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     BIFOLCK v. PHILIP MORRIS, INC.—FIRST CONCURRENCE

  ZARELLA, J., with whom ESPINOSA, J., joins, con-
curring. I agree with the majority’s answers to the two
certified questions from the United States District Court
for the District of Connecticut, but, in light of my conclu-
sion in my concurring opinion in Izzarelli v. R.J. Rey-
nolds Tobacco Co., 321 Conn. 172, 211, 136 A.3d 1232
(2016) (Zarella, J., concurring), I rely on a much differ-
ent analysis in answering the first question than does
the majority.
                             I
   The first certified question asks whether ‘‘[§] 402A
of the Restatement (Second) of Torts (and [c]omment
[i] to that provision) apply to a product liability claim
for [negligent design] under [Connecticut’s Product Lia-
bility Act (act), General Statutes § 52-572m et seq.]?’’
Bifolck v. Philip Morris, Inc., United States District
Court, Docket No. 3:06CV1768 (SRU) (D. Conn. Febru-
ary 14, 2014). The plaintiff in the present case, Vincent
Bifolck, individually and as executor of the estate of
Jeanette D. Bifolck, brought a product liability action
against the defendant, Philip Morris, Inc., in federal
court, alleging that the defendant’s cigarettes were
defectively designed and that this design defect caused
the plaintiff’s harm. The plaintiff seeks to prove his case
using a negligence theory of liability. The District Court
has asked us to clarify the proper standard for determin-
ing defectiveness that should apply to the plaintiff’s
claim. The parties agree that, to succeed on his claim,
the plaintiff must prove that the defendant’s cigarette
design was ‘‘unreasonably dangerous,’’ but they dis-
agree about the standard for determining whether a
product is unreasonably dangerous in a negligence
action. The defendant argues that the ‘‘ordinary con-
sumer expectations test’’ in comment (i) to § 402A of
the Restatement (Second), and its ‘‘good tobacco’’
exception, should be used to determine whether a prod-
uct is unreasonably dangerous in the context of a negli-
gence based claim and that this test precludes a finding
of liability in the present case. The plaintiff disagrees
that § 402A of the Restatement (Second), which is a
strict liability test, should apply to his negligence claim.
  Like the majority, I also conclude that § 402A of the
Restatement (Second) does not apply to the plaintiff’s
claim, but I disagree with the majority’s basis for this
conclusion in light of my concurring opinion in Izza-
relli. In that opinion, I explained that I would adopt
the approach used for design defect cases in §§ 1, 2
and 4 of the Restatement (Third) of Torts, Products
Liability. Izzarelli v. R.J. Reynolds Tobacco Co., supra,
321 Conn. 241–42 (Zarella, J., concurring). The Restate-
ment (Third) eliminates reliance on § 402A’s consumer
expectations standards and, instead, adopts a risk-util-
ity test as the proper liability standard for all design
defect claims. Restatement (Third), Torts, Products Lia-
bility § 2, comment (n), pp. 35–36 (1998).
   As I explained in Izzarelli, the Restatement (Third)
does not recognize a distinction between claims based
on negligence or strict liability; see id., p. 36; a position
that is consistent with the purposes of the act, which
was intended to help simplify product liability causes
of action. See Izzarelli v. R.J. Reynolds Tobacco Co.,
supra, 321 Conn. 239–41 (Zarella, J., concurring). The
Restatement (Third) instead defines its design defect
test ‘‘functionally,’’ based on the unique considerations
involved in design defect claims. (Internal quotation
marks omitted.) Id., 231 (Zarella, J., concurring), quot-
ing Restatement (Third), supra, § 2, comment (n), p.
35. Unlike the approach of the Restatement (Second),
the Restatement (Third) acknowledges that design
defect claims present different considerations than
other types of product defect claims, like those involv-
ing manufacturing defects and, therefore, require a dif-
ferent test. See Restatement (Third), supra, § 2,
comment (a), p. 15; id., comment (n), p. 35. To address
the fundamental and unique question presented in
design defect cases—whether the manufacturer’s
design was reasonably safe—the Restatement (Third)
adopts a risk-utility test, which is essentially a negli-
gence style reasonableness balancing test that allows
a jury to consider the reasonableness of the manufactur-
er’s design choice in light of available alternatives. Id.,
comment (d), pp. 19–20; id., comment (f), pp. 23–24;
id., comment (n), pp. 35–36; see also Izzarelli v. R.J.
Reynolds Tobacco Co., supra, 222–23, 231–37 (Zarella,
J., concurring). The Restatement (Third) recognizes
that the risk-utility analysis is functionally equivalent
to the analysis applicable to a negligence claim—each
asks whether the manufacturer’s design choice was
reasonable in light of available alternatives or the risks
presented by the product design. Consequently, it is
unnecessary, under the Restatement (Third), to send
both theories of liability to a jury; rather, the
Restatement (Third) adopts the broader risk-utility test
as the appropriate standard for design defect claims.1
See Izzarelli v. R.J. Reynolds Tobacco Co., supra,
235–36 (Zarella, J., concurring) (noting that Restate-
ment [Third] standard avoids traditional trappings asso-
ciated with negligence theory of recovery by eliminating
requirements that plaintiff prove duty of care or that
manufacturer was careless in choosing product design).
