A. OVERVIEW OF THE BASICS

COMPLAINTS IN PERSONAL INJURY CASES

Since most injury cases are tried to a jury, the addition of the spouse in the past added to the number of peremptory challenges on the plaintiff’s side. Since the adoption of the unity of interest statute, P.A. 93-176 (amending §51-241 and §51-243 of the General Statutes), this is usually no longer the case. There are still tactical reasons for including or excluding a spouse, depending on the facts, the existence of workers’ compensation, and other factors.

FIRST TWO PARAGRAPHS OF COMPLAINT

Auto Case

1. On or about (date), the plaintiff was operating his automobile (put direction of travel and location here, for example: west on Interstate 91, a public highway in the city of New Haven, in the center lane).

2. At said time and place, a (type of vehicle: automobile, motorcycle, tractor-trailer truck) owned by defendant (name owner) and operated by the defendant (name operator), was proceeding in a (northerly, southerly, etc.) direction on (name of street or highway in town or city), (describe what occurred here, for example: when it ran into the path of the plaintiff’s motor vehicle causing said vehicles to collide --OR-- and in overtaking the plaintiff’s automobile cut said automobile off and sideswiped the same; --OR-- ran into and struck the rear of the automobile operated by the plaintiff).

Premises Liability

1. On or about (date), the plaintiff was walking down the outside rear stairs of the property located at 1377 Boulevard, New Haven, when she was caused to fall

--OR--

On or about (date), the plaintiff was a patron in the defendant’s supermarket, located at 350 Orange Street, New Haven, and while walking near the self-service counter was caused to slip and fall on grapes.

SAMPLE WRIT: AUTO CASE - REAREND COLLISION

C O M P L A I N T

FIRST COUNT: (Loren Smith)

1. On or about September 28, 1994, the plaintiff Loren Smith was operating her motor vehicle in a westerly direction on South Main Street, when she came to a stop for a posted stop sign at the intersection of South Main Street and Main Street, both public highways in the Town of Branford.

2. At said time and place the defendant Marilyn Jones was likewise operating an automobile in a westerly direction on said South Main Street to the rear of the plaintiff’s automobile, when she ran into and struck the rear of the plaintiff’s automobile.

3. Said occurrence was due to the negligence and carelessness of the defendant in one or more of the following ways:

4. As a result of the negligence and carelessness of the defendant, the plaintiff received and suffered from a spraining and wrenching of her neck and back, and intervertebral disc injuries to her neck and back. Said injuries involved the muscles, soft tissues, and intervertebral discs of her neck and back. From all of the aforesaid injuries, or the effects thereof, the plaintiff has suffered and will suffer great pain, mental anguish and from nervousness, some of which injuries or the effects thereof, are or are likely to be, permanent.

5. The plaintiff has incurred and will incur expenses for medical and surgical care and attention, medicine, x-rays and physical therapy, and has been and will be unable to perform her occupational and household duties as she did prior to said occurrence and her earning capacity has been and will be impaired, all of which has and will cause her loss and damage.

SECOND COUNT: (Leah Smith, PPA)

1. Paragraphs 1, 2 and 3 are hereby made part of the Second Count, except that this plaintiff, a minor child of tender years, was a passenger in her mother Loren Smith’s car at the time of collision.

4. As a result of the negligence and carelessness of the defendant, the plaintiff received and suffered from a spraining and wrenching of her neck and back. From all of the aforesaid injuries, or the effects thereof, the plaintiff has suffered pain, mental anguish, and nervousness.

5. The plaintiff Loren Smith has incurred medical expenses for her daughter Leah Smith, and Leah has been unable to be up and around as she was prior to said occurrence, and she has lost several days of school.

WHEREFORE, the plaintiffs claim money damages within the jurisdiction of the Superior Court.

Hereof fail not but of this writ with your doings thereon, make due service and return according to law.

Dated at New Haven, Connecticut this 27th day of October, 1995.

______________________________

WILLIAM F. GALLAGHER

Gallagher, Gallagher & Calistro

Attorneys for the Plaintiff

AD DAMNUM

WHEREFORE, the plaintiffs claim money damages in an amount in excess of $15,000.00 each.

______________________________

WILLIAM F. GALLAGHER

Commissioner of the Superior Court

SAMPLE WRIT: PREMISES LIABILITY FALL ON ICY WALK vs. CONDO ASS’N

C O M P L A I N T

FIRST COUNT: (As to Lorraine Smith)

1. On or about February 27, 1993 the plaintiff was walking on the common walk from 391A Maple Trail, West Village Condominium, when she was caused to fall.

2. At all times mentioned herein, said common walk was controlled, possessed, managed and/or maintained by the defendant West Village Condominium Association, Inc.

3. Said occurrence was due to the negligence and carelessness of the defendant corporation, its servants, agents, or employees, in one or more of the following ways:

4. The defendant knew, or had it exercised due care and proper diligence, should have known of the aforesaid conditions.

5. As a result of the negligence and carelessness of the defendant, the plaintiff received and suffered from a fracture of her left wrist, and a spraining and wrenching of said wrist affecting the soft tissues thereof. The injury to the plaintiff's wrist has required surgery three times, and will require additional surgery in the future, and has caused her wrist and hand to be sensitive and painful. The plaintiff also received a shock to her nervous system. From all of the aforesaid injuries, or the effects thereof, the plaintiff has suffered and will suffer great pain, mental anguish, and from nervousness, some of which injuries or the effects thereof are, or are likely to be, permanent, including permanent scarring from surgery.

6. The plaintiff was rendered sore and disabled as a result of said occurrence, and has been and will be unable to be up and around as she did prior to said occurrence, to perform her household duties as she did prior to said occurrence, and her earning capacity has been and will be impaired, all of which has and will cause her loss and damage.

SECOND COUNT: (As to Francis Smith)

1. All of the allegations of the First Count are hereby made part hereof as if fully set forth herein.

7. The plaintiff on behalf of his wife has incurred and will incur expenses for medical care and attention, medicine, x-rays, surgery, anesthesia, hospitalization, etc., all of which has and will cause him loss and damage.

8. As a result of the injuries sustained to his wife as alleged in the First Count, the plaintiff has suffered mental and emotional anguish, and has had to render care and assistance to his wife by reason of said injuries, and has had to curtail his family leisure time activities, all of which has and will cause him loss and damage.

WHEREFORE, the plaintiffs claims money damages within the jurisdiction of the Superior Court.

Hereof fail not but of this writ with your doings thereon, make due service and return according to law.

Dated at New Haven, Connecticut this 1st day of February, 1995.

______________________________

WILLIAM F. GALLAGHER

Gallagher, Gallagher & Calistro

Attorneys for the Plaintiffs

AD DAMNUM

WHEREFORE, the plaintiffs claim money damages in an amount in excess of $15,000.00.

