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ROLAND TODD WHITE v. MAZDA MOTOR

OF AMERICA, INC., ET AL.

(SC 19088)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,

Espinosa and Vertefeuille, Js.

Argued October 29, 2013—officially released September 23, 2014

Alexander J. Sarris, with whom, on the brief, was

Frank J. McCoy, Jr., for the appellant (plaintiff).

Paul D. Williams, with whom, on the brief, was John

W. Cerreta, for the appellees (named defendant et al.).

Brenden P. Leydon filed a brief for the Connecticut

Trial Lawyers Association as amicus curiae.

Cristin E. Sheehan and Jonathan M. Hoffman, pro

hac vice, filed a brief for the Product Liability Advisory

Council, Inc., as amicus curiae.
Opinion

ZARELLA, J. In this certified appeal, we consider

whether the plaintiff, Roland Todd White, preserved for

appellate review a claim under the malfunction theory

of products liability. The malfunction theory allows a

plaintiff in a product liability action to rely on circumstantial evidence to support an inference that an

unspecified defect attributable to a product seller was

the most likely cause of a product malfunction when

other possible causes of the malfunction are absent.

See generally Metropolitan Property & Casualty Ins.

Co. v. Deere & Co., 302 Conn. 123, 131–33, 25 A.3d

571 (2011). In the present case, the plaintiff initiated a

product liability action against the defendants, Mazda

Motor of America, Inc. (Mazda), and Cartwright Auto,

LLC,1 after his Mazda3 sedan caught fire on the side of

the highway approximately one month afterthe plaintiff

purchased the vehicle and had driven it about 2800

miles. The trial court granted the defendants’ motion for

summary judgment after the plaintiff failed to produce

competent expert testimony to support his claim that

a specific defect in the vehicle’s fuel system caused the

fire and that the fire was the proximate cause of the

plaintiff’s injuries. On appeal to the Appellate Court,

however, the plaintiff principally claimed that he could

prove his case by claiming the existence of some

unspecified product defect under the malfunction theory of products liability. See White v. Mazda Motor of

America, Inc., 139 Conn. App. 39, 46–47 n.9, 54 A.3d 643

(2012). The Appellate Court, with one judge dissenting,

determined that the plaintiff had notraised the malfunction theory in the trial court and thus did not preserve

it for appellate review. See id., 47 n.9; see also id., 51

(West, J., dissenting). After concluding that the plaintiff

did not support his specific defect claim with competent

expert testimony, the Appellate Court affirmed the trial

court’s judgment. Id., 50–51.

The plaintiff filed a petition for certification to appeal,

which we granted, limited to the following issues. First,

‘‘[d]id the Appellate Court properly conclude that the

plaintiff had failed to raise the malfunction theory claim

at trial?’’ White v. Mazda Motor of America, Inc., 307

Conn. 949, 60 A.3d 741 (2013). Second, ‘‘[i]f the answer

to the first question is in the negative, did the plaintiff

present a prima facie case under the ‘malfunction theory’ of products liability?’’ Id., 950. Because we agree

with the Appellate Court that the plaintiff did not preserve his malfunction theory claim for appellate review,

we answer the first certified question in the affirmative

and do notreach the merits of the plaintiff’s claim under

the second certified question. Accordingly, we affirm

the judgment of the Appellate Court.

I

In the predawn hours of a mid-November morning
in 2006, the plaintiff, who worked a night shift, left work

after his shift ended and began his sixty mile commute

home, driving alone on Interstate 395 in his Mazda3

sedan. The plaintiff had purchased the vehicle, new,

approximately one month earlier and had made the trip

between his home and work about forty times, for a

total of about 2800 miles. The ride home that morning

was uneventful, at least for the first forty-five miles. At

that point, the plaintiff smelled gasoline and pulled over

to the shoulder of the highway to investigate. Other

than the gasoline smell, the plaintiff did not observe

anything unusual about the vehicle’s condition, gauges,

lighting, or switches, and did not feel any heat or see

any smoke. After pulling over, the plaintiff opened the

hood to look at the engine, and saw a ‘‘flash’’ and ‘‘slight

explosion’’ that caused him to fall backward. The plaintiff was not burned, but he did injure his left knee during

his fall and was latertreated. The engine caught fire, and

the local fire departmentresponded and extinguished it.

Prior to the fire, the plaintiff had no problems with the

vehicle, did not complain about it to anyone, and was

satisfied with its operation.

The plaintiff later brought this action against the

defendants to recover for the injuries to his left knee.2

The plaintiff alleged that a defect within the vehicle’s

fuel system caused a fire or explosion in the engine

that, in turn, caused the plaintiff to suffer ‘‘from pain

and injuries to his left knee and left leg, all of which

were caused by the accident or were the result of an

aggravation of a preexisting condition.’’

