Pitterman et al v. General Motors LLC

Filing 125

RULING granting in part and denying in part 77 Motion for Summary Judgment with Respect to Defendant's Affirmative Defenses. See Ruling for details. Signed by Judge Janet C. Hall on 5/11/2016. (Anastasio, F.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

BERNARD PITTERMAN, et al.,
Plaintiffs,

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v.
GENERAL MOTORS LLC,
Defendant.

CIVIL ACTION NO.
3:14-CV-00967 (JCH)

MAY 11, 2016

RULING RE: PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT WITH RESPECT
TO DEFENDANT’S AFFIRMATIVE DEFENSES (DOC. NO. 77)
I.

INTRODUCTION
This case arises out of events that occurred on July 13, 2011, when M.R.O, an 8-

year-old child, died in connection with an automobile accident involving a 2004
Chevrolet Suburban, which is manufactured by the defendant General Motors LLC
(“GM”). The plaintiffs in this case are: (1) Bernard Pitterman, as administrator of the
Estate of M.R.O.; (2) Bernard Pitterman, as guardian of the Estate of G.O., who is the
victim’s brother; and, (3) Rose O’Connor, who is the victim’s mother (plaintiffs will be
referred to, collectively, as “Pitterman”).
In response to the initial Complaint (Doc. No. 1) (“Compl.”), GM filed an Answer
(Doc. No. 8) (“Compl. Answer”), in which it asserted 15 affirmative defenses. Pitterman
subsequently filed a Motion for Summary Judgment with Respect to Defendant’s
Affirmative Defenses (Doc. No. 77) (“Pls.’ Aff. Def. MFSJ”), in which it moved for
summary judgment on affirmative defenses 2-10 and 13. See id. at 1-2. Shortly
thereafter, Pitterman filed an Amended Complaint (Doc. No. 88) (“Am. Compl.”). In
response, GM filed another Answer (Doc. No. 91) (“Am. Compl. Answer”), in which it
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asserted 12 affirmative defenses. Pitterman has not updated his Motion for Summary
Judgment since GM filed its Amended Complaint Answer. However, both GM and
Pitterman have filed briefs, subsequent to the filing of the Amended Complaint and
Amended Complaint Answer, which have addressed Pitterman’s Motion for Summary
Judgment.
Although the Complaint Answer contains 15 affirmative defenses and the
Amended Complaint Answer contains only 12, there is significant overlap in the
affirmative defenses asserted in both Answers. Accordingly, the court can proceed to
rule on Pitterman’s Motion for Summary Judgment. To the extent that the number
associated with an affirmative defense differs between the two Answers, the court will
endeavor to be as clear as possible in this Ruling so as to avoid any confusion going
forward.
II.

FACTUAL BACKGROUND 1
On July 13, 2011, M.R.O. died in connection with an automobile accident

involving a 2004 Chevrolet Suburban. See Local Rule 56(a)(1) Statement re: Plaintiffs’
Motion for Summary Judgment with Respect to Defendant’s Affirmative Defenses ¶ 1
(Doc. No. 77-2) (“Pls.’ L.R. 56(a)(1) Stmt.”); see also Local Rule 56(a)(2) Statement of
Material Facts and Disputed Issues of Material Fact ¶ 1 (Doc. No. 99) (“Def.’s L.R.
56(a)(2) Stmt.”). Prior to the accident, Rose O’Connor had parked the subject

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In connection with a motion for summary judgment, the court relies on the undisputed facts or, if
a fact is disputed, the court views the evidence in the light most favorable to the party opposing summary
judgment. Except where noted, the facts are not in dispute.

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Suburban in the driveway of the family home. Pls.’ L.R. 56(a)(1) Stmt. ¶ 3. 2 Rose
O’Connor was inside the family home when the accident occurred. Id. ¶ 4; see also
Def.’s L.R. 56(a)(2) Stmt. ¶ 4. Rose O’Connor was not operating the vehicle at the time
of the accident. Id. ¶ 5. 3
III.

