Summary
holding that the installation of a sidewalk was the performance of a service, not the manufacture or sale of a product, and therefore, it was outside the scope of the Product Liability Act
Summary of this case from Gilbane Building Co. v. Stamford TowersOpinion
CV91 28 88 24 S
April 25, 1994
[ MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO STRIKE ]
The plaintiff was injured in a fall on a sidewalk in Bridgeport in 1989. The fall occurred on premises owned by the Richard Streiber and Anita Sklarsky, who are the defendants in the first count of the complaint. The second count and third counts of the complaint contain claims against the defendant Fernap, Inc.
In the Second Count, it is alleged that Fernap was installing a new sidewalk on the premises and that the plaintiff's fall was due to the negligence of Fernap in failing to take certain precautions to protect against such a fall during the course of constructing the sidewalk. In the Third Count, it is alleged that the defendant Fernap is liable under the Connecticut Products Liability Act, Conn. Gen. Stat. Sec. 52-572m et seq. The plaintiff has moved to strike the Third Count on the grounds that the allegations in the complaint do not and cannot establish, as a matter of law, that Fernap was the manufacturer or seller of a product within the meaning of the statute. Both parties have filed briefs supporting their respective positions.
Although Conn. Gen. Stat. Sec. 52-572m defines "manufacturer" and "product seller," neither the statute nor our appellate courts have yet defined the word "product" for the general purposes of this statutory scheme. The Model Uniform Products Liability Act, proposed by the U.S. Dept. of Commerce, 44 Fed. Reg. 62, 714 et seq., (Oct. 31, 1979), parts of which were enacted virtually verbatim in the Public Act codified as 52-572m, does define a product as an "object possessing intrinsic value, capable of delivery either as an assembled whole or as a component part or parts, and produced for introduction into trade or commerce." Id., Mod. Uniform Prod. Liab. Act § 102(C). This model definition provides guidance in considering the allegations here.
In [Zichichi v. Middlesex Memorial Hospital], 204 Conn. 399 (1987), the Supreme Court considered the meaning of the word "product" in the context of Conn. Gen. Stat. Sec. 19a-280, which defines the furnishing of blood and similar tissue as a "service." The Court did not find it necessary to define "product" under 52-572m et seq.
The complaint, fairly read in a light most favorable to the plaintiff, alleges that Fernap was in the business of constructing sidewalks, presumably the old-fashioned way by creating molds on a surface, mixing and pouring concrete, shaping and leveling it as necessary, allowing it to dry, and performing such finishing work as may be necessary once the molds are knocked out. This appears to be the performance of a service, not the delivery of a whole object or component parts to be assembled into an object. Since the defendant rendered a service rather than manufactured or sold a product, the defendant's conduct is outside the purview of the products liability statute. [Zichichi v. Middlesex Memorial Hospital], 204 Conn. 399, 403 (1987); accord, [Hines v. JMJ Construction, Inc.], 1993 CT CaseBase 1003, D.N. 506329 J.D. at Hartford (1993) (Miano, J.).
The plaintiff has the opportunity to plead over after a motion to strike has been granted. Conn. P.B. Sec. 157. If it is the case that the defendant Fernap makes some kind of precast sidewalk blocks that it sells to consumers and arranges to install, the outcome of a motion to strike addressed to any new such allegations might well be different.
The Motion to Strike the Third Count is granted.
PATTY JENKINS PITTMAN, JUDGE