Opinion
No. CV 02 0191905 S
January 23, 2004
MEMORANDUM OF DECISION RE MOTION TO STRIKE
The plaintiff, Glenn Angiolillo, has filed a four-count revised complaint against the Stanwich Club, Inc., which operates a country club located in Greenwich, Connecticut. The complaint alleges that on October 5, 2000, while the plaintiff was a guest at a function at the defendant's club, he bit into a "deep-fried dough hors d'oeuvre" and experienced pain and injured several of his teeth when he chewed on an extremely hardened, over-cooked piece of deep-fried dough.
In count one, the plaintiff asserts a products liability claim against the defendant under General Statutes § 52-572m. In count two, the plaintiff alleges that the defendant was negligent and breached its duty to exercise due care in the preparation, storage and service of food pursuant to § 52-572m. In count three, the plaintiff alleges that the defendant breached the implied warranty of merchantability because the food was unfit for human consumption. In count four, the plaintiff alleges that the defendant was reckless and violated General Statutes § 52-240b by acting with reckless disregard for the safety of product users such as the plaintiff.
The defendant filed a third-party indemnification complaint against Jordan Paige Food Enterprise, Inc., the entity that allegedly delivered the hors d'oeuvre to the defendant's club. The plaintiff then filed a four-count cross complaint against Jordan Paige under the products liability statute, and for negligence, breach of implied warranty, and recklessness under General Statutes § 52-240b.
The defendant filed a motion to strike counts two, three and four on the ground that the claims asserted therein are barred by the exclusive remedy provision of the Connecticut Products Liability Act, General Statutes § 52-572n. The defendant moves to strike count four on the additional ground that it fails to allege facts that support a claim of recklessness under General Statutes § 52-240b. The plaintiff objects to the defendant's motion to strike on the ground that the language of General Statutes § 52-572n does not preclude him from asserting different products liability theories in the complaint.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief may be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy LLC, v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "The role of the trial court in ruling on a motion to strike [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "The court must construe the facts in the complaint most favorable to the plaintiff." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Salemme v. Seymour, 262 Conn. 787, 792, 817 A.2d 636 (2003). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC, supra, 262 Conn. 498. "Practice Book . . . § 10-39, allows for a claim for relief to be stricken only if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998).
As to counts two through four, the exclusivity provision of the products liability statute, General Statute § 52-572n provides: "(a) A products liability claim as provided in sections 52-240a, 52-240b, 52-572m to 52-572q, inclusive, and 52-577a may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability and warranty, for harm caused by a product." In enacting the statute, "the legislature stated that a products liability claim, as defined by the products liability act, `shall be in lieu of all other claims against product sellers . . . for harm caused by a product . . .' General Statutes § 52-572n(a)" (Emphasis in original.) Gerrity v. R.J. Reynolds Tobacco Co., 263 Conn. 120, 126, 818 A.2d 769 (2003). "The term `products liability claim' is statutorily defined as `[including,] but . . . not limited to, all actions based on the following theories: Strict liability in tort; negligence; breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent . . .' General Statutes § 52-572m(b)" Hoboken Wood Flooring Corp. v. Torrington Supply Co., 42 Conn. Sup. 153, 154-55, 606 A.2d 1006, 5 Conn. L. Rptr. 219 (1991). "The legislature clearly intended to make our products liability act an exclusive remedy for claims falling within its scope." Winslow v. Lewis-Shepard, Inc., 212 Conn. 462, 471, 562 A.2d 517 (1989). The Supreme Court has clarified that "the act was intended to merge various theories into one cause of action rather than to abolish all prior existing rights." Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 292, 627 A.2d 1288 (1993). "Because of this legislative intent, which clarifies an otherwise ambiguous statute . . . common law counts of products liability must be stricken from complaints setting forth statutory products liability allegations." (Citation omitted; emphasis added.) Hoboken Wood Flooring Corp. v. Torrington Supply Co., supra, 42 Conn. Sup. 155. "In other words, one cannot bring a common law cause of action for harm caused by a product outside the purview of the Products Liability Statute." (Emphasis in original.) R. Adelman M. Conners, "The Legal Frame Work of a Products Liability Case in Connecticut," 67 Conn. B.J. 355, 358 (1993).
