Snell v. Norwalk Yellow Cab, Inc. ( 2017 )

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BRENDA SNELL v. NORWALK YELLOW
CAB, INC., ET AL.
(AC 38155)
Keller, Prescott and Harper, Js.
Argued November 16, 2016—officially released April 4, 2017
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Povodator, J.)
Adam J. Blank, for the appellant (plaintiff).
Laura Pascale Zaino, with whom, on the brief, were
Kevin M. Roche, Rachel J. Fain, and Logan A. Forsey,
for the appellees (named defendant et al.).
Opinion
PRESCOTT, J. In Barry v. Quality Steel Products
Inc., 263 Conn. 424, 436–39, 820 A.2d 258 (2003), our
Supreme Court abolished the use of the superseding
cause doctrine in cases in which the conduct of the
intervening actor was merely negligent. This appeal
requires us to consider the vitality of the doctrine in
circumstances in which the conduct of the intervening
actor is criminally reckless. We conclude that the doc-
trine is alive and well in such cases.
The plaintiff, Brenda Snell, appeals from the judg-
ment of the trial court rendered in accordance with a
jury verdict in favor of the defendants, Johnley Saineval
and his employer, Norwalk Yellow Cab, Inc. (Yellow
Cab).1 The plaintiff claimed that she sustained serious
physical injuries when, while walking on the sidewalk,
she was struck by a taxicab that had been stolen from
Saineval after he negligently left it unattended in a high
crime area with the keys in the ignition. The plaintiff
claims on appeal that (1) the trial court improperly
instructed the jury, and submitted to it an interrogatory,
on the doctrine of superseding cause, which doctrine
she argues was inapplicable on the basis of the evidence
presented at trial; (2) even assuming that the doctrine
of superseding cause was applicable, 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 in which she
argued that the jury’s verdict was irreconcilable with
the jury’s interrogatory responses.
We disagree with the plaintiff that the doctrine of
superseding cause is inapplicable in this case. Further-
more, we conclude that although the court’s instruction
and interrogatory relating to the defendants’ supersed-
ing cause defense may not have been perfectly clear,
they were nonetheless sufficient to properly guide the
jury in reaching a verdict. We further determine that,
to the extent that any error existed, it logically would
have inured to the benefit of the plaintiff and, thus, was
harmless. Finally, we conclude that the jury’s verdict
and responses to the court’s interrogatories are not
irreconcilable as a matter of law, and, therefore, the
court properly denied the plaintiff’s postjudgment
motion to set aside the jury’s verdict. Accordingly, we
affirm the judgment of the trial court.
The jury reasonably could have found the following
relevant facts, which largely are undisputed in this case.
On December 3, 2009, Saineval, 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. Saineval parked the taxicab and went
inside one of the apartments, leaving the taxicab
unlocked and unattended with the keys in the ignition.2
Two teenagers, Shaquille Johnson and Deondre Bow-
den, who that afternoon had been consuming alcohol
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 Stam-
ford, making one brief stop in between, with each of
the teens taking a turn driving the vehicle.
When they reached Stamford, they became ensnarled
in 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
taxicab.
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.3
The plaintiff initially commenced this action solely
against Saineval and Yellow Cab.4 Johnson and Bowden
were not named by the plaintiff as defendants in the civil
action. Although the defendants filed an apportionment
complaint against the two teens, the court later granted
the plaintiff’s motion to strike the apportionment com-
plaint, agreeing with the plaintiff that apportionment
was unavailable in the present case because the miscon-
duct of the teenagers was not pleaded as mere negli-
gence, but as reckless or intentional conduct. See
General Statutes § 52-572h (o) (‘‘there shall be no appor-
tionment 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.3d 202 [1998], in which our Supreme Court had
recognized common law extension of statutory appor-
tionment liability for parties whose conduct was reck-
less, wilful and wanton).
The operative second amended complaint contains
two counts relevant to the issues on appeal.5 Count one
sounds in negligence against Saineval. According to
the plaintiff, Saineval 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
property. Count two alleges that Yellow Cab was vicari-
ously liable for Saineval’s negligence on a theory of
respondeat superior.6 Prior to trial, Yellow Cab con-
ceded that it would be liable to the same extent that
Saineval 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 [Saineval’s] alleged negligence
and/or carelessness and the plaintiff’s alleged injuries
and losses.’’
The matter was tried before a jury, which heard evi-
dence over the course of several days between Decem-
ber 2, 2014, and December 10, 2014. Each side submitted
a request to charge to the court, each of which included
a proposed instruction addressing the issue of supersed-
ing cause.7 Throughout the trial, the court provided
the parties’ attorneys with drafts of its proposed jury
instructions as it developed them, indicating to the
attorneys that it was willing to entertain any comments
or suggestions from the parties. The court conducted
a number of these discussions on the record.
For example, the court initially indicated to the par-
ties that it was not inclined to give a superseding cause
instruction to the jury because, on the basis of its read-
ing of our Supreme Court’s decision in Barry v. Quality
Steel Products, Inc., supra, 263 Conn. 424, superseding
cause was no longer part of our tort jurisprudence
except in limited circumstances, specifically, cases
involving either an intervening 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.
On December 10, 2014, 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 consider-
ation 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
Saineval’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 lia-
bility. The court also drafted a new, related interroga-
tory that asked the jury to state whether the ‘‘accident’’8
that occurred was outside the scope of the risk created
by Saineval’s act of leaving the keys in the ignition of
the taxicab. The court directed the jury to return a
verdict for the defendants 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 Saineval’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).9 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. 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 its 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.10
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 Saineval. 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.11 The defen-
dants 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 upon 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 produc-
ing 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 preponderance
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 combines
together with one or more other causes to produce 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 sub-
stantial.
‘‘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.
