Hoskinson v. North Canaan

Full title: KATLYN HOSKINSON ET AL. v. TOWN OF NORTH CANAAN ET AL

Court: Connecticut Superior Court, Judicial District of Litchfield at Litchfield

Date published: Nov 10, 2003

2003 Ct. Sup. 12757 (Conn. Super. Ct. 2003)

36 CLR 13

Opinion

No. CV020088836S

November 10, 2003

MEMORANDUM OF DECISION

PICKARD, Judge.

This motion for summary judgment requires the court to determine whether the Accidental Failure of Suit Statute, C.G.S. Section 52-592,¹ or the Wrong Defendant Statute, C.G.S. Section 52-593,² save this personal injury action from the applicability of the statute of limitations, C.G.S Section 52-584.³

1 Section 52-592 is entitled "Accidental failure of suit; allowance of new action." It provides, in pertinent part: "(a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits . . . because the action has been dismissed for want of jurisdiction . . . the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment."

2 Section 52-593 is entitled "Action against wrong defendant; allowance of new action." It provides, in pertinent part: "When a plaintiff in any civil action has failed to obtain judgment by reason of failure to name the right person as defendant therein, the plaintiff may bring a new action and the statute of limitations shall not be a bar thereto if service of process in the new action is made within one year after termination of the original action."

3 Section 52-584 provides, in pertinent part: "No action to recover damages for injury to the person . . . caused by negligence . . . 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 . . ."

I. Facts and Procedural Background

The plaintiff, Katlyn Hoskinson, is a minor who is bringing this action through her parents. Her parents also claim to have incurred medical bills on behalf of their daughter. This action arises out of an accident at recess on the playground of the North Canaan Elementary School on November 18, 1998. It is alleged that the minor plaintiff fell from the monkey bars and that her injuries were caused by a failure to maintain and a failure to supervise.

By service of process made on November 15, 2000, the plaintiffs commenced an action against three defendants: Regional School District #1; John O'Brien, Superintendent of Schools of Regional School District #1; and Hope Mongeau, a teacher. The essential allegations were that 1) the school was operated as a public school by Regional School District #1, 2) that John O'Brien was employed by Regional School District #1 as superintendent of schools, 3) that the injuries were caused by the negligence of Hope Mongeau in supervising the activities on the play ground, 4) that Regional School District #1 was responsible for the negligent acts of Hope Mongeau, 5) that Regional School District #1 and John O'Brien, its Superintendent of Schools, were themselves negligent in various ways which were concurrent causes of the injuries. There can be no dispute that the applicable statute of limitations, C.G.S. Section 52-584, expired at midnight on November 17, 2000.

On January 8, 2001 the plaintiffs were given permission to amend their complaint and cite in additional parties. By service of process made on January 25, 2001 the plaintiffs amended their complaint and cited in as additional defendants the North Canaan Elementary School and the Town of Canaan. The amended complaint alleged that the North Canaan Elementary School was "in charge of supervision of the school" and that the Town of Canaan "contributed to the management" of the North Canaan Elementary School. On March 19, 2001 the plaintiffs were given permission to amend their complaint again and cite in Town of North Canaan as an additional defendant. The Town of North Canaan was served on April 4, 2001. This second amended complaint alleged that the Town of North Canaan also "contributed to the management" of the school. There can be no dispute that the actions against North Canaan Elementary School, Town of Canaan and Town of North Canaan were all commenced after the expiration of the two-year statute of limitations, Section 52-584. In Connecticut, an action is not "commenced" until process is actually served upon the defendant. Lacasse v. Burns, 214 Conn. 464 (1990).

On January 16, 2001 the case against Hope Mongeau was dismissed by agreement on account of deficient service of process. On April 2, 2001 the case against the North Canaan Elementary School was dismissed by agreement because of lack of jurisdiction on the ground that it is not a legal entity against which an action can be named. The case against the Town of Canaan was dismissed on May 29, 2001 because of lack of jurisdiction on the ground that the Town of Canaan had no duty to the plaintiff, a North Canaan student injured at the North Canaan Elementary School, not at the Canaan Elementary School. The case against Regional School District #1 and John O'Brien, Superintendent of Schools of Regional School District #1 was dismissed on November 19, 2001 on the ground that these defendants owed no duty to the plaintiff because the North Canaan Elementary School is not within Regional School District #1. The case against the defendant, Town of North Canaan, was dismissed on November 20, 2001 on the ground that the two-year statute of limitations, C.G.S. Section 52-584, had run at the time that this defendant was cited into the case.

The present case, which was served on October 7 and 9, 2002, names the following as defendants: Town of North Canaan; Board of Education of the Town of North Canaan; John O'Brien, Superintendent of Schools for the Town of North Canaan; and Thomas P. Gaisford, Principal of the North Canaan Elementary School. Each of the 14 counts in the complaint alleges that the plaintiff brings this action pursuant to C.G.S. Section 52-592. The defendants all move for summary judgment on the basis of the statute of limitations, C.G.S. Section 52-584.

II. Sections 52-592 and 52-593 CT Page 12759

"Section 52-592, by its plain language, is designed to prevent a miscarriage of justice if the plaintiffs fail to get a proper day in court due to the various enumerated procedural problems. It was adopted to avoid hardships arising from an unbending enforcement of limitation statutes . . . Its purpose is to aid the diligent suitor." (Citations omitted; internal quotation marks omitted.) Henriques v. Allegre, 68 Conn. App. 238, 244 (2002). The plaintiff's complaint specifically states, in pertinent part, that "The Plaintiffs bring the instant action before this Court pursuant to Connecticut General Statute Section 52-592 . . ."

