Opinion
No. CV 05 4002893
October 4, 2006
MEMORANDUM OF DECISION MOTION TO STRIKE FIRST SPECIAL DEFENSE #132
I. Background
This action arises out of the injuries, losses and death sustained by the plaintiff's decedent, Richard Lamothe, who allegedly committed suicide on May 8, 2004, while under the medical care of the defendants. On December 20, 2005, the plaintiff, Bruce Lamothe, administrator of the estate of Richard Lamothe, filed a two-count amended complaint against the defendants, Midstate Medical Center (Midstate) and Richard Anderson, M.D. (Anderson).
Anderson filed an answer on October 14, 2005, which included two special defenses. Anderson's first special defense is based upon the principle of tort law that a defendant's liability is cut off by an unforeseeable, superseding cause. The court has previously heard the plaintiff's motion to strike Anderson's first special defense, which was granted for insufficient factual allegations in a decision dated April 10, 2006. Anderson has since filed an Amended Answer and Special Defenses, dated May 25, 2006, reasserting the same first special defense, but now alleging facts sufficient to overcome the plaintiff's original objection that was previously upheld by the court. The plaintiff now moves to strike the factually restated special defense, claiming first, that the sustained objection is the law of the case; second, that it is not a proper pleading; and third, that it is legally insufficient. The court agrees that the defendant's first special defense is legally insufficient. The plaintiff's motion to strike is therefore granted.
At that time, the court (Taylor, J.) declined to strike the first special defense based upon the plaintiff's additional claim that the foreseeability of the decedent's suicide should be a factual issue in determining proximate cause. The court will now address the proximate cause claim.
The law of the case argument was articulated in the plaintiff's motion to strike, dated July 21, 2006. The plaintiff's proper pleading and legal sufficiency arguments were articulated in the plaintiff's reply to the defendant's objection to the motion to strike, dated August 22, 2006.
B. Law Of The Case
The plaintiff's first objection to the defendant's first special defense is based upon the doctrine of the law of the case. "The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked . . . [I]t expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power . . . Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance." (Citations omitted.) Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982). See Nussbaum v. Kimberly Timbers, Ltd., 271 Conn. 65, 76, 856 A.2d 364 (2004).
The law of the case doctrine follows the general concept of finality. Permitting a party to repeatedly revisit the same or similar issues would result in undue delay of litigation and unnecessarily consume judicial resources. In this case, Anderson has alleged sufficient, additional facts in his restated first special defense. Therefore, having specifically addressed and adequately responded to the court's basis for striking the original special defense, the defendant's newly filed pleading should not be discarded by the court under the discretionary legal doctrine of the law of the case.
C. Proper Pleadings
The plaintiff next argues that Anderson's first special defense is improper because it is inconsistent with the provisions of the Practice Book section on special defenses, which provides that "[n]o facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged . . ." Practice Book § 10-50; see Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005); also see Louis Gherlone Excavating, Inc. v. McLean Construction Co., 88 Conn.App. 775, 781, 871 A.2d 1057, cert. granted on other grounds, 274 Conn. 909, 876 A.2d 1201 (2005) (appeal withdrawn, February 3, 2006).
"Generally speaking, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action . . . The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway. Whether facts must be specially pleaded [however] depends on the nature of those facts in relation to the contested issues." (Citations omitted; internal quotation marks omitted.) Almada v. Wausau Business Ins. Co., supra, 274 Conn. 456.
Here, the plaintiff alleges that the decedent's suicide was foreseeable and the defendant, in his special defense, makes an inconsistent factual allegation that it was, instead, unforeseeable. The plaintiff, therefore, argues that this special defense should be stricken because the pleadings contain inconsistent factual allegations regarding the foreseeability of the decedent's suicide and must instead be pleaded as a denial. Anderson counters that the rules of practice do not prohibit a special defense based upon inconsistent factual allegation. He further asserts that his special defense will highlight facts favorable to his case, even though he assumes a higher, affirmative duty to prove this contrary factual allegation by a preponderance of the evidence.
Practice Book § 10-50 does not specifically prohibit special defenses which allege inconsistent facts. Nonetheless, the plaintiff asks this court to interpret the language of this section to prohibit such a special defense and to, instead, require Anderson to file a denial. The plaintiff offers no authority to support this position other than the language of § 10-50 and Almada; however, neither specifically prohibits a special defense containing inconsistent facts. Instead, they simply require a special defense where consistent facts nonetheless result in a claim that there is no cause of action. If, under Almada, the fundamental purpose of a special defense is to apprise the parties of the issues to be presented at trial, Anderson's first special defense does not necessarily meet this goal, because a denial would sufficiently and more appropriately apprise the parties of a factual issue for trial.
