Opinion
FSTCV166029103S
08-08-2018
Kyle MONACO, THROUGH his parent Catia MONACO, et al. v. AFR ENTERPRISES, INC.
UNPUBLISHED OPINION
Jacobs, J.
BACKGROUND
The subject matter of this action is the sale of an ATV, or all-terrain vehicle, which was subsequently involved in an incident in which the minor plaintiff, a passenger, was injured. The minor plaintiff, Kyle Monaco, through his parent Catia Monaco, and Catia Monaco, individually, brought this action against AFR Enterprises, Inc., the seller of the ATV. The four counts of the amended complaint [# 121] are titled "negligence" (first count); "violation of C.G.S. § 14-390f" (second count); "violation of CUTPA" (third count); and "violation of 15 U.S.C. § 2072" (fourth count). In the first count of the amended complaint, the plaintiffs allege the following facts. In or about March 2014, Edward DeNicolais, accompanied by his minor son, Anthony DeNicolais, and the minor plaintiff, Kyle Monaco, visited the defendant’s store to purchase an ATV. Prior to visiting the store, Edward DeNicolais looked up the Yamaha Raptor 700 ATV (Yamaha) on the defendant’s website. Although the Yamaha is advertised as having a large 686 cubic centimeter (cc) engine, there was no statement, warning, or instruction on the website affirmatively representing that all ATVs within engine sizes of more than 90 cubic centimeters shall be used only by persons sixteen years of age or older. While at the store, one of the defendant’s salespersons showed the Yamaha to Edward DeNicolais and the two minors, collectively. During the entire interaction, it was clear that the purchase of the ATV was intended for the minor Anthony DeNicolais. Despite this, neither the salesperson nor any other employee of the defendant made any affirmative representations that ATVs with "engine sizes of more than ninety cubic centimeters shall be used only by persons sixteen years of age or older," or made any inquiry regarding the age of either of the minors present. The salesperson also failed to display the required safety poster; failed to offer to make available for viewing the required safety video; and failed to orally inform either Edward DeNicolais or the minors about any free training courses.
The plaintiffs allege that, "as a direct and immediate consequence of [d]efendant’s failure to properly and affirmatively represent the statutory warnings and limitations on the sale and use of ATVs with engines larger than 90 cc," the defendant "proceeded to sell [the Yamaha] to Edward DeNicolais who was thus allowed and permitted to purchase it for his 14-year-old son to use" in violation of the intent of General Statutes § 14-390f. On or about June 18, 2014, while attempting to operate and control the Yamaha, the minor Anthony DeNicolais lost control and crashed, causing the minor plaintiff Kyle Monaco to sustain numerous injuries.
On December 15, 2017, the defendant filed the present motion for summary judgment as to counts one, three, and four of the plaintiffs’ amended complaint. The defendant filed numerous exhibits in support of its motion [# 127]. On March 14, 2018, the plaintiffs filed an objection with exhibits [# 133], and on March 16, 2018, an additional exhibit [# 134]. The defendant filed a reply on March 28, 2018 [# 135]. The court heard oral argument at short calendar on April 16, 2018. In arriving at its decision, the court considered the pleadings, the motion, the objection, the reply, the exhibits, the case law, and the arguments of counsel.
In subsequent pleadings, the plaintiffs acknowledged that no business relationship can adequately be established between the plaintiffs and the defendant as required for a CUPTA cause of action and as such has conceded to the granting of summary judgment as to count three.
In support of its motion, the defendant filed copies of the following documents: exhibit A, Abbhi v. AMI, Superior Court, judicial district of New Haven, Docket No. CV-96-0382195-S (June 3, 1997, Silbert, J.) (19 Conn.L.Rptr. 493); Provost-Daar v. Merz North America, Inc., Superior Court, judicial district of New Haven, Docket No. CV-13-6037872-S (February 24, 2014, Vitale, J.); Estate of Sit v. Dighello Brothers Auto Sales, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X06-CV-98-0149919-S (March 13, 2000, McWeeny, J.); Valle v. Andrews, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV-95-0552111-S (March 8, 1996, Hennessey, J.); Federico v. Caruso, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-96-0053808-S (April 18, 2002, Sequino, J.); Gersich v. Enterprise Rent A Car, United States District Court, Docket No. 3:95CV01053 (AHN) (D.Conn. November 20, 1995); Aviles v. Wayside Auto Body, Inc., 49 F.Supp.3d. 216 (D.Conn. 2014); Nolfi v. Melson, Superior Court, judicial district of Fairfield, Docket No. CV-99-0360876-S (June 12, 2000, Moran, J.); Marr v. WMX Technologies, Inc., Superior Court, judicial district of Litchfield, Docket No. CV-96-0071542-S (November 6, 1998, Sheldon, J.) (23 Conn.L.Rptr. 220); Ganim v. Smith & Wesson Corp., Superior Court, judicial district of Waterbury, Docket No. CV-99-0153198-S (December 10, 1999, McWeeny, J.) (26 Conn.L.Rptr. 39); Silber v. Dynasty Chinese Restaurant, Inc., Superior Court, judicial district of New Haven, Docket No. CV-02-0468247-S (April 29, 2003, Harper, J.) (34 Conn.L.Rptr. 455); Wenzel v. Libby’s Sales & Services, Inc., Superior Court, judicial district of New Haven, Docket No. CV296529 (October 9, 1990, Hadden, J.) (2 Conn.L.Rptr. 691); Kelsey v. Muskin, Inc., 848 F.2d 39 (2d Cir. 1988); and Caraballo v. U.S., 830 F.2d 19 (2d Cir. 1987); exhibit B, portions of the November 3, 2017 deposition testimony of Kyle Michael Monaco, with four photographs included; exhibit C, portions of the June 28, 2017 deposition testimony of Edward A. DeNicolais, with a copy of a document entitled "ATV Rider Training Certificate" included; exhibit D, portions of the June 28, 2017 deposition testimony of Anthony Edward DeNicolais; exhibit E, the defendant Edward DeNicolais’ responses to apportionment plaintiff’s interrogatories; and exhibit F, a document entitled "Retail Purchase Order For Motor Vehicles."