‘‘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 oper-
ation 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 Saine-
val relatively insignificant, and therefore not a proxi-
mate cause of the injuries sustained by plaintiff.
‘‘Foreseeability of the car being stolen, something you
would have considered in connection with determining
whether the defendant was negligent, also may be con-
sidered in this regard. It is for you to decide whether
the theft of the car and subsequent manner of operation
was so overwhelming in significance, or whether they
constituted a concurrent proximate cause but not of
sufficient magnitude as to render the defendant’s negli-
gence 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 the
defendant’s conduct, then the defendant could not be
found responsible for the injuries to the plaintiff as the
conduct of [Johnson] and [Bowden] would have been
the proximate cause of the injuries sustained by the
plaintiff, thereby relieving the defendant 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 Saineval 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. Nei-
ther party raised any additional objections. A written
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 submit-
ted to the jury, and the jury’s response, are as follows:
‘‘1. Did plaintiff Brenda Snell prove, by a preponderance
of the evidence, that defendant Johnley Saineval failed
to exercise reasonable care when he left the keys to
his taxicab in the vehicle, when he went inside the
apartment complex at Monterey Village on the evening
of December 3, 2009? [Answer] Yes . . . 2. Did plaintiff
prove that it was reasonably foreseeable 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 . . . 3. Did plain-
tiff 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 . . . 4. Did plaintiff Brenda Snell
prove that some or all of the injuries she sustained on
the evening of December 3, 2009, were proximately
caused by the negligence of defendant Johnley Saine-
val? [Answer] Yes . . . 5. Did defendant prove that
the accident that occurred on December 3, 2009 was
outside the scope of risk created by defendant leaving
his key in the ignition of a car parked at Monterey
Village? [Answer] Yes . . . .’’ The directions contained
in the interrogatories instructed the jury to return a
defendants’ 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 Saineval’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 Saineval’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 inconsistent
with a jury finding a ‘standard’ proximate cause instruc-
tion satisfied, while also later finding superseding cause
established when viewed from the alternative perspec-
tive of a charge on that point.’’ This appeal followed.
I
The plaintiff first claims that the doctrine of supersed-
ing cause was not applicable to this case, and, therefore,
the court improperly instructed the jury regarding
superseding cause and submitted an improper interrog-
atory.12 Much of the plaintiff’s argument focuses on
our Supreme Court’s decision in Barry v. Quality Steel
Products, Inc., supra, 263 Conn. 424, which abolished
use of the doctrine except in certain circumstances.
According to the plaintiff, the portion of the jury instruc-
tion intended to invoke the doctrine of superseding
cause and the related interrogatory regarding scope
of the risk were unwarranted because there was no
evidence adduced at trial that Bowden intentionally had
sought to injure the plaintiff when he struck her with
the stolen taxicab. In other words, the plaintiff contends
that in order for a third party’s conduct ever to qualify
as a superseding cause, the third party must have acted
with the specific intent to harm the plaintiff.
The defendants counter that merely reckless criminal
action can amount to a superseding cause if the trier
of fact determines that such action was a substantial
factor in causing the harm and that it fell outside the
scope of the risk created by the defendant’s own negli-
gence. According to the defendants, it was entirely
appropriate for the court to instruct the jury that it
could consider whether the teens’ theft of the taxicab
and subsequent criminal conduct were a superseding
cause of the plaintiff’s injuries that cut off any liability
otherwise attributable to Saineval’s actions. The defen-
dants contend that such an instruction was particularly
warranted in the present case because apportionment
of liability was not available in light of the fact that (1)
the plaintiff did not name the thieves as defendants,
(2) she successfully opposed the defendants’ efforts to
name them as apportionment defendants, and (3), as
the court concluded, their conduct exceeded negli-
gence. We agree with the defendants that the court
properly permitted the jury to consider the doctrine of
superseding cause. Accordingly, we reject the plaintiff’s
claim to the contrary.
A claim challenging the applicability of a legal doc-
trine like superseding cause presents a question of law
over which our review is plenary. See Barry v. Quality
Steel Products, Inc., supra, 263 Conn. 433–35; see also
Lighthouse Landings, Inc. v. Connecticut Light &
Power Co., 300 Conn. 325, 347, 15 A.3d 601 (2011)
(employing plenary review in considering applicability
of doctrine of res judicata); Commission on Human
Rights & Opportunities v. Hartford, 138 Conn. App.
141, 169, 50 A.3d 917 (noting plenary review of applica-
bility of relation back doctrine), cert. denied, 307 Conn.
928, 55 A.3d 570 (2012).
Before turning to the plaintiff’s claim that the doctrine
of superseding cause was inapplicable in the present
case, it is necessary first to review the parameters of
the doctrine as it presently exists under Connecticut
law. As the trial court in this case aptly noted in denying
the motion to set aside the verdict, although the con-
cepts underlying 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 axiomatic that ‘‘[t]he elements of a cause of
action for negligence are duty, breach, causation and
damages.’’ Coste v. Riverside Motors, Inc., 24 Conn.
App. 109, 112, 585 A.2d 1263 (1991). The element of
causation is itself composed of two components: causa-
tion in fact, also referred to as actual cause, and proxi-
mate cause. Ruiz v. Victory Properties, LLC, 315 Conn.
320, 329, 107 A.3d 381 (2015). Both must be satisfied
to establish legal causation. ‘‘With respect to the first
component, causation in fact, we ask whether the injury
would have occurred but for the actor’s conduct. . . .
