Opinion
No. CV 02-0821772 S
June 9, 2004
MEMORANDUM OF DECISION ON MOTION TO STRIKE APPORTIONMENT COMPLAINT
On December 6, 2002, plaintiff Donna E. Duby commenced this action against three defendants — Tunxis Management Co. ("Tunxis"), Elite Property Management, LLC ("Elite") and Rolling Greens Condominium Association, Inc. ("Rolling Greens") — to recover money damages for injuries and losses she claims to have suffered in a May 31, 2001 fall upon premises negligently maintained by the defendants in Rocky Hill, Connecticut. In her second amended Complaint dated February 25, 2003 ("Complaint"), the plaintiff claims, more particularly, that as a result of the defendants' negligence and her resulting fall, she suffered serious injuries to her left shoulder, left arm, head, teeth, neck and face and sustained several associated economic and noneconomic losses. Id., ¶ 10.
On March 19, 2003, the defendants responded to the plaintiff's Complaint by filing a joint Answer and Special Defense in which they denied all liability for her alleged fall, claimed insufficient knowledge to admit or deny her claims of resulting injuries and losses, and interposed the special defense of comparative negligence. The plaintiff promptly denied the defendants' special defense on March 21, 2003, thereby closing the pleadings between them.
Thereafter, however, on April 22, 2003, the defendants served an Apportionment Complaint upon one Debra L. Stock, a third party not claimed to have had anything to do with the fall here at issue or the premises upon which it allegedly occurred, to obtain the following relief:
1. A determination of the percentage of negligence proximately causing the alleged injuries and losses to the plaintiff in relation to 100%, that is attributable to the actions or inactions of the apportionment defendant, Debra L. Stock;
2. A determination of the proportionate share of damages that the parties are responsible [for], pursuant to General Statutes § 52-572h; [and]
3. Such other relief in law and equity as the court deems appropriate.
Apportionment Complaint, pp. 4-5. In support of this demand for relief, the defendants made the following allegations of fact:
3. If Donna Duby was injured or sustained damages for bodily injury due to the negligence of any party, it was due to her own negligence, and the negligence of the apportionment defendant, Debra L. Stock.
4. On June 22, 2002, the apportionment defendant Debra L. Stock[,] was operating a motor vehicle bearing Connecticut registration number 210PEG in a[n] easterly direction on West Side Market towards its intersection with Cromwell Avenue, in Rockville[,] Connecticut.
4. At about the same time, the plaintiff, Donna Duby, was operating a motor vehicle bearing Connecticut registration number 274PET in a southerly direction in the left lane of Cromwell Avenue in Rockville, Connecticut.
5. On or about said date and time, the apportionment defendant attempted to enter Cromwell Avenue from West Side Market and caused the vehicle she was operating to collide into the plaintiff's vehicle.
6. Said collision was caused by the negligence and carelessness of the defendant, Debra L. Stock, in one or more of the following ways:
a. She was inattentive;
b. She failed to keep a proper lookout;
c. She did not have her vehicle in reasonable and proper control under the circumstances then and there existing;
d. She failed to turn or avoid to less[e]n any impact;
e. She failed to slow or brake her vehicle to less[e]n any impact under the circumstances then and there existing;
f. She was operating under [sic] an unreasonable rate of speed in regards to the traffic conditions and use of the highway at said time;
g. She was operating at an unreasonable rate of speed in violation of the law of this state, Connecticut General Statutes § 14-218a;
h. She failed to grant the right of way to the plaintiff in violation of law of this state, Connecticut General Statutes § 14-246a.
7. To the extent that plaintiff, Donna Duby was injured or sustained damages for bodily injury due to the negligence of any party in addition to her own negligence, the negligence of Debra L. Stock should be apportioned pursuant to Connecticut General Statutes § 52-572h and the mandate of Card v. State, 57 Conn. App. 134, 747 A.2d 32 (2000).
Apportionment Complaint, ¶¶ 4-8.
On January 26, 2004, the plaintiff moved this Court to strike the defendants' Apportionment Complaint on the ground that the apportionment defendant, Debra L. Stock, is not a person with whom the defendants' negligent responsibility to pay damages in this case, if any, can lawfully be apportioned under General Statutes §§ 52-572h and 52-102b. The basis for this motion is that the defendant's only claim of negligence against the apportionment defendant involves a completely separate, causally unrelated motor vehicle accident incident that allegedly occurred more than one year after the fall here at issue took place, causing separate injuries, losses and damages. The plaintiff has supported her motion to strike with two memoranda of law.
