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GILES v. NEW HAVEN2/8/1994
utory negligence would operate merely to diminish recovery of damages based upon the degree of the plaintiff's own negligence. Gomeau v. Forrest, 176 Conn. 523, 525, 409 A.2d 1006 (1979); see W. Prosser, Torts (4th Ed. 1971) 67. We would contravene this manifest legislative purpose if we were to continue to require a plaintiff to be free from contributory negligence as an element of the res ipsa loquitur doctrine. Because of the advent of comparative negligence, res ipsa loquitur now applies even if the plaintiff's fault contributed to the injury. Cramer v. Mengerhausen, 275 Or. 223, 229, 550 P.2d 740 (1976).
Insofar as the third condition of res ipsa loquitur relates to contributory negligence, the enactment of 52-572h requires a modification. We conclude that whenever a court can reasonably find that the event is one that ordinarily would not have occurred in the absence of someone's negligence, and that the defendant's inferred negligence was more probably than not a cause of the injury , the doctrine of res ipsa loquitur applies even though the plaintiff's negligence may also have contributed to the injury. If a trial court determines that the doctrine of res ipsa loquitur is applicable, it should thereafter instruct the jury to compare the negligence of the plaintiff, if any, with that of the defendant to decide what percentages to attribute to each party consistent with the comparative negligence statute.
The Appellate Court properly upheld the plaintiff's claim that the trial court should not have granted the defendant's motion for a directed verdict. Pursuant to the doctrine of res ipsa loquitur as we have refined its conditions in this opinion, the plaintiff was entitled to have a jury consider her claim that the defendant's negligence was the cause of her personal injuries.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
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