LEGAL STANDARD
On a motion for summary judgment, the burden is on the moving party to

establish that there are no genuine issues of material fact in dispute and that it is
entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
256 (1986); White v. ABCO Engineering Corp., 221 F.3d 293, 300 (2d Cir. 2000). Once
the moving party has met its burden, in order to defeat the motion the nonmoving party
must “set forth specific facts showing that there is a genuine issue for trial,” Anderson,
477 U.S. at 256, and present such evidence as would allow a jury to find in his favor,
see Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000).
In assessing the record to address questions of fact, the trial court must resolve
all ambiguities and draw all inferences in favor of the party against whom summary
judgment is sought. Graham, 230 F.3d at 38. Summary judgment “is properly granted
only when no rational finder of fact could find in favor of the non-moving party.” Carlton
v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir. 2000). “When reasonable persons,

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GM does not dispute that Rose O’Connor parked the Suburban in the driveway prior to the
accident, but asserts that she left “the keys in the Suburban’s cup holder because she and her husband
alternated vehicles.” Def.’s L.R. 56(a)(2) Stmt. ¶ 3.
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GM states that it denies this assertion. However, in its Local Rule 56(a)(2) Statement, GM does
not directly dispute that Rose O’Connor was not operating the vehicle at the time of the accident. See
Def.’s L.R. 56(a)(2) Stmt. ¶ 5. Rather, GM “maintains that the injuries and damage alleged by Plaintiffs
. . . arises from the ‘operation of a motor vehicle,’ as Connecticut courts have interpreted that phrase.” Id.
Because GM does not cite any evidence that would support a denial of Pitterman’s assertion that Rose
O’Connor was not operating the vehicle at the time of the accident, the court deems this asserted fact to
be admitted. See D. Conn. L. Civ. R. 56(a)(3).

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applying the proper legal standards, could differ in their responses to the question”
raised, on the basis of the evidence presented, the question must be left to the finder of
fact. Sologub v. City of New York, 202 F.3d 175, 178 (2d Cir. 2000).
IV.

DISCUSSION
A. Second Affirmative Defense 4
Pitterman moves for summary judgment as to the second affirmative defense

asserted by GM in its Complaint Answer. See Pls.’ Aff. Def. MFSJ at 1. However, GM
has not reasserted in its Amended Complaint Answer what was, in the Complaint
Answer, the second affirmative defense. Accordingly, the Motion for Summary
Judgment as to the second affirmative defense is terminated as moot.
B. Third Affirmative Defense
Pitterman moves for summary judgment as to the third affirmative defense
asserted by GM in its Complaint Answer. See id. However, GM has not reasserted in
its Amended Complaint Answer what was, in the Complaint Answer, the third affirmative
defense. Accordingly, the Motion for Summary Judgment as to the third affirmative
defense is terminated as moot.
C. Fourth Affirmative Defense
Plaintiffs M.R.O. and G.O. – but not plaintiff Rose O’Connor – move for summary
judgment as to the fourth affirmative defense asserted by GM in its Complaint Answer.
See Memorandum in Support of Plaintiffs’ Motion for Summary Judgment with Respect
to Defendant’s Affirmative Defenses at 4 (Doc. No. 77-1) (“Pls.’ Mem. in Supp.”). GM
has reasserted this affirmative defense in the Amended Complaint Answer, except in

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The following headings refer to affirmative defenses as they were numbered in the Complaint

Answer.

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the Amended Complaint Answer it is numbered as the second affirmative defense. 5 In
this affirmative defense, GM argues that, “Plaintiffs’ alleged damage or loss, if any, was
caused or contributed to by the negligence, fault, or other wrongful conduct of [Rose
O’Connor] . . . including but not limited to failing to use the parking brake and failing to
exercise due care for the safety of M.R.O. by allowing her to occupy the subject vehicle
with the key left in the vehicle.” Compl. Answer at 9 ¶ 4; see also Am. Compl. Answer
at 8 ¶ 2.
Pitterman argues that M.R.O. and G.O. are entitled to summary judgment on this
affirmative defense based on Connecticut’s parental immunity doctrine. See Pls.’ Mem.
in Supp. at 4-10. Specifically, Pitterman argues that, because M.R.O. and G.O. would
not be able to sue their mother, Rose O’Connor, for the injuries they suffered as a result
of the accident, Rose O’Connor cannot be considered a party “whose comparative
responsibility would diminish any award to [her] minor children.” Id. at 7.
GM does not dispute the general proposition that the parental immunity doctrine
bars a defendant from asserting an affirmative defense that attempts to reduce a
minor’s award because of a parent’s negligence. Rather, GM argues that section 52572c of the Connecticut General Statutes, which abrogates the parental immunity
doctrine “[i]n all actions for negligence in the operation of a motor vehicle . . . resulting in
personal injury,” allows GM to assert this affirmative defense. See Defendant General
Motors LLC’s Memorandum in Opposition to Plaintiffs’ Motion for Summary Judgment