Because actual causation, in theory, is virtually lim-
itless, the legal construct of proximate cause serves to
establish how far down the causal continuum tortfea-
sors will be held liable for the consequences of their
actions. . . . The test for proximate cause is whether
the defendant’s conduct was a substantial factor in
producing the plaintiff’s injury. . . . This substantial
factor test reflects the inquiry fundamental to all proxi-
mate cause questions, namely, whether the harm [that]
occurred was of the same general nature as the foresee-
able risk created by the defendant’s negligence.’’ (Cita-
tions omitted; emphasis added; internal quotation
marks omitted.) Id. ‘‘Legal cause is a hybrid construct,
the result of balancing philosophic, pragmatic and
moral approaches to causation.’’ Kowal v. Hofher, 181
Conn. 355, 359, 436 A.2d 1 (1980). ‘‘[P]olicy considera-
tions generally underlie the doctrine of proximate
cause.’’ Id., 360.
As its name implies, the doctrine of superseding
cause is logically related to the element of legal causa-
tion and, like proximate cause, is, at its core, a legal
construct that serves as a limitation on liability.13 As
our Supreme Court has described it, ‘‘[t]he function of
the doctrine [of superseding cause] is to define the
circumstances under which responsibility may be
shifted entirely from the shoulders of one person, who
is determined to be negligent, to the shoulders of
another person, who may also be determined to be
[culpable], or to some other force. . . . Thus, the doc-
trine of superseding cause serves as a device by which
one admittedly negligent party can, by identifying
another’s superseding conduct, exonerate himself from
liability by shifting the causation element entirely else-
where. . . . If a third person’s [culpability] is found to
be the superseding cause of the plaintiff’s injuries, that
[culpability], 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.’’
(Citations omitted; emphasis in original; internal quota-
tion marks omitted.) Barry v. Quality Steel Products,
Inc., supra, 263 Conn. 434–35.14
The Restatement (Second) of Torts, to which our
courts have consistently turned for guidance in crafting
our own common law, 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.’’ (Emphasis
added.) 2 Restatement (Second), Torts § 440, p. 465
(1965). In other words, a superseding cause is simply
an intervening action or force that, as a matter of policy,
operates to shield from liability even a defendant whose
own negligence was a ‘‘substantial factor in bringing
about’’—and, thus, proximately caused—a plaintiff’s
harm.15
Sections 442 through 453 of the Restatement (Sec-
ond) of Torts contain general principles intended to
help courts determine under what circumstances policy
may dictate that the actions of a third party or other
intervening force constitute a superseding cause. Of
particular relevance to this case are §§ 442B, 448, and
449, which have been cited favorably or adopted by our
Supreme Court in the past. See Stewart v. Federated
Dept. Stores, Inc., 234 Conn. 597, 607, 662 A.2d 753
(1995) (noting adoption of § 442B); Doe v. Saint Francis
Hospital & Medical Center, 309 Conn. 146, 177–78, 72
A.3d 929 (2013) (relying in part on §§ 448 and 449).
Section 442B provides that ‘‘[if] the negligent conduct
of the actor creates or increases the risk of a particular
harm and is a substantial 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), Torts § 442B, p. 469
(1965). Comment (c) of § 442B makes reference to both
intentional torts and criminal acts by a third party, and
provides in relevant part that § 442B ‘‘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. But if they are not, the
actor is relieved of responsibility by the intervention of
the third person.’’ (Emphasis added.) Although § 442B
references ‘‘harm intentionally caused by a third per-
son,’’ this appears to be incongruous with much of the
commentary, which refers more generally to interven-
ing acts that are either intentional torts or criminal acts,
without limitation to a particular level of mens rea.
(Emphasis added.) Nowhere in the commentary to this
section is there any indication that only crimes involving
a specific intent to cause harm can amount to a super-
seding cause nor, as discussed in further detail subse-
quently, do we construe the doctrine that narrowly.
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 neg-
ligent 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.’’ Finally, § 449 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, negli-
gent, intentionally tortious, or criminal does not prevent
the actor from being liable for harm caused thereby.’’
2 Restatement (Second), Torts § 449, p. 482 (1965).
Accordingly, even in cases in which the risk of a third
party’s intervention is a generally foreseeable conse-
quence of a defendant’s actions, it is a question of fact
whether the third party’s intervening actions fall some-
where 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. If the jury determines that
the superseding action that occurred falls outside the
scope of the risk of the third party intervention created
by the defendant’s negligence, liability is appropriately
shifted away from the negligent defendant.
Although our Supreme Court has sanctioned the
approach in the Restatement (Second) of Torts to super-
seding cause; see, e.g., Stewart v. Federated Dept.
Stores, Inc., supra, 234 Conn. 607–608; it also has criti-
cized its continued usefulness in some instances. Spe-
cifically, in Barry v. Quality Steel Products, Inc., supra,
263 Conn. 446, our Supreme Court elected to abandon
the doctrine of superseding cause in those cases in
which the defendant claimed that his liability for injur-
ies had been cut off as a result of a subsequent negligent
act by a third party. Although Barry did not abolish
outright use of the doctrine in all instances, the parties
disagree on appeal about whether the present case falls
within the enumerated exceptions.
The court in Barry first acknowledged the close rela-
tionship between proximate cause and superseding
cause. Id., 433–35. The court then noted that ‘‘when a
defendant claims that a subsequent negligent act by a
third party cuts off its own liability for the plaintiff’s
injuries . . . superseding cause instructions serve to
complicate what is fundamentally a proximate cause
analysis.’’ Id., 436. The court explained that ‘‘because
our statutes allow for apportionment among negligent
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 plaintiffs’ injury, is to couch the analysis in
proximate cause rather than allowing the defendants
to raise a defense of superseding cause.’’16 (Footnote
omitted.) Id., 436–39.