The plaintiff alleged a number of reasons why the

vehicle was defective, which the Appellate Court summarized as follows: ‘‘(1) the fuel lines on the fuel rail

of the vehicle were pressed onto the fitting at the fuel

rail in such a way that a fuel leak occurred and caused

a fire; (2) the fuel lines were installed or secured with

clamps improperly, which caused damage to the lines,

resulting in a fuel leak and a fire;(3)[Mazda] negligently

installed the fuel lines on the vehicle in an incorrect

manner, causing a fuel leak and a fire; (4) [Mazda]

negligently failed to design the vehicle and its component parts so that it would not be a hazard to a consumer

purchaser; (5) the defendants negligently failed to test

or inspect the vehicle and its component parts; (6) the

defendants manufactured or sold the vehicle with defective component parts or a defective engine, thereby

causing a hazard to users of the vehicle; (7) the defendants failed to warn the plaintiff of the aforesaid conditions; (8) the defendants breached their statutory warranty of merchantability in that the vehicle was not fit

for the ordinary purpose for which it was sold; and (9)

the defendants sold the vehicle in a defective, unsafe

and dangerous condition, thereby subjecting the plaintiff to an unreasonable risk of injury.’’ White v. Mazda

Motor of America, Inc., supra, 139 Conn. App. 41–42.
During discovery, the plainitff disclosed a proposed

expert witness, Richard E. Morris, who would testify

that the incident involving the plaintiff’s vehicle was

caused by a specific malfunction in the vehicle’s fuel

system. According to the disclosure, Morris, a fire investigator, would ‘‘testify that he conducted an origin and

cause fire investigation of the plaintiff’s vehicle’’ and

that he ‘‘may opine that the plastic clips and/or gasket

that held the supply lines into the fuel rail were inadequately designed, constructed and/or installed.’’

According to the plaintiff’s disclosure, Morris ‘‘further

concluded that the plastic clips easily disengaged to

allow the fuel line to slip off and allow free gasoline to

leak into the engine.’’

The defendants later deposed Morris, who concluded

that a poorly designed fuel clip or gasket in or on the

vehicle fuel line failed and caused the fire. The trial

court observed, however, that Morris had testified that

he was ‘‘not an expert in automobile mechanics, automobile electronics, the design or manufacture of any

automobile components related to fuel lines, [or] the

design . . . or the manufacture of automobiles.’’ In

addition, and significantly, Morris declined to offer an

opinion about whether the plaintiff’s vehicle was

defective.

On the basis of the allegations in the pleadings and

the facts disclosed during discovery, the defendants

filed a motion for summary judgment. In their motion,

the defendants made two distinct arguments about the

adequacy of the plaintiff’s evidence with respect to two

of the elements of a product liability claim.3 First, the

defendants argued that the plaintiff did not produce

evidence that his vehicle had a defect because the plaintiff’s proposed expert, a fire investigator, was not qualified to render an opinion about automobile defects and,

in any event, declined to offer an opinion about whether

the vehicle was defective. According to the defendants,

the plaintiff’s claims involved an alleged defect in a

complex automobile engine, and, thus, the plaintiff was

required to present expert testimony to establish a

prima facie case. Second, the defendants argued that

the plaintiff did not produce competent evidence to

establish that the alleged defect in his vehicle proximately caused his injuries, which, according to the

plaintiff’s own pleadings, might have been related to a

preexisting condition.

The plaintiff responded to these arguments in his

memorandum in opposition to the defendants’ summary

judgment motion. As to the first argument, the plaintiff

acknowledged that he was required to present expert

testimony to prove the existence of a defect but asserted

that he had sufficient expert testimony to demonstrate

that a specific defect in the vehicle’s fuel line caused

the fire. The plaintiff alleged, in essence, that a fire

investigator inspected both the plaintiff’s vehicle and
an exemplar, and concluded that ‘‘plastic release tab

clips on the gas line and fuel lines and/or gaskets’’ were

‘‘flimsy’’ and ‘‘ultimately failed,’’ likely causing the fire.

The plaintiff attached three exhibits to support his arguments: (1) an affidavit from Morris; (2) a portion of

Morris’ deposition testimony; and (3) reports prepared

by Morris in connection with his inspection of the plaintiff’s vehicle and the exemplar. Each of the exhibits

served to reinforce Morris’ conclusions about the existence of a specific defect. As to the defendants’ second

argument, the plaintiff argued that he did not need

expert testimony to prove the proximate cause element

of a product liability claim because there was sufficient

circumstantial evidence, namely, his own eyewitness

testimony, to support his claim that the alleged defect

in the vehicle caused his injuries.

The trial court granted the defendants’ summary judgment motion. In its memorandum of decision, the trial

court concluded that the plaintiff’s claim of defect,

which involved an allegedly defective complex automobile engine,required the plaintiff to present expert testimony. Although the plaintiff proposed Morris as an

expert, the trial court determined that Morris lacked

the required, relevant expert credentials ‘‘[b]ecause

. . . Morris expressly disavow[ed] any expertise in any

area outside of origin and cause fire investigations and

[did] not offer an opinion that the vehicle in question

was defectively designed or manufactured . . . .’’ With

respect to the issue of proximate cause, the trial court

concluded that, ‘‘[w]ithout this expert testimony, a jury

would be unable to determine whether the allegedly

defective condition of the vehicle was the proximate

cause of the plaintiff’s harm.’’ As a result, the trial court

determined that the plaintiff did not present competent

evidence to create a genuine issue of material fact and

therefore granted the defendants’ motion for summary

judgment and rendered judgment thereon for the

defendants.

The plaintiff appealed from the judgment of the trial

court to the Appellate Court. On appeal, the plaintiff

principally argued that he could prove his product liability claims based on an unspecified defect under the

malfunction theory and without expert testimony.

White v. Mazda Motor of America, Inc., supra, 139

Conn. App. 46–47 n.9. The defendants objected to the

plaintiff’s reliance on the malfunction theory on the

ground that the plaintiff did not raise this theory in the

trial court. Id., 46 n.9. The defendants further argued

that the trial court properly granted their motion for

summary judgment because the plaintiff had failed to

proffer expert evidence to support his claims, which

involved a complex product. See id., 48–49.