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The ninth affirmative defense asserted in the Amended Complaint Answer is repetitive of the
second affirmative defense asserted in the Amended Complaint Answer. Accordingly, the ninth
affirmative defense asserted in the Amended Complaint Answer will be terminated as moot.

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with Respect to Defendant’s Affirmative Defenses at 5 (Doc. No. 100) (“Def.’s Mem. in
Opp’n”).
Because only M.R.O. and G.O. are moving for summary judgment as to this
affirmative defense, the operative question before the court is whether M.R.O. or G.O.
would be able to sue Rose O’Connor in connection with the accident. If they would not
be able to sue her, then she could not be considered a party to their suits for
comparative responsibility purposes. Whether they would be able to sue her turns on
whether section 52-572c would apply to the facts of this case. If that section were to
apply, then the parental immunity would be abrogated and M.R.O. and G.O. would be
able to sue Rose O’Connor. If that section were to not apply, then they would not be
able to sue her. Thus, the fundamental question is whether there is any genuine issue
of material fact as to whether M.R.O. and G.O. would, based on the undisputed facts of
this case, be able to sue Rose O’Connor “for negligence in the operation of a motor
vehicle.” C.G.S.A. § 52-572c.
It is undisputed that Rose O’Connor was not driving the car or inside the car
when the accident occurred – she was inside the house. However, GM argues that,
because “M.R.O. was killed due to activity incident to the vehicle’s movement, namely
Rose O’Connor’s act of leaving the keys in the Suburban’s cup holder upon parking the
vehicle,” Def.’s Mem. in Opp’n at 6, Rose could be sued “for negligence in the operation
of a motor vehicle.” This argument borders on being frivolous and is unsupported by
any of the cases cited by GM.
GM’s argument is premised on language found in Rivera v. Fox, 20 Conn.App.
619 (Conn. App. Ct. 1990), in which the court stated that, “operation of a motor vehicle

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occurs when there is a setting in motion of the operative machinery of the vehicle, or
there is movement of the vehicle, or there is a circumstance resulting from that
movement or an activity incident to the movement of the vehicle from one place to
another.” Id. at 624. The Rivera court cited three cases in support of this definition:
State v. Swift, 125 Conn. 399 (1939); Stroud v. Bd. of Water Comm’rs of City of
Hartford, 90 Conn. 412 (1916); and, Conti v. Rose Hill Poultry Co., 3 Conn.App. 246
(Conn. Ap. Ct. 1985). GM also cited Davey v. Pepperidge Farms, Inc., 180 Conn. 469
(1980). However, none of these cases supports defining the phrase “operation of a
motor vehicle” as expansively as GM seeks to define it here.
In Rivera, the plaintiff’s decedent died after crashing his vehicle into a
Department of Transportation (“DOT”) vehicle that had been parked partially in the
highway shoulder and partially in the left lane while the DOT employee who had driven
the car helped clear debris from an earlier accident. See Rivera, 20 Conn.App. at 620.
At the time of the second accident, the DOT vehicle was parked, its engine was running,
and its “strobe lights and four way flashers” were on. Id. Still, under those
circumstances, the court held that the DOT employee who had parked the vehicle was
not “operating [the] motor vehicle” at the time of the second accident because: (1) “at
the time of the collision the DOT truck was being used as a warning signal,” not a car;
and, (2) the vehicle “was not parked incident to travel” insofar as the vehicle “was
placed on the highway, not because that was a convenient or an ordinarily appropriate
place to park, but because its placement would alert drivers to the danger ahead.” Id. at
624. If the DOT employee was not operating the vehicle when he parked the vehicle on
the highway, with the engine running and the lights on, then certainly Rose O’Connor