______________________________

WILLIAM F. GALLAGHER

Commissioner of the Superior Court

SAMPLE WRIT: WRONGFUL DEATH; MULTIPLE PARTIES; MULTIPLE COUNTS; BYSTANDER EMOTIONAL DISTRESS; PUNITIVE DAMAGES UNDER §14-295

NO. 222333 : SUPERIOR COURT

ARTHUR SMITH, ET AL : J.D. OF NEW HAVEN

VS. : AT NEW HAVEN

CHARLES PACE, ET AL : JANUARY 5, 1993

AMENDED COMPLAINT

FIRST COUNT: Arthur Smith, Administrator of the Estate of Mary Smith)

1. On or about October 24, 1991 the plaintiff Arthur Smith was operating his motor vehicle southbound on Route 15, a public highway in Milford, Connecticut, with his wife Mary Smith, and his son, Michael Smith, riding as passengers in said vehicle.

2. At said time and place a motor vehicle operated by the defendant Charles Pace, and owned by the defendant Orange Manufacturing Co., Inc., was likewise proceeding in a southerly direction on Route 15 in Milford, when said vehicle struck the Smith vehicle in the rear, causing the Smith vehicle to strike a tree on the west side of said highway.

3. At all time mentioned herein, the defendant Charles Pace, was the agent, servant or employee of the defendant Orange Manufacturing Co., Inc., acting within the scope of his authority or employment.

4. Said occurrence was due to the negligence and carelessness of the defendants in one or more of the following ways:

5. As a result of the negligence and carelessness of the defendants, plaintiff's decedent Mary Smith, received and suffered from multiple injuries, including a severe crush injury to her right distal forearm and hand; a ruptured spleen, a fractured pelvis, had retroperitoneal hematoma, a fractured femur, profound shock and multiple system organ failure. The decedent also sustained excessive blood loss. From all of the aforesaid injuries she suffered great pain and mental anguish, and from which she died on October 25, 1991.

6. As a further result of the negligence and carelessness of the defendants, the capacity of the plaintiff's decedent to continue her education, to engage in an occupation, to earn wages, and to enjoy and carry out all of life's activities was permanently destroyed.

7. The plaintiff, Arthur Smith, has incurred expenses for the hospitalization, emergency medical care and attention, and for the funeral and burial of his decedent and wife, Mary Smith.

8. The plaintiff, Arthur Smith, has been appointed administrator of the estate of his wife, Mary Smith, by the Probate Court for the District of New Haven, and said plaintiff has qualified as such and continues to act as such.

SECOND COUNT: Arthur Smith - Personal Injuries

1. Paragraphs 1, 2, 3 and 4 of the First Count are hereby made paragraphs 1, 2, 3 and 4 of the Second Count.

5. As a result of the negligence and carelessness of the defendants, the plaintiff received and suffered from a spraining and wrenching of his spine and abdomen, causing internal injuries; a contusion and blow to his head; a cerebral concussion; and a traumatic closed-head brain injury, causing cognitive impairments. Plaintiff also received a severe shock to his nervous system and suffered great emotional upset and distress. Said brain injuries aggravated, precipitated or lighted-up a previously dormant and controlled substance abuse problem from which plaintiff continues to suffer. From all of the aforesaid injuries, or the effects thereof, the plaintiff has suffered and will continue to suffer great pain, mental anguish and from nervousness, some of which injuries, or the effects thereof are, or are likely to be, permanent.

6. The plaintiff has incurred and will incur expenses for hospitalization, medical care and attention, professional counseling and therapy, medicine, x-rays, and will in the future incur similar expense, and has been and will be unable to perform his occupational duties as he did prior to said occurrence, and his earning capacity has been and will be impaired, all of which has caused and will cause him loss and damage.

THIRD COUNT: Arthur Smith - Bystander Emotional Distress

1. Paragraphs 1, 2, 3 and 4 of the First Count are hereby made paragraphs 1, 2, 3 and 4 of the Third Count.

5. Plaintiff observed the injuries to his wife, Mary Smith, and her pain and suffering, which injuries, pain and suffering led to her death on October 25, 1991. The contemporaneous perception of his wife's injuries has caused severe emotional distress, and has caused, precipitated or lighted-up a previously dormant and controlled substance abuse problem. From all of the aforesaid emotional distress, the plaintiff has suffered and will continue to suffer great pain, mental anguish and from nervousness, some of which injuries, or the effects thereof are, or are likely to be, permanent.

6. The plaintiff has incurred and will incur expenses for hospitalization, medical care and attention, professional counseling and therapy, medicine, x-rays, and will in the future incur similar expense, and has been and will be unable to perform his occupational duties as he did prior to said occurrence, and his earning capacity has been and will be impaired, all of which has caused and will cause him loss and damage.

FOURTH COUNT: Arthur Smith - Loss of Consortium

1. Paragraphs 1, 2, 3 and 4 of the First Count are hereby made paragraphs 1, 2, 3 and 4 of the Fourth Count.

5. As a result of the injuries and death of his wife Mary Smith, as alleged in the First Count hereof, the plaintiff suffered the loss of the society, affection, moral support, services, companionship and sexual relations with his wife.

6. The plaintiff has incurred and will incur expenses for hospitalization, medical care and attention, professional counseling and therapy, medicine, x-rays, and will in the future incur similar expense, and has been and will be unable to perform his occupational duties as he did prior to said occurrence, and his earning capacity has been and will be impaired, all of which has caused and will cause him loss and damage.

FIFTH COUNT: Michael Smith - Personal Injuries

1. All of the allegations of paragraphs 1, 2, 3 and 4 of the First Count are hereby made paragraphs 1, 2, 3, and 4 of this Fifth Count as if fully set forth herein.

5. As a result of the negligence and carelessness of the defendants, the plaintiff received and suffered from a fracture or break in the bones of his left leg, which was treated by surgery and the insertion of interlocking rods, which were later removed by surgery. Plaintiff also sustained a blow to his head, causing a severe closed-head traumatic brain injury which has resulted in cognitive impairments. The plaintiff has also received a severe shock to his nervous system. From all of the aforesaid injuries, or the effects thereof, the plaintiff has suffered and will continue to suffer great pain, mental anguish and from nervousness, some of which injuries, or the effects thereof are, or are likely to be, permanent, including permanent scarring.

6. The plaintiff has incurred and will incur expenses for hospitalization, medical and surgical care and attention, professional counseling and therapy, medicine, x-rays, and will in the future incur similar expense, and has been and will be unable to perform his occupational duties as he did prior to said occurrence, and his earning capacity has been and will be impaired, all of which has caused and will cause him loss and damage.

SIXTH COUNT: Michael Smith - Bystander Emotional Distress

1. All of the allegations of paragraphs 1, 2, 3 and 4 of the First Count are hereby made paragraphs 1, 2, 3, and 4 of this Sixth Count as if fully set forth herein.