The Appellate Court affirmed the trial court’s judgment, with one judge dissenting. Id., 51; see also id.

(West, J., dissenting). A majority of the Appellate Court
panel concluded, like the trial court, that the plaintiff’s

specific defect claims required expert testimony

because of the complex nature of the product at issue

and that the plaintiff failed to produce this evidence.

See id., 49–51. In reaching its conclusion, the Appellate

Court majority declined to address the plaintiff’s claim

that he alternatively could prove the existence of an

unspecified defect under the malfunction theory. Id.,

46–47 n.9. The Appellate Court majority determined

that the plaintiff failed to raise this theory of liability

in the trial court and, therefore, did not preserve it

for appellate review. Id., 47 n.9. The dissenting judge

concuded that the plaintiff sufficiently raised the malfunction theory in the trial court, albeit indirectly, and

proceeded to address the merits of that claim. Id., 53–54

(West, J., dissenting). The dissenting judge further concluded that the plaintiff had established a prima facie

case under the malfunction theory and that he did not

need expert testimony to prove this claim under the

facts of the case. Id., 63 (West, J., dissenting). This

certified appeal followed.

II

The plaintiff claims that the Appellate Court incorrectly concluded that he failed to raise a claim based

on the malfunction theory in the trial court. Specifically,

the plaintiff asserts that he provided sufficient notice

of a claim underthe malfunction theory in his memorandum in opposition to the defendants’ motion for summary judgment, at oral argument on the motion, and in

his motion for reargument. In response, the defendants

assert that the plaintiff relied exclusively on the specific

defect theory in his pleadings and his memorandum in

opposition to the motion for summary judgment and,

therefore, did not raise a claim of an unspecified defect

under the malfunction theory. We agree with the

defendants.

A

Our appellate courts, as a general practice, will not

review claims made for the first time on appeal. We

repeatedly have held that ‘‘[a] party cannot present a

case to the trial court on one theory and then seek

appellate relief on a different one . . . .’’ (Internal quotation marks omitted.) Council v. Commissioner of

Correction, 286 Conn. 477, 498, 944 A.2d 340 (2008).

‘‘[A]n appellate court is under no obligation to consider

a claim that is not distinctly raised at the trial level.

. . . [B]ecause our review is limited to matters in the

record, we [also] will not address issues not decided by

the trial court.’’4

(Citations omitted; internal quotation

marks omitted.) Burnham v. Karl & Gelb, P.C., 252

Conn. 153, 170–71, 745 A.2d 178 (2000); see also Practice

Book § 60-5. ‘‘The requirement that [a] claim be raised

distinctly means that it must be so stated as to bring

to the attention of the court the precise matter on which

its decision is being asked.’’(Emphasis in original; inter-
nal quotation marks omitted.) State v. Colon, 82 Conn.

App. 658, 659, 847 A.2d 315, cert. denied, 269 Conn. 915,

852 A.2d 745 (2004); see, e.g., McKiernan v. Caldor,

Inc., 183 Conn. 164, 166, 438 A.2d 865 (1981) (issue

‘‘briefly suggested’’ in trial court is not distinctly raised).

The purpose of our preservation requirements is to

ensure fair notice of a party’s claims to both the trial

court and opposing parties. See, e.g., State v. Ross,

269 Conn. 213, 335–36, 849 A.2d 648 (2004). ‘‘These

requirements are not simply formalities. They serve to

alert the trial court to potential error while there is still

time for the court to act. . . . Assigning error to a

court’s evidentiary rulings on the basis of objections

never raised at trial unfairly subjects the court and the

opposing party to trial by ambush.’’ (Internal quotation

marks omitted.) State v. Johnson, 289 Conn. 437, 461,

958 A.2d 713 (2008).

To properly raise a theory of liability in the trial

court, a party must articulate it in advance, as an ‘‘early

warning,’’ so that an opposing party may ‘‘frame its

presentation of evidence’’ accordingly. Sorrentino v.

All Seasons Services, Inc., 245 Conn. 756, 766, 717 A.2d

150 (1998). ‘‘The requirement that claims be raised

timely and distinctly also recognizes that counsel

should not have the opportunity to surprise an opponent

by interjecting a claim when opposing counsel is no

longer in a position to present evidence against such a

claim.’’ Swerdloff v. AEG Design/Build, Inc., 209 Conn.

185, 189, 550 A.2d 306 (1988). Parties will naturally base

their discovery strategy and litigation decisions on the

claims raised by opposing parties. It would be patently

unfairfor a plaintiff to plead his claims under one theory

of liability, only to shift to a new, alternative theory on

appeal, well afterthe close of discovery, thus preventing

or hindering the defendant from gathering facts relating

to the plaintiff’s new claims. See, e.g., id.; cf. Council

v. Commissioner of Correction, supra, 286 Conn. 498.

B

To put the defendants on notice that the plaintiff

intended to pursue an alternative theory of liability

under the malfunction theory, the plaintiff needed to

plead this theory in his amended complaint. The pleadings determine which facts are relevant and frame the

issues for summary judgment proceedings or for trial.

See, e.g., Doublewal Corp. v. Toffolon, 195 Conn. 384,

390–91, 488 A.2d 444 (1985); Recall Total Information

Management, Inc. v. Federal Ins. Co., 147 Conn. App.