The defendants have opposed the plaintiff's motion with a written objection and legal memorandum, in which they argue, as they pleaded in ¶ 8 of their Apportionment Complaint, that apportionment is appropriate under General Statutes § 52-572h and the doctrine of Card v. State, 57 Conn. App. 134, 747 A.2d 32 (2000). For the following reasons, the Court agrees with the plaintiff that the challenged pleading must be stricken because the apportionment defendant is not a person with whom the defendants' responsibility to pay damages in this case can lawfully be apportioned under General Statutes §§ 52-572h and 52-102b.
I
The function of a motion to strike is to test the legal sufficiency of the allegations of a complaint to state a claim upon which relief can be granted. Sherwood v. Danbury Hospital, 252 Conn. 193, 213, 746 A.2d 730, 741 (2000); Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 214-15, 618 A.2d 25, 28(1992); Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432, 434 (1989); Practice Book § 10-39. The role of the trial court in deciding a motion to strike is to examine the complaint, in the light most favorable to the pleader, to determine if the pleader has stated a legally sufficient cause of action. ATC Partnership v. Windham, 251 Conn. 597, 603, 741 A.2d 305, 309, cert. denied, 530 U.S. 1214, 120 S.Ct. 2217, 147 L.Ed.2d 249 (1999); Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859, 862 (1997); Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232-33, 680 A.2d 127, 137, cert. denied, 520 U.S. 1103, 117 S.Ct. 1106, 137 L.Ed.2d 308 (1990). Thus, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Citations omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630, 633 (2000).
II
At all times relevant to this case, the right of a defendant in a Connecticut civil negligence action to reduce the damages he must pay to the plaintiff if he is found liable for the plaintiff's claimed injuries and losses has been governed by General Statutes § 52-572h, which provides in relevant part as follows:
(c) In a negligence action to recover damages resulting from personal injury, wrongful death or damages to property occurring on or after October 1, 1987, if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for such party's proportionate share of the recoverable economic damages and the recoverable noneconomic damages, except as provided in subsection (g) of this section.
(d) The proportionate share of damages for which each party is liable is calculated by multiplying the recoverable economic damages and the recoverable noneconomic damages by a fraction in which the numerator is the party's percentage of negligence, which percentage shall be determined pursuant to subsection (f) of this section, and the denominator is the total of the percentages of negligence, which percentages shall be determined pursuant to subsection (f) of this section, to be attributable to all parties whose negligent actions were a proximate cause of the injury, death or damage to property including settled or released persons under subsection (n) of this section. Any percentage of negligence attributable to the claimant shall not be included in the denominator of the fraction.
. . .
(f) The jury, or if there is no jury, the court shall specify: (1) the amount of economic damages; (2) the amount of noneconomic damages; (3) any findings of fact necessary for the court to specify recoverable economic damages and recoverable noneconomic damages; (4) the percentage of negligence that proximately caused the injury, death or damage to property in relation to one hundred percent, that is attributable to each party whose negligent actions were a proximate cause of the injury, death or damage to property including settled or released persons under subsection (n) of this section; and (5) the percentage of such negligence attributable to the claimant. CT Page 8951
. . .
Id. (emphasis added). Under these provisions, any defendant whose negligence is found to have proximately caused a plaintiff's personal injuries can reduce his personal responsibility to pay damages for such injuries and the plaintiff's resulting losses by proving that the negligence of one or more other "parties" to the action, including any "settled or released persons," also proximately caused those very injuries and losses. The extent of the negligent defendant's personal responsibility to pay the plaintiff damages for such injuries and losses is determined by multiplying the plaintiff's total recoverable damages by a fraction representing the percentage of the combined negligence of all parties who proximately caused those injuries and losses that is attributable to the defendant. For the purpose of this calculation, the "negligence" of the defendant that must be added to that of all other negligent parties, then assessed as a percentage of the resulting total, is the degree of fault or culpability associated with his negligent conduct that proximately caused the plaintiff's injuries and losses, not the degree to which such negligent conduct causally contributed to such injuries and losses. 223, 231, 717 A.2d 202 (1998).