   In answering the first certified question, the majority
fosters unnecessary confusion with respect to the con-
tinued viability of a negligence theory of recovery for
claims alleging a design defect at the time of sale. In
addressing the certified question, the majority acknowl-
edges authorities concluding that instructing a jury on
both a risk-utility and a negligence theory of recovery
might result in inconsistent verdicts, but the majority
declines to decide whether negligence should survive
as an independent theory of recovery in this jurisdic-
tion. See footnote 23 of the majority opinion. In my
view, this leaves unnecessary uncertainty for this case
and for future cases in which parties may intend to
file design defect claims based on a negligence theory.
Rather than leave this uncertainty in our law, I would
make clear in answering the first certified question that,
for the reasons stated in my concurring opinion in
Izzarelli, the plaintiff’s design defect claims are not
governed by comment (i) to § 402A of the Restatement
(Second) but by the risk-utility test set forth in the
Restatement (Third). See Izzarelli v. R.J. Reynolds
Tobacco Co., supra, 321 Conn. 231–39 (Zarella, J., con-
curring).
   Applying the Restatement (Third) in the present case,
I conclude that § 402A of the Restatement (Second)
and its ordinary consumer expectations test should no
longer apply to claims involving design defects existing
at the time of sale, and, thus, § 402A does not control
the plaintiff’s claim in the present case. Because the
Restatement (Third) no longer recognizes a stand-alone
negligence theory of recovery for design defect claims,
I would further conclude that the plaintiff must proceed
under the risk-utility test. See Restatement (Third),
supra, § 2, comment (n), pp. 35–36; see also Izzarelli
v. R.J. Reynolds Tobacco Co., supra, 321 Conn. 231–37
(Zarella, J., concurring). Consequently, I would answer
the first certified question in the negative, as the major-
ity does, but for markedly different reasons.
                            II
   With respect to the second certified question, regard-
ing the measure of punitive damages under General
Statutes § 52-240b, I agree with the majority’s answer
and generally agree with its analysis. I write separately
to emphasize that I find the answer to this question to
be an extremely close call. As the defendant argues,
there is a strong presumption against construing a stat-
ute to override the common law. See, e.g., Ames v.
Commissioner of Motor Vehicles, 267 Conn. 524, 532,
839 A.2d 1250 (2004); Lynn v. Haybuster Mfg., Inc.,
226 Conn. 282, 290, 627 A.2d 1288 (1993). This presump-
tion is especially strong when the common-law princi-
ple at issue is our well established, 200 year old method
for calculating punitive damage awards, which limits
such awards to attorney’s fees less taxable costs. When
considering the effect of a statute on a common-law
principle, we must attempt to harmonize our construc-
tion of the statute with the common law, to the extent
reasonably possible, unless the statutory language
shows a clear intention to displace the common law.
See, e.g., Ames v. Commissioner of Motor Vehicles,
supra, 532 (noting that our construction of statutes must
avoid ‘‘any innovation [on] the common law [that a
statute] does not fairly express’’ [internal quotation
marks omitted]).
   In the present case, I am persuaded that the legisla-
ture intended to adopt an approach that is different
from the common law with respect to punitive damages
calculations, principally in light of its decision to
include a separate provision in the act providing for an
award of attorney’s fees. See General Statutes § 52-
240a. I share the majority’s concerns that arise from
construing §§ 52-240a and 52-240b as both allowing
awards of attorney’s fees but under different conditions.
As the majority explains, under such a construction, if
a prevailing plaintiff established both reckless disregard
of the safety of product users, consumers, and others
who are injured by a product, and that a defense raised
was frivolous, limiting the plaintiff’s award under both
statutes to his attorney’s fees effectively compensates
the plaintiff for only one of the defendant’s wrongful
actions, which would appear to frustrate the purpose
of these statutes. I therefore am persuaded that § 52-
240b, considered together with other provisions of the
act, fairly expresses an intention to depart from the
common-law rule regarding the calculation of puni-
tive damages.
                                     III
   In conclusion, I agree with the majority that § 402A
of the Restatement (Second) does not apply to the plain-
tiff’s claim, and, therefore, I would answer the first
certified question in the negative. I would also make
clear, however, that the proper standard governing the
plaintiff’s claim is the risk-utility standard set forth in
§§ 1 and 2 of the Restatement (Third). With respect to
the second certified question, I concur in the majority’s
reasoning and answer.
  1
    Despite our adoption of a risk-utility test, the majority has retained
the use of the ordinary consumer expectations test but suggests that its
application might be limited to cases involving product designs that violate
safety laws and regulations or express warranties. See footnote 19 of the
majority opinion. The Restatement (Third), however, does not rely on the
consumer expectations test for these types of claims but, instead, recognizes
separate theories of recovery for claims based on violations of safety laws
and regulations; see Restatement (Third), supra, § 4, p. 120; and misrepresen-
tations by the manufacturer. Id., § 9, p. 187; see also id., § 2, comment
(r), p. 40. Retaining the consumer expectations test is, therefore, wholly
unnecessary in my view, and only fosters further confusion.