450, 456, 83 A.3d 664, cert. granted, 311 Conn. 925, 86

A.3d 469 (2014). ‘‘The principle that a plaintiff may

rely only [on] what he has alleged is basic. . . . It is

fundamental in our law that the right of a plaintiff to

recover is limited to the allegations [in] his complaint.’’

(Internal quotation marks omitted.) Kaddah v. Commissioner of Correction, 299 Conn. 129, 140, 7 A.3d

911 (2010). ‘‘A complaint must fairly put the defendant
on notice of the claims . . . against him. . . . The purpose of the complaint is to limit the issues to be decided

atthe trial of a case and is calculated to prevent surprise.

. . . Only those issues raised by the [plaintiff] in the

latest complaint can be tried before the jury.’’ (Internal

quotation marks omitted.) Gilbert v. Middlesex Hospital, 58 Conn. App. 731, 734, 755 A.2d 903 (2000), quoting

Farrell v. St. Vincent’s Hospital, 203 Conn. 554, 557–58,

525 A.2d 954 (1987).5

Aproductliability claim underthe malfunction theory

is distinct from an ordinary product liability claim. The

distinction lies in whether the plaintiff is relying on

direct evidence of a specific defect (an ordinary claim)

or circumstantial evidence of an unspecified defect (a

malfunction theory claim). To establish a product liability claim, ‘‘a plaintiff must prove that: (1) the defendant

was engaged in the business of selling the product; (2)

the product was in a defective condition unreasonably

dangerous to the consumer or user; (3) the defect

caused the injury for which compensation was sought;

(4) the defect existed at the time of the sale; and (5) the

product was expected to and did reach the consumer

without substantial change in condition.’’ (Internal quotation marks omitted.) Metropolitan Property & Casualty Ins. Co. v. Deere & Co., supra, 302 Conn. 131. Ordinarily, a plaintiff relies on direct proof of a specific

manufacturing or design defect to prove his product

liability claim, that is, evidence directly demonstrating

that some part of a product was either defectively manufactured or designed and that the defectively designed

or manufactured part caused the product to fail. See

id. In some cases, however, a product malfunction

causes the loss or destruction of the product, leaving

the parties without direct evidence of the product’s

condition. Id., 131–32. This can leave the plaintiff without direct evidence to establish his claim. Id., 132. The

malfunction theory allows a plaintiff to establish the

existence of a defect at the time of sale or distribution

through circumstantial evidence supporting an inference that an unspecified defect most likely caused the

accident by virtue of the fact that other possible causes

of the accident are absent. See id., 133–34. The plaintiff

in the present case, however, did not reference the

malfunction theory in his pleadings, nor did he present

any allegations relative to its elements. Instead, he

pleaded only a specific defect theory based on his assertion that a defect in the vehicle’s fuel system caused

the incident that resulted in his injuries.

To properly plead a product liability claim under the

malfunction theory, the plaintiff was required to at least

claim in the pleadings that some unspecified defect

caused the plaintiff’s harm and to allege facts tending to

establish the malfunction theory’s two basic elements,

namely, ‘‘that (1) the incident that caused the plaintiff’s

harm was of a kind that ordinarily does not occur in

the absence of a product defect, and (2) any defect
most likely existed at the time the product left the

manufacturer’s or seller’s control and was not the result

of the reasonably possible causes not attributable to

the manufacturer or seller.’’ Id., 139–40.

The plaintiff had ample notice that he needed to at

least plead and prove these two basic elements to establish a malfunction theory claim. Although this court

had not explored the contours of the malfunction theory

before the plaintiff filed his amended complaint,6 decisions of the Appellate and Superior Courts already had

identified and discussed these elements. For example,

as early as 1979, the Appellate Session of the Superior

Court had explained that a plaintiff could establish the

existence of a product defect at the time of sale, even

in the absence of direct evidence, with ‘‘circumstantial

evidence’’ of ‘‘some unspecified dangerous condition’’

and evidence eliminating other possible causes of the

accident. Liberty Mutual Ins. Co. v. Sears, Roebuck &

Co., 35 Conn. Supp. 687, 691, 406 A.2d 1254, cert. denied,

177 Conn. 754, 399 A.2d 526 (1979). Subsequently, in

Living & Learning Centre, Inc. v. Griese Custom

Signs, Inc., 3 Conn. App. 661, 491 A.2d 433 (1985), the

Appellate Court agreed, explaining: ‘‘It is not necessary

that the plaintiff in a strict tort action establish a specific

defect as long as there is evidence of some unspecified

dangerous condition. In the absence of other identifiable causes, evidence of malfunction is sufficient evidence of a defect under § 402A of the [Restatement

(Second)] of Torts.’’ Id., 664. A Superior Court decision

issued just two years before the plaintiff filed his

amended complaint in the present case set forth the

basic requirements of the malfunction theory in some

detail, even quoting from the Restatement (Third) of

Torts to explain the two essential elements of a claim:

‘‘[I]t may be inferred that the harm . . . was caused

by a product defect . . . without proof of a specific

defect, when the incident . . . (a) was of a kind that

ordinarily occurs as a result of [a] product defect; and

(b) was not, in the particular case, solely the result of

causes other than [a] product defect existing at the

time of sale or distribution.’’(Emphasis added; internal

quotation marks omitted.) Fallon v. Matworks, 50 Conn.

