Opinion
No. X04-CV 1025739 S
September 12, 2003
MEMORANDUM OF DECISION RE MOTION TO AMEND
This wrongful death action alleges that the plaintiff's decedent was killed on April 16, 2000 when he was thrown from a motor vehicle driven by an individual who allegedly had consumed excessive amounts of alcohol while a patron of the defendants' bar. Based on the holding of Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003), the plaintiffs seek leave to amend the original complaint to add allegations setting forth claims based on the common law for negligent service of alcohol. The defendants have objected, claiming that the amendment adds new causes of action, which are barred by the applicable statute of limitations.
I. LAW Requests for Leave to Amend
Practice Book § 10-60 allows an amended complaint to be filed at any time with the consent of the judicial authority. "While our courts have been liberal in permitting amendments . . . this liberality has limitations. Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment . . . The motion to amend is addressed to the trial court's discretion which may be exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial . . . Whether to allow an amendment is a matter left to the sound discretion of the trial court." (Citations omitted; internal quotation marks omitted.) Wagner v. Clark Equipment Co., 259 Conn. 114, 128, 788 A.2d 83 (2002).
The Practice Book Section describes the method of amendment and the filing of objections thereto. Section 10-60 (b) states: "[t]he judicial authority may restrain amendments so far as may be necessary to compel the parties to join issue in a reasonable time for trial . . ."
II. DISCUSSION
At issue in this proposed amendment is whether or not the facts alleged state a new cause of action or are merely an amplification of matters already pleaded. Our law holds that"[a]mendments relate back to the date of the original complaint unless they allege a new cause of action." Franc v. Bethel Holding Co., 73 Conn. App. 114, 136, 807 A.2d 519 (2002). "[A] party properly may amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same . . . If a new cause of action is alleged in an amended complaint, however, it will [speak] as of the date when it was filed." Wagner v. Clark Equipment Co., supra, 259 Conn. 129.
What, then, is a cause of action? The Wagner court stated: "[a] cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief . . . A right of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some delict on the part of the defendant. The facts which establish the existence of that right and that delict constitute the cause of action . . . A change in, or an addition to, a ground of negligence or an act of negligence arising out of the single group of facts which was originally claimed to have brought about the unlawful injury to the plaintiff does not change the cause of action . . . It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but whe[n] an entirely new and different factual situation is presented, a new and different cause of action is stated." (Emphasis added; internal quotation marks omitted.) Wagner v. Clark Equipment Co., supra, 259 Conn. 129-30.
Defendants, in their objection, argue that the proposed amended allegations add claims of negligence to the first and third counts of the complaint, which previously had sounded in recklessness against two different groups of defendants. Plaintiffs counter by stating that the Craig court recognized that recklessness and negligence may arise out of the same set of facts and all that has been alleged is a further amplification of the facts of the original complaint.
Count two sets forth claims based upon the Dram Shop Act, has not been amended and is not relevant to the objection.
The court has closely examined the proposed amended complaint. The court concludes that the additional allegations in the first and third counts proposed an alternative theory of liability for the same set of facts, not new facts. As noted in Wagner:"[a] change in, or an addition to, a ground of negligence or an act of negligence arising out of the single group of facts which was originally claimed to have brought about the unlawful injury to the plaintiff does not change the cause of action." The court finds that the identity of the plaintiffs' cause of action remains substantially the same. As such it relates to the date of the filing of the original complaint on February 5, 2001 and is not barred by the applicable statute of limitations, Connecticut General Statutes § 52-584.
Sec. 52-584. Limitation of action for injury to person or property caused by negligence, misconduct or malpractice.
No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.
BY THE COURT
BARBARA M. QUINN, Judge