General Statutes § 52-572m(b) provides: "`Products liability claim' includes all claims or actions brought for personal injury, death or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product. "Products liability claim" shall include, but is not limited to, all actions based on the following theories: Strict liability in tort; negligence; breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent; misrepresentation or nondisclosure, whether negligent or innocent."
"[T]here is language in Winslow v. Lewis-Shepard, Inc. that can be interpreted to mean that one cannot plead common law theories of liability under the statute . . . A close reading of Winslow, however, supports the proposition that the common law theories of liability are not abolished by the Act. The plaintiff in Winslow did not assert his common law theories of liability under the Act. Had he done so the court would have ruled as did the Hoboken court that common law causes of action are still theories that may, by statutory definition, form the basis of a "products liability claim." (Citations omitted.) R. Adelman M. Conners, "The Legal Frame Work of a Products Liability Case in Connecticut" 67 Conn. B.J. 355, 361, n. 27 (1993).
In count one, the plaintiff asserts a statutory products liability claim pursuant to General Statutes § 52-572m. In counts two and three, respectively, the plaintiff pleads statutory causes of action under § 52-572m for negligence and breach of implied warranty of merchantability respectively. As noted above, the products liability act specifically includes statutory actions based on negligence and breach of warranty. General Statutes § 52-572m(b).
"While negligence is, of course, a common law theory, it is also a theory that may, by statutory definition, fom the basis of a `products liability claim.' General Statutes § 52-572m(b)." Hoboken Wood Flooring Corp. v. Torrington Supply Co., supra, 42 Conn. Sup. 155. The plaintiff's negligence claim pleaded under count two can be read as "setting forth a statutory products liability claim under this latter theory and thus states a legally sufficient allegation." Id. Therefore, the defendant's motion to strike count two is denied.
In regard to count three, "[t]here is nothing wrong with a products liability claim that proceeds on the basis of an alleged breach of warranty, for that is expressly contemplated by the definition of `products liability claim' in § 52-572m(b)." Hoboken Wood Flooring Corp. v. Torrington Supply Co., supra, 42 Conn. Sup. 156. The plaintiff's claim that the defendant is liable under § 52-572m for the alleged breach of warranty of merchantability is a legally sufficient allegation of a products liability claim. Therefore, the motion to strike count three of the plaintiff's complaint is denied.
In regard to count four, "General Statutes § 52-240b provides that punitive damages may be awarded in a products liability action `if the claimant proves that the harm suffered was the result of the product seller's reckless disregard for the safety of product users, consumers or others who were injured by the product . . .'" Wagner v. Clark Equipment Co., 243 Conn. 168, 200, 700 A.2d 38 (1997). Accordingly, in order to state a cause of action under this statute, the plaintiff must allege, inter alia, that "the [defendant was] aware of [the alleged] defects and willfully, wantonly and recklessly failed to eliminate the defects." Id., 201. The Supreme Court has further stated that even though evidence is presented that the defendant was aware of the general danger . . . the plaintiff must provide sufficient evidence to demonstrate that the defendant's conduct rose to the level of reckless conduct; "[w]ithout adequate evidence to support this required showing of recklessness, the trial court [is] warranted in not submitting the issue of punitive damages to the jury." Id., 201.
Under common law, reckless conduct "is more than negligence, more than gross negligence . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . . While [the courts] have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing. The result is that wilful, wanton or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high decree of danger is apparent . . . It is at least clear . . . that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention." (Internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 342-43, 813 A.2d 1003 (2003).
In this case, the plaintiff alleges that the defendant failed to prepare, inspect and provide safety precautions to prevent the distribution of unfit food, that the defendant was aware that its conduct posed a substantial risk of harm to others and that its conduct was a substantial factor in causing the plaintiff's injuries. He does not, however, allege facts that demonstrate that the defendant acted "in reckless disregard for the safety of product users"; General Statutes § 52-240b; or that the defendant was engaged in "highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high decree of danger is apparent." (Internal quotation marks omitted.) Craig v. Driscoll, supra, 262 Conn. 343. Therefore, the motion to strike count four is granted.
The defendant's motion to strike is denied as to counts two and three of the plaintiff's complaint and granted as to count four.
D'ANDREA, JTR