Statutes of Limitations (CONNECTICUT)
Personal Injury - 2 yrs.* (but no later than 3 yrs. from act/omission) [C.G.S.A. § 52-584]
Wrongful Death - 2 yrs. from death (but no later than 5 yrs. from act/omission) [C.G.S.A. § 52-555]
Property Damage - 2 yrs.* (but no later than 3 yrs. from act/omission) [C.G.S.A. § 52-584]
*Caution: the statute of limitations essentially operates as a statute or repose
All Product Liability Actions involving Personal Injury, Death or Property Damage - 3 yrs. (from discovery) [C.G.S.A. § 52-577a]
Written Contracts - 6 yrs. [C.G.S.A. § 52-576]
Oral Contracts - 3 yrs. [C.G.S.A. § 52-581]; but 6 yrs. if Contract has been performed by one party [C.G.S.A. § 52-576; John H. Kplb & Sons, Inc. v. G and L Excavating, Inc. (621 A.2d 774 (Conn. App. 2003)]
Contracts for Sale (goods) and Breach of Warranty - 4 yrs. (from tender of delivery) [C.G.S.A. § 42a-2-725]
Statute of Repose (Products) (CONNECTICUT)
10 yrs. (unless Plaintiff can show the harm occurred during useful life of the product) [C.G.S.A. § 52-577a].
Admissibility of Expert Testimony (CONNECTICUT)
Daubert test recognized. However, even under Daubert, courts are directed to continue to consider whether a scientific principle has gained “general acceptance” in making admissibility determinations. If a trial court determines that a scientific methodology has gained general acceptance, then the Daubert inquiry will generally end and the conclusions derived from that methodology will generally be admissible. If a principle has not gained general acceptance, the proponent of the scientific opinion may still demonstrate the reliability or validity of the underlying scientific theory or process by some other means, that is, without establishing general acceptance [State v. Porter, 698 A.2d 739 (Conn. 1997)].
Causes of Action (CONNECTICUT)
Exclusive remedy under the Product Liability Act (“Act”).
“Product liability claim” includes all claims or actions brought for personal injury, death or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product. “Product liability claim” includes all actions based on the following theories: strict liability; negligence; breach of warranty (express or implied); breach of (or failure) to discharge a duty to warn or instruct (negligent or innocent); misrepresentation or nondisclosure (negligent or innocent) [State v. Porter, 698 A.2d 739 (Conn. 1997)].
“Product liability is simply a form of strict liability” [Allard v. Liberty Oil Equip. Co., 756 A.2d 237, (Conn. 2000)].
Definition of “Defect” (CONNECTICUT)
Plaintiff must prove that the product is unreasonably dangerous. Whether a product is unreasonably dangerous is a question of fact to be determined by the jury. “Unreasonably dangerous” is defined as “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” It is not necessary that Plaintiff in a strict liability tort action establish a specific defect, so long as there is evidence of some unspecified dangerous condition [Giglio v. Connecticut Light & Power Co., 429 A.2d 486 (Conn. 1980)].
Liability of Sellers (CONNECTICUT)
A product liability claim may be asserted against product sellers [C.G.S.A. § 52-572n],
“Product seller” includes wholesalers, distributors or retailers who are engaged in the business of selling such products. It also includes lessors or bailors of products who are engaged in the business of leasing or bailment of products [C.G.S.A. § 52-572m].
Comparative negligence – In general, Connecticut follows modified comparative negligence (damages are diminished in proportion to Plaintiff’s fault, but Plaintiff cannot recover if he is 51% at fault) [C.G.S.A. § 52-572h]. However, in product liability cases, Connecticut follows pure comparative negligence (Plaintiff can recover even if 99% at fault) [C.G.S.A. § 52-572o].
Assumption of Risk – Abolished [Martens v. Wild Bill Surplus, 1995 Conn. Super. LEXIS 1870 (Conn. Super. 1995)] (but see the “Knowingly using the product in a defective condition” defense below).
Product Modification/Alteration – Complete defense (no liability for harm that would not have occurred but for the fact that the product was altered or modified) [C.G.S.A. § 52-572p].
