided competent expert testimony con-
cerning whether the product was defective. Instead, the
court refused to resolve a factual dispute between three
competent experts concerning the cause of [the] fire.
This case, on the other hand, involves the absence of
requisite proof because the plaintiff has failed to adduce
any expert testimony concerning whether the vehicle’s
fuel system was defective. Unlike in Lewis, this court
is not required, at the summary judgment stage, to make
any factual determinations reserved for the fact finder
because [the] plaintiff has failed to present any compe-
tent evidence on this issue.
‘‘Second, Lewis is distinguishable on the grounds that
all of the competent experts agreed that it was impossi-
ble to determine the cause of the fire and that, instead,
there was an unspecified dangerous condition. Here, to
the contrary, [the] plaintiff has advanced a very specific
theory concerning how the vehicle’s fuel system was
defective, but has failed to present essential expert evi-
dence to support that theory.’’ (Citation omitted;
emphasis omitted.)
The foregoing demonstrates that the defendants
knew about Lewis and that it involved the malfunction
doctrine. As indicated previously in this opinion, I dis-
agree with the defendants’ interpretation of Lewis in
that the court did not discuss the experts until it consid-
ered proximate cause. Rather, it discussed the plaintiff’s
observation of the fire. The defense counsel’s conces-
sion during oral argument in the present case that the
only way circumstantial evidence would prove a defect
was through the malfunction doctrine also belies any
lack of knowledge.
The trial judge also had fair notice. Both the state-
ments in the briefs previously referenced, and the cita-
tions to Potter and Lewis should have alerted the trial
court to the issue.
C
We have previously held that the citation to relevant
authority is one factor to be considered in a determina-
tion of the preservation issue. Thus, in Fadner v. Com-
missioner of Revenue Services, 281 Conn. 719, 729 n.12,
917 A.2d 540 (2007), we stated: ‘‘The plaintiffs did not
specifically refer to the doctrine of equitable recoup-
ment before the trial court or in the tax appeal proceed-
ing. Although we are not ‘bound to consider a claim
unless it was distinctly raised at the trial or arose subse-
quent to the trial’; Practice Book § 60-5; we have in the
past addressed issues that were ‘functionally,’ albeit not
specifically, raised by parties in trial court proceedings.
See Salmon v. Dept. of Public Health & Addiction Ser-
vices, 259 Conn. 288, 305, 788 A.2d 1199 (2002) (‘[w]e
are persuaded that the plaintiff functionally raised this
issue in the administrative and trial court proceedings’);
State v. Dabkowski, 199 Conn. 193, 198, 506 A.2d 118(1986) (although ‘[t]he formulation of these positions,
as now made on appeal, were not articulated in that
manner in the trial court . . . [t]he claims were func-
tionally made’).
‘‘The plaintiffs have consistently requested equitable
relief in the form of being permitted to file amended
returns for the years 1989 and 1990, despite the passage
of the statute of limitations, so that they may receive
a refund or offset the deficiency now assessed by the
defendant. In addition, the plaintiffs’ continued refer-
ences to Federal Deposit Ins. Corp. v. Crystal, 251
Conn. 748, 760–61, 741 A.2d 956 (1999), wherein a tax-
payer was precluded from obtaining a refund, but was
permitted to recover overpaid taxes via a credit against
deficiency assessments that it had paid under protest,
indicates that the concept of recoupment, if not the
exact terminology, was raised before the trial court.
We, therefore, conclude that the plaintiffs’ claim for
equitable recoupment was raised at least functionally
in the trial court proceedings, so that it is preserved
for our consideration in this appeal.’’
As I explain in this opinion, the malfunction doctrine
allows the plaintiff to prove his case without the benefit
of an expert. The plaintiff explained this issue to the
court by his reference to both Potter and Lewis, state-
ments in his briefs to the court and his argument to the
court that: ‘‘First of all, opposing counsel misstates the
law in [Potter]. I would refer you to . . . their own
complaint—their motion for summary judgment, which
was filed December 1, 2010, which says, [the] plaintiff
must provide the jury with some evidence, including
expert testimony. It does not specifically say only
expert testimony. So I would point you specifically to
that case, which is binding on our case, of course. It’s
a Connecticut Supreme Court case. . . .
‘‘Furthermore, even if [Morris] is somehow not
deemed as an expert by this court, there is case law,
[Lewis], which is a Connecticut Superior Court case
from 1994, which specifically held that the plaintiff,
who had witnessed a TV which had exploded, that that
testimony alone was enough . . . to go to the trier of
fact, to a jury, to support that claim, versus expert
testimony by the defense contesting that, specifically
that the eyewitness himself, who was clearly not an
expert in television manufacture, was just a consumer
of the product, he’s watching TV at home, that, in and
of itself, was enough to defeat a motion for summary
judgment with conflicting defendant’s expert tes-
timony.’’
The plaintiff’s counsel, clearly argued to the trial
court that he does not need an expert for the jury to
consider the case. He discusses both Potter and Lewis
to support his contention. The issue was clearly pre-
sented to the trial court.