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was not operating the Suburban while she was inside her home, hours after she parked
the car in her driveway.
In Swift, the government claimed that the defendant, while intoxicated, was found
“sitting behind the wheel attempting to start the engine of the car” while a friend was
outside the car attempting to push it. Swift, 125 Conn. at 401. Although the defendant
was not able to start the engine, the court stated that it was still possible that he was
“operating a motor vehicle.” Within this context – that of a defendant trying to start the
engine to car but failing to – the court approved of a jury charge that stated that, “[a]
person operates a motor vehicle within the meaning of this statute, when in the vehicle
he intentionally does any act or makes use of any mechanical or electrical agency which
alone or in sequence will set in motion the motive power of the vehicle.” Id. at 403. In
the case at bar, it can hardly be said that Rose O’Connor intentionally did any act, or
sequence of acts, that would “set in motion the motive power of the vehicle.” Rather,
she parked the car, turned off the engine, placed the keys in the cup holder, and went
inside her home.
In Stroud, the plaintiff, who had illegally registered his car, sought recovery when
another car collided with the plaintiff’s car while the plaintiff’s car was parked “in a part
of the highway opposite the hotel which is commonly used for parking automobiles.”
Stroud, 90 Conn. at 412. The defendant argued that the Motor Vehicles Act of 1911,
which barred owners of illegally registered cars from recovering “for any injury to person
or property received by reason of the operation of said motor vehicle in or upon the
public highways of this state,” precluded the plaintiff from recovering. See id. The
court, in holding that the damage caused to the plaintiff’s car was “received by reason of

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its operation,” stated that, “[t]he word ‘operation’ cannot be limited . . . to a state of
motion controlled by the mechanism of the car. It is self-evident that an injury may be
received after the operator has brought his car to a stop, and may yet be received by
reason of its operation. The word ‘operation,’ therefore, must include such stops as
motor vehicles ordinarily make in the course of their operation.” Id. Stroud is
distinguishable from the case at bar because, when Rose O’Connor parked the
Suburban in her driveway and went into her home, the car was not engaged in the type
of stop that cars “ordinarily make in the course of their operation.” Rather, the car was
stopped as a means of terminating the car’s operation as a car, much like the car in
Rivera was no longer being operated as a car when it was being used as a warning
device.
In Conti, the plaintiff attempted to sue two coworkers for negligence “for their
failure to provide adequate braking on their employer’s truck, which the plaintiff was
driving alone at the time of the accident.” Conti, 3 Conn.App. at 246. The defendants
argued that, because neither was an “operator” of the vehicle at the time of the
accident, the plaintiff was limited to workers’ compensation. See id. at 247-48. The
court agreed that, even though the defendants had allegedly created a circumstance
that contributed to the accident – i.e., they installed inadequate brakes on the vehicle –
they were not “operators” of the vehicle. See id. Rather than supporting GM’s
argument, this case undercuts its argument. Under Conti, Rose O’Connor could not be
considered to have operated the vehicle at the time of the accident, even though it is
possible that, by leaving the keys in the cup holder, she made it possible for M.R.O. or