5. The plaintiff, as a passenger in his father's car at the time of the collision alleged in the First Count hereof, had a contemporaneous perception of the injuries sustained by his father and mother, and observed his mother's injuries, pain and suffering, which led to her death. As a result of said contemporaneous sensory perceptions, the plaintiff has suffered and will continue to suffer emotional distress and anguish, the effects of which are, or are likely to be, permanent.

6. The plaintiff has incurred and will incur expenses for hospitalization, medical and surgical care and attention, professional counseling and therapy, medicine, x-rays, and will in the future incur similar expense, and has been and will be unable to perform his occupational duties as he did prior to said occurrence, and his earning capacity has been and will be impaired, all of which has caused and will cause him loss and damage.

SEVENTH COUNT: By All Plaintiffs, Liability of Defendants Under Section 14-295 of the General Statutes

1. All of the allegations of the First, Second, Third, Fourth, Fifth and Sixth Counts of this complaint are incorporated herein as if fully set forth.

2. The defendants are liable to the plaintiffs under Section 14-295 of the General Statutes because the defendant Pace, with reckless disregard, operated said motor vehicle in violation of Sections 14-218a, Section 14-222, Section 14-227a of the General Statutes.

WHEREFORE, each plaintiff claims:

1. Money damages in excess of $15,000.00.

2. Double or treble damages pursuant to Section 14-295 of the General Statutes.

THE PLAINTIFFS,

Arthur Smith, Admr., et al

By: _______________________________

WILLIAM F. GALLAGHER

Gallagher, Gallagher & Calistro

Their Attorneys.

This is to certify that a

copy of the foregoing has

been mailed, postage prepaid,

to all counsel of record on

the above date.

___________________________

William F. Gallagher

AGENCY ALLEGATIONS - AUTO CASES

Agent

At all times mentioned herein, the defendant (operator) was the servant, agent, or employee of the defendant (owner), acting within the scope of his authority or employment.

Family Automobile

At all times mentioned herein, said (defendant owner’s last name) automobile was being operated as a family car with the general authority of the owner.

Family Car and Agency

At all times mentioned herein, said (defendant owner’s last name) automobile was being operated as a family car with the general authority of the owner, and/or at all times mentioned herein, the defendant (operator) was the servant, agent or employee of the defendant (owner), acting within the scope of his authority or his employment.

Leased Vehicle

The defendant owner, (name), is liable for any damage to the person (and property) of the plaintiff caused by the operation of said motor vehicle while so rented or leased, to the same extent as the operator would have been liable if he had also been the owner, pursuant to §14-154a of the Connecticut General Statutes.

--OR--

At all times mentioned herein, said (name of operator) vehicle was leased by the defendant (name), who is liable pursuant to §14-154a of the General Statutes.

(Statutes on next page)

FAMILY CAR DOCTRINE

§52-182 of the General Statutes provides that

PRESUMPTION THAT OPERATOR IS AGENT OF OWNER

§52-183 of the General Statutes provides:

LESSOR OF AUTOMOBILE STATUTE

§14-154A of the General Statutes provides:

See Pedevillano v. Bryon, 231 Conn. 265 (1994).

NOTICES

Several forms of notices, required by various statutes, are reproduced throughout these materials. A summary of statutory notice requirements are as follows:

OWNERSHIP OR CONTROL IN PREMISES LIABILITY CASES

At all times mentioned herein, said property and (here state location of plaintiff’s injury -- such as, rear outside stairway or stairs, etc.) were owned, controlled, possessed, managed, and/or maintained by the defendant (corporation).

Injury paragraph:

#. As a result of the negligence and carelessness of the defendant, the plaintiff received and suffered from (insert injuries sustained here). The plaintiff also received a severe shock to his/her nervous system. From all of the aforesaid injuries, or the effects thereof, the plaintiff has suffered and will suffer great pain, mental anguish, (add emotional distress here if applicable) some of which injuries, or the effects thereof, are or are likely to be permanent, (including permanent scarring)(from surgery).

___________________

The practice in the past was to use non-technical everyday language. Since complaints do not have to go to the jury now, specific medical conditions straight from the medical reports can be used and frequently are.

The allegations should be the part of the body injured. It is unnecessary to allege symptoms, although this is frequently done as well. For example:

can be sufficiently alleged by:

Loss of earning capacity and medical expenses, various paragraphs

Single individual

The plaintiff has incurred and will incur expenses for hospitalization, medical and surgical care and attention, medicine, x-rays, household help, etc., and has been and will be unable to perform her occupational and household duties as she did prior to said occurrence, and her earning capacity has been and will be impaired, all of which has and will cause her loss and damage.

Child and there is no lasting injury

The plaintiff was rendered sore and disabled and has been and will be unable to be up and around and to attend school as she did prior to said occurrence, all of which has caused and will cause her loss and damage. (If serious injury is involved, include allegation of future loss of earning capacity).

Housewife not otherwise employed

The plaintiff was rendered sore and disabled and has been and will be unable to perform the duties of her household as she did prior to said occurrence, all of which has and will cause her loss and damage.

Housewife and employed

The plaintiff was rendered sore and disabled and has been and will be unable to perform the duties of her household and occupation as she did prior to said occurrence, and her earning capacity has been and will be impaired, all of which has and will cause her loss and damage.

Plaintiff is collecting for spouse’s or minor child’s damages

The plaintiff, on behalf of his (son/daughter/wife/husband), has incurred and will incur expenses for hospitalization, medical and surgical care and attention, medicine, x-rays, household help, etc., all of which has and will cause him loss and damage.

Property damage -- auto

The plaintiff’s automobile was considerably damaged, he

lost the use of same, and said automobile has depreciated in

value, causing him loss and damage.

Loss of consortium, various paragraphs

#. As a result of injuries sustained to her husband as alleged in the First Count, the plaintiff wife has been curtailed from knowing the normal aspects of married life and companionship with her husband, and will be so curtailed for the rest of her natural life, thereby losing consortium of the plaintiff.

#. The plaintiff (name), wife of the plaintiff (name), has lost the consortium of her husband by reason of the injuries negligently inflicted upon her husband by the defendant in the accident of (date of accident), and she has suffered mental and emotional anguish, and has had to render care and attention to her husband by reason of the injuries sustained in the accident, which care and attention was unnecessary prior to said accident, all of which has caused and will cause her loss and damage.

#. The plaintiff (name), husband of the plaintiff (name), has lost the consortium of his wife by reason of the injuries negligently inflicted upon her by the defendant and he has suffered mental and emotional anguish, and has had to render care and assistance to his wife by reason of said injuries, and has had to curtail virtually all of his family leisure time activities, all of which has caused and will cause him loss and damage.