Although the plaintiff did not use the term ‘‘malfunc-
tion doctrine’’ in his objection to the motion for sum-
mary judgment, the plaintiff did claim that
circumstantial evidence was sufficient to prove the
plaintiff’s case, which is the benchmark of the malfunc-
tion doctrine. Indeed, ‘‘[a]s a general rule, the lack of
direct evidence of a manufacturing defect is not fatal
to a plaintiff’s case, and circumstantial evidence is
admissible to prove and may be sufficient proof that a
product had a manufacturing defect when it left the
manufacturer’s hands, with or without expert opinion
testimony.’’ (Footnotes omitted.) 2A American Law of
Products Liability (3d Ed. 2008) § 31:21, p. 29–30. More-
over, the plaintiff also claimed that the eyewitness testi-
mony of the plaintiff would have been sufficient to
prove the plaintiff’s case. It is well established that
‘‘[t]he user’s testimony of the circumstances of the acci-
dent is a generally accepted method of proving a manu-
facturing defect.’’ Id., § 31:24, p. 33.
Indeed, it is important to note that in their reply
to the plaintiff’s objection to the motion for summary
judgment, the defendants acknowledged that the plain-
tiff claimed that expert testimony was not required to
prove his claim and the defendants responded to that
argument. Also, at the oral argument on the motion
for summary judgment, the defendants’ counsel again
recognized that the plaintiff was making a claim and
citing cases ‘‘when there’s an unspecified problem with
the vehicle.’’1
The plaintiff also raised the malfunction doctrine in
his motion for reargument and request for oral argu-
ment. Indeed, the plaintiff cited Potter v. Chicago Pneu-
matic Tool Co., supra, 241 Conn. 218, for the proposition
that ‘‘Connecticut courts . . . have consistently stated
that a jury may, under appropriate circumstances, infer
a defect from the evidence without the necessity of
expert testimony.’’ The plaintiff further explained that
‘‘the case at bar involves a new [v]ehicle that self-ignited
within a few months of its purchase. As previously
noted by multiple Connecticut courts, it is common
knowledge that ‘television sets in normal use, do not
self-ignite . . . .’ Lewis v. North American Philips
Corp., [supra, Superior Court, Docket No. CV-91-
0315792-S] . . . .’’ (Citation omitted.) It is important to
note the language in Potter in view of the majority’s
position that the issue was not raised to the trial court
or the defendants. Potter held that ‘‘Connecticut courts,
however, have consistently stated that a jury may, under
appropriate circumstances, infer a defect from the evi-
dence without the necessity of expert testimony. See,
e.g., Standard Structural Steel Co. v. Bethlehem Steel
Corp., 597 F. Sup. 164, 183 (D. Conn. 1984) (recognizing
Connecticut law permits fact finder to draw inference
of defect from circumstantial evidence); Living &
Learning Centre, Inc. v. Griese Custom Signs, Inc.,
[supra, 3 Conn. App. 664] (It is not necessary that the
plaintiff in a strict tort action establish a specific defect
as long as there is evidence of some unspecified danger-
ous condition. In the absence of other identifiable
causes, evidence of malfunction is sufficient evidence
of a defect under § 402A of the Second Restatement of
Torts.); Kileen v. General Motors Corp., 36 Conn. Sup.
347, 349, 421 A.2d 874 (1980) ([t]he fact finder can find,
where other identifiable causes are absent, that the
mere evidence of a malfunction is sufficient evidence
of a defect); see also annot., 65 A.L.R.4th 346, 354–58
(1988) (listing twenty-eight states that allow establish-
ment of prima facie case of design defect based upon
inferences from circumstantial evidence).
‘‘Moreover, in some instances, a product may be in
a defective condition unreasonably dangerous to the
user even though no feasible alternative design is avail-
able. In such instances, the manufacturer may be strictly
liable for a design defect notwithstanding the fact that
there are no safer alternative designs in existence. See,
e.g., O’Brien v. Muskin Corp., 94 N.J. 169, 184, 463 A.2d
298 (1983) (other products, including some for which
no alternative exists, are so dangerous and of such little
use that . . . a manufacturer would bear the cost of
liability of harm to others); Wilson v. Piper Aircraft
Corp., 282 Or. 61, 71 n.5, 577 P.2d 1322 (1978) (Our
holding should not be interpreted as a requirement that
[the practicability of a safer alternative design] must in
all cases weigh in [the] plaintiff’s favor before the case
can be submitted to the jury. There might be cases in
which the jury would be permitted to hold the defendant
liable on account of a dangerous design feature even
though no safer design was feasible [or there was no
evidence of a safer practicable alternative].); Sumnicht
v. Toyota Motor Sales, U.S.A., Inc., 121 Wis. 2d 338,
371, 360 N.W.2d 2 (1984) ([a] product may be defective
and unreasonably dangerous even though there are no
alternative, safer designs available). Accordingly, we
decline to adopt the requirement that a plaintiff must
prove a feasible alternative design as a sine qua non to
establishing a prima facie case of design defect.