In Bhinder our Supreme Court extended Section 52-572h as a matter of common law to permit a negligent defendant to apportion liability to intentional as well as negligent tortfeasors. In so doing, the Court expressly noted that precluding the defendant from allocating fault is inconsistent with the principle of comparative negligence that a defendant should be liable only for that proportion of the damages for which he or she was responsible." Id. at 238. Referring generally to Section 52-572h as a "comparative fault statute," the Court explained as follows that in determining a defendant's proportionate responsibility for a plaintiff's damages thereunder, the relevant comparison to be made between his "negligence" and the combined negligence of all parties who proximately caused the plaintiff's injuries and losses concerns the degree of fault or culpability associated with his proven negligence compared to the overall fault or culpability associated with the negligence of all parties who proximately caused those injuries:
. . . [P]recluding the defendant from allocating fault is inconsistent with the principle of comparative negligence that a defendant should be liable only for that proportion of the damages for which he or she was responsible. Donner v. Kearse, . . . 234 Conn. [660], 668-69, [ 662 A.2d 1269 (1995)]; Baxter v. Cardiology Associates of New Haven, P.C., 46 Conn. App. 377, 381, 699 A.2d 271, cert. denied, 243 Conn. 933, 702 A.2d 640 (1997) ("a primary purpose of enacting [§ 52-572h] was to change the common law of joint and several liability such that a defendant would be liable only for that proportion of the damages for which he was responsible"); Weidenfeller v. Star Garter, 1 Cal.App.4th 1, 6, 2 Cal.Rptr.2d 14 (1991) ("the purpose of [the comparative fault statute] is to prevent the unfairness of requiring a tortfeasor who is only minimally culpable as compared to the other parties to bear all the damages" [emphasis in original]); Blazovic v. Andrich, 124 N.J. 90, 99, 590 A.2d 222 (1991) ("the labels attached by the law to various types of conduct should not thwart the principle that it is the overall fault of the parties which is to be measured" [emphasis added]).
Bhinder v. Sun Co., supra, 246 Conn. at 238-39.
Continuing in this same vein, the Bhinder Court further observed that juries could readily assess the relative culpability of negligent and intentional tortfeasors, for they already made such comparisons among negligent tortfeasors under Section 52-572h:
The plaintiff's final argument is that negligence is different in kind rather than degree from reckless, wilful and wanton conduct, and cannot be compared to these types of conduct. We disagree.
In Blazovic v. Andrich, . . . 124 N.J. 107, the New Jersey Supreme Court rejected the plaintiff's argument that the different types of conduct could not be compared for purposes of apportionment of fault, concluding that "we view intentional wrongdoing as different in degree from either negligence or wanton and willful conduct . . . [By allowing comparison of] the various types of tortious conduct . . . we adhere most closely to the guiding principle of comparative fault — to distribute the loss in proportion to the respective fault of the parties causing that loss." (Citations omitted; emphasis added; internal quotation marks omitted.) [Footnote omitted.] These categories of conduct all represent deviations from a reasonable standard of care. [Footnote omitted.] We conclude that juries are fully competent to assess fault between negligent and intentional tortfeasors. "The different levels of culpability inherent in each type of conduct will merely be reflected in the jury's apportionment of fault." Id.
Bhinder v. Sun Co., supra, 246 Conn, at 241-43.
It is true, of course, that the Bhinder decision was issued over strong dissents from three justices and that its extension of statutory apportionment to intentional tortfeasors was quickly abrogated by the legislature by the passage of Public Act 99-96, now codified at General Statutes § 52-572h(o). Importantly, however, at least two of the dissenters agreed with the majority that the proportionate responsibility analysis required by Section 52-572h for the apportionment of damages does indeed involve a comparison between the defendant's fault or culpability for his proven negligence and the fault or culpability of all negligent parties while engaging in the negligence that proximately caused the plaintiff's injuries, not a comparison between the defendant's causal contribution to those injuries and losses and the combined causal contributions of all parties who negligently contributed to such injuries and losses. Thus in his dissent, which was joined by Chief Justice Callahan, Justice Borden observed as follows that if responsibility for paying a plaintiff's damages could be apportioned to more culpable intentional tortfeasors, negligent tortfeasors would only rarely be found liable for or be required to pay significant portions of the damages they proximately caused:
By applying the statute's apportionment policy beyond its boundary of negligence, the majority permits the defendant to do more than share its liability with another tortfeasor. In effect, it permits the defendant to shift most, if not virtually all, of its liability to that tortfeasor. Any jury that takes the court's instructions and its own duty seriously will inevitably conclude that the fault for the death of the plaintiff's decedent lies mostly, if not virtually completely, with the intentional tortfeasor . . . Moreover, in most future cases in which an intentional — and uninsured — tortfeasor is cited in as an apportionment defendant, the likely outcome will be similar: the negligent and insured defendant will end up with responsibility for only a very small percentage of the judgment.
