Opinion
HHDCV166069131S
04-05-2019
Emerson Lopez, Minor By and Through Olga Morena-Lopez PPA Mother and Next Friend v. Christian Mercado et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Gordon, Matthew D., J.
MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT FILED BY DEFENDANTS WAL-MART STORES EAST, LIMITED PARTNERSHIP AND STOUT STUFF, LLC
MATTHEW DALLAS GORDON, J.
This case arises from an incident that occurred on December 21, 2015, when a dog owned by the defendant, Christian Mercado (Mercado), broke free from his leash and attacked the minor plaintiff, Emerson Lopez. The first three counts of the plaintiffs’ complaint are directed to the dog and property owners and sound in negligence. Counts four and five are brought under the Connecticut Products Liability Act, Connecticut General Statutes Section 52-572(n) et seq., against the defendants Wal-Mart Stores East, Limited Partnership (Wal-Mart), and Stout Stuff, LLC (Stout Stuff), and allege that the leash was defective when it was distributed and sold by these defendants. Wal-Mart and Stout Stuff have each moved for summary judgment claiming that the plaintiff cannot provide any direct evidence of a product defect because the leash has been lost or destroyed. The plaintiffs acknowledge that the leash no longer exists, but assert that summary judgment is nevertheless inappropriate because the plaintiffs can prevail under a "malfunction theory" by proving that the injury was of a kind that usually results from a product defect, and that the injury was not caused solely by something other than a product defect. For the reasons explained in this decision, the court finds that there are no genuine issues of material fact and that Wal-Mart and Stout Stuff are entitled to judgment in their favor as a matter of law.
I
APPLICABLE LEGAL STANDARD
"Practice Book § 17-49 provides in relevant part: [Summary] judgment ... shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ... Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue ... It is not enough ... for the opposing party merely to assert the existence of such a disputed issue ... Mere assertions of fact, whether contained in a complaint or in a brief, are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]." (Internal quotation marks omitted.) Cadco, Ltd. v. Doctor’s Assocs., Inc., 188 Conn.App. 122, 130-31 (2019). "A material fact is a fact that will make a difference in the result of a case." Id.
II
FACTS AND PROCEDURAL HISTORY
The plaintiffs’ complaint alleges that Wal-Mart is liable for the minor plaintiff’s injuries under the Connecticut Products Liability Act, Connecticut General Statutes Section 52-572(n), et seq., because the leash that was allegedly sold by Wal-Mart and used by Mercado to walk his dog was defective and unreasonably dangerous in that the metal clasp attached to the leash was not of sufficient strength and caused the leash to break when the lever mechanism attached to the metal clasp snapped and the metal clasp detached from the collar. The plaintiff subsequently asserted these same allegations against Stout Stuff claiming that Stout Stuff is in the business of designing, manufacturing, distributing and/or selling various products, including dog leashes and collars, and that Stout Stuff distributed the leash in question to Wal-Mart.
The leash the dog was wearing at the time of the incident was purchased by Mercado’s friend, Rosemary Rodriguez (Rodriguez), who testified that she purchased the leash at the Wal-Mart store located on Flatbush Avenue in Hartford approximately one month prior to the incident in October or November of 2015. Rodriguez could not recall the brand or type of leash that she purchased, or anything else about the leash, other than it was tan. Rodriguez testified that she paid cash for the leash and that she did not retain a receipt or any packaging or printed materials regarding the leash.
After photographs of Mercado’s dog wearing a collar and the leash in question were produced through discovery, Wal-Mart sent a letter to Stout Stuff identifying the leash as a product distributed by Stout Stuff to Wal-Mart with a product code of UPC No. 84487500548. Although Stout Stuff subsequently confirmed that it did in fact distribute a leash to Wal-Mart bearing product code of UPC code 84487500548, when an exemplar of that leash was presented to Mercado at his deposition, Mercado confirmed that the leash was not the one his dog was wearing at the time of the incident. Mercado also testified that the leash was too light for his dog, a pink nosed pit bull that weighed more than forty pounds. Stout Stuff has also submitted an affidavit in support of its motion for summary judgment averring that the leash shown in the photographs is not a leash that Stout Stuff ever distributed to Wal-Mart. The Stout Stuff affidavit is uncontroverted, and the plaintiffs have acknowledged that they have no other independent information regarding the leash, including when it was purchased, its size, shape, color or length.