‘‘Although today we continue to adhere to our long-
standing rule that a product’s defectiveness is to be
determined by the expectations of an ordinary con-
sumer, we nevertheless recognize that there may be
instances involving complex product designs in which
an ordinary consumer may not be able to form expecta-
tions of safety. See 1 M. Madden, [Products Liability
(2d Ed. 1988)] § 6.7, p. 209 (noting difficulty in determin-
ing in particular instances the reasonable expectation
of the consumer); W. Prosser & W. Keeton, [Torts (5th
Ed. 1984)] § 99, pp. 698–99 (discussing ambiguity of
consumer expectation test and shortcomings in its
application). In such cases, a consumer’s expectations
may be viewed in light of various factors that balance
the utility of the product’s design with the magnitude
of its risks. We find persuasive the reasoning of those
jurisdictions that have modified their formulation of
the consumer expectation test by incorporating risk-
utility factors into the ordinary consumer expectation
analysis. See, e.g., Reed v. Tiffin Motor Homes, Inc.,
697 F.2d 1192, 1196–97 (4th Cir. 1982) (applying South
Carolina law); Koske v. Townsend Engineering Co.,
551 N.E.2d 437, 440–41 (Ind. 1990); Aller v. Rodgers
Machinery Mfg. Co., 268 N.W.2d 830, 835 (Iowa 1978);
Jenkins v. Amchem Products, Inc., 256 Kan. 602, 636,
886 P.2d 869 (1994), cert. denied, 516 U.S. 820, 116 S.
Ct. 80, 133 L. Ed. 2d 38 (1995); Seattle-First National
Bank v. Tabert, 86 Wash. 2d 145, 154, 542 P.2d 774(1975). Thus, the modified consumer expectation test
provides the jury with the product’s risks and utility and
then inquires whether a reasonable consumer would
consider the product unreasonably dangerous. As the
Supreme Court of Washington stated in Seattle-First
National Bank v. Tabert, supra, 154, [i]n determining
the reasonable expectations of the ordinary consumer,
a number of factors must be considered. The relative
cost of the product, the gravity of the potential harm
from the claimed defect and the cost and feasibility of
eliminating or minimizing the risk may be relevant in
a particular case. In other instances the nature of the
product or the nature of the claimed defect may make
other factors relevant to the issue. Accordingly, under
this modified formulation, the consumer expectation
test would establish the product’s risks and utility, and
the inquiry would then be whether a reasonable con-
sumer would consider the product design unreason-
ably dangerous.
‘‘In our view, the relevant factors that a jury may
consider include, but are not limited to, the usefulness
of the product, the likelihood and severity of the danger
posed by the design, the feasibility of an alternative
design, the financial cost of an improved design, the
ability to reduce the product’s danger without impairing
its usefulness or making it too expensive, and the feasi-
bility of spreading the loss by increasing the product’s
price. See Barker v. Lull Engineering Co., [20 Cal. 3d
413, 431, 573 P.2d 443, 143 Cal. Rptr. 225 (1978)]; Banks
v. ICI Americas, Inc., 264 Ga. 732, 736 n.6, 450 S.E.2d
671 (1994); J. Wade, ‘On the Nature of Strict Tort Liabil-
ity for Products,’ 44 Miss. L.J. 825, 837–38 (1973). The
availability of a feasible alternative design is a factor
that the plaintiff may, rather than must, prove in order
to establish that a product’s risks outweigh its utility.
See, e.g., French v. Grove Mfg. Co., 656 F.2d 295, 297
(8th Cir. 1981); Armentrout v. FMC Corp., [842 P.2d
175, 185 (Colo. 1992)]; Sumnicht v. Toyota Motor Sales,
U.S.A., Inc., supra, 121 Wis. 2d 371.
‘‘Furthermore, we emphasize that our adoption of a
risk-utility balancing component to our consumer
expectation test does not signal a retreat from strict
tort liability. In weighing a product’s risks against its
utility, the focus of the jury should be on the product
itself, and not on the conduct of the manufacturer. See
Dart v. Wiebe Mfg., Inc., 147 Ariz. 242, 246, 709 P.2d
876 (1985); Aller v. Rodgers Machinery Mfg. Co., supra,
268 N.W.2d 835.
‘‘Although today we adopt a modified formulation of
the consumer expectation test, we emphasize that we
do not require a plaintiff to present evidence relating
to the product’s risks and utility in every case. As the
California Court of Appeals has stated: There are certain
kinds of accidents—even where fairly complex machin-
ery is involved—[that] are so bizarre that the average
juror, upon hearing the particulars, might reasonably
think: Whatever the user may have expected from that
contraption, it certainly wasn’t that. Akers v. Kelley Co.,
173 Cal. App. 3d 633, 651, 219 Cal. Rptr. 513 (1985).
Accordingly, the ordinary consumer expectation test
is appropriate when the everyday experience of the
particular product’s users permits the inference that
the product did not meet minimum safety expectations.
See Soule v. General Motors Corp., 8 Cal. 4th 548, 567,
882 P.2d 298, 34 Cal. Rptr. 2d 607 (1994).
‘‘Conversely, the jury should engage in the risk-utility
balancing required by our modified consumer expecta-
tion test when the particular facts do not reasonably
permit the inference that the product did not meet the
safety expectations of the ordinary consumer. See id.,
568. Furthermore, instructions based on the ordinary
consumer expectation test would not be appropriate
when, as a matter of law, there is insufficient evidence
to support a jury verdict under that test. See id. In such
circumstances, the jury should be instructed solely on
the modified consumer expectation test we have articu-
lated today.