Although the court in Barry abolished use of the
doctrine of superseding cause in those cases in which
a third party’s negligence is alleged to have intervened
to cause the plaintiff’s injuries, opting to subsume the
doctrine into the proximate cause inquiry, it also indi-
cated in a footnote that it was not mandating that courts
utilize this same approach in all civil cases, explaining
that its holding did ‘‘not necessarily affect those cases
[in which] the defendant claims that an unforeseeable
intentional tort, force of nature, or criminal event super-
sedes its tortious conduct.’’ Id., 439 n.16. In those cases
falling within one of the enumerated exceptions noted
in Barry, therefore, a defendant properly could con-
tinue to raise the doctrine of superseding cause as a
defense.17
The plaintiff contends that the continued validity of
the doctrine of superseding cause recognized in Barry
is limited to cases in which the intervening actions of
a third party were intended to cause harm. Although
appellate cases applying the doctrine of superseding
cause after Barry have often involved intentional acts
perpetrated by a third party or parties on an injured
plaintiff; see, e.g., Sullivan v. Metro-North Commuter
Railroad Co., supra, 292 Conn. 154;18 we do not agree
that the doctrine’s application is limited to such cases as
a matter of law or that the plaintiff’s view of superseding
cause is mandated by our Supreme Court’s holding in
Barry.
First, if we were to accept the plaintiff’s argument,
we would be left with the possibility of decidedly inequi-
table results. In those cases in which a negligent defen-
dant could point to an intervening act of negligence by
a third party, the defense of superseding cause would
be unavailable pursuant to the holding in Barry, but the
defendant nevertheless potentially could still apportion
some of its liability to the third party. In cases in which
the negligent defendant could show that the plaintiff’s
harm was the result of an intervening third party acting
with the intent to cause harm, the defendant would be
permitted to raise the doctrine of superseding cause
and to potentially escape liability outright. The problem
with the plaintiff’s argument arises in cases in which
the intervening actions by the third party exceed mere
negligence, for instance, reckless behavior, but do not
rise to the level of intentionally causing harm. In such
cases, under the plaintiff’s view of the law, a defendant
would be precluded from seeking apportionment under
our existing apportionment statute, but also would be
unable to avail himself of the doctrine of superseding
cause. Such a defendant would be fully liable to the
plaintiff, even in instances in which the actions of a
more culpable third party significantly contributed in
causing the plaintiff’s harm, unless he could show that
his own negligence was not a significant factor in caus-
ing that harm. Such a result makes the plaintiff’s
approach to superseding cause untenable.
Second, the court in Barry did not limit the doctrine
of superseding cause only to those cases involving
intervening conduct that is intended by a third party to
cause harm. Rather, in Barry, the court exempted from
its holding abolishing the doctrine of superseding cause
those cases in which a defendant alleged intervention
by an ‘‘unforeseeable intentional tort, force of nature
or criminal event.’’ Barry v. Quality Steel Products,
Inc., supra, 263 Conn. 439 n.16. We construe that phrase
as enumerating three categories of unforeseeable
intervening events for which the doctrine of supersed-
ing cause retains vitality under our law: intervening
intentional torts, intervening forces of nature, and
intervening criminal events.
Lack of foreseeability is the linchpin of any supersed-
ing cause defense, and, thus, that the Barry court’s
use of the adjective ‘‘unforeseeable’’ in setting forth its
exceptions logically can be construed as applying to
each of the three items following it. That same construc-
tion, however, cannot logically be said to apply to the
court’s use of the adjective ‘‘intentional.’’ ‘‘Intentional,’’
as used by the court, logically modifies only the noun
‘‘tort,’’ which it immediately precedes. It was necessary,
after all, for the court in Barry to distinguish intentional
torts from the tort of negligence because it held that
mere negligence could no longer form the basis of a
superseding cause defense.
The term ‘‘intentional,’’ however, cannot reasonably
be construed to modify the remainder of the enumer-
ated exceptions. The second exception, ‘‘force of
nature,’’ is not susceptible to such modification because
forces of nature are neither intended nor unintended.
Given this clear linguistic break, we do not construe
the term ‘‘intentional’’ as skipping over the second item
in the list, but applying nonetheless to the third item,
‘‘criminal event.’’ The term ‘‘criminal event’’ is not ren-
dered unintelligible without applying the ‘‘intentional’’
modifier. Rather, a criminal event properly can be
understood to mean any event involving one or more
criminal acts without reference to any particular mens
rea requirement.
Third, to the extent that the plaintiff cites to Stewart
v. Federated Dept. Stores, Inc., supra, 234 Conn. 607–
608, and Tetro v. Stratford, 189 Conn. 601, 605–606,
458 A.2d 5 (1983), each of which predated Barry, as
supporting the proposition that a superseding cause
‘‘can only exist’’ in the face of conduct by a third party
intended to cause harm, we disagree that those cases
decided that issue. Neither case considered or held that
a specific intent to cause harm is a necessary prerequi-
site to raising the doctrine of superseding cause. The
cases merely recited the standard contained in § 442B
of the Restatement (Second) of Torts. As we have dis-
cussed, the language referencing harm ‘‘intentionally
caused’’ by a third party in this particular section of the
Restatement (Second) of Torts is not wholly consistent
with the discussion in the commentary, which refers
generally to criminal acts, not intentional criminal acts.
Furthermore, to the extent that the Restatement (Sec-
ond) of Torts conflicts with the language used in Barry,
it is not binding on us. As indicated, the exception
carved out in Barry referred generally to ‘‘criminal
events,’’ not solely criminal events evincing an intent
to cause harm.
Finally, we are not persuaded by the plaintiff’s reli-
ance upon language in the model civil jury instructions.
Although both parties’ request to charge in this case
tracked Connecticut Civil Jury Instruction § 3.1-5,
addressing superseding cause, the court crafted its own
instructions. The model instructions are not intended
to be authoritative. As provided on their title page, the
model instructions are only meant to provide guidance;
their legal sufficiency is not guaranteed. See Connecti-
cut Civil Jury Instructions (Revised to January 1, 2008),
available at http://jud.ct.gov/JI/Civil/Civil.pdf (last vis-
ited March 20, 2017) (‘‘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.’’ [Emphasis
added.]) Rather than adhering to any particular format,
jury instructions must be appropriately tailored to
reflect the circumstances 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 considering 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.
