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     SNELL v. NORWALK YELLOW CAB, INC.—CONCURRENCE

   ECKER, J., concurring. I agree with the majority’s
well reasoned opinion and the result it reaches. I write
separately for two reasons. First, and most significantly,
I am troubled by the unnecessary and unfortunate pro-
lixity of our superseding cause doctrine, or what
remains of it. I understand that the majority is unable
completely to escape the gravitational pull of existing
doctrine, because the court’s ability to chart a new
course, even with respect to the common law, is con-
strained by the arguments raised by the parties, who
themselves are constrained by the perceived limitations
imposed by our own precedent. In my view, the majority
opinion nonetheless makes progress, incomplete but
not insignificant, toward a more sensible and simplified
doctrine. This concurring opinion primarily is intended
to highlight the particular aspects of the majority opin-
ion that I believe can be built on in future cases so that
the job of doctrinal reconstruction might be completed.
The second reason I write is to note my disagreement
with two minor points contained in the majority
opinion.
                               I
   The confusion generated by the superseding cause
doctrine is easier to identify than to resolve. Causation,
while a simple everyday word, is by no means a simple
concept, in law or elsewhere, and its application to
various questions of legal liability and damages has
vexed our profession for at least the past one hundred
years.1 That vexation is reflected in an unruly doctrine
marked by a proliferation of varying, partly overlapping,
and partly incommensurable verbal formulations, none
of which quite satisfies the powerful desire to capture
the elusive concept in words.2 The doctrine of supersed-
ing cause is marked by this confusion, and the tradition
of stacking one unsatisfactory formulation on top of
another has resulted in a jury instruction that requires
an advanced degree in logic and linguistics to under-
stand. A jury is subjected to wave after wave of abstrac-
tions like foreseeability, scope of the risk, proximate
cause, substantial, material, trivial, relatively insignifi-
cant, and inconsequential causes, concurrent causes,
overpowering events, and so forth, connected by
unhelpful transitional phrases such as ‘‘[i]n other
words,’’ ‘‘[t]hat is,’’ and ‘‘[t]o put it another way.’’ It does
no one any good to perpetuate a doctrine of this
character.
   The majority has done admirable work clarifying doc-
trinal connections, resolving doctrinal tensions, sorting
through conflicting authorities, and bringing the light
of common sense to its subject matter. Yet even after
that work has been accomplished, the reader would be
forgiven if he or she feels unprepared to submit a model
jury instruction to replace Connecticut Civil Jury
Instruction 3.1-5. If the doctrine remains challenging
for lawyers and judges, moreover, one can only imagine
what a lay jury will make of it. Perhaps the guidance
provided by the majority opinion will help produce
more reliable trial outcomes in the future than the ver-
dict in the present case.3 As I have indicated, I believe
that the majority has laid the groundwork to assist in
the reconstruction of a simplified and more coherent
doctrine. I wish to identify three principles in particular
that may be especially useful in that endeavor.
   First, the majority has clarified that the fundamental
principle animating the doctrine of superseding cause
is that a negligent actor will not be relieved of liability
by the intervention of another force—in most cases,
the reckless or intentional misconduct of a third party—
if the type of harm sustained by the plaintiff is within
the scope of the risk that made the actor’s conduct
negligent. This basic insight, in my opinion, best identi-
fies the critical operative principle underlying the doc-
trine of superseding cause in terms that can be
understood and applied without inordinate difficulty.
As the majority notes, the Restatement (Third) of Torts
evidently has reached this conclusion in its treatment
of superseding cause by abandoning the traditional doc-
trine in favor of an analysis fundamentally based on a
scope of the risk analysis. See footnote 12 of the major-
ity opinion; see also 1 Restatement (Third), Torts, Liabil-
ity for Physical and Emotional Harm § 34, p. 569 (2010).4
My preliminary view, as yet untested in the adjudicatory
setting in Connecticut to the best of my knowledge, is
that the reformulated approach to causation set forth
in the Restatement (Third) may hold promise. Time
will tell.