‘‘In this respect, it is the function of the trial court to
determine whether an instruction based on the ordinary
consumer expectation test or the modified consumer
expectation test, or both, is appropriate in light of the
evidence presented. In making this determination, the
trial court must ascertain whether, under each test,
there is sufficient evidence as a matter of law to warrant
the respective instruction. See Wassell v. Hamblin, 196
Conn. 463, 470–71, 493 A.2d 870 (1985) (trial court may
not instruct jury on issue that is unsupported by evi-
dence).’’ (Emphasis in original; footnotes omitted; inter-
nal quotation marks omitted.) Potter v. Chicago
Pneumatic Tool Co., supra, 241 Conn. 218–23. Indeed,
in the present case, in my view, a reasonable consumer
would not expect a new vehicle, less than one month
old, to ignite a fire. As stated in Ackers v. Kelley Co.,
supra, 173 Cal. App. 3d 651, ‘‘[w]hatever the user may
have expected from that contraption, it certainly wasn’t
that.’’ (Internal quotation marks omitted.)
On the basis of this review of the pleadings, affidavits,
and arguments of counsel, I would conclude that,
although the plaintiff did not use the magic words ‘‘mal-
function doctrine,’’ his assertion that: (1) he could prove
his claim through circumstantial and eyewitness evi-
dence; (2) he did not need to prove a specific defect;
and (3) his citation to relevant case law in his opposition
to the defendants’ motion for summary judgment, artic-
ulated his claim under the malfunction doctrine with
‘‘sufficient clarity to place the trial court on reasonable
notice . . . .’’2 State v. Jorge P., supra, 308 Conn. 754.
Accordingly, I would conclude that the Appellate Court
improperly concluded that the plaintiff failed to raise his
claim under the malfunction doctrine at the trial court.3
Assuming, arguendo, the majority is correct that the
issue was not preserved by the parties, in my view, it
was preserved by the decision of the trial court. We
have consistently held that when a trial court has based
its decision in part on a claim, we may give the issue
full consideration. In Society for Savings v. Chestnut
Estates, Inc., 176 Conn. 563, 568 n.2, 409 A.2d 1020(1979), this court concluded as follows: ‘‘While the
plaintiff did not raise the issue of waiver in the trial
court and thus cannot pursue it on appeal . . . the trial
court has based its decision in part on that ground.
We may therefore give the issue full consideration . . .
including the analysis offered by the plaintiff.’’ (Cita-
tions omitted.) Therefore, since the trial court in the
present case considered whether an expert was
required to prove the plaintiff’s claim, and based its
decision on the failure of the plaintiff to produce an
expert in this case, in my view, we may consider the
plaintiff’s claim on appeal that an expert is not required
in a case of this nature. I further disagree with the trial
court’s phrase that ‘‘[w]ithout this expert testimony, a
jury would be unable to determine whether the allegedly
defective condition of the vehicle was the proximate
cause of the plaintiff’s harm. Therefore, due to the plain-
tiff’s failure to produce expert testimony concerning
the allegedly defective design or manufacture of the
vehicle, the court finds that the defendant[s] [have]
carried [their] burden of showing that the record reveals
no genuine issue of material fact as to the plaintiff’s
liability claim.’’ It is clear that a design defect could
have been proven, in the absence of expert testimony,
through the malfunction doctrine. Both Potter and
Lewis make this position abundantly clear. Potter,
which was cited to the trial court, states: ‘‘Connecticut
courts, however, have consistently stated that a jury
may, under appropriate circumstances, infer a defect
from the evidence without the necessity of expert testi-
mony.’’ Potter v. Chicago Pneumatic Tool Co., supra,
241 Conn. 218. This court also noted an annotation in,
65 A.L.R.4th, supra, 354–58, that ‘‘list[s] twenty-eight
states that allow establishment of [a] prima facie case
of design defect based upon inferences from circum-
stantial evidence.’’ Potter v. Chicago Pneumatic Tool
Co., supra, 218. In my view, the trial court’s opinion is
not only a strong indication that the trial court consid-
ered this issue, but also a strong indication that the
opinion was not correct as a matter of law. In my view,
the trial court should have been alerted to the issue by
the citation, on numerous occasions, to Potter. In this
aspect, the case is remarkably similar to Fadner
wherein we held that the plaintiff’s claim for equitable
relief, along with the citation to Federal Deposit Ins.
Corp., was sufficient for preservation purposes. Fadner
v. Commissioner of Revenue Services, supra, 281 Conn.
729 n.12. In the present case the plaintiff’s claim that
a defect in the vehicle caused his injuries, together
with the citation to Potter and Lewis, should have been
sufficient for preservation purposes.
Further, the trial court’s phrase ‘‘[w]ithout this expert
testimony, a jury would be unable to determine whether
the allegedly defective condition of the vehicle was the
proximate cause of the plaintiff’s harm’’ is erroneous.
It is certainly clear from the expert’s testimony that he
would have been qualified to testify as to the cause of
the fire. In fact, he attributed the cause to a defective
clamp on the fuel line. Although the court disavowed
his qualifications as an expert on automobile design,
he was certainly an expert regarding the cause of the
fires and could have testified to the cause at trial.
I raise one more point in this regard. We require the
trial courts to determine the qualification of experts,
when the qualifications are questioned, through an evi-
dentiary hearing. In my view, the exclusion of any
expert testimony, without such a hearing, is ill-advised.
For instance, there may be an overlap developed during
testimony between the expert for proximate cause and
the expert for a defect. A fire investigator, who has
determined the cause of fire in numerous cases, may
certainly be qualified to testify to the cause of a fire.