Bhinder, supra, 246 Conn. at 245.
The relevant upshot of Bhinder, which was not at all changed by the passage of Public Act 99-96, is that in assessing a negligent defendant's proportionate responsibility for a plaintiff's damages under Section 52-572h, the required comparison between his negligence and the combined negligence of all parties who proximately caused those damages involves a weighing of his fault or culpability for his negligent conduct against the combined fault or culpability of all parties whose acts of negligence proximately caused such damages. Such an assessment, in turn, requires an examination of the degree to which each party's negligent conduct deviated from reasonable standards of care imposed upon them either by common law or by controlling statutes.
This scheme for apportioning responsibility for the plaintiff's damages among all negligent parties promotes two important goals. First, by allowing a defendant to reduce his personal responsibility for paying such damages based upon the comparative fault of others who also negligently caused them, the statute ensures that no defendant will pay more than his fair share of damages, as measured by the relative degree of his fault in bringing them about; and second, by limiting the universe of persons whose negligence can be considered for apportionment purposes to other "parties" in the case, whom the plaintiff can sue for damages if he chooses to, including settled or released persons, whom the plaintiff has already elected not to sue, the statute protects the plaintiff's right to recover all of his proven damages from at least one negligent person.
III
When a plaintiff fails to sue, settle with or release from liability any person whose negligence may have proximately caused the injuries and losses for which he seeks damages from the defendant in a negligence action under Section 52-572h, the defendant cannot rely upon that person's negligence as a basis for reducing his own obligation to pay the plaintiff damages without making that person a party to the action, and thus bringing him before the Court where the plaintiff may sue him for such damages if he chooses to. Connecticut's procedure for bringing such non-parties before the Court for apportionment purposes is set forth in General Statutes § 52-102b, which provides in relevant part as follows:
(a) A defendant in any civil action to which section 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability . . .
(f) This section shall be the exclusive means by which a defendant may add a person who is or may be liable pursuant to section 52-572h for a proportionate share of the plaintiff's damages as a party to the action.
General Statutes § 52-102b. Under these provisions, the only persons whom a defendant can lawfully name as apportionment defendants are those "who [are] or may be liable pursuant to . . . section [ 52-572h] for a proportionate share of the plaintiff's damages[.]" General Statutes § 52-102b(a). Apportionment defendants must therefore be persons whose negligence is claimed to have proximately caused the same damages which the plaintiff seeks to recover from the defendant, for otherwise there would be no basis for shifting the defendant's responsibility for paying such damages to them or for bringing them before the Court so that the plaintiff can seek such damages from them if she so chooses.
IV
In their challenged pleading, the defendants neither claim nor could have claimed that the apportionment defendant's alleged negligence on June 22, 2002 or the automobile accident allegedly caused by it proximately caused the May 31, 2001 fall in connection with which the plaintiff seeks damages in this case. Nor do they claim that the apportionment defendant's post-fall negligence and its results were reasonably foreseeable consequences of their own alleged negligence over one year earlier, and thus the joint product of the apportionment defendant's negligence and their own, as might legitimately have been claimed, for example, about injuries and losses allegedly caused by medical malpractice in treating the plaintiff's original injuries after the fall. See, e.g., Anderson McPadden, Inc. v. Tunucci, 167 Conn. 584, 596, 356 A.2d 873 (1975). Finally, the defendants do not claim that the apportionment defendant's alleged negligence otherwise combined with their own prior negligence to produce the same injuries and losses for which the plaintiff seeks damages in this case. Absent allegations that the apportionment defendant proximately caused at least some of the alleged injuries and losses that the defendants also caused by their prior alleged negligence, the defendants have failed to state a valid basis for apportioning damages for such injuries and losses with her under General Statutes §§ 52-572h and 52-102b.
