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GILES v. NEW HAVEN2/8/1994
that held it in place, had been repaired or replaced for several years. He testified that, his inspection after the incident revealed that the U-bolts had been broken, the counterweight bracket had been pulled out of place and the traveling cable had been broken.
Although Hendry explained that there was no reason to inspect the compensation chain and that he believed the accident had been caused by multiple rapid direction reversals, the plaintiff was not required to prove the absence of such reversals in order to avail herself of the res ipsa loquitur inference. The plaintiff testified that she had been using the elevator in a normal manner on the day of the accident and the trial court was required to view that testimony in a light most favorable to the plaintiff. Petyan v. Ellis, supra, 244. As in this case, " nce a plaintiff has presented sufficient evidence to bring himself [or herself] within the operation of the doctrine, the burden of going forward with evidence to explain the accident is cast upon the defendant. . . ." Bituminous Fire & Marine Ins. Co. v. Culligan Fyrprotexion, Inc., 437 N.E.2d 1360, 1365 (Ind. App. 1982). The burden of proof, however, does not shift, and the plaintiff must prove her case by a preponderance of the evidence. Ryan v. George L. Lilley Co., 121 Conn. 26, 30, 183 A. 2 (1936). Accordingly, the defendant is free to rebut the inference provided by the doctrine; nevertheless, "even though the defendant comes forward with an explanation of the accident, the inference of negligence does not disappear from the case, but remains and is placed upon the scales to be weighed by the trier of facts with any and all explanations and other evidence." Bituminous Fire
& Marine Ins. Co. v. Culligan Fyrprotexion, Inc., supra. We agree with the Appellate Court that the evidence established an evidentiary basis from which the jury could find that the plaintiff's injuries resulted from the defendant's negligence.
Finally, with regard to the third condition of the res ipsa loquitur doctrine, we recently suggested in dictum that "in a jurisdiction that utilizes the doctrine of comparative negligence, such as Connecticut, the emerging rule is that any negligence by the plaintiff should not bar liability but should merely reduce damages. . . . Commentators have suggested that the doctrine of res ipsa loquitur should survive under Connecticut's comparative negligence law. See G. Saden, `Comparative Negligence Adopted in Connecticut,' 47 Conn. B.J. 416, 426 (1973); F. James, `Connecticut's Comparative Negligence Statute: An Analysis of Some Problems,' 6 Conn. L. Rev. 207, 215 (1973-74)." Malvicini v. Stratfield Motor Hotel, Inc., supra, 444-45. We now consider this dictum directly and specifically adopt it.
Negligence, if any, by a plaintiff is not a part of the "control" element of the doctrine. The purpose of comparative negligence is to ameliorate the harshness of the complete bar to liability resulting from the common law defense of contributory negligence. W. Prosser, Torts (4th Ed. 1971) 67. This change in policy was accomplished by mandating a comparison by the fact finder of the relative degrees of negligence of the plaintiff and the defendant. General Statutes 52-572h (6) provides that "contributory negligence shall not bar recovery in an action by any person . . . to recover damages resulting from personal injury . . .
if the negligence was not greater than the combined negligence of the person or persons against whom recovery is sought . . . ." The purpose of the comparative negligence statute was to replace the former rule, under which contributory negligence acted as a complete defense, with a rule under which contrib
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