Although there are a number of other unresolved factual issues regarding the leash about which the parties vehemently disagree, which would ordinarily render summary judgment inappropriate, it is the court’s view that these issues are all ancillary issues that fail to address the more fundamental problem for the plaintiff, which is that there is no dispute, and therefore no genuine issue of material fact, that the leash in question no longer exists. The loss of the leash means that there is no direct evidence of a product defect, and for the reasons explained in this decision, the court concludes that this failure of evidence constitutes a fatal flaw in the plaintiffs’ product liability claims against Wal-Mart and Stout Stuff.
III
ANALYSIS
THE PRODUCTS LIABILITY ACT
"To establish a product liability claim, a plaintiff must prove that: (1) the defendant was engaged in the business of selling the product; (2) the product was in a defective condition unreasonably dangerous to the consumer or user; (3) the defect caused the injury for which compensation was sought; (4) the defect existed at the time of the sale; and (5) the product was expected to and did reach the consumer without substantial change in condition." White v. Mazda Motor of America, Inc., 313 Conn. 610, 622, 99 A.3d 1079 (2014). "For a product to be unreasonably dangerous, it must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." (Internal quotation marks omitted). White v. Mazda Motor of America, Inc., 139 Conn.App. 39, 48-49, 54 A.3d 643 (2012), aff’d, 313 Conn. 610, 99 A.3d 1079 (2014). "Although it is true that an ordinary consumer may, under certain circumstances, be able to form expectations as to the safety of a product we nonetheless consistently have held that expert testimony is required when the question involved goes beyond the field of the ordinary knowledge and experience of judges or jurors." Id., 49. "If lay witnesses and common experience are not sufficient to remove the case from the realm of speculation, the plaintiff will need to present expert testimony to establish a prima facie case." Metropolitan Property & Casualty Ins. Co. v. Deere & Co., 302 Conn. 123, 141, 25 A.3d 571 (2011).
In an effort to circumvent the fundamental and fatal evidentiary problem created by the loss of the leash, without which the plaintiffs cannot prove the essential elements of their product liability claims, the plaintiffs have submitted a report from a retained expert named Dr. John Jarrell (Jarrell), who examined a variety of leashes manufactured by a company called Vibrant Life that are "similar" to the leash that Mercado’s dog was wearing when the minor plaintiff was injured. In response, Wal-Mart has submitted an affidavit by Carl Kimbro, Senior Buyer, Pet Accessories for Wal-Mart, averring that in November and December of 2015, Wal-Mart did not sell the Vibrant Life leashes relied on by the plaintiffs’ expert, and did not do so until, at the earliest, September of 2017. The plaintiffs have not submitted any evidence to refute Wal-Mart’s sworn testimony that the leashes examined by the plaintiffs’ expert were not, and could not be, the same leash Rodriguez purchased at Wal-Mart in 2015. To the contrary, the plaintiffs acknowledge that the leashes examined by Jarrell were not the same leash and that they were instead "exemplars" of the leash sold by Wal-Mart. As stated by the plaintiffs in their opposition to Wal-Mart’s summary judgment motion, "the defendant’s argument fails to recognize [that] neither the plaintiffs nor the plaintiffs’ expert ever claimed the leashes used in the testing were the subject leash at issue. Further, they never stated the leashes used in the testing were sold at the Walmart on Flatbush Avenue in Hartford. Indeed, the plaintiffs’ experts specifically stated the leashes tested were ‘exemplar’ to the leash which malfunctioned immediately prior to the attack." The court concludes that the report prepared by Jarrell does not create a genuine issue of material fact regarding whether the leash allegedly distributed by Stout Stuff and sold by Wal-Mart was defective because Jarrell’s entire analysis is based on the examination of products that all parties, including the plaintiffs, acknowledge are different products than the leash in question, and were not sold by Wal-Mart in 2015.
In a further effort to circumvent the fatal flaw created by the loss of the leash, the plaintiffs assert that they are entitled to proceed under a "malfunction theory" of product liability. Under the malfunction theory, a plaintiff may establish the existence of a defective product through circumstantial evidence that supports an inference that an unspecified defect most likely caused the accident by demonstrating the absence of other possible causes of the accident. See Metropolitan Property & Casualty Ins. Co. v. Deere & Co., supra, 302 Conn. 133-34. It is the court’s view that the malfunction theory is unavailing to the plaintiffs in this case because the plaintiffs have not pleaded the malfunction theory, and it is not permissible for them to raise the malfunction theory for the first time now in opposition to the defendants’ pending motions for summary judgment.