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G.O. to access the keys and operate the vehicle, which acts ultimately led to the
accident in question.
Lastly, in Davey, the plaintiff was injured as a result of moving a hoist attached to
a vehicle in a certain way, upon the direction of a coworker. See Davey, 180 Conn. at
470-71. Although the court stated that, “operation as it refers to a motor vehicle relates
to the driving or movement of the vehicle itself or a circumstance resulting from the
movement of the vehicle,” id. at 472 n. 1, the court indicated that operation of the hoist
would not constitute operation of a motor vehicle because “[t]here is nothing to suggest
that the use of any mechanical or electrical device not an integral part of the motor
vehicle being driven can be considered operation of a motor vehicle.” Id. If operating a
hoist that is physically connected to the vehicle cannot be considered operation of a
vehicle, or even “a circumstance resulting from the movement of the vehicle,” then
placing the keys in the cup holder after parking the car can hardly be considered either
operation of the vehicle or “a circumstance resulting from the movement of the vehicle.”
Based on the foregoing analysis, the court concludes that neither M.R.O. nor
G.O. would be able, in connection with the injuries they suffered as a result of the car
accident, to sue Rose O’Connor “for negligence in the operation of a motor vehicle,”
because Rose was not operating the vehicle within the meaning of that statute. As a
result, parental immunity would apply here and would bar M.R.O. and G.O. from suing
Rose O’Connor. Because M.R.O. and G.O. would not be able to sue Rose, she cannot
be considered a party to their suits for comparative responsibility purposes.
Accordingly, the Motion for Summary Judgment as to the fourth affirmative defense,
insofar as it is asserted on behalf of M.R.O. and G.O., is granted.

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D.

Fifth Affirmative Defense

GM has reasserted this affirmative defense in the Amended Complaint Answer,
except in the Amended Complaint Answer it is numbered as the third affirmative
defense. In this affirmative defense, GM argues that, “[t]he damages allegedly
sustained by plaintiff were solely or partly the proximate result of plaintiffs’ and/or
plaintiffs’ decedent’s negligence and/or comparative responsibility.” Compl. Answer at 9
¶ 5; see also Am. Compl. Answer at 8 ¶ 3. In response, Pitterman notes that:
This affirmative defense does not identify which plaintiff should be
charged with ‘negligent’ conduct of which other plaintiff. As
discussed with respect to the fourth affirmative defense, the alleged
negligence of the parents cannot, as a matter of law, be imputed to
the claims of the minor children nor can it reduce any award to the
minor children. To the extent this affirmative defense attempts to
do so, it is not a valid affirmative defense.
Pls.’ Mem. in Supp. at 10. Pitterman does not provide any additional argument in
opposition to this affirmative defense, and GM, in its opposition briefing, does not
directly address this affirmative defense. Accordingly, the court construes the Motion
for Summary Judgment as to this affirmative defense to be advanced only on behalf of
M.R.O. and G.O., just as the Motion for Summary Judgment as to the fourth affirmative
defense was advanced only on behalf of those plaintiffs. Further, the court interprets
Pitterman’s argument and GM’s silence as indication that the parties agree that the fifth
affirmative defense can be analyzed in the same way as the fourth affirmative defense
was. That said, there is one significant difference between the fourth and fifth
affirmative defenses. In the fourth affirmative defense, GM asserts that the plaintiffs’
damages were caused by or contributed to by M.R.O. and G.O.’s parents only. In the
fifth affirmative defense, GM, by arguing that the damages “were solely or partly the

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proximate result of plaintiffs’ and/or plaintiffs’ decedent’s negligence and/or comparative
responsibility,” Compl. Answer at 9 ¶ 5; Am. Compl. Answer at 8 ¶ 3, argues that the
damages incurred were caused or contributed to, by both the parents and by M.R.O.
The inclusion, by way of example, of M.R.O.’s alleged negligence as a contributory
factor is relevant to the present analysis, because while the doctrine of parental
immunity bars the reduction of M.R.O. and G.O.’s damages on account of their parents
negligence, the doctrine does not apply to bar reduction based on M.R.O.’s potential
negligence.
Accordingly, to the extent that the Motion for Summary Judgment is asserted by
M.R.O. as to the fifth affirmative defense, it is granted in part and denied in part. The
Motion is granted as to the allegedly contributory negligence of Rose O’Connor, but is
denied as to M.R.O.’s and G.O.’s allegedly contributory negligence, because her
damages can be reduced due to her own negligence and her brother’s negligence.
To the extent that the Motion for Summary Judgment is asserted by G.O. as to
the fifth affirmative defense, it is granted in part and denied in part. The Motion is
granted as to the allegedly contributory negligence of Rose O’Connor, but is denied as
to G.O.’s and M.R.O.’s allegedly contributory negligence, because G.O.’s damages can
be reduced due to his own negligence and his sister’s negligence.
E. Sixth Affirmative Defense
GM has reasserted this affirmative defense in the Amended Complaint Answer,
except in the Amended Complaint Answer it is numbered as the fourth affirmative
defense. See Compl. Answer at 9 ¶ 6; see also Am. Compl. Answer at 8 ¶ 4. In this
affirmative defense, GM argues that the plaintiffs’ damages were caused or contributed