In the present case, the defendant alleged by way of
a special defense that the overall criminal actions of the
teenaged thieves—i.e. a ‘‘criminal event’’—intervened
between Saineval’s negligent act and the plaintiff’s injur-
ies, and evidence was presented at trial to support those
allegations. The ‘‘criminal event’’ at issue was not lim-
ited to the theft of the taxicab, which all parties
acknowledge was a situation that was foreseeable given
Saineval’s actions, but included additional criminal acts,
which were further removed in both time and distance
from the initial theft, and that a jury might reasonably
consider unforeseeable.19 Those additional criminal
actions included Bowden driving the stolen taxicab
onto a sidewalk in order to escape the consequences
of a rear-end collision, which led to his reckless assault
of the plaintiff.
Whether Saineval reasonably should have realized
that a thief, in taking advantage of his having left the
keys in the ignition of his taxicab, might also avail
himself of the opportunity to commit the additional
criminal acts that occurred, or whether those further
crimes fell so far afield of the hazard created by Saine-
val’s negligence as to negate his liability, clearly impli-
cates the doctrine of superseding cause. In sum, on the
basis of the facts pleaded, the legal theories advanced
by the parties, and the evidence produced at trial, this
case sufficiently fell within the exceptions announced
in Barry, in which a defendant claims an unforeseeable
intentional tort, act of nature, or criminal event super-
seded its tortious conduct. Therefore, it was entirely
appropriate for the court to submit this doctrine to the
jury. We are unconvinced by any of the arguments made
by the plaintiff to the contrary.
II
Having determined the applicability of the doctrine
of superseding cause to the facts of this case, we turn
to the plaintiff’s claim that the jury instructions and
interrogatories given by the court in this case were
improper, warranting a reversal of the judgment and a
new trial. We are not persuaded.
Ordinarily, ‘‘a charge to the jury is to be considered
in its entirety, read as a whole, and judged by its total
effect rather than by its individual component parts.
. . . [T]he test of a court’s charge is not whether it is
as accurate upon legal principles as the opinions of a
court of last resort but whether it fairly presents the
case to the jury in such a way that injustice is not done
to either party under the established rules of law. . . .
As long as [the instructions] are correct in law, adapted
to the issues and sufficient for the guidance of the jury
. . . we will not view the instructions as improper. . . .
The court has a duty to submit to the jury no issue
upon which the evidence would not reasonably support
a finding. . . . [Furthermore], [a]lthough it is the jury’s
right to draw logical deductions and make reasonable
inferences from the facts proven . . . it may not resort
to mere conjecture and speculation. . . . The court
should, however, submit to the jury the issues as out-
lined by the pleadings and as reasonably supported by
the evidence.’’ (Citations omitted; internal quotation
marks omitted.) DiStefano v. Milardo, 276 Conn. 416,
421, 886 A.2d 415 (2005).
With respect to jury interrogatories, it is axiomatic
that the court has broad discretion in determining their
form, content, and the manner in which they are pre-
sented. Viera v. Cohen, 283 Conn. 412, 450, 927 A.2d
843 (2007). The purpose of interrogatories is ‘‘to elicit
a determination of material facts, [and] to furnish the
means of testing the correctness of the verdict ren-
dered, and of ascertaining its extent. . . . The power
of the trial court to submit proper interrogatories to
the jury, to be answered when returning their verdict,
does not depend upon the consent of the parties or
[statutory authority]. In the absence of any mandatory
enactment, it is within the reasonable discretion of the
presiding judge to require or to refuse to require the
jury to answer pertinent interrogatories, as the proper
administration of justice may require.’’ (Citations omit-
ted; internal quotation marks omitted.) Id., 449–50.
It is clear from our review of the record that although
the court struggled with whether to address the notion
of superseding cause at all, after deciding to do so, it
crafted sufficiently appropriate instructions under the
circumstances presented. The plaintiff claims that the
instructions were improper because they did not require
the jury to find that Bowden intentionally harmed the
plaintiff and because they did not more fully and accu-
rately define the phrase ‘‘scope of the risk.’’ We disagree.
First, we have already indicated in part I of this opin-
ion that we do not agree with the premise advanced
by the plaintiff that either a specific intent to harm a
plaintiff or criminal conduct of an intentional nature
is an absolute prerequisite to considering whether an
intervening criminal event amounted to a superseding
cause. Nevertheless, the court instructed the jury that
it should consider whether the theft of the taxicab,
subsequent driving, and resulting rear-end collision and
striking of the plaintiff ‘‘were intentional acts that were
not within the scope of the risk which was created by
the defendant’s conduct . . . .’’ The plaintiff never
asked the court to modify the charge to include a refer-
ence to a specific intent to harm, arguing only that it
did not think the language referencing scope of the risk
was necessary. If there was any error in that portion
of the charge, it was in the court’s failure to track more
closely the language from Barry by directing the jury
to consider whether the teens’ actions amounted to
either an unforeseeable intentional tort or criminal
event that was outside the scope of the risk created.
That omission, however, favored the plaintiff, who
claims she believes the jury should have been directed
to focus its consideration on intentional acts rather than
on criminal activity in general. In any event, because the
court was not required to instruct on an ‘‘intent to
[cause] harm,’’ we reject that aspect of the plaintiff’s
claim.
Second, we are unconvinced that the court’s instruc-
tion on ‘‘scope of the risk’’ was so deficient as to warrant
a new trial because it failed to define in detail the
meaning of that phrase in the context of considering
whether there was a superseding cause. The instruc-
tions were not required to be as detailed and precise
as a legal opinion. They simply needed to appropriately
guide the jury in its consideration of the legal issues
before it. Nothing in the record indicates that the jury
struggled with that term. The jury did not ask for addi-
tional instructions on the meaning of scope of the risk.