In White v. Mazda Motor of America, Inc., 313 Conn. 610, 622, (2014) the plaintiff initiated a product liability action against the manufacturer of his car after the car caught fire on the side of the highway approximately one month after the plaintiff purchased it. The trial court granted the defendant’s motion for summary judgment after the plaintiff failed to produce competent expert testimony to support his claim that a specific defect in the vehicle’s fuel system caused the fire, and that the fire was the proximate cause of the plaintiff’s injuries. Id., 613. On appeal, the Supreme Court rejected the plaintiff’s assertion that summary judgment was inappropriate because the plaintiff was entitled to proceed under the malfunction theory of product liability. Id.
As the Supreme Court in White explained, "[a] product liability claim under the malfunction theory is distinct from an ordinary product liability claim. The distinction lies in whether the plaintiff is relying on direct evidence of a specific defect (an ordinary claim) or circumstantial evidence of an unspecified defect (a malfunction theory claim). To establish a product liability claim, a plaintiff must prove that: (1) the defendant was engaged in the business of selling the product; (2) the product was in a defective condition unreasonably dangerous to the consumer or user; (3) the defect caused the injury for which compensation was sought; (4) the defect existed at the time of the sale; and (5) the product was expected to and did reach the consumer without substantial change in condition." Id., 622. "Ordinarily, a plaintiff relies on direct proof of a specific manufacturing or design defect to prove his product liability claim, that is, evidence directly demonstrating that some part of a product was either defectively manufactured or designed and that the defectively designed or manufactured part caused the product to fail. In some cases, however, a product malfunction causes the loss or destruction of the product, leaving the parties without direct evidence of the product’s condition." (Citations omitted.) Id., 622-23. "This can leave the plaintiff without direct evidence to establish his claim ... The malfunction theory allows a plaintiff to establish the existence of a defect at the time of sale or distribution through circumstantial evidence supporting an inference that an unspecified defect most likely caused the accident by virtue of the fact that other possible causes of the accident are absent ..." Id. In upholding the trial court’s entry of summary judgment in favor of the defendants, the Supreme Court noted that, "[t]he plaintiff in the present case, however, did not reference the malfunction theory in his pleadings, nor did he present any allegations relative to its elements. Instead, he pleaded only a specific defect theory based on his assertion that a defect in the vehicle’s fuel system caused the incident that resulted in his injuries." (Citations omitted.) Id.
As in White, the plaintiffs did not plead the malfunction theory in their complaint. "To properly plead a product liability claim under the malfunction theory, the plaintiff was required to at least claim in the pleadings that some unspecified defect caused the plaintiff’s harm and to allege facts tending to establish the malfunction theory’s two basic elements, namely, that (1) the incident that caused the plaintiffs harm was of a kind that ordinarily does not occur in the absence of a product defect, and (2) any defect most likely existed at the time the product left the manufacturer’s or seller’s control and was not the result of the reasonably possible causes not attributable to the manufacturer or seller." White v. Mazda Motor of America, Inc., supra, 313 Conn. 623. Instead, the plaintiffs have pleaded only specific defects under the Products liability Act, including:
a. The dog leash was in a defective and unreasonably dangerous condition at the time of sale and did not change in condition in which it was manufactured and sold;
b. Wal-Mart sold the dog leash and misrepresented that it was capable of restraining a dog of the size and weight of the dog for which the leash was designed;
c. The dog leash was defective in that the metal clasp attached to the leash was not of sufficient strength and caused the leash to break;
d. The dog leash was defective in that the lever mechanism attached to the metal clasp snapped when used for its intended purpose;
e. The dog leash was defective in that the metal clasp detached from the dog collar when used for its intended purpose;
f. The defendant failed to warn and/or failed to adequately warn purchasers of the defective dog leash;
g. The defendant breached an implied warranty of merchantability in that the dog leash was not of merchantable quality nor was it fit for its intended purposes; and
h. The defendant breached its express warranties that the dog leash was safe and effective for its intended use.