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to by Rose O’Connor’s negligent entrustment of a vehicle. See id. Pitterman argues
that this affirmative defense fails for the same reason that the fourth affirmative defense
fails, see Pls.’ Mem. in Supp. at 10, and GM does not argue otherwise.
Accordingly, for the same reasons articulated above, see supra § IV.C, to the
extent that the Motion for Summary Judgment is asserted by M.R.O. and G.O. as to the
sixth affirmative, it is granted.
F. Seventh Affirmative Defense
GM has reasserted this affirmative defense in the Amended Complaint Answer,
except in the Amended Complaint Answer it is numbered as the fifth affirmative
defense. See Compl. Answer at 10 ¶ 7; see also Am. Compl. Answer at 8 ¶ 5. In this
affirmative defense, GM argues that, “Plaintiffs’ damage or loss, if any, was caused or
contributed to by the negligent or otherwise wrongful acts and omissions of Plaintiff
Rose O’Connor and M.R.O. in the operation of the motor vehicle at issue.” Id.
Pitterman argues that this affirmative defense fails for the same reason that the fourth
and fifth affirmative defense fail, see Pls.’ Mem. in Supp. at 10, and GM does not argue
otherwise. However, like the fifth affirmative defense, in this affirmative defense GM
argues that the plaintiffs’ damages were caused, at least in part, both by Rose
O’Connor’s negligence and M.R.O.’s negligence.
Accordingly, to the extent that the Motion for Summary Judgment is asserted by
M.R.O. as to the seventh affirmative defense, it is granted in part and denied in part.
The Motion is granted as to the allegedly contributory negligence of Rose O’Connor, but
is denied as to M.R.O.’s allegedly contributory negligence, because her damages can
be reduced due to her own negligence.

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To the extent that the Motion for Summary Judgment is asserted by G.O. as to
the seventh affirmative defense, it is granted in part and denied in part. The Motion is
granted as to the allegedly contributory negligence of Rose O’Connor, but is denied as
to M.R.O.’s allegedly contributory negligence, because G.O.’s damages can be reduced
due to his sister’s negligence.
G. Eighth Affirmative Defense
GM has reasserted this affirmative defense in the Amended Complaint Answer,
except in the Amended Complaint Answer it is numbered as the sixth affirmative
defense. See Compl. Answer at 10 ¶ 8; see also Am. Compl. Answer at 8 ¶ 6. In this
affirmative defense, GM asserts that, “Plaintiffs’ alleged damage or loss was caused or
contributed to by the negligence, fault, or other wrongful conduct of other persons, firms,
corporations, or entities over whom GM LLC has no control, right of control, and for
which GM LLC is not responsible. Id. In its briefing, GM clarifies that the “other
persons” it refers to in the affirmative defense are Rose and James O’Connor. See
Def.’s Mem. in Opp’n at 7.
Accordingly, for the same reasons articulated above, see supra § IV.C, to the
extent that the Motion for Summary Judgment is asserted by M.R.O. and G.O. as to the
eighth affirmative defense, it is granted.
H. Ninth Affirmative Defense
Pitterman moves for summary judgment as to the ninth affirmative defense
asserted by GM in its Complaint Answer. See Pls.’ Aff. Def. MFSJ at 1. However, GM
has not reasserted in its Amended Complaint Answer what was, in the Complaint