Supp. 207, 215, 918 A.2d 1067 (2007), quoting Restatement (Third), Torts, Product Liability § 3, p. 111 (1998).

Despite decades of judicial guidance, the plaintiff did

not address the basic elements of a malfunction theory

claim in his pleadings before the trial court. As a result,

nothing in the plaintiff’s complaint provided the defendants with notice that they needed to gatherfacts during

discovery to defend against this theory of liability. See,

e.g., Montanaro v. Gorelick, 73 Conn. App. 319, 324,

807 A.2d 1083 (2002) (‘‘[t]he pleadings [must] provide

sufficient notice of the facts claimed and the issues to

be tried [so as to avoid] surprise or prejudice [to] the

opposing party’’ [internal quotation marks omitted]).

The plaintiff does not argue in his brief to this court
that he raised the claim in his amended complaint. Nor

did the plaintiff seek leave to further amend his complaint to include this theory. Perhaps, if given notice,

the defendants could have identified facts during discovery to establish other possible causes of the accident. If the plaintiff did not produce evidence to negate

these other possible causes, the plaintiff’s case would

fail at the summary judgment stage. The plaintiff’s failure to plead a malfunction theory claim in his complaint

deprived the defendants of an opportunity to discover

facts related to the claim, and it deprives the court of

having those additional facts to aid in its decision. Having failed to provide notice to the trial court and the

defendants of this alternative theory in his amended

complaint by pleading the necessary facts, the plaintiff

did not raise it ‘‘timely and distinctly . . . .’’ Swerdloff

v. AEG Design/Build, Inc., supra, 209 Conn. 189.

To be sure, the plaintiff was not required to plead a

separate malfunction theory count in his complaint, but

this does not relieve him of his burden of pleading

facts to raise this theory in his complaint as part of his

product liability claims. The malfunction theory is not

an independent tort but an evidentiary principle that

alters the plaintiff’s ordinary burden of proof in a product liability action. See Metropolitan Property & Casualty Ins. Co. v. Deere & Co., supra, 302 Conn. 134. It does

so in two ways:(1)lowering the burden by removing the

requirement that a plaintiff present direct evidence of

a defect; and (2) raising it by requiring that a plaintiff

negate other possible causes of the accident. See id.,

133–34. A plaintiff must allege facts to put the trial court

and the defendant on notice that the plaintiff intends to

pursue his claim under this alternative burden of proof.

Our res ipsa loquitur jurisprudence is instructive.

Even though res ipsa loquitur is not an independent

cause of action, a plaintiff must—because Connecticut

is a fact pleading jurisdiction—allege facts in his complaint to raise a res ipsa loquitur theory of negligence,

especially when the plaintiff also asserts a negligence

claim through allegations of specific acts of negligence.

The Appellate Court addressed this issue in Gilbert v.

Middlesex Hospital, supra, 58 Conn. App. 731. In that

case, the plaintiff’s amended complaint included allegations of specific acts of negligence but did not contain

allegations that would establish the elements of res ipsa

loquitur. Id., 733–34. The Appellate Court explained that

‘‘[a] res ipsa loquitur instruction is not appropriate

[when] the plaintiff is not relying solely on circumstantial evidence, but instead alleges and introduces into

evidence specific acts of negligence by the defendant.’’

(Internal quotation marks omitted.) Id., 734–35.

‘‘Because the amended complaint contained no allegations concerning res ipsa loquitur, and because the

plaintiff offered direct evidence of the defendants’ negligence at trial, an instruction on res ipsa loquitur was

not warranted.’’ (Emphasis added.) Id., 735.
This commonsense principle is reflected in numerous

decisions of the Superior Court. For instance, in Benoit

v. Athanasiadis, Superior Court, judicial district of New

London, Docket No. CV-12-6013227 (November 16,

2012) (55 Conn. L. Rptr. 22), the court explained: ‘‘Res

ipsa loquitur certainly is not an independent cause of

action but only a doctrine of evidence and thus not

separate from a negligence claim. But certainly a claim

of negligence can be based on a statement of facts and

circumstances giving rise to the application of res ipsa

loquitur. In fact if a plaintiff is relying on a negligence

claim framed in this way, because we are a fact pleading state, the plaintiff must setforth factual allegations

raising this doctrine.’’ (Emphasis added; internal quotation marks omitted.) Id. Other decisions state the

same principle. See, e.g., Hargrove v. Price Chopper,

Superior Court, judicial district of Hartford, Docket No.

CV-12-6028482-S (October 4, 2013) (56 Conn. L. Rptr.

895, 896); Smith v. Waterbury Hospital, Superior Court,

judicial district of Waterbury, Docket No. CV-01-

0168363 (March 7, 2003) (34 Conn. L. Rptr. 262). Indeed,

the Superior Court has rendered judgment against a

plaintiff who failed to plead facts raising a res ipsa

loquitur claim, even though the plaintiff attempted to

raise that theory for the first time in opposition to a

motion for summary judgment. See Santiago v. Hospital of St. Raphael’s, Superior Court, judicial district of

New Haven, Docket No. CV-05-4010822-S (July 25, 2008)

(rendering judgment against plaintiff when ‘‘the plaintiff

failed to plead res ipsa loquitur in his revised complaint,

making it an improper issue for [the] court to consider’’).7

The reason for this is obvious. If a plaintiff pleads

only a specific negligence claim, and does not also plead

res ipsa loquitur, the defendant has no reason to believe

that the plaintiff’s claim is anything other than a garden

variety specific negligence claim. So too it is with product liability claims based on the malfunction theory.