DEATH CASES - NECESSARY ALLEGATIONS

Example:

#. As a result of the negligence and carelessness of the defendants, plaintiff's decedent Mary Smith received and suffered from multiple injuries, including a severe crush injury to her right distal forearm and hand; a ruptured spleen, a fractured pelvis, had retroperitoneal hematoma, a fractured femur, profound shock and multiple system organ failure. The decedent also sustained excessive blood loss. From all of the aforesaid injuries she suffered great pain and mental anguish, and from which she died on October 25, 1991.

#. As a further result of the negligence and carelessness of the defendants, the capacity of the plaintiff's decedent to continue her education, to engage in an occupation, to earn wages, and to enjoy and carry out all of life's activities was permanently destroyed.

#. The plaintiff, Arthur Smith, has incurred expenses for the hospitalization, emergency medical care and attention, and for the funeral and burial of his decedent and wife, Mary Smith.

#. The plaintiff, Arthur Smith, has been appointed administrator of the estate of his wife, Mary Smith, by the Probate Court for the District of New Haven, and said plaintiff has qualified as such and continues to act as such.

§31-293 of the General Statutes provides in part:

The statute is largely ignored, probably for two reasons:

In any event, there is no case construing this section of the statute as merely "directory." The statute uses the word "shall" and counsel should be guided accordingly.

After verdict it is essential for plaintiff to obtain the information required by the statute so the court can determine the intervening plaintiff’s interest in the plaintiff’s judgment.

Incorporation of allegations into later counts

SECOND COUNT

1. All of the allegations of the First Count of this complaint are hereby made part hereof as if fully set forth herein.

-- OR --

2. Paragraphs ____, ____, ____, and ____ of the ______ Count

of this complaint, etc.

Final paragraph of complaint

Hereof fail not but of this writ with your doings thereon endorsed, make due service and return according to law.

Dated at New Haven, Connecticut this _______ day of _________________, 19__.

_________________________________

WILLIAM F. GALLAGHER

Commissioner of the Superior Court

B. STANDARD ALLEGATIONS IN BASIC CAUSES OF ACTION

City Cases

(a) Notice: city case under §7-465 33

(b) Notice: city case under §13a-149 34

(c) Notice: city case under §7-308 35

(d) Allegations to be used in cases against city

or town 36

(e) Defective highway cases 37

(f) Allegations in a §7-465 action against a

municipality 38

NOTICE: CITY CASE UNDER 7-465

TO: CITY OF MILFORD

Town Clerk

River Street

Milford, CT 06460

Dear Sir:

In accordance with §7-465 of the General Statutes, as amended, notice of intention to commence an action based upon the following claim is hereby filed:

Person Injured: John Jones, 466 Washington Avenue, West Haven, Connecticut.

Date and Time: October 12, 1995 at 12:46 a.m.

Place: New Haven Avenue, Milford,

Connecticut.

Description of Occurrence

And Causing Giving Rise to

Dated at New Haven, Connecticut this 6th day of April, 1996.

______________________________

WILLIAM F. GALLAGHER

Attorney for John Jones

NOTICE: CITY CASE UNDER 13a-149

TO: CITY CLERK

City of New Haven

200 Orange Street

New Haven, CT 06510

Dear Sir:

In accordance with §13a-149 of the General Statutes, as amended, notice is given of personal injuries and property damage sustained as a result of an accident, as follows:

Person Injured: Dorothy Smith, 510 Winchester Avenue, New Haven, Connecticut.

Date and Time: August 26, 1989 at 12:45 p.m.

Description of Occurrence

And Causing Giving Rise to

Dated at New Haven, Connecticut this 25th day of September, 1989.

______________________________

WILLIAM F. GALLAGHER

Attorney for Dorothy Smith

NOTICE: CITY CASE UNDER 7-308

TO: TOWN CLERK Earl Boyd

Town of Clinton 150 West main Street

Town Hall Clinton, CT 06413

Clinton, CT 06413

Dear Sir:

In accordance with §7-308 of the General Statutes, as amended, notice of intention to commence an action based upon the following claim is hereby filed:

Person Injured: Laura Jones, 48 Greenhill Road, Killingworth, Connecticut.

Date and Time: December 8, 1990 at 7:27 a.m.

Description of Occurrence

And Causing Giving Rise to

Dated at New Haven, Connecticut this 3rd day of May 1991.

______________________________

WILLIAM F. GALLAGHER

Attorney for Laura Jones

ALLEGATIONS TO BE USED IN CASES AGAINST A CITY OR TOWN

Negligence paragraph: (Defective highway cases, not in §7-465 cases)*

Said occurrence was due to the breach or violation by the defendant (city) of its statutory duty to use reasonable care to keep its highways or streets reasonably safe for public use and travel, in one or more of the following ways:

Injury paragraph: (Defective highway cases, not in §7-465 cases)*

Solely as a result of the violation of the statutory duty of the defendant (city), the plaintiff received and suffered ... ETC.

Notice to city:

In accordance with the statutes of the State of Connecticut in such case made and provided, the defendant city was duly notified of the aforesaid occurrence within ninety (90) days of said occurrence.

___________________________

NOTE: In defective highway cases be sure to put the injured person in for the bills himself, even though a minor or a wife, as there is authority that the statute gives one cause of action only, and that is to the person injured. See Lounsbury v. Bridgeport, 66 Conn. 360 (1895).

ALLEGATIONS FOR A DEFECTIVE OR ICY SIDEWALK TO BE USED AGAINST THE CITY

NOTE: The following paragraph should follow the allegations of negligence in these cases:

ALLEGATIONS IN A §7-465 ACTION AGAINST A MUNICIPALITY

The First Count should set out the cause of action against the town employee. The Second Count should read as follows:

SECOND COUNT: (As To Defendant Town of North Branford)

1. All of the allegations of the First Count are hereby made part hereof as if fully set forth herein.

2. On April 10, 1997, and for a long time prior thereto, the defendant Town of North Branford was and is a municipal corporation existing under the laws of the State of Connecticut.

3. The defendant David Jones, an employee of the defendant Town of North Branford at said time, was acting in the performance of his duties and within the scope of his employment, and said occurrence alleged in the First Count was not the result of any willful or wanton act of said defendant David Jones.

4. Pursuant to §7-465 of the Connecticut General Statutes, notice was given to the Town Clerk for the Town of North Branford on June 10, 1997 of the plaintiff’s intention to commence this action, a copy of which notice is attached hereto and marked Exhibit A.

5. Pursuant to §7-465 of the Connecticut General Statutes, the plaintiff claims indemnity from the defendant Town of North Branford for the carelessness and negligence of the defendant employee.

COMMON CARRIER

First paragraph of a writ involving Connecticut Transit, Greyhound, or a

similar common carrier:

1. On or about (date), the defendant company was a common carrier of passengers for hire, operating buses in New Haven and New Haven County.