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Answer, the ninth affirmative defense. Accordingly, the Motion for Summary Judgment
as to the ninth affirmative defense is terminated as moot.
I. Tenth Affirmative Defense
GM has reasserted, in sum and substance, this affirmative defense in the
Amended Complaint Answer, except in the Amended Complaint Answer it is numbered
as the seventh affirmative defense. See Compl. Answer at 10 ¶ 10; see also Am.
Compl. Answer at 8 ¶ 7. In its Complaint Answer, GM phrased this affirmative defense
as follows: “GM LLC affirmatively alleges that the subject vehicle was designed,
manufactured, and assembled in conformity with the then-existing state of the art and all
applicable industry standards and governmental regulations.” Compl. Answer at 10 ¶
10. In its Amended Complaint Answer, GM phrased this affirmative defense slightly
differently: “GM LLC reserves its right to present evidence that the subject vehicle was
designed, manufactured, and assembled in conformity with the then-existing state of the
art and all applicable industry standards and governmental regulations in order to
establish that the subject vehicle was not defective and unreasonably dangerous in any
respect.” Am. Compl. Answer at 8 ¶ 7.
Pitterman argues that the court should grant his Motion for Summary Judgment
as to this defense because, “[i]n Connecticut, ‘state of the art’ is not a proper affirmative
defense.” Pls.’ Mem. in Supp. at 12. In response, GM concedes that, while “state of the
art” is not an affirmative defense that would completely absolve GM of liability, “GM LLC
raises the fact that the O’Connor’s Suburban conformed to the then-existing state of the
art merely to emphasize its right to present state of the art evidence on the issue of

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whether the vehicle was defectively designed, as Plaintiffs have alleged.” Def.’s Mem.
in Opp’n at 8.
In connection with the “state of the art” defense, the Connecticut Supreme Court
has stated that,
In our view, state-of-the-art evidence is relevant to the
determination of whether a particular product design is
unreasonably dangerous. We disagree with the defendants'
contention, however, that proof of compliance with the state of the
art constitutes an affirmative defense to a design defect claim. We
emphasize that although state-of-the-art evidence may be
dispositive on the facts of a particular case, such evidence does not
constitute an affirmative defense that, if proven, would absolve the
defendant from liability. In other words, compliance with state of the
art would not, as a matter of law, warrant a judgment for a
defendant. For this reason, we believe that state-of-the-art
evidence is better characterized as rebuttal evidence than as a
defense.
Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 253 (1997) (internal citations
and quotation marks omitted). In short, although a “state of the art” defense is not a
complete defense, evidence of compliance with the then-existing “state of the art” is
relevant.
Because “state of the art” is not an affirmative defense, the Motion for Summary
Judgment as to the tenth affirmative defense is granted. However, this Ruling will not
prevent GM from presenting evidence that the 2004 Suburban complied with the thenexisting “state of the art.”
J. Thirteenth Affirmative Defense
Pitterman moves for summary judgment as to the thirteenth affirmative defense
asserted by GM in its Complaint Answer. See Pls.’ Aff. Def. MFSJ at 1. In the

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Complaint Answer, this affirmative defense is phrased as follows: “GM LLC affirmatively
alleges that the negligent or otherwise wrongful acts or omissions of Plaintiffs Rose and
James O’Connor, and each of them, or other individuals and/or entities, may have
constituted an intervening, superseding cause of the damages or loss, if any, allegedly
sustained by Plaintiffs.” Compl. Answer at 10 ¶ 13. However, nowhere in the Amended
Complaint Answer does GM argue that Rose or James O’Connor’s acts constituted an
“intervening” or “superseding” cause – in fact, those words never appear in the
Amended Complaint Answer. Nevertheless, because GM addresses this affirmative
defense in its briefing, the court will address it as well.
The analysis relating to this affirmative defense mirrors the analysis in connection
with the tenth affirmative defense. GM concedes that the Connecticut Supreme Court
has held that an intervening or superseding cause does not constitute an affirmative
defense. See Def.’s Mem. in Opp’n at 9. However, GM argues that, while intervening
or superseding cause is not an affirmative defense, the existence of an intervening or
superseding cause is relevant to the proximate cause analysis. Id. Thus, GM argues
that the court should view this affirmative defense “as preserving GM LLC’s right to fully
litigate the issue of proximate cause.” Id.
Because intervening / superseding cause is not an affirmative defense, the
Motion for Summary Judgment as to the thirteenth affirmative defense is granted.
However, this Ruling will not bar GM from presenting evidence relating to an intervening
or superseding cause, as such evidence is relevant to the proximate cause analysis.