However, if he had been either a fire marshal or an
expert in fire investigation his expertise may extend to
code requirements which may, in turn, extend to certain
defects. For example, a fire expert may testify that the
result of a fire was faulty wiring which caused a spark,
a defect in a fireplace or installation which allowed
ambers to ignite, or inadequate ventilation in a gas
stove, causing ignition. All of these may overlap the
areas of defect and causation. I emphasize that the
design claim in the present case related only to para-
graph (d) of the amended complaint. Paragraphs (a)
and (b) described the nature of the defect. Paragraph
(c) stated that the fuel lines were negligently installed.
Paragraph (e) stated that the defendants failed to test
or inspect the vehicle properly. Paragraph (g) alleged a
failure to warn. I would not have discounted the expert’s
testimony, in toto, without the benefit of an evidentiary
hearing. The fact that a summary judgment motion is
pending should not serve as an excuse to moderate our
rules regarding the qualification of expert testimony.
In my view, the issue of the need for expert testimony
in a design defect was clearly decided by the trial court.
We should, therefore, consider the issue on appeal.
II
Having concluded that the plaintiff raised his claim
under the malfunction doctrine at the trial court, I must
now consider the plaintiff’s claim that the Appellate
Court improperly affirmed the trial court’s award of
summary judgment in favor of the defendants. On
appeal, the plaintiff claims that, under the malfunction
doctrine, he presented a prima facie case of product
liability under the act. Specifically, the plaintiff asserts
that, through circumstantial evidence and eyewitness
testimony, he established a prima facie case that the
fire in his new vehicle resulted from a product defect. In
response, the defendants assert that, even if the plaintiff
preserved his claim under the malfunction doctrine,
that doctrine does not apply to the plaintiff’s product
liability claim in the present case. Specifically, the
defendants claim that the malfunction doctrine does
not apply because evidence was available to show the
presence or absence of a specific defect. The defen-
dants further claim that the plaintiff’s claim does not
satisfy the elements of the malfunction doctrine estab-
lished in Metropolitan Property & Casualty Ins. Co. v.
Deere & Co., supra, 302 Conn. 140–41. I agree with
the plaintiff.
I begin my analysis of the plaintiff’s second claim by
setting forth the applicable standard of review. ‘‘ ‘The
standards governing our review of a trial court’s deci-
sion to grant a motion for summary judgment are well
established. Practice Book [§ 17-49] provides that sum-
mary judgment shall be rendered forthwith if the plead-
ings, affidavits and any other proof submitted show that
there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter
of law. . . . In deciding a motion for summary judg-
ment, the trial court must view the evidence in the light
most favorable to the nonmoving party. . . . The party
seeking summary judgment has the burden of showing
the absence of any genuine issue [of] material facts
which, under applicable principles of substantive law,
entitle him to a judgment as a matter of law . . . and
the party opposing such a motion must provide an evi-
dentiary foundation to demonstrate the existence of a
genuine issue of material fact. . . . A material fact
. . . [is] a fact which will make a difference in the result
of the case. . . . Finally, the scope of our review of
the trial court’s decision to grant the plaintiff’s motion
for summary judgment is plenary.’ . . . DiPietro v.
Farmington Sports Arena, LLC, [supra, 306 Conn. 115–
16]. ‘Summary judgment may be granted where the
claim is barred by the statute of limitations.’ Doty v.
Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996). Sum-
mary judgment is appropriate on statute of limitations
grounds when the ‘material facts concerning the statute
of limitations [are] not in dispute . . . .’ Burns v. Hart-
ford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984).’’
Romprey v. Safeco Ins. Co. of America, 310 Conn. 304,
312–13, 77 A.3d 726 (2013).
As I explained previously in this opinion, this court
has recently recognized that ‘‘[m]ost states have
adopted some form of the malfunction theory. . . .
Although this theory does not relieve a plaintiff of the
burden to prove all elements of a product liability claim
. . . it does help to establish a prima facie product
liability case by permitting the jury to infer the existence
of a defect attributable to the manufacturer.’’ (Citations
omitted; footnotes omitted.) Metropolitan Property &
Casualty Ins. Co. v. Deere & Co., supra, 302 Conn.
133–34. This court concluded that ‘‘when direct evi-
dence of a specific defect is unavailable, a jury may
rely on circumstantial evidence to infer that a product
that malfunctioned was defective at the time it left the
manufacturer’s or seller’s control if the plaintiff pre-
sents evidence establishing that (1) the incident that
caused the plaintiff’s harm was of a kind that ordinarily
does not occur in the absence of a product defect, and
(2) any defect most likely existed at the time the product
left the manufacturer’s or seller’s control and was not
the result of other reasonably possible causes not attrib-
utable to the manufacturer or seller. These two infer-
ences, taken together, permit a trier of fact to link the
plaintiff’s injury to a product defect attributable to the
manufacturer or seller. A plaintiff may establish these
elements through the use of various forms of circum-
stantial evidence, including evidence of (1) the history
and use of the particular product, (2) the manner in
which the product malfunctioned, (3) similar malfunc-
tions in similar products that may negate the possibility
of other causes, (4) the age of the product in relation
to its life expectancy, and (5) the most likely causes of
the malfunction. If lay witnesses and common experi-
ence are not sufficient to remove the case from the
realm of speculation, the plaintiff will need to present
expert testimony to establish a prima facie case.’’ (Foot-
notes omitted.) Id., 139–41.