Allegations of negligence against operator of a bus:

______________________________

* This paragraph should also be asserted against the bus company if the condition is due to disrepair. If this is the case, you should also add a paragraph alleging knowledge.

DOG BITE §22-357 of General Statutes (governed by 3 year tort statute of limitations)

Example --

1. On or about May 28, 1997, the plaintiff, a child of tender years, was on Willowbrook Road in Cromwell, Connecticut, when a large dog attacked and severely bit her.

2. At said time, and for some time prior thereto, said dog was owned or kept by the defendant Alexander Smith and/or the defendant Grace Smith.

3. At said time, the plaintiff child was not engaged in the commission of a trespass or other tort and was not teasing, tormenting, or abusing said dog.

4. As a result of the conduct of the defendant’s dog, the plaintiff received and suffered from ... ETC.

DRAM SHOP

§30-102 of the General Statutes.

One year statute of limitations.

Statutory cap of 20/50 per accident.

60 day notice requirement.

1. On February 12, 1990, the plaintiff’s decedent, Francis Smith, was traveling northbound in an automobile on Saybrook Road in the City of Middletown, when he pulled over and parked on the east side of said Saybrook Road to fix a flat tire on said automobile.

2. At said time and place, one William Jones was operating an automobile southbound on said Saybrook Road, when he lost control of said automobile and crossed over the northbound portion of Saybrook Road, striking the decedent and his automobile.

3. On February 12, 1990, prior to the accident stated in paragraph 2 hereof, and in the late evening hours of February 11, 1990, the said William Jones, while he was a customer or patron of a restaurant or cafe in Middletown called Pete’s Pub, located at 731 Saybrook Road, was sold alcoholic liquor or beverages while he was intoxicated.

4. On said dates, the defendant Par, Inc., was the owner and backer of the said Pete’s Pub, and the defendant Lucian White, was the permittee thereof, and the said William Jones while intoxicated as aforesaid, was sold alcoholic liquor or beverages by said defendants, or by their agents, servants or employees.

5. The accident above stated, and the injuries, death, and losses hereinafter stated, were in consequence of the intoxication of the said William Jones, and the plaintiff seeks to recover damages for said injuries, death, and losses pursuant to §30-102 of the Connecticut General Statutes.

6. Written notice as required by said statute was given to the defendants within sixty (60) days of the occurrence thereof.

7. As a result of the accident, the plaintiff’s decedent, Francis Smith, received and suffered from ... ETC.

NOTICE IN DRAM SHOP ACTION

Notice Pursuant to §30-102

TO: The 2nd Level Restaurant, 977 Broad Street, Meriden, CT 06450

The 2nd Level Restaurant, Inc., 977 Broad Street, Meriden, CT 06450,

backer of The 2nd Level Restaurant, 977 Broad Street, Meriden

CT; and

David Orsini, 16 Atkins Street, Meriden, CT 06450, permittee of

The 2nd Level Restaurant, 977 Broad Street, Meriden, CT.

Pursuant to the provisions of §30-102 of the Connecticut General Statutes, notice of intention to bring an actin under §30-102 is hereby given to you as follows:

1. Aggrieved and injured person giving this notice: Edward Smith, administrator of the Estate of Francis Smith, 79 Beach Road, Middletown, CT 06457, asserting a claim by reason of injuries and death to his son and decedent Francis Smith.

2. Date, time and person to whom sale of alcoholic beverages was made: William Jones of 128 Knox Avenue, Middletown, CT, was sold alcoholic beverages while intoxicated on the evening of February 11, 1990 and the early morning hours of February 12, 1990, specifically from 9:00 p.m. on February 11 to shortly before 3:00 a.m. on February 12, 1990.

3. Nature of claim: Damages for property damage is asserted in connection with the total destruction of the vehicle owned by the decedent Francis Smith, a 1968 Chevrolet Impala.

Damages for personal injuries and death are also asserted. The personal injuries consisted of fractures of the skull with lacerations of the brain, fractures of the cervical and thoracic spine, and other fractures and internal injuries, directly causing Francis Smith’s death.

4. Date, time and place where personal injuries and property damage occurred: On February 12, 1990, at approximately 2:54 a.m., on Saybrook Road, Middletown, the decedent was standing outside of his 1968 Chevrolet motor vehicle, which was parked facing a northerly direction off the east side of Saybrook Road. A vehicle operated by William Jones was proceeding southerly on Saybrook Road, and swerved onto the wrong side of the road and struck the decedent and his motor vehicle, causing the property damage and injuries and death herein alleged.

5. General summary of facts giving rise to claim: Alcoholic beverages were sold to William Jones while said Jones was intoxicated, and the said Jones in consequence of said intoxication thereafter was in the automobile accident described above at approximately 2:54 a.m. on February 12, 1990, on Saybrook Road, Middletown. Francis Smith sustained the personal injuries directly causing his death as stated above. It is the intention of Edward Smith, administrator of the estate of Francis Smith, to initiate suit under §30-102 of the Connecticut General Statutes as a result of this occurrence.

_______________________________

Edward Smith, Administrator of

the Estate of Francis Smith,

Aggrieved and Injured Person

By:

_______________________________

William F. Gallagher

His Attorney

Dated at New Haven, Connecticut this 26th day of March, 1990.

MEDICAL MALPRACTICE CASES

Defendant

1. Physicians in a residency program, physician-assistants, nurses, and technicians are generally considered employees of the hospital. For insurance coverage purposes, the hospital is the defendant in such cases.

2. If the physician is a member of a group, the entire group as well as the individual physician should be named as a defendant.

3. Smaller hospitals, nursing care facilities, and rehabilitation facilities sometimes have contractual relationships with physicians or groups of physicians. This must be investigated in order to know who the defendants are and how the allegations should be made.

Allegations of negligence - experts

C.G.S. §52-184c(a) provides:

A Connecticut physician is required by law to exercise that degree of skill, care and diligence which is customarily demonstrated by doctors in the same line of practice. Pisel v. Stamford Hospital, 180 Conn. 314, 334-335 (1980). Whether a doctor’s conduct was sufficiently diligent, or whether such conduct was unskillful and negligent, presents questions of fact for a jury to decide. Snyder v. Pantaleo, 143 Conn. 290 (1956). Deviation from the standard of care is proved through expert witnesses whose testimony is offered by the plaintiff at trial. See, e.g., Shelnitz v. Greenberg, 200 Conn. 58 (1986).

The allegations of negligence in a medical malpractice case must be based on the opinion of an expert witness. Generally speaking, it is the better practice to obtain your opinion regarding deviations from the standard of care from the expert witness that you intend to use at trial before drafting your complaint.