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V.

CONCLUSION
The Motion for Summary Judgment as to the second affirmative defense

asserted in the Complaint Answer is TERMINATED AS MOOT.
The Motion for Summary Judgment as to the third affirmative defense asserted in
the Complaint Answer is TERMINATED AS MOOT.
To the extent the Motion for Summary Judgment is asserted by M.R.O. and G.O.
as to the fourth affirmative defense asserted in the Complaint Answer, which
corresponds to the second affirmative defense asserted in the Amended Complaint
Answer, it is GRANTED. This affirmative defense remains as applied to plaintiff Rose
O’Connor. The ninth affirmative defense asserted in the Amended Complaint Answer,
which is wholly covered by the second affirmative defense asserted in the Amended
Complaint Answer, is TERMINATED AS MOOT.
The Motion for Summary Judgment as to the fifth affirmative defense asserted in
the Complaint Answer, which corresponds to the third affirmative defense asserted in
the Amended Complaint Answer, is GRANTED IN PART AND DENIED IN PART. To
the extent the Motion for Summary Judgment is asserted by M.R.O. as to the fifth
affirmative defense, it is granted as to the allegedly contributory negligence of Rose
O’Connor, but is denied as to M.R.O.’s and G.O.’s allegedly contributory negligence.
To the extent the Motion for Summary Judgment is asserted by G.O. as to the fifth
affirmative defense, it is granted as to the allegedly contributory negligence of Rose
O’Connor, but is denied as to G.O.’s and M.R.O.’s allegedly contributory negligence.
This affirmative defense remains as applied to plaintiff Rose O’Connor.

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To the extent the Motion for Summary Judgment is asserted by M.R.O. and G.O.
as to the sixth affirmative defense asserted in the Complaint Answer, which
corresponds to the fourth affirmative defense asserted in the Amended Complaint
Answer, it is GRANTED. This affirmative defense remains as applied to plaintiff Rose
O’Connor.
The Motion for Summary Judgment as to the seventh affirmative defense
asserted in the Complaint Answer, which corresponds to the fifth affirmative defense
asserted in the Amended Complaint Answer, is GRANTED IN PART AND DENIED IN
PART. To the extent the Motion for Summary Judgment is asserted by M.R.O. as to
the fifth affirmative defense, it is granted as to the allegedly contributory negligence of
Rose O’Connor, but is denied as to M.R.O.’s allegedly contributory negligence. To the
extent the Motion for Summary Judgment is asserted by G.O. as to the fifth affirmative
defense, it is granted as to the allegedly contributory negligence of Rose O’Connor, but
is denied as to M.R.O.’s allegedly contributory negligence. This affirmative defense
remains as applied to plaintiff Rose O’Connor.
To the extent the Motion for Summary Judgment is asserted by M.R.O. and G.O.
as to the eighth affirmative defense asserted in the Complaint Answer, which
corresponds to the sixth affirmative defense asserted in the Amended Complaint
Answer, it is GRANTED. This affirmative defense remains as applied to plaintiff Rose
O’Connor.
The Motion for Summary Judgment as to the ninth affirmative defense asserted
in the Complaint Answer is TERMINATED AS MOOT.

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The Motion for Summary Judgment as to the tenth affirmative defense asserted
in the Complaint Answer, which corresponds to the seventh affirmative defense
asserted in the Amended Complaint Answer, is GRANTED.
The Motion for Summary Judgment as to the thirteenth affirmative defense
asserted in the Complaint Answer is GRANTED.
The following affirmative defenses – asserted in the Amended Complaint Answer
– remain: numbers 1, 2 (in part, as described above), 3 (in part, as described above), 4
(in part, as described above), 5 (in part, as described above), 6 (in part, as described
above), 8, 10, 11, and 12.
SO ORDERED.
Dated at New Haven, Connecticut this 11th day of May 2016.

/s/ Janet C. Hall
Janet C. Hall
United States District Judge

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