The defendants assert, however, that the malfunction
doctrine does not apply in this case because the plaintiff
had access to evidence that could have demonstrated
the existence of a specific defect. Specifically, the
defendants claim that the plaintiff’s vehicle was avail-
able for inspection and was inspected by the plaintiff’s
expert and the plaintiff’s expert was able to examine
an exemplar vehicle. I disagree.
It is important to note that in Metropolitan Prop-
erty & Casualty Ins. Co. v. Deere & Co., supra, 302
Conn. 132 n.4, this court explained that ‘‘[w]hether a
plaintiff in this state may use the malfunction theory
when the product is still available for inspection but
the plaintiff nevertheless is unable to produce direct
evidence of a specific defect is a question that we need
not resolve in this appeal.’’ Accordingly, whether the
ability to examine the plaintiff’s vehicle or an exemplar
in the present case prohibits the plaintiff from making
a claim under the malfunction doctrine is not resolved
by Metropolitan Property & Casualty Ins. Co. Instead,
I must examine the nature and purpose of the malfunc-
tion doctrine and its progeny in Connecticut.
Section 3 of the Restatement (Third) of Torts pro-
vides as follows: ‘‘It may be inferred that the harm
sustained by the plaintiff was caused by a product
defect existing at the time of sale or distribution, with-
out proof of a specific defect, when the incident that
harmed the plaintiff: (a) was of a kind that ordinarily
occurs as a result of product defect; and (b) was not,
in the particular case, solely the result of causes other
than product defect existing at the time of sale or distri-
bution.’’ Comment (a) to § 3 of the Restatement (Third)
of Torts explains that ‘‘[t]his [s]ection traces its histori-
cal antecedents to the law of negligence, which has
long recognized that an inference of negligence may be
drawn in cases where the defendant’s negligence is the
best explanation for the cause of an accident, even
if the plaintiff cannot explain the exact nature of the
defendant’s conduct. . . . As products liability law
developed, cases arose in which an inference of product
defect could be drawn from the incident in which a
product caused [the] plaintiff’s harm, without proof of
the specific nature of the defect.’’ (Citation omitted.)
‘‘Evidence of product malfunction may constitute
acceptable proof of a manufacturing defect. The mal-
function theory in no way relieves the plaintiff of the
burden of proving a defect, but the doctrine may be
described as providing that a plaintiff need not establish
that a specific defect caused an accident if circumstan-
tial evidence permits an inference that the product, in
one way or another, probably was defective. A plaintiff
who identifies a specific defect is not relegated to the
malfunction theory. A plaintiff need not elect between
specific defect evidence and the malfunction theory,
but may proceed on alternative theories of specific
defect and malfunction.’’ (Footnotes omitted.) 2A Amer-
ican Law of Products Liability, supra, § 31:23, pp. 31–32.
‘‘The user’s testimony of the circumstances of the acci-
dent is a generally accepted method of proving a manu-
facturing defect. A strict liability claimant may
demonstrate an unsafe defect through direct eyewitness
observation of a product malfunction, and need not
adduce expert testimony to overcome a motion for sum-
mary judgment.’’ (Footnote omitted.) Id., § 31:24, p. 33.
Comment (b) to § 3 of the Restatement (Third) of
Torts further explains as follows: ‘‘Although the rules
in this [s]ection . . . most often apply to manufactur-
ing defects, occasionally a product design causes the
product to malfunction in a manner identical to that
which would ordinarily be caused by a manufacturing
defect. Thus, an aircraft may inadvertently be designed
in such a way that, in new condition and while flying
within its intended performance parameters, the wings
suddenly and unexpectedly fall off, causing harm. In
theory, of course, the plaintiff in such a case would be
able to show how other units in the same production
line were designed, leading to a showing of a reasonable
alternative design . . . . As a practical matter, how-
ever, when the incident involving the aircraft is one
that ordinarily occurs as a result of product defect, and
evidence in the particular case establishes that the harm
was not solely the result of causes other than product
defect existing at time of sale, it should not be necessary
for the plaintiff to incur the cost of proving whether
the failure resulted from a manufacturing defect or from
a defect in the design of the product. Section 3 allows
the trier of fact to draw the inference that the product
was defective whether due to a manufacturing defect or
a design defect. Under those circumstances, the plaintiff
need not specify the type of defect responsible for the
product malfunction.’’
Indeed, this court has also specifically rejected the
strict requirement that a plaintiff need always show a
reasonable alternative design, stating as follows: ‘‘In
our view, the feasible alternative design requirement
imposes an undue burden on plaintiffs that might pre-
clude otherwise valid claims from jury consideration.