  Second, just as under ordinary negligence rules, the
defendant is liable for harm as long as his or her negli-
gence was a substantial factor in producing it, even if
the defendant did not foresee, nor reasonably could
have foreseen, the extent of the harm or the particular
manner in which it occurred.5 Thus, for example, the
fact that the harm is brought about by the criminal or
reckless act of a third party will not cut off the negligent
party’s liability if harm of the same general nature is
within the scope of the risk that made the party’s act
or omission negligent. See footnotes 17 and 18 and
accompanying text of the majority opinion; see also
footnote 3 of this concurring opinion; 2 Restatement
(Second), Torts § 442 B, p. 469 (1965). This principle
serves as a complement to the one discussed in the
preceding paragraph because its application also hinges
on the scope of the risk. The principle is important in
the present context because intervening intentional or
reckless conduct not infrequently results in harm that
may be unusual in degree or manner of infliction but
nevertheless is within the scope of the risk that made
the actor negligent. See 2 Restatement (Second), supra,
§§ 448 and 449, pp. 480–484; see also 1 Restatement
(Third), supra, § 34, comment (d), p. 572.
   Third, the possibility remains that the explicit equiva-
lency the majority emphasizes between the doctrines
of superseding cause and sole proximate cause may
contain the seed for future development of a simplified
doctrine. The majority makes a persuasive case that
this court’s repeated references to superseding cause
as equivalent to sole proximate cause is not the result
of loose language but actually means what it says: if a
third party’s conduct amounts to a superseding cause
of a plaintiff’s harm, then it is the sole proximate cause
of that harm, and the negligent defendant is not a proxi-
mate cause at all. The question therefore arises why
the superseding cause doctrine is needed at all, that is,
why not simply ask the jury in such a case whether the
intervening force was the sole proximate cause of the
harm? It seems to me that this is a question worth
asking, although I have no view about how it should
be answered because it was neither raised nor briefed
by the parties.6
                            II
   My disagreement with the majority involves two
minor aspects of its opinion. First, I see no reason to
engage in the analysis appearing in footnote 10 of the
majority opinion, which contains an extensive, and I
believe unnecessary, discussion regarding Archam-
bault v. Soneco/Northeastern, Inc., 287 Conn. 20, 946
A.2d 839 (2008). Archambault involved the unusual situ-
ation in which there were two potentially negligent
actors responsible for the plaintiff’s injuries, but one
of them, the plaintiff’s employer, could not be brought
into the case for apportionment purposes because it
enjoyed immunity from liability under the exclusivity
provision of the Workers’ Compensation Act.7 Id., 26;
see General Statutes § 31-284 (a). This court held that
the defendant, although precluded from seeking appor-
tionment against the nonparty employer, was entitled
to point to the employer as the sole proximate cause
of the plaintiff’s harm; Archambault v. Soneco/North-
eastern, Inc., supra, 37–41; but was not entitled to
invoke the doctrine of superseding cause to accomplish
the same purpose under this court’s holding in Barry
v. Quality Steel Products, Inc., 263 Conn. 424, 820 A.2d
258 (2003). Archambault v. Soneco/Northeastern, Inc.,
supra, 41–45. The majority criticizes this aspect of Arch-
ambault on the ground that its holding (1) relies on
a misreading of Barry, (2) conflicts with this court’s
subsequent holding in Sapko v. State, 305 Conn. 360,
377, 44 A.3d 827 (2012), which held that the doctrine
of superseding cause was applicable to a claim brought
under the Workers’ Compensation Act, and (3) creates
a doctrinal ‘‘distinction without a difference’’ because
the permitted defense of sole proximate cause and the
precluded defense of superseding cause essentially
mean the same thing. See footnote 10 of the majority
opinion.
   My concern here is not with the substance of the
majority’s criticism of the Archambault analysis as it
relates to Barry and the doctrines of sole proximate
cause and superseding cause; it seems clear to me that
Archambault misreads Barry. My point, rather, is that
the current status of Archambault is not before us, and
the context of that case is sufficiently unusual that I
do not believe that we should suggest any corrections
to its holding until we are presented with a live contro-
versy raising the particular issues and considerations
implicated by that unusual setting. Perhaps, as the
majority appears to suggest, Archambault went off
course by holding that the defendant was not entitled
to raise a defense on the basis of superseding cause.