The plaintiff in a medical malpractice action must allege and prove a causal connection between the deviation from a standard of care and the claimed injury. Hammer v. Mount Sinai Hospital, 25 Conn. App. 702, 717 (1991); Pisel v. Stamford Hospital, 180 Conn. 314, 334 (1980). Expert opinion is necessary to establish causation in a malpractice action, and that opinion "must rest upon more than surmise or conjecture." Hammer v. Mount Sinai Hospital, supra at 718; Shelnitz v. Greenberg, supra at 66. It is necessary to obtain your expert’s opinion with respect to the causation issue in order to make the appropriate allegations in the complaint.

MEDICAL MALPRACTICE

Sample complaint --

Failure to administer blood and to replace lost blood volume;

Extension of statute of limitations pursuant to §52-190a(b);

Good faith certificate

COMPLAINT

FIRST COUNT: (Michael Jones, Administrator of the Estate of Mary Jones)

1. On or about October 25, 1991, the plaintiff's decedent was brought by ambulance to the emergency room of the defendant hospital, suffering from non-fatal injuries and shock as a result of a motor vehicle accident.

2. At time and place, the defendant hospital, acting through it agents, servants, or employees, proceeded to treat the plaintiff's decedent in the trauma room of the emergency department of said hospital.

3. On or about October 25, 1991, at approximately 3:04 a.m., the plaintiff's decedent died.

4. The death of the plaintiff's decedent was caused by the negligence and carelessness of the defendant hospital, acting through its agents, servants, and/or employees in one or more of the following ways:

5. As a result of the defendant's failure to provide the plaintiff's decedent with sufficient fluids and blood to replace her lost blood volume and its failure to begin surgery in a timely fashion, the plaintiff's decedent died on the operating table from a cardiopulmonary arrest secondary to profound refractory hypovolemic shock and multiple system organ failure.

6. As a result of the negligence of the defendant, its agent, servants and employees, plaintiff's decedent suffered great pain and mental anguish prior to her death. As a further result of said conduct, the plaintiff's decedent's capacity to continue her education, engage in an occupation, to earn wages, and to enjoy and carry out all of life's activities was permanently destroyed.

7. The plaintiff, Michael Jones, has incurred expenses for the funeral and burial of his decedent and wife, Mary Jones.

8. The plaintiff, Michael Jones, has been appointed administrator of the estate of his wife, Mary Jones, by the probate court for the District of New Haven, and said plaintiff has qualified as such and continues to act as such.

9. On October 21, 1993 the plaintiff, individually and as administrator of the Estate of Mary Jones, applied for and was granted a 90 day extension of the statute of limitations as authorized by Section 52-190a(b) of the General Statutes, a copy of which application and order is annexed hereto as Exhibit A.

10. Plaintiff attaches the Good Faith Certificate required by said statute as Exhibit B.

SECOND COUNT: (Michael Jones, individually)

1. Paragraphs one through six of the First Count are hereby made part of the Second Count as if fully set forth herein.

7. As a result of the death of his wife Mary Jones, as alleged in the First Count hereof, the plaintiff suffered the loss of the society, affection, moral support, services, companionship and sexual relations with his wife.

WHEREFORE, the plaintiff claims money damages within the jurisdiction of the Superior Court.

Hereof fail not but of this writ with your doings thereon, make due service and return according to law.

Dated at New Haven, Connecticut this ____ day of ______________.

______________________________

WILLIAM F. GALLAGHER

Gallagher, Gallagher & Calistro

Attorneys for the Plaintiff

AD DAMNUM

WHEREFORE, the plaintiff Michael Jones, Administrator of the Estate of Mary Jones, claims money damages in an amount in excess of $15,000.00.

Further, the plaintiff Michael Jones, individually, claims money damages in an amount in excess of $15,000.00.

______________________________

WILLIAM F. GALLAGHER

Commissioner of the Superior Court

RETURN DATE: : SUPERIOR COURT

MICHAEL JONES, ADMINISTRATOR

OF THE ESTATE OF MARY JONES

AND MICHAEL JONES, INDIVIDUALLY : J.D. OF NEW HAVEN

VS. : AT NEW HAVEN

HOSPITAL :

CERTIFICATE OF GOOD FAITH

This is to certify that upon reasonable inquiry I have ascertained that there are grounds for a good faith belief that there has been negligence in the care and treatment of the deceased, Mary Jones, and that grounds exist for the cause of action asserted against Hospital in the complaint dated _________________.

____________________________________

WILLIAM F. GALLAGHER

Commissioner of the Superior Court

MOTOR VEHICLE: COMMON LAW AND STATUTORY

SPECIFICATIONS OF NEGLIGENCE*

#. Said occurrence was due to the negligence and carelessness of the defendant in one or more of the following ways:

MOTOR VEHICLE VIOLATION ALLEGATIONS

RULES OF THE ROAD

NUISANCE COUNT: DEFECTIVE STAIRS AS PRIVATE NUISANCE

1. All of the allegations of the First and Second Counts of this complaint are hereby made a part hereof as if fully set forth herein.

2. Said defective, unrepaired, unsafe, and highly imminently dangerous condition of said stairway or stairs, and the maintenance by the defendant of said condition was a nuisance or in the nature of a nuisance, which the defendant created, permitted, continued and/or maintained, all of which the defendant knew, or in the exercise of due care or reasonable diligence, should have known or foreseen and guarded against; and the defendant failed to abate, remedy, or guard against injury from the same to the plaintiff, and others lawfully using said premises.

3. Said occurrence and the injuries received by the plaintiff were due to the acts or omissions of the defendant, as stated aforesaid.

NUISANCE COUNT: DEFECTIVE CONDITION ON PRIVATE

1. All of the allegations of the First Count are hereby made a part hereof as if fully set forth herein.

2. The aforesaid condition of said drain pipe or leader pipe of said property and the allowance and causing of water from the roof of said property to run across the public sidewalk in front of said property and the maintenance by the defendant of the property in the aforesaid defective condition was a nuisance or in the nature of a nuisance which the defendant created, permitted, continued and/or maintained, all of which the defendant knew or in the exercise of due care should have known or foreseen or guarded against and the defendant failed to abate, remedy, or guard against injuries from the same to the plaintiff and others lawfully using said public sidewalk.

3. Said occurrence and the injuries and damages received by the plaintiff were due to the acts or omissions of the defendant as stated aforesaid.

PREMISES LIABILITY CASES    

(a) Fall-down: treads and risers on stairs 61

(b) Fall-down: handrails and lighting on stairs 62

(c) Fall-down: foreign substance and debris on

stairs 63

(d) Fall-down: foreign substance 64

(e) Fall-down: Foreign substance (patron in store,

invitee) 65

(f) Fall from defective staging 66

Fall-down: treads & risers on stairs

Following these allegations, the paragraph set forth below is always used in defective premises cases:

Fall-down: handrails & lighting on stairs

Following these allegations, the paragraph set forth below is always used in defective premises cases:

Fall-down: foreign substance and debris on stairs

Example --

1. On or about December 12, 1996, the plaintiff was a patron in the defendant store located at 845 Main Street, Hartford, and while walking down the rear stairway or stairs from the second to the first floor, was caused to fall.