In their brief in opposition to the motion for summary judgment the plaintiffs also rely heavily upon C.G.S. Section 52-593. "Our Supreme Court has recognized that Section 52-593 applies only in circumstances in which the plaintiff's original action failed by reason of naming, in fact, the wrong defendant; that is, in cases in which the naming of the wrong defendant was the product of a reasonable and honest mistake of fact as to the identity of the truly responsible individual." (Citations omitted; internal quotation marks omitted.) Isidro v. State, 62 Conn. App. 545, 549-50 (2001). Section 52-592 and Section 52-593 are both remedial statutes must be construed liberally, but should not be construed so liberally as to render statutes of limitation virtually meaningless." Id. at 551.

The defendants argue that the plaintiff should not be able to take advantage of Section 52-593 because it was not pleaded in the complaint. "When any claim made in a complaint . . . is grounded on a statute, the statute shall be specifically identified by its number." Practice Book, Section 10-3(a). But, the appellate cases have held that this section is directory rather than mandatory. Rowe v. Godot, 209 Conn. 273, 275 (1988). The fact that the Section 52-593 was not pleaded does not prevent the plaintiffs from relying upon it in defense of this motion for summary judgment.

III. Town of North Canaan

The Defendant, Town of North Canaan, was cited in as a defendant in the original action. The case against it was dismissed because the statute of limitations had already run at the time it was cited in. Section 52-592 can not save a cause of action which was not ". . . commenced within the time limited by law . . ." The previous action against the Town of North Canaan was not commenced within the time limited by law; it was dismissed on account of the expiration of the statute of limitations. The Accidental Failure of Suit Statute, Section 52-592, has no bearing on this cause of action against the Town of North Canaan.

Nor can Section 52-593 save this cause of action. The plaintiff argues that it mistakenly sued the Town of Canaan in the first action when it should have sued the Town of North Canaan. While this is the kind of mistake which can be corrected under the provisions of Section 52-593, the plaintiff failed to bring the correcting action in a timely fashion. Section 52-593 requires that a new action must be commenced ". . . at any time within one year after the determination of the original action . . ." In this case, the action against the Town of Canaan, the "wrong defendant" was determined on May 29, 2001 when the action was dismissed. This new action against the Town of North Canaan was not commenced until it was served on the Town on October 7, 2002. This is substantially outside the one-year grace period established by Section 52-593. For this reason, the motion for summary judgment must be granted as to the defendant, Town of North Canaan. "Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806 (1996).

IV. Board of Education of the Town of North Canaan

With respect to the defendant, Board of Education of the Town of North Canaan, the plaintiff's reliance upon Section 52-592 is misplaced because the Board of Education of the Town of North Canaan was never a defendant in the original action. Therefore, a cause of action against this defendant was never "dismissed for want of jurisdiction" as is required by Section 52-592.

With respect to Section 52-593, it is clear that the plaintiffs made a factual mistake as to the educational entity responsible for the management of the North Canaan Elementary School including the supervision and training of teachers and the safety of playground equipment. They mistakenly believed that the North Canaan Elementary School was controlled and operated by Regional School District #1. This was a mistake of fact. The school was, in fact, controlled and operated by the Board of Education of the Town of North Canaan. The plaintiffs mistakenly sued the wrong education entity. This is a classic case of a suit brought against the wrong defendant. The action against Regional School District #1 was dismissed on November 19, 2001. The present corrective action naming the Board of Education of the Town of North Canaan was commenced within one year after the action against the wrong defendant was dismissed. For these reasons, the action against the Board of Education Town of North Canaan is saved by Section 52-593, and the motion for summary judgment must be denied as to this defendant.

V. John O'Brien, Superintendent of Schools of the Town of North Canaan

The situation involving John O'Brien is a bit more complicated. Apparently, John O'Brien wore two hats; he was Superintendent of Regional School District #1, and he was Superintendent of the Schools for the Town of North Canaan. In the original action he was sued, in a timely fashion, in his capacity as Superintendent of Schools of Regional School District #1. The action against him was dismissed on the merits because he owed no duty to the plaintiffs in this capacity. Therefore, the new action against him cannot be saved under Section 52-592 because the original action against him, in any capacity, was not dismissed because of "want of jurisdiction."

But, Section 52-593 does apply in this situation. Although Mr. O'Brien was a defendant in the original action he was only sued in one capacity: as Superintendent of Schools of Regional School District #1. He was not sued as Superintendent of Schools for the Town of North Canaan. I believe that it can be said that the plaintiffs sued the "wrong defendant" as those words are used in Section 52-593, even though it is the same individual in both suits. This is a liberal construction of the statute which is based upon a reasonable and honest mistake as to the identity of the truly responsible person, without rendering the statutes of limitation virtually meaningless.

For these reasons, the motion for summary judgment as to the defendant, John O'Brien, Superintendent of Schools for the Town of North Canaan, is denied.

VI. Thomas P. Gaisford, Principal of the North Canaan Elementary School

The suit against Thomas P. Gaisford, Principal of the North Canaan Elementary School presents an interesting question. Can the original action be said to have been brought against the "wrong defendant" when the plaintiffs never sued a principal in the first action? The only defendants sued within the statue of limitations in the first action were Regional School District # 1 and John O'Brien, its superintendent. The plaintiffs did not attempt to sue the principal of the North Canaan Elementary School at that time. Now, more than two years after the accident, they have sued the Principal of the North Canaan Elementary School. This is not a suit which is saved under the terms of either Section 52-592 or 52-593. The plaintiffs did not sue the wrong principal; they never sued any principal. To permit an action against the principal at this late date would truly render the statute of limitations meaningless. For these reasons, summary judgment is granted as to the defendant, Thomas Gaisford, Principal of the North Canaan Elementary School.