Beyond the issue of fair notice of the claims for trial, pleading a special defense is also important to the admissibility of relevant evidence at trial. In Coughlin v. Anderson, 270 Conn. 487, 853 A.2d 460 (2004), the Supreme Court "recognized the difficulties that inhere in distinguishing between evidence that may be presented following a general denial and evidence that, because it is consistent with the allegations of a complaint but nevertheless tends to extinguish a cause of action, must have been specially pleaded as a defense in order to be admissible." Coughlin v. Anderson, supra, 270 Conn. 502. However, the question of admissibility of evidence related to the foreseeability of the decedent's suicide in this case, should not be a contested issue. The complaint and a general denial would be clearly sufficient to introduce a broad panorama of evidence related to the foreseeability and, its antithesis, the unforeseeability of Lamothe's suicide.
Although the purposes of pleading a special defense are not met by Anderson's first special defense in this case, this alone does not necessarily make it legally insufficient.
D. Legal Sufficiency
The plaintiff next claims that the motion to strike should be granted because the complaint is consistent with the theory of liability upheld in the case of Edwards v. Tardif, CT Page 18009 240 Conn. 610, 692 A.2d 1266 (1997). Anderson claims that the suicide was an unforeseeable, superseding cause of Lamothe's death. The plaintiff argues that, consistent with Edwards, the factual question of the foreseeability of Lamothe's suicide should be determined in this case by way of proximate cause analysis.
In Barry v. Quality Steel Products, Inc., 263 Conn. 424, 820 A.2d 258 (2003), on appeal after remand, 280 Conn. 1, 905 A.2d 55 (2006), our Supreme Court did indeed determine that the doctrine of superseding cause was to be abandoned in favor of a proximate cause analysis in some circumstances. In Barry, the court stated that "the rationale supporting the abandonment of the doctrine of superseding cause outweighs any of the doctrine's remaining usefulness in our modern system of torts . . . [W]e believe that the instruction on a superseding cause complicates what is essentially a proximate cause analysis and risks jury confusion. The doctrine also no longer serves a useful purpose in our tort jurisprudence, especially considering our system of comparative negligence and apportionment, where defendants are responsible solely for their proportionate share of the injury suffered by the plaintiff." Barry v. Quality Steel Products, Inc., supra, 263 Conn. 446.
However, the Barry court did not abolish the doctrine of superseding cause in all civil cases. In fact, the court specifically stated the contrary. "Our conclusion that the doctrine of superseding cause no longer serves a useful purpose is limited to the situation in cases . . . wherein a defendant claims that its tortious conduct is superseded by a subsequent negligent act or there are multiple acts of negligence. Our conclusion does not necessarily affect those cases where the defendant claims that an unforeseeable intentional tort, force of nature, or criminal event supersedes its tortious conduct." Barry v. Quality Steel Products, Inc., supra, 263 Conn. 439 n. 16. The applicability of superseding cause has, therefore, eroded in negligence cases generally since the enactment of tort reform, because we now use a new approach to proximate cause and apportionment in negligence cases.
In Sullivan v. Metro-North Commuter Railroad Co., 96 Conn.App. 741, 901 A.2d 1258 (2006), the Appellate Court upheld a superseding cause instruction to the jury under the exception to the holding in Barry. In Sullivan, the defendant filed a special defense of superseding cause where, under the facts of the case, the plaintiff had been shot and killed by a third party in a stairwell at the Metro-North railway station in Norwalk. However, in analyzing the application of Barry, it is important to note that the "third party," who shot and killed Sullivan, was not a party in the case and therefore the defendant did not seek to apportion liability. "Rather, it put forth as a special defense its theory that the criminal acts of a third party superseded any possible negligence on its part." Sullivan v. Metro-North Commuter Railroad Co., supra, 96 Conn.App. 755.
In the present case, similar to the case before the court in Sullivan, the foreseeability of the act was disputed by the parties. Yet this matter is distinguishable from Sullivan in that the intentional act of suicide was committed by Lamothe himself and was not a criminal act of a third, non-party. The question here, therefore, is whether this is a meaningful distinction in the context of a motion to strike the special defense of superseding cause.
A special defense generally permits a defendant to prove that, notwithstanding any negligence on their part, he or she should not be held liable as a matter of law. Toward this end, a defendant is permitted to allege facts, but only those facts consistent with the plaintiff's complaint. In this context, it makes some sense to allow a defendant to file a special defense of superseding cause, implicating a third party for an alleged criminal act or intentional tort. Allowing such a special defense in such cases may clarify the issue for a jury where a third party is alleged to have intervened and caused the injury to the plaintiff. Additionally, in some cases, this affords defendants the opportunity to introduce evidence relevant to the special defense that may not necessarily be relevant to the plaintiff's underlying complaint. This is especially likely in cases involving third, non-parties, such as in the case of Sullivan.