In fact, the defendants make no claim in their Apportionment Complaint as to the nature or extent of any injuries or losses allegedly suffered by the plaintiff in the wake of her June 22, 2002 automobile accident, nor allege any other basis for inferring that those injuries or losses are even similar to those for which the plaintiff seeks damages in this case. Instead, they confine themselves to pleading, in conclusory fashion, that
3. If Donna Duby was injured or sustained damages for bodily injury due to the negligence of any party, it was due to her own negligence, and the negligence of the apportionment defendant, Debra L. Stock.
Apportionment Complaint, ¶ 3. On that sole basis, the defendants claim as follows, without further factual elaboration, that they are entitled to apportion damages with the apportionment defendant Debra L. Stock:
8. To the extent the plaintiff, Donna Duby, was injured or sustained damages for bodily injury due to the negligence of any party in addition to her own negligence, then Donna L. Stock should be apportioned pursuant to General Statutes § 52-572h and the mandate of Card v. State, 57 Conn. App. 134, 747 A.2d 32 (2000). CT Page 8954
Apportionment Complaint, ¶ 8. So written, the Apportionment Complaint pleads only that if the plaintiff sustained damages due to negligence, it was negligence by the plaintiff and the apportionment defendant, not negligence by the defendants, which proximately caused them. Such a claim, though factually barren and conclusory as aforesaid, suggests only a denial of proximate causation based upon the alleged negligence of others — the plaintiff herself and the apportionment defendant — not a claim for apportionment of damages, which cannot occur unless both the defendant and the apportionment defendant proximately caused the same damages. See Bhinder v. Sun Co., supra, 246 Conn. at 240 (quoting Wagner v. Clark Equipment Co., 243 Conn. 168, 184, 700 A.2d 38 (1997), for the proposition that, "Comparative responsibility does not come into play . . . unless the defendant is found to have proximately caused the plaintiff's injuries").
This conclusion is buttressed by the defendants' express reliance upon the doctrine of Card v. State, supra. There, the Appellate Court had before it three consolidated cases involving wholly separate motor vehicle accidents in which the plaintiff allegedly suffered injuries to the same parts of her body, for which she received treatment from the same doctor. When the doctor testified as an expert witness at trial, he competently stated that each of the subject accidents had proximately caused the plaintiff to suffer a permanent injury. He declared himself unable, however, to state precisely what percentage of that permanent injury had been caused by any of the three accidents, and thus opined, over objection, that each had proximately caused an undifferentiated one-third of the plaintiff's total injury. Seemingly crediting this testimony, which the objecting defendants claimed to be purely speculative, the jury awarded the plaintiff exactly $33,333.34 — one-third of $100,000 to the penny — in each of the two cases that ultimately went to verdict.
On appeal from the trial court's decision to set aside the verdict in one such case on the ground that the treating doctor's equal allocation of damages among the three accidents was purely speculative, the Appellate Court affirmed and thus ordered a new trial. However, instead of treating the apparent lack of evidence as to the causal contribution of each accident to the plaintiff's overall injury as a basis for imposing joint and several liability upon each negligent defendant for the plaintiff's entire injury, the Court held that at the retrial, if the jury were unable to decide what portion of that injury was proximately caused by any particular accident, they should make a "rough apportionment" among the three so that, on the one hand, the plaintiff would not be left without a remedy, but on the other, the plaintiff would not recover damages from any defendant for injuries or losses that defendant did not cause. Id. at 144-45.
The defendants read Card to suggest that when a plaintiff suffers similar injuries in two or more unrelated incidents, a defendant sued for damages in relation to one such incident may file an apportionment complaint against the alleged tortfeasors in the other incidents for apportionment of damages under General Statutes § 52-572h. The plaintiff disagrees, contending that statutory apportionment can only be used to bring in parties claimed to have negligently caused the same injuries which allegedly resulted from the defendants' negligence, not similar injuries for which they alone, and not the defendants, are responsible. The Court agrees with the plaintiff for the following reasons.