But there are other possibilities as well, and I believe
that we should not indicate a view on the subject in
the present case because the scenario in Archambault
is different and may be sui generis; see footnote 6 of
this concurring opinion; and because the proper treat-
ment of that scenario has not been briefed by the
parties.
   Second, although I agree with the majority’s conclu-
sion that the existing model civil jury instruction on
superseding cause; see Connecticut Civil Jury Instruc-
tions 3.1-5, available at http://www.jud.ct.gov/JI/Civil/
Civil.pdf (last visited August 5, 2019); provides an erro-
neous statement of the law and, therefore, does not
assist the plaintiff’s argument, I wish to add my gloss
to ensure that the majority’s message is not misunder-
stood as a wholesale disavowal of the model instruc-
tions. Although the model civil jury instructions are
‘‘not intended to be authoritative’’; Snell v. Norwalk
Yellow Cab, Inc., 172 Conn. App. 38, 66, 158 A.3d 787
(2017); in the sense that they come with no guarantee
of infallibility, we also must acknowledge and embrace
the fundamental fact that, as a matter of routine practice
around the state, the model instructions are heavily
relied on by trial lawyers and judges in most cases,
certainly those garden variety cases being tried every
day in virtually every courthouse hosting civil jury trials.
In my view, the reminder of fallibility served today
should not be understood to convey the view that the
model instructions generally are unreliable, or that we
lack confidence in them, or that the instructions should
not continue to be relied on by trial lawyers and judges
as containing an accurate statement of the law. The
instructions are promulgated by a distinguished panel
of committee members who have undertaken the Sisy-
phean task of synthesizing and articulating the law gov-
erning a broad variety of civil cases in a form readily
understandable to a lay jury. They provide commend-
able guidance. But precisely because the task is so
difficult—the law is not always certain, nor is it static,
nor is it always produced or pronounced in ‘‘one size
fits all’’ formulations—it is fair to suggest that trial
lawyers are well advised to ‘‘trust but verify’’ these
model instructions to ensure that they are correct, cur-
rent, and properly crafted to fit the particular case at
hand. This case presents one of those highly unusual
situations in which one of our model civil jury instruc-
tions contains an error and, thus, illustrates why eternal
vigilance is the watchword of our sometimes unforgiv-
ing profession. Fortunately, the inaccuracy was of no
practical consequence here, because the parties did not
rely on Connecticut Civil Jury Instruction 3.1-5 govern-
ing superseding cause at trial, and the trial court did
not issue the inaccurate instruction. Going forward, the
bench and bar are on notice of the inaccuracy contained
in the existing version of Connecticut Civil Jury Instruc-
tion 3.1-5, and, undoubtedly, the Civil Jury Instruction
Committee will rectify the inaccuracy by promulgating
a new and improved version in due course.
      I respectfully concur.
  1
     See W. Keeton et al., Prosser and Keeton on the Law of Torts (5th Ed.
1984) § 41, pp. 263–64 (‘‘There is perhaps nothing in the entire field of law
which has called forth more disagreement, or upon which the opinions are
in such a welter of confusion [than the issue of causation]. Nor, despite the
manifold attempts [that] have been made to clarify the subject, is there yet
any general agreement as to the best approach. Much of this confusion is
due to the fact that no one problem is involved, but a number of different
problems, which are not distinguished clearly, and that language appropriate
to a discussion of one is carried over to cast a shadow upon the others.’’
[Footnote omitted.]); id., p. 263 n.1 (citing authorities ‘‘attempt[ing] . . . to
clarify the subject’’).
