The Connecticut Supreme Court recently held that a defendant is entitled to assert, under a general denial, that the negligence of a non-party employer is the sole proximate cause of a plaintiff’s injuries. See Archambault v. Soneco et al, 287 Conn. 20 (decided May 20, 2008). In Archambault, the defendant appealed claiming that the trial court had improperly precluded evidence that the plaintiff’s employer was the proximate cause of the plaintiff’s injuries. At issue was the trial court’s holding that “the empty chair cannot be blamed unless the empty chair is a party of some sort,” thereby precluding evidence and argument concerning the employer’s negligence.
The first issue on appeal addressed by the Supreme Court was whether a defendant has the right under a general denial to introduce evidence that the negligence of another party was the sole proximate cause of the plaintiff’s injuries. See, e.g. Bernier v. National Fence Co., 176 Conn. 622 (1979) (holding that general denial permits party to negate causation elements of a plaintiff’s prima facie case). Our law permits a party to introduce affirmative evidence tending to establish a fact inconsistent with existence of the disputed facts by filing a denial. See Pawlinski v. Allstate, 165 Conn. 1, 6 (1973). The Archambault Court held, consistent with prior precedent, that a party may adduce evidence negating causation by way of a general denial.
The second issue addressed on appeal was whether a defendant has the right to introduce evidence that the negligence of the plaintiff’s employer, who is not party to the action, was the sole proximate cause of the plaintiff’s injuries. Generally speaking, an employer is generally immune from civil suit for injuries sustained by an employee arising out of and in the course of employment under the Workers’ Compensation Act. Rather, the employer’s liability is limited to statutorily defined workers’ compensation benefits. The employer is permitted to intervene in a third party action to recover those workers’ compensation benefits paid on behalf of the employee by virtue of an intervenor action. See Conn. Gen. Stat. §31-293; Durniak v. August Winter & Sons, 222 Conn. 775, 778 (1992). However, although the employer is joined as a plaintiff and entitled to recover damages from the defendant, the employer’s negligence is not a ground for limiting the employer’s recovery as intervenor. Id., 780. Accordingly, the employer cannot be impleaded for the purposes of apportioning liability. It is in this context that the issue of the “empty chair” was evaluated by the Supreme Court.
The defendant in Archambault was not seeking to curtail the employer’s recovery as intervenor but, rather, to raise claims concerning the employers role in producing the plaintiff/employee’s injuries. Accordingly, the Supreme Court held that a defendant is entitled to assert that the negligence of an employer is the sole proximate cause of the plaintiff’s injuries. The Court reasoned that a defendant is entitled to try to convince the jury that it did not cause the plaintiff’s injuries and someone else did. Further, if a defendant was precluded from introducing evidence concerning the employer’s conduct, a jury might be left to wonder whether anyone other than the defendant could have caused the injuries. See Dresser Industries, Inc. v. Lee, 880 S.W.2d 750 (Tex. 1993). If the employer’s actions are the sole proximate cause of the employee’s injuries and the defendant is not a proximate cause, the defendant should be entitled to argue and have the jury instructed accordingly. See Steele v. Encore Mfg. Co., 7 Neb. App. 1, 8 (1998).
A third issue addressed by the Court was whether principles of apportionment prevent a defendant from adducing evidence against a non-entity at trial. See Conn. Gen. Stat. §§ 52-572h and 52-102b. The plaintiff in Archambault claimed that if a defendant was permitted to present evidence under a general denial that a nonparty was the proximate cause of the plaintiff’s injuries, there would be no need for a defendant to comply with the apportionment statute. The Court distinguished between a sole proximate cause and comparative fault. The Court held that if a non-entity was less than the sole proximate cause of the claimed injury, the defendant would be compelled to file an apportionment complaint in order to share proportionately liability for plaintiff’s damages. If, however, the defendant claimed that the non-entity was the sole proximate cause for the claimed damages, a general denial would suffice.
The Archambault case may bear upon subsequent interpretation of the case of Amsden v. Fischer, 62 Conn. App. 323 (2001). In Amsden, the defendant sought to introduce evidence that a non-party was the cause of the plaintiff’s injuries. The defendant claimed on appeal that he was entitled to adduce evidence tending to negate causation. In Amsden, the defendant was claiming that the care provided by a subsequent treater, who was a non-party to the litigation, was the proximate cause of the plaintiff’s injuries. The Appellate Court, relying on the original tortfeasor rule, held that the negligence of a subsequent medical treater could not be introduced to negate the negligence claims against the original tortfeasor. See also, Wright v. Blakeslee, 102 Conn. 162, 167 (1925). Relying of the original tortfeasor rule as the principle grounds for upholding the verdict, the Amsden court was not compelled to determine whether a defendant could ever defend as to causation wherein a non-party’s conduct was implicated as the sole proximate cause.
The Amsden decision is important in that is emphasizes the importance to framing the issues relating to sole proximate cause rather than proportionate share of liability. The Amsden court, relying on Wasfi v. Chaddha, 218 Conn. 200, 216 (1991), held that in the absence of impleading a third party based upon a claim of negligence, a defendant may not attempt to prove a non-party is responsible for the plaintiff’s injuries. Wherein the negligence of two persons concurs to produce a single result, a plaintiff may sue one or both, and if a defendant believes that a non-party was responsible for some or all of the plaintiff’s injuries, it is his responsibility to implead that party. See Bradford v. Herzig, 33 Conn. App. 714, 714 (1994). The court reasoned that the principles of joint and several liability have been abolished in favor of apportionment and, therefore, would prevent a defendant from asserting comparative fault claims against a nonentity. Accordingly, the Amsden court drew its conclusion based upon comparative fault principles rather than on causation principles.
By comparison, the Court in Archambault, recognized that the Workers’ Compensation Act precluded an apportionment claim against the plaintiff’s employer. At trial, the defendant denied control of the worksite, claimed that the plaintiff’s employer was in exclusive control of the worksite at the time and location where the injury was sustained, the contract between the employer and the defendant delegate control to the employer, and the defendant’s pleadings denied causation for the plaintiff’s injuries. In essence, the defendant in Archambault was claiming that the employer was the sole proximate cause of the claimed damages to the exclusion of the defendant. Ultimately, Archambault was also decided on very fact specific grounds concerning the contractor agreement between the plaintiff’s employer and the defendant. This writer cautions that dissimilar results may occur under a different fact pattern.
Given the Supreme Court’s decision in Archambault, counsel must evaluate the its pleadings carefully wherein the liability of a nonparty may be implicated. Counsel should reasonably consider the filing of an apportionment complaint, impleading a nonparty for apportionment and contractual claims, and examining the issue of sole proximate cause even when the nonparty is the plaintiff’s employer. It is incumbent upon any attorney, claim representative and risk manager offering advice concerning whether or not to implead a third party to carefully consider the implications of Archambault and Amsden.