We conclude on the basis of our review of the jury
instructions as a whole that, although perhaps not per-
fect 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. Accordingly, we reject the plaintiff’s
claim of instructional error.
III
Finally, the plaintiff claims that the court improperly
denied her motion to set aside the verdict and for a
new trial because the jury’s verdict was irreconcilable
with the jury’s interrogatory responses. We are not per-
suaded, and conclude that the court properly denied
the plaintiff’s postjudgment motion.
Although appellate courts ordinarily apply an abuse
of discretion standard in reviewing a trial court’s action
granting or denying a motion to set aside a verdict, our
review is, of course, plenary, whenever the claim on
appeal raises a question of law. Tomick v. United Parcel
Service, Inc., 135 Conn. App. 589, 603, 43 A.3d 722, cert.
denied, 305 Conn. 920, 47 A.3d 389 (2012). Here, whether
the jury’s determination that Saineval’s negligent
actions were a proximate cause of the plaintiff’s injury
is legally inconsistent with a defendants’ verdict raises
a legal question, and, thus, we employ plenary review.
‘‘When a claim is made that the jury’s answers to
interrogatories in returning a verdict are inconsistent,
the court has the duty to attempt to harmonize the
answers.’’ (Internal quotation marks omitted.) Suarez
v. Dickmont Plastics Corp., 242 Conn. 255, 270, 698
A.2d 838 (1997). ‘‘The role of an appellate court where
an appellant seeks a judgment contrary to a general
verdict on the basis of the jury’s allegedly inconsistent
answers to . . . interrogatories is extremely limited.
. . . To justify the entry of a judgment contrary to a
general verdict upon the basis of answers to interrogato-
ries, those answers must be such in themselves as con-
clusively to show that as [a] matter of law judgment
could only be rendered for the party against whom the
general verdict was found; they must [negate] every
reasonable hypothesis as to the situation provable
under the issues made by the pleadings; and in
determining that, the court may consider only the issues
framed by the pleadings, the general verdict and the
interrogatories, with the answers made to them, without
resort to the evidence offered at the trial.’’ (Citation
omitted; internal quotation marks omitted.) Id., 269–70.
In the present case, we have determined that the jury
was properly instructed on the doctrine of superseding
cause as a special defense. In the end, the jury returned
a verdict in favor of the defendants on that defense.
The jury’s affirmative responses to the first three of
five interrogatories answered reveals that the jury con-
cluded that (1) Saineval’s actions in leaving his taxicab
unattended in an area known for crime with the keys
in the ignition breached his duty of reasonable care, and
that (2) the theft of the taxicab and (3) some subsequent
‘‘accident, causing injury’’ were foreseeable conse-
quences of that breach.20 Having so determined, we can
perceive of two possible ways that the jury, consistent
with its answers, nevertheless could find in favor of
the defendants.
First, the jury reasonably could have found that the
intervening actions of the teens so diminished the effect
of Saineval’s own careless actions that Saineval’s negli-
gence was not a substantial factor in the plaintiff’s injur-
ies, in which case, the jury properly would have
answered no to the fourth interrogatory asking whether
any of the plaintiff’s injuries were proximately caused
by Saineval’s negligence. If the jury followed the inter-
rogatories instructions, the jury would have returned a
defendants’ verdict without reaching the issue of super-
seding cause. The jury, however, answered yes to the
forth interrogatory.
Second, the jury reasonably could have found that
although Saineval’s actions were a substantial factor in
causing the plaintiff’s injuries, Bowden’s actions, which
occurred further down the causal chain, superseded
the defendants’ liability. The jury was thus free to
answer the fourth interrogatory in the affirmative as it
did, but nevertheless also consider whether the
intervening criminal acts of the teens in this case fell
outside the scope of the risk created by Saineval. In
other words, the intervening criminal acts could be
construed as having superseded any liability attribut-
able to the defendants. Thus, we conclude that the jury’s
answer to interrogatory five regarding the scope of the
risk was not irreconcilable with the determination that
Saineval’s actions also proximately caused the plain-
tiff’s injuries, and both were consistent with the verdict
returned in favor of the defendants. Accordingly, the
plaintiff has not demonstrated that the court’s denial
of her motion to set aside the verdict and for a new
trial reflected an abuse of discretion.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff also cited in as a defendant Vito Bochicchio, Jr., the sole
shareholder of Yellow Cab. See footnote 5 of this opinion. For purposes of
clarity we refer to Saineval and Yellow Cab as the defendants.
2
Although Saineval at first had maintained that he left the cab unattended
in order to help a customer to whom he had just provided service carry in
groceries, he later testified at trial that he went inside the complex to talk
to a relative, but that he was gone only for a short time.
3
At the time of trial, Bowden was incarcerated because of his role in the
incident. 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.
4
The plaintiff filed a separate civil action alleging negligent security prac-
tices 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.
5
The operative complaint contained four additional counts directed at
Yellow Cab and its owner and sole shareholder, Vito Bochicchio, Jr. These
additional counts alleged that Bochicchio had, among other things, misdi-
rected 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 Bochic-
chio 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 plaintiff’s verdict on the negligence counts
and awarded damages. Although the record and judgment file do not reflect
any express disposition of the additional bifurcated counts following entry
of the verdict for the defendants on the negligence counts, the court’s
judgment for the defendants on the negligence counts nevertheless effec-
tively disposed of the additional counts. See Bridgeport v. White Eagle’s
Society of Brotherly Help, Inc., 140 Conn. App. 663, 667 n.5, 59 A.3d 859
(2013).