Such a rule would require plaintiffs to retain an expert
witness even in cases in which lay jurors can infer a
design defect from circumstantial evidence. Connecti-
cut courts . . . have consistently stated that a jury
may, under appropriate circumstances, infer a defect
from the evidence without the necessity of expert testi-
mony. See, e.g., Standard Structural Steel Co. v. Bethle-
hem Steel Corp., [supra, 597 F. Supp. 183] (recognizing
Connecticut law permits fact finder to draw inference
of defect from circumstantial evidence); Living &
Learning Centre, Inc. v. Griese Custom Signs, Inc.,
[supra, 3 Conn. App. 664] (‘It is not necessary that the
plaintiff in a strict tort action establish a specific defect
as long as there is evidence of some unspecified danger-
ous condition. In the absence of other identifiable
causes, evidence of malfunction is sufficient evidence
of a defect under § 402A of the Second Restatement of
Torts.’); Kileen v. General Motors Corp., [supra, 36
Conn. Supp. 349] (‘[t]he fact finder can find, where other
identifiable causes are absent, that the mere evidence of
a malfunction is sufficient evidence of a defect’); see
also annot., 65 A.L.R.4th [supra, pp. 354–58] (listing
twenty-eight states that allow establishment of prima
facie case of design defect based upon inferences from
circumstantial evidence).’’ (Footnote omitted.) Potter v.
Chicago Pneumatic Tool Co., supra, 241 Conn. 217–18.
Illustration (3) to § 3 of the Restatement (Third) of
Torts is also particularly instructive: ‘‘Mary purchased a
new automobile. She drove the car [1000] miles without
incident. One day she stopped the car at a red light and
leaned back to rest until the light changed. Suddenly
the seat collapsed backward, causing Mary to hit the
accelerator and the car to shoot out into oncoming
traffic and collide with another car. Mary suffered harm
in the ensuing collision. As a result of the collision,
Mary’s car was set afire, destroying the seat assembly.
The incident resulting in the harm is of a kind that
ordinarily occurs as a result of product defect. Mary
need not establish whether the seat assembly contained
a manufacturing defect or a design defect.’’
As the foregoing demonstrates, the malfunction doc-
trine is ‘‘limited to situations in which a product fails
to perform its manifestly intended function, thus sup-
porting the conclusion that a defect of some kind is
the most probable explanation.’’ Restatement (Third),
supra, § 3, comment (b), p. 112. In those situations, the
malfunction doctrine has been developed to allow a
jury to infer a defect from the evidence without the
necessity of expert testimony. Potter v. Chicago Pneu-
matic Tool Co., supra, 241 Conn. 218. Nothing in the
development of the malfunction doctrine in this state
requires that the product itself or an exemplar be
unavailable in order to invoke the doctrine. Instead, a
plaintiff is allowed to invoke the doctrine when ‘‘the
defendant’s negligence is the best explanation for the
cause of an accident, even if the plaintiff cannot explain
the exact nature of the defendant’s conduct.’’
Restatement (Third), supra, § 3, comment (a), p. 111.
Accordingly, I conclude that the malfunction doctrine
was available to the plaintiff in the present case, despite
the ability to examine the plaintiff’s vehicle and an
exemplar.
The plaintiff claims that he satisfied the requirements
for establishing a prima facie case of product liability
under the malfunction doctrine through circumstantial
evidence. Specifically, the plaintiff asserts that he estab-
lished his claim under the malfunction doctrine through
sufficient circumstantial evidence to meet the require-
ments set forth in Metropolitan Property & Casualty
Ins. Co. v. Deere & Co., supra, 302 Conn. 140–41. The
defendants disagree and assert that the plaintiff’s evi-
dence did not satisfy those requirements. I agree with
the plaintiff.
As I have explained previously in this opinion, in
Metropolitan Property & Casualty Ins. Co. v. Deere &
Co., supra, 302 Conn. 139–40, this court concluded that
in order for a jury to ‘‘rely on circumstantial evidence
to infer that a product that malfunctioned was defective
at the time it left the manufacturer’s or seller’s control
if the plaintiff presents evidence establishing that (1)
the incident that caused the plaintiff’s harm was of a
kind that ordinarily does not occur in the absence of
a product defect, and (2) any defect most likely existed
at the time the product left the manufacturer’s or seller’s
control and was not the result of other reasonably possi-
ble causes not attributable to the manufacturer or
seller.’’ We further explained that a plaintiff may estab-
lish these elements of a claim under the malfunction
doctrine through circumstantial evidence including:
‘‘(1) the history and use of the particular product, (2)
the manner in which the product malfunctioned, (3)
similar malfunctions in similar products that may
negate the possibility of other causes, (4) the age of
the product in relation to its life expectancy, and (5)
the most likely causes of the malfunction.’’ Id., 141.
In the present case, the plaintiff introduced circum-
stantial evidence regarding the history and age of the
vehicle. He established that the vehicle was a brand
new Mazda3 that he had purchased approximately one
month before the incident. He further demonstrated
that on the date of the incident, the vehicle’s odometer
registered less than 3000 miles and that he had used
the vehicle primarily for his commute to work. The
plaintiff also established that the vehicle had not been
serviced, repaired or altered during the time that the
plaintiff owned the vehicle. The plaintiff further estab-
lished that no maintenance or repairs were scheduled
for the vehicle and that no one had tampered with or
opened the hood of the vehicle during the one month
period he owned the vehicle.
The plaintiff also introduced circumstantial evidence
regarding the manner in which the vehicle malfuncti-
oned. Specifically, the plaintiff testified that, on the date
of the incident, he was operating the vehicle in the
regular manner he had been operating it since its pur-
chase. The plaintiff explained that immediately prior to
the incident, he was driving the vehicle under normal
conditions during his commute to work. The plaintiff
further established that as he was driving on the morn-
ing of the incident, he smelled a strong odor of gasoline
and immediately pulled over. The plaintiff explained
that after pulling over, he opened the hood of the vehicle
to investigate and that, upon opening the hood of the
vehicle, the engine caught fire and exploded. The plain-
tiff’s testimony established that the engine did not suffer
any external impact from another vehicle.
