2009 Connecticut Code
Title 52 Civil Actions
Chapter 898 Pleading
Sec. 52-114. Pleading of contributory negligence.

      Sec. 52-114. Pleading of contributory negligence. In any action to recover damages for negligently causing the death of a person, or for negligently causing personal injury or property damage, it shall be presumed that such person whose death was caused or who was injured or who suffered property damage was, at the time of the commission of the alleged negligent act or acts, in the exercise of reasonable care. If contributory negligence is relied upon as a defense, it shall be affirmatively pleaded by the defendant or defendants, and the burden of proving such contributory negligence shall rest upon the defendant or defendants.

      (1949 Rev., S. 7836.)

      Prior to statute burden was on plaintiff to establish due care. 118 C. 531. Statute does not apply in action to recover damages under sections 13a-111 and 13a-149 for injury caused by breach of statutory duty. 119 C. 479; 133 C. 246; 147 C. 149. Even if statute not applicable, defendant alleging contributory negligence must bear burden of proof. 115 C. 664. Presumption under this statute contrasted with other presumptions. 118 C. 58, 64; 130 C. 188. By pleading decedent's lack of contributory negligence plaintiff waived right to benefit of presumption that decedent exercised due care. 119 C. 339; 123 C. 463. Trial court need not refer to statute or charge in terms that there is presumption of due care by deceased if it makes clear the effect of statute. 123 C. 28. Statute procedural, does not change substantive law that plaintiff cannot recover if his own negligence materially contributed to produce his injuries. 118 C. 537. Presumption does not affect plaintiff's burden of establishing defendant's negligence and that his conduct was proximate cause of injury. 129 C. 385. Where plaintiff alleged due care by intestate and defendant did not affirmatively plead contributory negligence, burden of proof is on plaintiff. 118 C. 471; 129 C. 29. But under such pleading it is erroneous to charge that contributory negligence need not be considered. 126 C. 398. Plaintiff cannot complain of charge that defendant has burden of proving contributory negligence, without charging re quantum of proof required. 118 C. 212. Charge that burden of proving contributory negligence is on defendant by statute is sufficient when court also charges that party having burden of proof on any issue must meet it by fair preponderance of evidence. 119 C. 278. Where person charged with negligence also died as result of accident, plaintiff has burden of proving his decedent's freedom from contributory negligence. 117 C. 273. Statute not so limited in scope as to apply only to period immediately incident to accident. 118 C. 135. Not inaccurate to charge that doctrine of last clear chance need not be considered unless jury found defendant had maintained burden of proving contributory negligence. 130 C. 316. Mere production of evidence tending to prove contributory negligence does not cause burden of proof to revert to plaintiff. 132 C. 465, overruling 131 C. 540. How to charge jury on this statute. 133 C. 590. Cited. 134 C. 692. If defendant offers no evidence or fails to prove by a fair preponderance of evidence that plaintiff was negligent, the plaintiff is entitled to prevail. 136 C. 171. Court may disregard evidence offered by defendant or hold it insufficient to sustain burden. Id., 550. Cited. 137 C. 551. Cited. 138 C. 313; Id., 381; Id., 508. Defendant must plead and prove contributory negligence. Id., 557. No contributory negligence as matter of law under circumstances. Id., 712. Cited. 139 C. 228; Id., 350; Id., 527. Cited. 140 C. 274; Id., 319. Cited. 141 C. 250. Cited. 142 C. 521. Burden of proof as to contributory negligence rests throughout on defendant. 145 C. 146. Cited. 148 C. 447. Trier's conclusion on contributory negligence should stand unless the conduct involved is contrary to that of a reasonably prudent man. 154 C. 490. Where action by administrator of decedent's estate for negligently causing death in collision was tried together with action by defendant against administrator for personal injuries, both parties were entitled to benefit of statutory presumption, original charge to jury re effect of presumption was adequate and court's failure to repeat effect in response to plaintiff's oral request to charge was not error. 156 C. 40. Cited. 159 C. 507. Cited. 174 C. 200. Cited. 179 C. 406. Cited. 188 C. 607. Cited. 217 C. 12. Cited. 225 C. 637. Appropriate method for conveying effect of this section to a jury is to articulate the burdens that it imposes upon the parties. Those burdens are that plaintiff must prove defendant's negligence, and defendant must prove plaintiff's contributory negligence if defendant has pleaded it. 281 C. 29.

      Application to specific facts: Cellar explosion. 118 C. 128. Malpractice. Id., 471. Burning rubbish. 129 C. 26. Drowning. 130 C. 309. Collision between vehicles. 117 C. 271; 123 C. 49; 126 C. 396; 129 C. 11; Id., 378; 132 C. 461. Pedestrian. 116 C. 150; Id., 716; 118 C. 210; 119 C. 699; 123 C. 25; 128 C. 53; Id., 605; 132 C. 420; 133 C. 329. Motorcycle officer. 117 C. 484. Policeman. 128 C. 332. Highway worker. 126 C. 27. Minor. 119 C. 277; 125 C. 526; 127 C. 297; 128 C. 182. Application of statute in automobile collision case. 147 C. 540.

      Cited. 11 CA 1; Id., 348. Cited. 15 CA 668. Cited. 17 CA 268. Cited. 29 CA 552; Id., 791. Cited. 33 CA 714. Cited. 43 CA 294. Presumption of plaintiff's reasonable care is proper for jury to consider only when defendant affirmatively pleads contributory negligence. 86 CA 310.

      Cited. 4 CS 224. Cited. 8 CS 110. Cited. 12 CS 239. Where plaintiff alleged that she exercised due care, she assumed the burden of proof on that issue and this section did not apply. 14 CS 232. History reviewed. 16 CS 144. When section not applicable. 18 CS 124. Presumption does not affect the obligation of a plaintiff to sustain burden of establishing negligence of defendant and that the conduct complained of was the proximate cause of injury. Id., 247. Although New York rule requires plaintiff to prove freedom from contributory negligence, in suit instituted in Connecticut resulting from accident in New York, the plaintiff was not required to so plead. 20 CS 382. Cited. 21 CS 282. Cited. 23 CS 132; Id., 134. In suit brought against municipal employee under section 7-465, burden of alleging and proving contributory negligence remains with employee in accordance with this section. Id., 228. Burden of proof, in the sense of risk of nonpersuasion, is on defendant, although in some instances, as where the facts raise a presumption of negligence, the plaintiff may have the burden of going forward with the evidence. Id., 435. When plaintiff fails to show negligence, question of contributory negligence becomes moot. 25 CS 164. After defendant had affirmatively pleaded contributory negligence of plaintiff and all evidence had been presented she could not move for directed verdict upon claim that Rhode Island law controlled and plaintiff had burden of proving freedom from contributory negligence. 27 CS 508. Section, establishing presumption of due care on part of injured person, is applicable to suit against town and its employee under section 7-465, which imposes indemnification liability on municipality. 28 CS 506. Cited. 29 CS 75; Id., 518.

      Cited. 4 Conn. Cir. Ct. 217. Jury could reasonably conclude negligence of defendant was proximate cause of injury to plaintiff when plaintiff lit the pilot in defendant's bake oven which defendant had wrongfully assured him was free of gas. Id., 563.