That explains why, in the present case, the defendants

and the trial court addressed only a claim based on a

specific defect. Neither the defendants nor the court

had any reason to believe that the plaintiff also was

raising a malfunction theory claim. He did not plead it

in his complaint.

If the plaintiff sought to establish his claim using the

malfunction theory, our rules of practice required him

either to raise it in his complaint or to obtain consent

or leave to raise it in a further amended complaint. See,

e.g., Practice Book § 10-60 (a). The plaintiff did neither.

The plaintiff having failed to allege facts in his amended

complaint establishing a claim based on the malfunction

theory, the plaintiff’s amended complaint did not comply with our pleading requirements.

C
Although the plaintiff did not plead the malfunction

theory in his complaint, the plaintiff maintains that he

properly raised it during the summary judgment proceedings in the trial court. We disagree that the plaintiff

could properly raise a new, alternative theory of liability

for the first time in opposition to a motion for summary

judgment. In any event, a review of the summary judgment proceedings in the trial court demonstrates that

the plaintiff did not raise a malfunction theory claim

during those proceedings.

1

The plaintiff first asserts that he raised the malfunction theory in his memorandum in opposition to the

defendants’ motion for summary judgment. We reject

this assertion for two reasons.

First, the plaintiff could not properly raise an entirely

new, alternative theory of liability for the first time in

his opposition to the defendants’ summary judgment

motion when he failed to plead this theory in his complaint or put the defendants on notice that he intended

to rely on it by further amending his complaint. See,

e.g., Bellemare v. Wachovia Mortgage Corp., 94 Conn.

App. 593, 607, 894 A.2d 335 (2006) (explaining that

reviewing court need not address claim raised ‘‘for the

first time in a pleading filed in opposition to the defendant’s motion for summary judgment’’), aff’d, 284 Conn.

193, 931 A.2d 916 (2007); Moeller v. St. Luke’s Foundation, Inc., Superior Court, judicial district of StamfordNorwalk, Docket No. X-08-CV-040199334-S (June 27,

2007) (‘‘[a] court is not required to reach the merits

of a claim or argument raised for the first time in a

memorandum in opposition to summary judgment’’

when ‘‘that theory is not pleaded in the complaint’’);

Bank of New York v. Conway, 50 Conn. Supp. 189, 198

n.5, 916 A.2d 130 (2006) (same); see also Santiago v.

Hospital of St. Raphael’s, supra, Superior Court, Docket

No. CV-05-4010822-S (rendering judgment against ‘‘the

plaintiff [when he] failed to plead res ipsa loquitur in

his revised complaint, making it an improper issue for

[the] court to consider’’). If the plaintiff intended to rely

on the malfunction theory in opposition to summary

judgment, he was required to plead that theory in his

amended complaint or seek leave to further amend his

complaint. Having failed to do this, he could not properly raise it for the first time in his opposition to the

defendants’ summary judgment motion.

Second, even if we suspend our pleading rules for

the sake of argument, a review of the plaintiff’s memorandum in opposition to the defendants’ summary judgment motion reveals that he did not raise a claim of an

unspecified defect under the malfunction theory and,

again, did not even address its elements. The plaintiff

asserts that he raised the malfunction theory when he

argued that he could use circumstantial evidence to
prove that the alleged specific defect proximately

caused his injuries. The plaintiff’s proximate cause

argument does not, however, establish or even relate

to a malfunction theory claim. Proximate cause is a

separate element of a product liability claim, distinct

from the elements established by the malfunction theory. As we previously noted, the malfunction theory

serves as proof of two elements of a product liability

claim: the existence of a defect and that the defect

existed when the product was sold or distributed. Metropolitan Property & Casualty Ins. Co. v. Deere & Co.,

supra, 302 Conn. 134. Establishing proximate cause

does not serve as proof of either of those elements. See

id., 134–35 and n.6. Thus, in arguing that he could prove

proximate cause with circumstantial evidence, the

plaintiff did not also raise a claim of some unspecified

defect under the malfunction theory, nor did the plaintiff present evidence to negate other possible causes.

The plaintiff argued only that his own eyewitness testimony about the circumstances of how the incident in

question occurred could support a finding that the

alleged specific defect in his vehicle was the cause of

his injuries. Accordingly, the plaintiff did not raise a

malfunction theory claim in his memorandum in opposition to the defendants’ summary judgment motion.8

2

The plaintiff next claims that he properly raised the

malfunction theory during oral argument on the defendants’ summary judgment motion, when plaintiff’s

counsel suggested that ‘‘an explosion in a car’’ was

‘‘evidence of a patent defect.’’ We disagree.

Even if we assume that this passing suggestion actually referenced a malfunction theory claim, it was too

little, too late, for several reasons. First, an issue must

be ‘‘distinctly raised’’ before the trial court, not just

‘‘briefly suggested . . . .’’ McKiernan v. Caldor, Inc.,

supra, 183 Conn. 166. This comment at oral argument

in the trial court is hardly proper notice to the court

and counsel of the significance of the change to the

expressed theory of the plaintiff’s case. To introduce a

new, entirely separate alternative theory of liability into

the case, the plaintiff must plead it in his amended

complaint, not just mention it in passing in a few sentences at oral argument. Cf. University of Connecticut v.