Even if we were to determine that the judgment rendered by the court
failed to dispose of the plaintiff’s additional counts, the judgment neverthe-
less fully disposed of all counts in the complaint brought against Saineval
and, thus, was an appealable final judgment with respect to him. See Practice
Book § 61-3. Accordingly, we perceive no jurisdictional bar to our adjudica-
tion of the plaintiff’s claims on appeal. Moreover, to the extent that the
judgment is not final as to Yellow Cab because of the unresolved counts
of the complaint against it; see Practice Book § 61-4; Yellow Cab’s liability
to the plaintiff is entirely derivative of Saineval’s negligence and, thus, our
resolution of this appeal in favor of Saineval is equally determinative of
Yellow Cab’s liability, regardless of any final judgment issue.
6
‘‘[T]he theory of respondeat superior attaches liability to a principal
merely because the agent committed a tort while acting within the scope
of his employment. It refers to those acts which are so closely connected
with what the servant is employed to do, and so fairly and reasonably
incidental to it, that they may be regarded as methods, even though quite
improper ones, of carrying out the objectives of the employment.’’ (Internal
quotation marks omitted.) Larsen Chelsey Realty Co. v. Larsen, 232 Conn.
480, 505, 656 A.2d 1009 (1995), citing W. Prosser & W. Keeton, Torts (5th
Ed. 1984) § 70, p. 502.
7
The plaintiff’s request to charge was filed before trial on November 3,
2014. The defendants filed their request to charge during trial on December
9, 2014, with the permission of the court.
8
We note that the court’s use of the term ‘‘accident’’ was somewhat
imprecise because it failed to indicate whether it was referring to the rear-
end automobile collision, the subsequent striking of the plaintiff with the
taxicab, or to the entirety of the events that occurred that day following
the theft of the taxicab. The term is also susceptible to being misinterpreted
as referring only to careless or negligent behavior, rather than the reckless
criminal conduct at issue in this case. Any such ambiguity, however, was
not raised by the plaintiff in its objection to the interrogatory and the use
of that term is not challenged on appeal.
9
In Sullivan, the plaintiff administrator of the estate of a railroad passen-
ger who was assaulted and fatally shot at a train station brought an action
against the defendant commuter railroad for negligence on the theory that
the railroad had provided inadequate security at the station, creating the
risk of an attack on a commuter by a third party. Sullivan v. Metro-North
Commuter Railroad Co., supra, 292 Conn. 152–53. Our Supreme Court
affirmed this court’s decision that the trial court properly had instructed
the jury on the doctrine of superseding cause, which, as in the present case,
was raised as a special defense. Id., 165–66. The instruction provided by
the trial court in Sullivan, and approved by our Supreme Court, provided
in relevant part: ‘‘One of the defenses of the defendant is that even if you
were to find it negligent, which negligence it denies, the actions of [the
third party] intervened to break the chain of causation between its alleged
negligence and [the decedent’s] death. . . . [I]f you find that the actions of
[the third party] intervened and superseded any negligence on the part of
the defendant, then the defendant cannot be responsible to the plaintiff and
your verdict must be for the defendant. If you find that [the third party’s]
intentional acts were not within the scope of the risk which may have been
created by the defendant’s conduct, then the actions of [the third party]
may be found by you to be the proximate cause of the plaintiff’s injuries
relieving the defendant of liability even if you find that the defendant was
negligent and [its] negligence created a situation which afforded an opportu-
nity to [the third party] to commit the crime.’’ (Internal quotation marks
omitted.) Id., 165–66.
10
One of the crimes Bowden pleaded guilty to as a result of his having
run over the plaintiff with the stolen taxicab was assault in the first degree.
General Statutes § 53a-59 provides that a person can be found guilty of
assault in the first degree in five possible ways. Four require that the person
act in a proscribed manner intending to cause serious physical harm or
disfigurement. The other, however, requires that ‘‘under circumstances
evincing an extreme indifference to human life [the person] recklessly
engages in conduct which creates a risk of death to another person, and
thereby causes serious physical injury to another person . . . .’’ (Emphasis
added.) General Statutes § 53a-59 (a) (3).
11
In making this argument, the plaintiff appears, at least tacitly, to acknowl-
edge the legal possibility that the jury could find for the plaintiff as to all
elements of her prima facie case, including a finding of proximate cause,
but nonetheless ultimately return a verdict for the defendants on the basis
of superseding cause. This viewpoint is not entirely consistent with the
position she takes on appeal as addressed in part III of this opinion.
12
Although the plaintiff indicates in her brief to this court that this claim
was raised to the court prior to the completion of the trial, we do not view
the plaintiff’s objections before the trial court as arguing that the doctrine
of superseding cause had no applicability, but that the court’s original draft
of its instructions regarding proximate causation were sufficient to guide
the jury in its consideration of the defense of superseding cause, and that
the additional instruction and interrogatory proposed and ultimately given
by the court would confuse the jury. It was not until the motion to set aside
the verdict and for a new trial were filed that the plaintiff framed its argument
as one of inapplicability.
13
We note that the modern approach to superseding cause, as reflected
in § 34 of the Restatement (Third) of Torts, and related reporter’s notes, is
to treat the notion of superseding cause as a facet of scope of liability, a
term the Restatement uses in discussing what courts refer to as proximate
causation. 1 Restatement (Third), Torts, Liability for Physical and Emotional
Harm, § 34, pp. 569–92 (2010). As noted by the reporter’s notes, our Supreme
Court’s decision in Barry reflects a jurisprudential move toward embracing
that approach. Id., reporter’s notes, p. 579. The Supreme Court in Barry,
however, left vestiges of the older approach—analyzing superseding cause
as a distinct doctrine—in place, adopting the modern approach only with
respect to intervening acts of negligence. Barry v. Quality Steel Products,
Inc., supra, 263 Conn. 439 n.16. The court’s opinion in Barry is silent as to
the court’s reasoning for carving out its exceptions, but perhaps it reflects
the reality of our apportionment statute, which strictly limits apportionment
to acts of negligence. In any event, in cases such as the present one, we
are left to treat superseding cause as related to, but distinct from, the
proximate cause inquiry.