   2
     The overwrought treatment of superseding cause contained in the
Restatement (Second) of Torts—which devotes no less than fifteen separate
sections to the topic—illustrates the point. See 2 Restatement (Second),
Torts §§ 440 through 453, pp. 465–91 (1965); see also part I of the majority
opinion (discussing relevant provisions of the Restatement [Second]). The
Restatement (Third) of Torts contains a far more concise treatment of the
topic. See 1 Restatement (Third), Torts, Liability for Physical and Emotional
Harm § 34, p. 569 (2010). The question of whether to adopt the principles
set forth in the Restatement (Third) of Torts is not presently before us. See
footnote 12 of the majority opinion.
   3
     I intend no criticism of the trial court or the jury in this case. The record
demonstrates that the trial court did its best under difficult conditions to
fashion a coherent jury instruction and useful jury interrogatories from the
assorted pieces of the doctrinal jigsaw puzzle remaining in disarray on the
table since tort reform was enacted; see Public Acts 1987, No. 87-227; Public
Acts 1986, No. 86-338; and Barry v. Quality Steel Products, Inc., 263 Conn.
424, 820 A.2d 258 (2003), was decided.
   4
     Section 34 of the Restatement (Third) of Torts addresses the specific
topic of superseding cause, but it must be read in conjunction with several
other provisions of the Restatement (Third) that establish and explain the
relevant principles of causation. See, e.g., 1 Restatement (Third), supra,
§ 29, p. 493 (‘‘[a]n actor’s liability is limited to those harms that result from
the risks that made the actor’s conduct [negligent]’’). To be clear, although
I believe that a transition to a ‘‘scope of the risk’’ analysis would simplify
and clarify the superseding cause doctrine, such a modification would not
eliminate all of the complexities and difficulties that arise in these cases.
The primary remaining challenge is to determine the ‘‘appropriate level of
generality or specificity to employ in characterizing the type of harm’’ that
is within the scope of the risk or risks that made the actor negligent. Id.,
comment (i), p. 504 (entitled ‘‘Understanding and characterizing the risk of
harm’’); see also id., § 34, comments (d) and (e), pp. 572–74.
   5
     See, e.g., Ruiz v. Victory Properties, LLC, 315 Conn. 320, 323, 107 A.3d
381 (2015); Pisel v. Stamford Hospital, 180 Conn. 314, 333, 430 A.2d 1 (1980);
2 Restatement (Second), supra, § 435 (1), p. 449; see also, e.g., Connecticut
Civil Jury Instructions 3.1-4, available at http://www.jud.ct.gov/JI/civil/civ-
il.pdf (last visited August 5, 2019) (entitled ‘‘Proximate Cause—Foresee-
able Risk’’).
   6
     In Barry v. Quality Steel Products, Inc., 263 Conn. 424, 820 A.2d 258
(2003), this court determined that the superseding cause doctrine no longer
serves a useful purpose in cases involving claims of negligence against
multiple defendants, because ‘‘our system of comparative negligence and
apportionment [ensures that] defendants are responsible solely for their
proportionate share of the injury suffered by the plaintiff.’’ Id., 446. We
concluded that ‘‘the [jury] instruction on superseding cause complicates
what is essentially a proximate cause analysis and risks jury confusion.’’
Id. Whether an analogous argument could be made in the present context—
i.e., that the sole proximate cause doctrine accomplishes the same result
as the superseding cause doctrine, but with less confusion—is an open
question. See, e.g., 1 Restatement (Third), supra, § 34, comment (f), p. 574
(opining that sole proximate cause is ‘‘a term best avoided’’ in this context).
   7
     I call the Archambault situation unusual because it falls between the
cracks of the otherwise comprehensive apportionment scheme set forth in
the comparative fault statute, General Statutes § 52-572h. On the one hand,
unlike the nonparty intentional tortfeasors in the present case, the potentially
at-fault nonparty in the Archambault scenario is not expressly excluded
from the apportionment scheme pursuant to § 52-572h (o), because the
claim against the plaintiff’s employer, if it could be brought, would be based
on a theory of negligence. On the other hand, the potentially at-fault nonparty
in Archambault is not subject to apportionment as a ‘‘settled or released
[person]’’ pursuant to §§ 52-572h (f) (4) and (n).