As comment (d) to § 3 of the Restatement (Third) of
Torts provides: ‘‘To allow the trier of fact to conclude
that a product defect caused the plaintiff’s harm under
this [s]ection, the plaintiff must establish by a prepon-
derance of the evidence that the incident was not solely
the result of causal factors other than defect at time of
sale. The defect need not be the only cause of the
incident; if the plaintiff can prove that the most likely
explanation of the harm involves the causal contribu-
tion of a product defect, the fact that there may be
other concurrent causes of the harm does not preclude
liability under this [s]ection. But when the harmful inci-
dent can be attributed solely to causes other than origi-
nal defect, including the conduct of others, an inference
of defect under this [s]ection cannot be drawn.’’
Comment (d) further provides: ‘‘Evidence may permit
the inference that a defect in the product at the time
of the harm-causing incident caused the product to
malfunction, but not the inference that the defect
existed at the time of sale or distribution. Such factors
as the age of the product, possible alteration by repair-
ers or others, and misuse by the plaintiff or third parties
may have introduced the defect that causes harm.’’
Restatement (Third), supra, § 3, comment (d), p. 114.
In the present case, the plaintiff established that a
brand new vehicle that he purchased from a dealer
ignited in flames approximately one month after pur-
chase, having had no service or maintenance performed
on the vehicle, and while operating the vehicle under
normal circumstances. On the basis of the foregoing, I
would conclude that the plaintiff established sufficient
circumstantial evidence to create a genuine issue of
material fact under the malfunction doctrine of product
liability. Accordingly, I would conclude that the Appel-
late Court improperly affirmed the trial court’s award
of summary judgment in favor of the defendants. There-
fore, I would reverse the judgment of the Appellate
Court and remand the matter to that court with instruc-
tions to reverse the judgment of the trial court and
remand the matter for further proceedings. Accord-
ingly, I respectfully dissent.
1
The majority seems to claim that the plaintiff failed to raise his claim
under the malfunction doctrine because he asserted a claim as to a specific
defect with the fuel line. I disagree that the majority’s assertion of a claim
as to a specific defect has any impact on whether he also asserted a claim
under the malfunction doctrine. ‘‘A plaintiff need not elect between specific
defect evidence and the malfunction theory, but may proceed on alternative
theories of specific defect and malfunction.’’ 2A American Law of Products
Liability, supra, § 31:23, p. 32.
2
Indeed, at oral argument before this court, the defendants’ counsel
acknowledged that the plaintiff’s claim regarding the use of circumstantial
evidence could not have been understood to raise any other theory of
products liability other than the malfunction doctrine.
3
The majority notes that the plaintiff did not move for an articulation
despite the absence of any mention from the trial court of his supposed
alternative theory. ‘‘Tellingly, the plaintiff did not move for an articulation
despite the absence of any mention of his supposed alternative theory by
the trial court. One would expect that, if the plaintiff truly believed that he
raised his malfunction theory claim in the trial court, he would have been
surprised when the trial court ignored this theory in its memorandum of
decision, which, in turn, would have prompted him to move for an articula-
tion. His silence in this regard speaks volumes.’’
First, as discussed more fully in this opinion, the trial court did rule
on the plaintiff’s malfunction doctrine claim and determined that expert
evidence is required for a products liability claim involving a design defect.
Second, the majority’s claim is contrary to Practice Book § 61-10 (b), which
provides as follows: ‘‘The failure of any party on appeal to seek articulation
pursuant to Section 66-5 shall not be the sole ground upon which the court
declines to review any issue or claim on appeal. If the court determines
that articulation of the trial court decision is appropriate, it may remand
the case pursuant to Section 60-5 for articulation by the trial court within
a specified time period. After remand to the trial court for articulation, the
trial court may, in its discretion, require assistance from the parties in order
to provide the articulation. Such assistance may include, but is not limited
to, supplemental briefs, oral argument and provision of copies of transcripts
and exhibits.’’ As the commentary to § 61-10 provides: ‘‘Subsection (b) was
adopted to effect a change in appellate procedure by limiting the use of the
forfeiture sanction imposed when an appellant fails to seek an articulation
from the trial court pursuant to Section 66-5 with regard to an issue on
appeal, and the court therefore declines to review the issue for lack of an
adequate record for review. In lieu of refusing to review the issue, when
the court determines that articulation is appropriate, the court may now
remand the case to the trial court for an articulation and then address the
merits of the issue after articulation is provided. The adoption of subsection
(b) is not intended to preclude the court from declining to review an issue
where the record is inadequate for reasons other than solely the failure to
seek an articulation, such as, for example, the failure to procure the trial
court’s decision pursuant to Section 64-1 (b) or the failure to provide a
transcript, exhibits or other documents necessary for appellate review.’’
Practice Book § 61-10, commentary. Accordingly, I disagree with the majori-
ty’s reliance on the plaintiff’s failure to seek an articulation as a ground for
not reviewing its claim involving the malfunction doctrine.