In Barry, the Supreme Court's reasoning for narrowing the application of the doctrine of superseding cause was shaped by the evolving law of negligence here in Connecticut and in other jurisdictions. The court recognized that the doctrine of superseding cause was a common-law response to ameliorate the harsh consequences of contributory negligence and joint and several liability. Barry v. Quality Steel Products, Inc., supra, 263 Conn. 440-41. Further, the proposed draft of the Third Restatement of Torts has similarly recognized the theoretical incongruity of the continued coexistence of the doctrine of superseding cause and tort reform, a form of which was enacted here in Connecticut in the mid-1980s. See General Statutes § 52-572h. The Third Restatement finds this incongruity to be especially evident where, as in this case, the superseding actor is claimed by Anderson to be the plaintiff and not a third party. Further, where a third party is alleged to have acted in a manner that supersedes the defendant's negligence, it is considerably different than a direct factual challenge to an element of the plaintiff's case that would negate the defendant's negligence, ab initio. This analysis militates toward the court's conclusion that Anderson's first special defense ought to be granted.
The court will note that the court in Barry was critical of the Second restatement's approach to the issue of intervening and superseding cause. The Third Restatement has changed its approach to this issue in light of the changes in the law of negligence, as follows. "Just as comparative responsibility has obviated the need for a number of legal rules designed to ameliorate the harshness of contributory negligence, and comparative contribution obviated the need for the active-passive rule permitting indemnity, rather than contribution, the advent of comparative principles has reduced the role for superseding cause." 3 Restatement, (Third) Torts, Intervening Acts And Superseding Causes, § 34, proposed draft, comment (c) p. 571.
"This is most evident when courts consider a plaintiff's conduct as an intervening act and possible superseding cause. At the time when contributory negligence barred a claim, it did not make much difference if the basis for the plaintiff's losing the case was proximate cause or contributory negligence. The former gave courts a bit more control over juries that might have been inclined to ameliorate the harshness of contributory negligence with a discounted verdict. But employing superseding cause to bar a plaintiff's recovery based on the plaintiff's conduct is difficult to reconcile with modern notions of comparative responsibility. Indeed, in most cases it constitutes negating the principles of comparative responsibility and returning to a regime of contributory negligence as a complete bar to recovery. There may be instances in which the plaintiff's intervening conduct produces harm that is different from the harms whose risks made the defendant's conduct tortious, but those cases are sufficiently infrequent that courts should be very cautious about invoking superseding cause based on a plaintiff's act to hold the harm outside the defendant's scope of liability." 3 Restatement, (Third) Torts, Intervening Acts And Superseding Causes, § 34, proposed draft, comment (c) p. 571.
III. Conclusion
Here, Anderson seeks to contest the foreseeability of the suicide. He does so in a special defense to highlight the issue for the jury. By this procedural choice, he knowingly assumes a higher burden to prove that the unforeseeability of the suicide was more likely than not; however, this theory is inconsistent with the plaintiff's duty to prove the foreseeability of that same act. In the context of this case, where the issue of foreseeability is contested and the intervening, unforeseeable act is not that of a third party, the appropriate legal practice should be a denial of that fact instead of a special defense. The reason for this is that a jury should clearly understand that it is the plaintiff's duty to prove foreseeability as an element of its case. It is paradoxical to suggest that, at the same time, the defendant has to prove the exact opposite as an element of his special defense. Such an approach may give rise to jury confusion, especially where no third-party actor is to be blamed, which might also involve different or additional facts.
If, for example, a jury is equipoised over the issue of foreseeability, the court's instruction would be to find for the defendant and not proceed to the consideration of the special defense. However, if the jury were to find the plaintiff has proven foreseeability, the instruction to the jury would require that they consider the defendant's proof of the opposite conclusion; namely, the unforeseeability of the plaintiff's suicide.
By striking Anderson's special defense, the court in no way prejudices his ability to present evidence that the suicide was unforeseeable. All relevant and probative evidence on the question of foreseeability should be admissible. Highlighting the issue in a special defense may be a trial tactic of some value to the defendant, but it is inconsistent with the evolving law of negligence in Connecticut. Additionally, it is inconsistent with the facts alleged in the complaint, and therefore inconsistent with the provisions of Practice Book § 10-50, and it is inconsistent with the court's duty to insure that its instructions to the jury are understandable and free from inconsistencies that may lead to jury confusion.
In Edwards v. Tardif, supra, 240 Conn. 610, the Supreme Court permitted a cause of action for the foreseeable suicide of a psychiatric patient. In Tardif the Court declined to follow the line of cases where the act of suicide was viewed as an intervening act that broke the chain of causation as a matter of law. Edwards v. Tardif, supra, 240 Conn. 615-18. Under the rejected line of cases prior to Tardif, a special defense of superseding cause may have been the appropriate pleading. However, since Tardif holds that a patient's suicide involves the factual question of foreseeability, the proper pleading under the facts of this case is a denial by the defendant.
The special defense of superseding cause is legally insufficient under the facts of this case and the plaintiff's motion to strike is therefore granted. The defendant may amend his pleading accordingly.