2. At all times mentioned herein, said property and rear stairway or stairs were owned, controlled, possessed, managed and/or maintained by the defendant corporation.

3. Said occurrence was due to the negligence and carelessness of the defendant corporation, its servants, agents or employees, in one or more of the following ways:

Following these allegations, the paragraph set forth below is always used in defective premises cases:

Fall-down: foreign substance

Example --

1. On or about November 4, 1995, the plaintiff was a patron in the defendant cafeteria, located at 90 State Street, New Haven, Connecticut, and while walking in said cafeteria was caused to slip and fall on mashed potatoes.

2. At all times mentioned herein, said property and cafeteria were owned, controlled, possessed, managed and/or maintained by the defendant corporation.

3. Said occurrence was due to the negligence and carelessness of the defendant corporation, its servants, agents, or employees, in one or more of the following ways:

Following these allegations, the paragraph set forth below is always used in defective premises cases:

Fall-down: foreign substance (patron in store, invitee)

Example --

1. On or about October 21, 1995, the plaintiff was a patron in the defendant store located at 280 Windsor Avenue, East Haven, and while walking along the aisle near the vegetable counter, was caused to fall.

2. At all times mentioned herein, said property and aisle and vegetable counter were owned, controlled, possessed, managed, and/or maintained by the defendant corporation.

3. Said occurrence was due to the negligence and carelessness of the defendant corporation, its servants, agents, or employees, in one or more of the following ways:

Following these allegations, the paragraph set forth below is always used in defective premises cases:

Fall-down: fall from defective staging

Example ---

#. Said occurrence was due to the negligence or carelessness of the defendants, their agents, servants or employees, in one or more of the following ways:

Following these allegations, the paragraph set forth below is always used in defective premises cases:

(Allegations based on §402A of Restatement. Connecticut has statutory cause of action, incorporating negligence, warranty and 402A strict tort liability theories. See 52-572m (P.A. 79-483).

Example --

#. The aforesaid bottle of soda was manufactured, distributed, and sold to the Guilford Food Center by the defendant Cott Corporation, which was engaged then in the business of selling said product.

#. The explosion of the bottle of soda stated above was caused by the defective and unreasonably dangerous condition of said product, in one or more of the following ways:

#. Said defect or the seeds thereof existed when said product was put into the stream of commerce by said defendant Cott Corporation.

#. The aforesaid bottle of Cott soda was expected to and did reach the plaintiff as a foreseeable user of the product without substantial change in the condition in which it was sold

#. As a result of the defective and unreasonably dangerous condition of the defendant’s product, the plaintiff received and suffered ... ETC.

SAMPLE PRODUCT LIABILITY COMPLAINT

Injury due to razor-sharp component of gas grill

1. At all times mentioned herein, the defendant, Halsey Taylor Structo, Inc., was engaged in the business of manufacturing, supplying, and/or selling outdoor gas cooking grills, with the expectation that this product would be shipped, purchased, and used in Connecticut, and the product was in fact so shipped, purchased, and used.

2. At all times mentioned herein, the defendant, Bradlees, Inc., was engaged in the business of supplying and/or selling at retail the aforesaid outdoor gas cooking grills, with the expectation that the product would be shipped, purchased, and used in Connecticut, and the product was in fact so shipped, purchased, and used.

3. On or about June 27, 1995, the plaintiff purchased one of the aforesaid grills from the defendant Bradlees.

4. On or about June 28, 1995, the plaintiff, after assembling said gas grill, was in the process of moving the aforesaid grill onto the sun deck or porch of his house with the assistance of his son, when a brace arm on said grill severely lacerated his left forearm.

5. Although said grill was expected to, and did, reach the plaintiff requiring some assembly, the plaintiff assembled said grill in accordance with the written instructions which accompanied the grill and which were provided by the defendants.

6. Aside from requiring the aforementioned assembly, the component parts of said grill were expected to, and did, reach the plaintiff without substantial change in the condition in which they were sold.

7. At all times mentioned herein, said grill was used and employed by the plaintiff for the purpose for which it had been designed, produced, manufactured, tested, and sold; and was used in a manner intended and foreseeable to the defendants.

8. The defendants are legally responsible to the plaintiff for his personal injuries and losses as a result of the defective and unreasonably dangerous brace arm of said gas grill pursuant to Connecticut General Statutes, §§52-572m et seq. in one or more of the following ways:

9. Said defect in the brace arm of said gas grill existed when said product was put into the stream of commerce by said defendants.

10. As a result of the defendants' breach of the Connecticut Products Liability Statute as hereinabove alleged, the plaintiff received and suffered from a severe laceration of his left forearm, including lacerations of the superficial radial sensory nerve and brachial radialis tendon. The plaintiff also received a severe shock to his nervous system. From all of the aforesaid injuries, or the effects thereof, the plaintiff has suffered pain, mental anguish, and from nervousness, some of which injuries, or the effects thereof, are, or are likely to be, permanent, including permanent scarring.

11. The plaintiff has incurred and will incur expenses for medical and surgical care and attention, hospitalization, x-rays, etc., and has been and will be unable to perform his occupational duties as he did prior to said occurrence, and his earning capacity has been and will be impaired, all of which has caused him and will cause him loss and damage.

WHEREFORE, the plaintiff claims:

1. Money damages;

2. Attorney's fees, pursuant to Connecticut General Statutes, §52-240a;

3. Punitive damages, pursuant to Connecticut General Statutes, §52-240b; and

4. Such other relief as the court deems proper.

Hereof fail not but of this writ with your doings thereon, make due service and return according to law.

Dated at New Haven, Connecticut this 8th day of September, 1996.

______________________________

WILLIAM F. GALLAGHER

Gallagher, Gallagher & Calistro

Attorneys for the Plaintiff

AD DAMNUM

WHEREFORE, the plaintiff claims money damages in an amount in excess of $15,000.00.

______________________________

WILLIAM F. GALLAGHER

Commissioner of the Superior Court

PUNITIVE DAMAGES IN MOTOR VEHICLE CASES §14-295 (amended by P.A. 88-229)

Connecticut has long had a punitive damage statute for motor vehicle cases. The statute provided that the court could double or treble damages for certain motor vehicle violations. This was held unconstitutional in Bishop v. Kelly, 206 Conn. 608 (1988).