Freedom of Information Commission, 303 Conn. 724,

731, 36 A.3d 663 (2012) (noting ‘‘this court’s policy not

to consider arguments inadequately briefed and raised

substantively for the first time at oral argument’’). Second, the brief suggestion of the plaintiff’s counsel is

not enough to avoid summary judgment; rather, the

plaintiff must come forward with real evidence, not

mere assertions. See, e.g., Fuchs v. Allstate Ins. Co., 96

Conn. App. 284, 289, 899 A.2d 709 (2006). Third, it would

be unfair to the defendants to consider this claim when

the defendants had no meaningful chance to discover
facts related to, and make a record to defend against, an

entirely different theory of liability. Finally, we cannot

consider this claim because the record is inadequate

for our review. This court does not consider claims

raised for the first time during an oral argument in the

trial court when the trial court did not address the issue

in its decision and the appellant failed to obtain an

articulation from the trial court. See, e.g., Willow

Springs Condominium Assn., Inc. v. Seventh BRT

Development Corp., 245 Conn. 1, 52–53, 717 A.2d 77

(1998). The trial court in the present case did not

address or rule on the plaintiff’s alleged malfunction

theory claim in its memorandum of decision. The trial

court concluded only that the plaintiff was required to

present expert testimony to prove his claim of a specific

defect and to prove proximate cause. Neither of those

conclusions relate to a claim of an unspecified defect

under the malfunction theory, which the defendant did

not raise. Tellingly, the plaintiff did not move for an

articulation despite the absence of any mention of his

supposed alternative theory by the trial court. One

would expect that, if the plaintiff truly believed that he

raised his malfunction theory claim in the trial court,

he would have been surprised when the trial court

ignored this theory in its memorandum of decision,

which, in turn, would have prompted him to move for an

articulation. His silence in this regard speaks volumes.9

3

Lastly, the plaintiff asserts that he raised this claim

in his motion for reargument, which he filed after the

trial court granted the defendants’ motion for summary

judgment. This argument fails for the same reasons that

we discussed in part II C 2 of this opinion. The plaintiff

failed to provide proper notice that he intended to use

the malfunction theory by pleading it in his amended

complaint. Raising an issue for the first time in a motion

to reargue will not preserve that issue for appellate

review. See, e.g., Chapman Lumber, Inc. v. Tager, 288

Conn. 69, 94 n.28, 952 A.2d 1 (2008) (‘‘[a] motion to

reargue . . . is not to be used as an opportunity to

have a second bite of the apple’’ [emphasis omitted;

internal quotation marks omitted]). This is especially

true when, as in the present case, the trial court denied

the plaintiff’s motion for reargument without comment,

the plaintiff did not move for articulation of the reasons

for the denial, and the plaintiff did not appeal from that

decision. See Billboards Divinity, LLC v. Commissioner of Transportation, 133 Conn. App. 405, 410–11,

35 A.3d 395, cert. denied, 304 Conn. 916, 40 A.3d 783

(2012).

Forthe foregoing reasons, we conclude that the plaintiff did not properly raise a malfunction theory of liability in the trial court and, therefore, did not preserve it

for appellate review. Accordingly, the Appellate Court

properly declined to review the plaintiff’s malfunction
theory claim on appeal.

The judgment of the Appellate Court is affirmed.

In this opinion ROGERS, C. J., and PALMER, McDONALD and VERTEFEUILLE, Js., concurred.

1 The plaintiff also named Central Ford-Mercury, Inc., as a defendant

but subsequently withdrew the action with respect to that defendant. We

hereinafter refer to Mazda and Cartwright Auto, LLC, collectively as the

defendants.

2 The plaintiff’s automobile insurance company covered the loss of the

vehicle, which was badly damaged as a result of the fire.

3 The defendants also challenged the plaintiff’s claim under the failure to

warn theory of liability, but the trial court’s conclusions as to that aspect

of the summary judgment motion are not before us in this appeal.

4 Although there are exceptions to this general rule; see, e.g., Blumberg

Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311

Conn. 123, 144–61, 84 A.3d 840 (2014); none applies in the present case.

5

In response, the dissent notes that consideration of a motion for summary

judgment is not limited to the pleadings but extends to the record before

the court. We agree that a court’s ability to review the evidence, in order

to determine whether a genuine issue of fact exists, is not limited to the

pleadings. As our law makes clear, however, a plaintiff’s theories of liability,

and the issues to be tried, are ‘‘limited to the allegations [in the] complaint.’’

(Internal quotation marks omitted.) Kaddah v. Commissioner of Correction,

supra, 299 Conn. 140; see also Doublewal Corp. v. Toffolon, supra, 195 Conn.

390–91. The dissent’s position that the plaintiff may rely on a theory of

liability that he has not raised in his amended complaint but has raised for

the first time in an opposition to a motion for summary judgment ignores

our foundational pleading requirements. Allowing a plaintiff to rely on a

theory that he has failed to raise in his complaint would silently abrogate

our rules of pleading and, indeed, the very purpose of having pleadings in

the first place. The dissent’s position also circumvents our rules of practice

governing the amendment of pleadings, which generally require a plaintiff

to obtain the consent of the opposing party or leave of the trial court before

introducing new facts and theories into a case through an amended pleading.

See, e.g., Practice Book § 10-60 (a). A plaintiff cannot properly interject a

new theory of liability into the case after the close of pleadings without

amending or varying his complaint.