It is the court’s view that these allegations are insufficient to put the defendants on notice regarding a potential malfunction theory claim. As noted by the Supreme Court in White, "[d]espite decades of judicial guidance, the plaintiff did not address the basic elements of a malfunction theory claim in his pleadings before the trial court. As a result, nothing in the plaintiff’s complaint provided the defendants with notice that they needed to gather facts during discovery to defend against this theory of liability. See, e.g., Montanaro v. Gorelick, 73 Conn.App. 319, 324, 807 A.2d 1083 (2002) ([t]he pleadings [must] provide sufficient notice of the facts claimed and the issues to be tried [so as to avoid] surprise or prejudice [to] the opposing party [internal quotation marks omitted])." Supra 625. "The plaintiff does not argue in his brief to this court that he raised the claim in his amended complaint. Nor did the plaintiff seek leave to further amend his complaint to include this theory. Perhaps, if given notice, the defendants could have identified facts during discovery to establish other possible causes of the accident. If the plaintiff did not produce evidence to negate these other possible causes, the plaintiff’s case would fail at the summary judgment stage. The plaintiff’s failure to plead a malfunction theory claim in his complaint deprived the defendants of an opportunity to discover facts related to the claim, and it deprives the court of having those additional facts to aid in its decision. Having failed to provide notice to the trial court and the defendants of this alternative theory in his amended complaint by pleading the necessary facts, the plaintiff did not raise it ‘timely and distinctly ...’ Swerdloff v. AEG Design/Build, Inc., supra, 209 Conn. at 189, 550 A.2d 306." Id.
The principles enunciated in White have equal application here. Having failed to plead the malfunction theory in their complaint, it would be fundamentally unfair to allow the plaintiff to interject that theory at this late stage of the proceedings. Moreover, the Supreme Court’s opinion in White makes it clear that a plaintiff is not permitted to raise the malfunction theory for the first time in opposition to a defendant’s motion for summary judgment. "To put the defendants on notice that the plaintiff intended to pursue an alternative theory of liability under the malfunction theory, the plaintiff needed to plead this theory in his amended complaint. The pleadings determine which facts are relevant and frame the issues for summary judgment proceedings or for trial. See, e.g., Doublewal Corp. v. Toffolon, 195 Conn. 384, 390-91, 488 A.2d 444 (1985); Recall Total Information Management, Inc. v. Federal Ins. Co., 147 Conn.App. 450, 456, 83 A.3d 664, cert. granted, 311 Conn. 925, 86 A.3d 469 (2014). "The principle that a plaintiff may rely only [on] what he has alleged is basic ... It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations [in] his complaint." (Internal quotation marks omitted.) Kaddah v. Commissioner of Correction, 299 Conn. 129, 140, 7 A.3d 911 (2010). Id., 621. "A complaint must fairly put the defendant on notice of the claims ... against him ... The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise ... Only those issues raised by the [plaintiff] in the latest complaint can be tried before the jury." Id. "If the plaintiff sought to establish his claim using the malfunction theory, our rules of practice required him either to raise it in his complaint or to obtain consent or leave to raise it in a further amended complaint. See, e.g., Practice Book § 10-60(a). The plaintiff did neither. The plaintiff having failed to allege facts in his amended complaint establishing a claim based on the malfunction theory, the plaintiff’s amended complaint did not comply with our pleading requirements." Id., 628.
The plaintiffs have not pleaded a malfunction theory at any point since this case was filed almost two years ago, and they cannot interject the malfunction theory for the first time now in opposition to the defendants’ motions for summary judgment. "If the plaintiff intended to rely on the malfunction theory in opposition to summary judgment, he was required to plead that theory in his amended complaint or seek leave to further amend his complaint. Having failed to do this, he could not properly raise it for the first time in his opposition to the defendants’ summary judgment motion." Id.
CONCLUSION
Having carefully considered the allegations of the plaintiffs’ complaint, the defendants’ motions for summary judgment, the plaintiffs’ objections to the motions, all of the supporting evidence submitted by the parties, and the positions of the parties presented during oral argument, it is the court’s conclusion that there is no genuine issue of material fact that the leash has been destroyed, and therefore no direct evidence of a product defect, which means that the plaintiffs cannot prove an essential element of their product liability claims. The court also concludes that the plaintiffs have failed to plead a "malfunction theory" of product liability against the defendants, and may not do so now. For all of these reasons, the court concludes that Wal-Mart and Stout Stuff are entitled to summary judgment in their favor as a matter of law, and hereby enters judgment in their favor accordingly.