First, although the Card Court used the term "apportionment" in reaching its result, the "case" before it was actually one of three consolidated cases that had been tried together, with a separate verdict rendered in each of the two that did not settle before trial. No defendant was ever made a party in either of the plaintiff's consolidated actions against the other defendants, much less an apportionment party in any such action under General Statutes § 52-102b.
Second, the issue presented in Card was not, as in an inquiry under Sections 52-572h and 52-102b, what proportionate responsibility should be borne by each defendant for a single injury or set of injuries that each had proximately caused by his proven negligence. Instead, what the trial court had before it were the distinct and different threshold questions whether, and to what extent, each of the defendants' separate, temporally unrelated acts of negligence had proximately caused the plaintiff's permanent injury. If and to the extent that the plaintiff was permanently injured in the first of her three accidents, she obviously could not apportion that part of her injury to any tortfeasor who proximately caused either of her later accidents, for by the time of those accidents, her initial permanency already existed. As a matter of legal causation, neither of the later accidents could be considered a cause in fact of her pre-existing permanent injury.
Similarly, if and to the extent that her second accident caused a more aggravated permanent injury to the same part of her body that she injured in her first accident, the measure of her recovery in a claim arising from the second accident would be the degree to which her initial permanency was aggravated by that second accident, with her status after the first accident serving as the baseline from which to measure the extent of adverse consequences proximately caused by the second accident. The plaintiff could not recover from the first tortfeasor for those new adverse consequences unless they were reasonably foreseeable consequences of the first accident.
Finally, and not surprisingly, the extent of the plaintiff's separate damages from her third accident would be determined in similar fashion, by comparing the difference between the state of her permanency after the first two accidents and the state of her permanency after the third. Plainly, new harms suffered and new expenses incurred in the wake of each new accident would be attributed to that accident, even if they were rendered more painful, long-lasting or substantial by reason of her preexisting disability. This, of course is consistent with the rule that the defendant takes the plaintiff as he finds her. Apportionment of any damages sustained in that sequence of events would never be appropriate unless it were alleged and proved that such damages were proximately caused both by the negligence of the defendant and by that of the party with whom he seeks apportion damages. Bhinder v. Sun Co., supra, 246 Conn. at 240.
Third, it is of more than passing interest that the Card Court never suggested that in the case before it, the trier of fact should have apportioned damages for the plaintiff's alleged permanency by considering the relative fault or culpability of each defendant who negligently contributed to the causation of that permanency. This, to reiterate, is because the question there presented concerned the threshold issue of causation, not the very different subsidiary issue of what proportionate responsibility each of several parties who did proximately cause an entire injury should bear for damages resulting therefrom. "Rough apportionment" among multiple tortfeasors, each of whom caused only an unascertainable part of an indivisible injury, would not be necessary if it were established, as in a case governed by our apportionment statutes, that each had proximately caused the entire injury. In that event, the split of responsibility among them would depend only upon the degree to which each was culpable or at fault when engaging in the negligence that proximately caused the injury, compared to the combined fault or culpability of all parties who, by their negligence, proximately caused that injury. For all of the forgoing reasons, the Court concludes that the Card case afford no valid legal basis for seeking statutory apportionment in this case.
V
By claiming that any damages suffered by the plaintiff were actually caused only by the plaintiff or by the apportionment defendant rather than themselves, the defendants raise the claim of sole proximate causation, which can properly be raised at trial without impleading the other party or person claimed to have caused the plaintiff's alleged damages, pleading or proving that the other party or person was negligent, and without even interposing a special defense. Bernier v. National Fence Co., 176 Conn. 622, 410 A.2d 1007 (1979). Competent evidence that others actually caused the injuries and losses the defendants are accused of causing is always admissible if it tends to negate or disprove proximate causation of those injuries and losses by the defendants, which, of course, is an essential element of the plaintiff's cause of action.
CONCLUSION
For all of the foregoing reasons, the Court hereby GRANTS the plaintiff's motion to strike the defendants' Apportionment Complaint for failure to state a claim upon which relief can be granted, but does so without prejudice to the defendants' right to claim and present evidence at trial that persons other than themselves, including the apportionment defendant, were the sole proximate cause of all or some of the alleged injuries for which the plaintiff seeks to recover damages from them in this case.
IT IS SO ORDERED this 8th day of June 2004.
Michael R. Sheldon, J.