Product Misuse – Separate affirmative defense [C.G.S.A. § 52-572l]
Knowingly using the product in a defective condition – Separate affirmative defense [C.G.S.A. § 52-572l]
Economic Loss Doctrine (ELD) (Product Destroys Only Itself) (CONNECTICUT)
Most likely applies only in commercial cases, involving sophisticated parties. The Act states that as between commercial parties, “harm” does not include commercial loss [C.G.S.A. § 52-572m].
Malfunction Theory (Using Circumstantial Evidence to Prove Defect) (CONNECTICUT)
The absence of direct evidence of a specific defect is not fatal to Plaintiff’s claims, and Plaintiff, under certain circumstances, may establish a prima facie case using circumstantial evidence of a defect attributable to Manufacturer. Plaintiff does not need to present evidence to establish a specific defect, as long as there is evidence of some unspecified dangerous condition [Metro. Prop. & Cas. Ins. Co. v. Deere & Co., 25 A.3d 571 (Conn. 2011)].
Design Defects (CONNECTICUT)
The Act’s definition of “Product liability claim” includes “design” [C.G.S.A. § 52-572m].
In order to prevail in a design defect claim, Plaintiff must prove that the product is unreasonably dangerous. “Unreasonably dangerous” means the product must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer, who purchases it with the ordinary knowledge common to the community as to its characteristics. A product may be in a defective condition unreasonably dangerous to the user even though no feasible alternative design is available. In such instances, Manufacturer may be strictly liable for a design defect notwithstanding the fact that there are no safer alternative designs in existence [Potter v. Chicago Pneumatic Tool Co., 694 A.2d 1319 (Conn. May 27, 1997)].
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. Under the ‘consumer expectation’ test, Manufacturer is strictly liable for any condition not contemplated by the ultimate consumer that will be unreasonably dangerous to the consumer [Potter v. Chicago Pneumatic Tool Co., 694 A.2d 1319 (Conn. May 27, 1997)].
The jury should engage in the risk-utility balancing required by the court’s modified consumer expectation test when the particular facts do not reasonably permit the inference that the product did not meet the safety expectations of the ordinary consumer. Under the “risk-utility” test, Manufacturer bears the burden of proving that the product’s utility is not outweighed by its risks in light of various factors [Potter v. Chicago Pneumatic Tool Co., 694 A.2d 1319 (Conn. May 27, 1997)].
State of the art is a relevant factor in considering the adequacy of the design of a product and whether it is in a defective condition unreasonably dangerous to the ordinary consumer. “State of the art" is defined as the level of relevant scientific, technological, and safety knowledge existing and reasonably feasible at the time of design. Although state-of-the-art evidence may be dispositive on the facts of a particular case, such evidence does not constitute an affirmative defense. State-of-the-art evidence is better characterized as rebuttal evidence than as a defense [Potter v. Chicago Pneumatic Tool Co., 694 A.2d 1319 (Conn. May 27, 1997)].
Failure to Warn (CONNECTICUT)
Defendant may be subject to liability for harm if Plaintiff proves by a fair preponderance of the evidence that the product was defective in that adequate warnings or instructions were not provided [C.G.S.A. § 52-572q].
In determining whether instructions or warnings were required and, if required, whether they were adequate, the trier of fact may consider: (1) the likelihood that the product would cause the harm suffered by the claimant; (2) the ability of Defendant to anticipate at the time of manufacture that the user would be aware of the product risk, and the nature of the potential harm; and (3) the technological feasibility and cost of warnings and instructions [C.G.S.A. § 52-572q].
Plaintiff must prove by a fair preponderance of the evidence that if adequate warnings or instructions had been provided, Plaintiff would not have suffered the harm [C.G.S.A. § 52-572q].
Independent Cause of Action for Evidence Spoliation (CONNECTICUT)
Connecticut has recognized a tort of intentional spoliation against a first party [Rizzuto v. Davidson Ladders, Inc., 905 A.2d 1165 (Conn. 2006)].