14
We have modified this passage in Barry, which refers several times to
a third party’s superseding negligence, to reflect the court’s holding in that
case that a defendant may no longer raise a defense of superseding cause
on the basis of an alleged intervening act of negligence by a third party.
15
We recognize that there is some tension between the definition in the
Restatement (Second) of Torts of superseding cause and the quoted state-
ment by the court in Barry that a superseding cause be viewed as the ‘‘sole
proximate cause’’ of a plaintiff’s injuries. Barry v. Quality Steel Products,
Inc., supra, 263 Conn. 435. Comment (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 substan-
tial factor in bringing about the harm.’’ (Emphasis added.) We construe
the reference in Barry to ‘‘sole proximate cause’’ not as a repudiation of
the Restatement’s broader definition but simply as a recognition that in
some cases involving a superseding cause, the superseding 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 superseding cause into the sole
proximate cause of the harm. This iteration of the doctrine, however, does
not expressly preclude that in certain cases factually distinct 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 determination
regarding liability.
16
In reaching its conclusion, the court recognized the shifting nature of
superseding cause jurisprudence within the body of tort law, explaining
that one learned treatise states that superseding cause has less to do with
causation than with policy concerns about imposing legal responsibility for
a particular harm, whereas another views superseding cause strictly as
‘‘proximate cause flowing from a source not connected with the party sought
to be charged.’’ (Internal quotation marks omitted.) Barry v. Quality Steel
Products, Inc., supra, 263 Conn. 439.
17
If our Supreme Court believed that the doctrine of superseding cause
should no longer be raised by a defendant by way of special defense, and
that the issue should in all instances be considered as an aspect of proximate
cause, the Supreme Court had an opportunity to address this in Sullivan
v. Metro-North Commuter Railroad Co., supra, 292 Conn. 150. Although the
court in Sullivan noted the fact that superseding cause was raised in that
case by way of special defense, it did not comment about the propriety of
such procedures or discuss which party has the burden of proof. Id., 167.
In the present case, the trial court instructed the jury that the defendants
had the burden to prove that the teens’ actions were a proximate cause of
the plaintiff’s injuries that superseded Saineval’s negligence. The superseding
cause interrogatory also allocated the burden of proof to the defendants,
asking ‘‘did defendant prove’’ that the teens’ actions fell outside the scope
of the risk created by Saineval. Neither party has argued that the burden
of proof was improperly allocated in the present case. We are aware that
there is a lack of clarity in our case law regarding whether the doctrine of
superseding cause must be pleaded as a special defense or whether, post-
Barry, the doctrine is merely an aspect of proximate cause analysis. Because
that issue was not raised and briefed by the parties in the present case, we
leave its resolution for another day.
18
Although our Supreme Court determined that the superseding cause
instruction given by the court in Sullivan was proper; see footnote 9 of this
opinion; and that the instruction required the jury to consider whether ‘‘[the
third party’s] intentional acts were not within the scope of the risk,’’ this
does not support the plaintiff’s claim. (Emphasis added; internal quotation
marks omitted.) Sullivan v. Metro-North Commuter Railroad Co., supra,
292 Conn. 166. The court’s charge merely reflects the factual reality that,
in Sullivan, the alleged superseding cause was indisputably an intentional
attack and shooting of the plaintiff; the instruction in no way reflects any
legal determination that a third party’s intervening actions must always
involve an intent to harm in order to qualify as a superseding cause.
19
In a number of jurisdictions that have considered the proper scope of
liability for a defendant who negligently left the keys in a vehicle resulting
in a theft of the vehicle, those courts have recognized a legally significant
distinction between injuries from a collision that occurred in close proximity
to the theft and while the thief was in flight, and injuries resulting from a
collision occurring several hours after the theft and several miles from the
scene. See, e.g., Wannebo v. Gates, 227 Minn. 194, 201, 34 N.W.2d 695 (1948)
(‘‘[e]ven if one should be of the opinion that the tortious acts of a thief in
fleeing in a stolen car from the scene of his crime would be within a
foreseeable risk, where a car was left unlocked with the key in the ignition
switch on a busy public street, yet it does not follow that the original actor
should be held liable for the tortious acts of the thief or his successor in
possession of the car if such acts took place hours, days, weeks, or months
after the flight from the scene of the theft had terminated’’ [emphasis
added]); see also Childers v. Franklin, 46 Ill. App. 2d 344, 354, 197 N.E.2d
148 (1964) (no liability because injury occurred some distance away after
flight of thief had terminated); Dersookian v. Helmick, 256 Md. 627, 634,
261 A.2d 472 (1970) (no liability because accident occurred miles from theft
and five days later); see generally annot., 45 A.L.R. 3d 787, §§ 9 [b], 10, pp.
815–17 (1972). Some courts have taken the position that liability becomes
a jury question only in cases in which the plaintiff’s injuries occurred during
the flight from the initial theft or relatively close in time and distance,
otherwise there is no liability as a matter of law. Id., pp. 816–17. In this
case, the harm to the plaintiff occurred, not during the teens’ flight from
the theft of the taxicab, but hours later and many miles away.
20
The third interrogatory did not ask the jury to determine whether, in
light of the theft of the taxicab, the entire sequence of criminal events that
transpired in this case was foreseeable. The plaintiff never asked the court
to use more specific language, and she did not challenge the interrogatory’s
use of the term accident, which was ambiguous under the facts of the
present case. See footnote 8 of this opinion.