The new statute reads as follows:

The statutes mentioned in §14-295 are as follows:

The new statute makes several changes. It provides that the trier of fact -- the jury -- decides whether to double or treble damages. It also sets out the statutes that have to be violated to implicate §14-295, and provides, contrary to prior practice, that the plaintiff specifically plead that the defendant had deliberately or with reckless disregard operated a motor vehicle in violation of the sections itemized in the statute.

Do not allege in the complaint that the defendant deliberately operated his vehicle in violation of these statutes, as this may jeopardize insurance coverage. There is good authority that reckless disregard is still negligence, and is distinguishable from reckless and wanton misconduct, which is a separate and distinct cause of action. The allegations, in other words, should use the precise words of the statute -- "reckless disregard" -- and not reckless and wanton misconduct and not deliberate or intentional misconduct.

Superior Court decisions are split as to whether a claim under §14-295 must be plead with the specificity of a common law recklessness claim. See Meiliken v. Romano, Superior Court, Judicial District of Stamford-Norwalk at Stamford, docket no. 131303 (April 28, 1994, Lewis, J.)(plaintiffs must allege specific reckless acts or conduct); Spencer v. King, Superior Court, Judicial District of Middlesex, docket no. 69530 (September 16, 1993, Higgins, J.)(§14-295 requires only that a plaintiff plead that defendant violated certain statutes with reckless disregard). Accord: Solarzano v. Wilson, Superior Court, Judicial District of New Haven, docket no. 356885 (November 10, 1994, Zoarski, J.); Murdock v. Milano, Superior Court, Judicial District of New Haven, docket no. 386933 (August 13, 1996, Zoarski, J.).

The statute requires the allegation that the violation of the motor vehicle statute occurred with reckless disregard. This is

RECKLESS AND WANTON MISCONDUCT

#. Said occurrence was due to the reckless and wanton misconduct of the defendants in one or more of the following

ways:

(a) ETC.

NOTE: If the tort of reckless and wanton misconduct is to be

asserted, it should be done so in a separate count. It should

not be intermingled in the negligence count. If this count is

used, and there is insurance, avoid the use of the term

"willful." Exemplary damages may be claimed.

RES IPSA LOQUITUR

This can follow the specifications of negligence, but the better

practice is to put it in a separate count:

#. At all times mentioned herein, the user, control and inspection of said metal fabric stand or holder were in the defendant corporation, its servants, agents or employees.

#. Said occurrence was due to no voluntary act on the part of the plaintiff.

#. The defendant knew, or had it exercised due care or proper diligence, should have known, of the aforesaid conditions.

To be followed by injury paragraph.

C. CLASS ACTIONS AND PRODUCTS LIABILITY

NOTES ON CLASS ACTION COMPLAINTS

1. There is an "official" Practice Book form 106.12-A (class action - complaint) cited in the pocket part to Connecticut Practice Book Annotated (West), Vol. 1, but apparently not yet released.

2. Form 106.12 (motion for certification as class action). Order should include "notice" for court to approve. (See form of notice in Braithwaite v. Town of Wallingford, which follows this section).

3. Two overlapping sources of authority for class actions: P.B. §§87 and 88 and C.G.S. §42-110a et seq. (CUTPA).

4. Steven C. Crowley, et al v. The Banking Center, 6 Conn. L. Rptr. 134 (1992)(Katz, J.) is a thoughtful, thorough analysis of Practice Book requirements for certification of class action. The six requirements analyzed are as follows:

OVERVIEW OF PRODUCTS LIABILITY PLEADINGS

Purpose of CPLA

Connecticut Products Liability Act (CPLA), §52-572m et seq. was intended to simplify pleading by creating uniform rules for the various types of actions it encompasses. But CPLA does not spell out elements of types of claims it consolidates, so common-law requirements of each theory of recovery must be plead. E.I. DuPont DeNemours & Co., Inc., 41 F.3d 846, CA2 (Conn.) (1994). Existing causes of action have been "recasted;" the "intent" of legislature was to eliminate complex pleading provided at common law. Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 627 A.2d 1288 (1993).

Exclusivity of CPLA remedy

C.G.S. §52-572n asserts product liability claims "shall be in lieu of all other claims against product sellers ...." Negligence, strict liability, warranty theories of recovery should be "recast" in one count. Though not specifically referenced by §52-572n, claims against a product seller based on "misrepresentation" should also be included in a single count. See §52-572m(b).

Product liability claims cannot be joined with any other cause of action, common law or statutory. Hoboken Wood Flooring Corp. v. Torrington Supply Co., Inc., 42 Conn. Supp. 153, 606 A.2d 1006 (1991); Elliot v. Sears, Roebuck & Co., 229 Conn. 500, 642 A.2d 709 (1994). Despite the language of the statute, a federal court has held that the CPLA does not preclude claims for misrepresentation under CUTPA. Utica Mut. Ins. Co. v. Denwat Corp., 778 F. Supp. 592 (D. Conn. 1991).

A spouse asserting a derivative claim of loss of consortium is a "claimant" under the CPLA, even though that spouse is not the product user, and an additional count setting forth his or her claim is proper. Lynn v. Haybuster, supra.

Claims within purview of CPLA

C.G.S. §52-572m(b) defines product liability claims comprehensively as "all claims 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." The claim may be brought against any "product seller," which includes manufacturers, wholesalers, distributors, or retailers, "whether the sale is for resale or for use or consumption." C.G.S. §52-572m.

A CPLA claim should assert, where appropriate, as a separate theory of recovery the seller’s failure to provide adequate warnings or instructions. C.G.S. §52-572q codifies "liability of product seller due to lack of adequate warnings or instructions," and requires the plaintiff to prove "that if adequate warnings or instructions had been provided, the claimant would not have suffered the harm." A specific allegation to this effect should be included in pleading this theory of recovery.

Transactions that may be deemed "services" rather than "sales" are not within the purview of the Act. Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399 (1987). Commercial losses caused by defective products are not within the purview of the Act. §52-572n(c); McKernan v. United Technologies Corp., Sikorsky Aircraft Div., 717 F. Supp. 60 (D. Conn. 1989).

Responsive pleading under CPLA

The "sophisticated user" defense to recovery based upon §52-572q cannot and should not be affirmatively pleaded. Sharp v. Wyatt, Inc., 31 Conn. App. 824 (1993). §52-572q has incorporated the concerns underlying the sophisticated user doctrine by putting issue of user awareness to the trier of fact along with other factors to be weighed in aggregate.

"Comparative negligence" is not a bar to recovery under the CPLA where "strict tort liability" has been alleged as one of the theories of recovery. "Comparative negligence" will reduce the claimant’s recovery, but even if claimant’s comparative responsibility exceeds 50%, the claimant is not barred from recovery. In effect, CPLA permits "pure comparative responsibility." Champagne v. Raybestos-Manhattan, 212 Conn. 509 (1989). Special defenses asserting contributory negligence as a "bar" should be stricken.

D. SAMPLE FORMS