6 We more fully examined the malfunction theory in Metropolitan Property & Casualty Ins. Co. v. Deere & Co., supra, 302 Conn. 123, a decision

released after the trial court’s decision in the present case.

7 The complaint in Adkins v. Sodexho,Inc., Superior Court, judicial district

of New Haven, Docket No. 480783 (April 6, 2004) (36 Conn. L. Rptr. 688,

690 nn.1 and 2), provides an example of how to plead both a specific

negligence and a res ipsa loquitur theory within a single count of negligence.

In that case, the trial court, in discussing the plaintiff’s claims, reproduced

in its memorandum of decision two paragraphs of the plaintiff’s negligence

count: one paragraph alleged a number of specific acts of negligence, and

the other paragraph alleged a res ipsa loquitur claim. See id. The later

paragraph alleged: ‘‘The [p]laintiff hereby pleads [r]es [i]psa [l]oquitur, not

intending to be bound by the specific allegations of negligence set forth in

[the preceding paragraph] . . . .’’ Id., 690 n.2. The plaintiff then went on to

allege facts addressing each and every element of a res ipsa loquitur claim.

See id. Similarly, if a plaintiff intends to rely on both a specific defect theory

and an unspecified defect theory under the malfunction theory, it is possible

and necessary to plead both theories within a single product liability count.

8 The dissent tries to bootstrap its novel pleading theory by relying on

the fact that the plaintiff cited two particular cases in support of his argument, namely, Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 219,

694 A.2d 1319 (1997), and Lewis v. North American Philips Corp., Superior

Court, judicial district of New Haven, Docket No. CV-91-0315792-S (April 6,

1994). The dissent, however, mistakenly overlooks the fact that the plaintiff

did not cite either of these cases for the proposition that he could rely on

the malfunction theory to prove the existence of a defect. Instead, he cited

them only for the limited purpose of supporting his argument that he could

use circumstantial evidence to prove proximate cause. In fact, the plaintiff’s

citation to these cases without mention of the malfunction theory further

demonstrates that he did not intend to embrace that theory. Indeed, the

plaintiff’s own argument in his memorandum in opposition, to which the
dissent cites, demonstrates that the plaintiff intended to raise only a specific

defect theory. In his memorandum in opposition, the plaintiff stated that

he was ‘‘required to provide some form of evidence, including expert testimony, to quantify the precise product defect.’’ (Emphasis added.) Having

argued that he was required to prove a ‘‘precise product defect’’; (emphasis

added); while citing to Potter, one cannot seriously interpret his citation to

Potter as also raising a claim of an unspecified defect under the malfunction

theory. We require the trial court and opposing parties to address only those

arguments that a plaintiff actually raises, not every possible argument that

a plaintiff could have made but did not.

9 The dissent’s repeated assertion that the plaintiff raised the malfunction

theory by arguing that he did not need an expert to prove proximate cause

is based on a misunderstanding of the malfunction theory. The malfunction

theory is not an alternative to expert testimony, nor is it proven simply on

the basis of the expectations of the consumer. The malfunction theory is

an alternative to proving the existence of a specific defect that is based on

the argument that a malfunction resulted from an unspecified defect in

the product because there is no other reasonably possible cause of the

malfunction. See Metropolitan Property & Casualty Ins. Co. v. Deere & Co.,

supra, 302 Conn. 139–40. In fact, we have made clear that many claims

under the malfunction theory will require expert testimony. Despite generously citing to our decision in Metropolitan Property & Casualty Ins. Co.,

the dissent leaves out the portion of that decision in which we made clear

that, ‘‘[i]f lay witnesses and common experience are not sufficient to remove

the case from the realm of speculation, the plaintiff will need to present

expert testimony to establish a prima facie case.’’ Id., 141. We further noted

that ‘‘[e]vidence of the most likely causes of [a] malfunction ordinarily will

be presented through an expert witness.’’ Id., 141 n.10. Thus, whether a

plaintiff must present expert testimony is an issue independent of the issue

of whether a plaintiff may rely on the malfunction theory. The plaintiff

therefore did not raise a malfunction theory argument merely by asserting

that he did not need to present expert testimony to prove proximate cause.

Furthermore, the dissent’s assertion that the plaintiff could prove a design

defect through the malfunction theory further demonstrates the dissent’s

misunderstanding of the malfunction theory. A design defect theory typically

is based on a claim that a product harbored a specific problem due to its

design, and such a claim is proven through a review of the plans of a product

and its exemplars. The malfunction theory, however, does not involve a claim

of a specific defect, whether the result of faulty design or manufacturing. In

other words, the malfunction theory of product liability does not depend

on a design or manufacturing defect. See, e.g., J. Hoffman, ‘‘Res Ipsa Loquitur

and Indeterminate Product Defects: If They Speak for Themselves, What

Are They Saying?,’’ 36 S. Tex. L. Rev. 353, 382 (1995) (‘‘[an] [i]ndeterminate

defect [claim] is based [on] neither a claim of manufacturing or design defect

. . . but is a mutually exclusive separate category of liability premised [on]

the plaintiff’s inability or unwillingness to specify the nature of the defect’’

[emphasis omitted]). If the plaintiff intends to prove a design defect, he

must demonstrate a faulty design. He cannot rely on the malfunction theory

to prove a design defect. To rely on a malfunction theory, in addition to a

manufacturing or design defect theory, a plaintiff must separately plead that

claim in the alternative.