Attached to the plaintiffs’ objection are copies of the following documents: exhibit A, the plaintiffs’ amended complaint dated September 13, 2017; exhibit B, the signed and sworn affidavit of Stuart M. Statler, product safety and regulatory consultant; exhibit C, the court’s memorandum of decision dated August 16, 2017 as to the defendant’s motion to strike (# 109) ; exhibit D, portions of the June 28, 2017 deposition testimony of Edward A. DeNicolais; exhibit E, portions of the November 3, 2017 deposition testimony of Kyle Monaco; exhibit F, portions of the June 28, 2017 deposition testimony of Anthony Edward DeNicolais; exhibit G, portions of the January 29, 2018 deposition testimony of Brian Lomangino; and exhibit H, a letter dated April 8, 2015 that is purportedly signed by Edward DeNicolais.
That additional exhibit, cataloged as exhibit I, includes copies of the following cases: Frederico v. Sullivan, Superior Court, judicial district of Stamford, Docket No. CV-16-6029399-S (February 2, 2018, Povodator, J.); Payan v. Dorma USA, Inc., Superior Court, judicial district of Hartford, Docket No. CV-14-6054942-S (December 14, 2017, Peck, J.); Berrios v. W. Haven Housing Authority, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-00-0072762-S (August 29, 2002, Sequino, J.) ; Farrah v. Allstate Ins. Co., Superior Court, judicial district of Danbury, Docket No. CV-01-0342834-S (September 16, 2003, White, J.); Donahue v. Czaja, Superior Court, judicial district of Tolland, Docket No. CV-07-5001514-S (January 2, 2008, Vacchelli, J.); and portions of the "Connecticut Judicial Branch Civil Jury Instructions."
DISCUSSION
"[S]ummary 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." (Internal quotation marks omitted.) Cefaratti v. Aranow, 321 Conn. 637 (2016). "The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried ... However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ... the moving party for summary judgment is held to a strict standard ... of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523 (2012).
First Count
The Connecticut Products Liability Act, General Statutes § 52-572m et seq., governs all products liability claims. Pursuant to General Statutes § 52-572m(b), a product 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. ‘Product 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." General Statutes § 52-572n(a) states in relevant part: "A product liability claim ... 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." A product seller includes "any person or entity, including a manufacturer, wholesaler, distributor or retailer who is engaged in the business of selling such products whether the sale is for resale or for use or consumption." General Statutes § 52-572m(a). A product seller may be deemed liable "for harm caused to a claimant who proves by a fair preponderance of the evidence that the product was defective in that adequate warnings or instructions were not provided." General Statutes § 52-572q(a). "It is the established rule in Connecticut that [a] product may be defective because a manufacturer or seller failed to warn of the product’s unreasonably dangerous propensities ... Under such circumstances, the failure to warn, by itself, constitutes a defect." [Citations omitted; internal quotation marks omitted.]. Haesche v. Kissner, 229 Conn. 213 (1994).
In the first count, the plaintiffs allege that the defendant "is a ‘product seller’ within the meaning of Connecticut’s Products Liability Act, Connecticut General Statutes § § 52-572m et seq." The plaintiffs allege injuries as a direct and immediate consequence of the defendant’s conduct, namely, the defendant’s "failure to properly and affirmatively represent the statutory warnings and limitations on the sale and use of ATVs with engines larger than 90 cc" and "failure to display, to offer, to make available or to even mention any of the required safety warnings, posters, and training." The plaintiffs allege that the defendant’s conduct, "in selling an excessively powerful ATV which it knew or should have known was intended to be used by a fourteen-year-old, and without providing any warnings, instructions or safety materials or education ... was negligent and careless and in disregard of [d]efendant’s duty of care to foreseeable users of the ATV." The substance of the plaintiffs’ allegations is that the defendant, as the product seller, failed to warn of the dangers and safety precautions associated with the Yamaha, including that ATVs with engines larger than 90 cc should not be used by minors under the age of sixteen years old, and further failed to provide any instructions or training as to its appropriate use.
"[T]he statutory definition of products liability claim include claims that necessarily involve conduct on behalf of the product seller. For example, product liability claims in § 52-572m include allegations that the product seller expressly or impliedly warranted that the product could be used for a particular purpose, made negligent or innocent misrepresentations regarding the product, and failed to warn or instruct regarding the product. These types of product liability claims necessarily involve the conduct (or lack thereof) of the product seller and may exist even if the underlying product is not per se defective." Martir v. Town & Country Club, Inc., Superior Court, J.D. of Hartford, Docket No. CV-07-5009725-S (10/17/08, Prescott, J.).
In Martir, the plaintiff alleged that he was caused to slip and fall, in part, because the rear steps of the subject premises had been recently painted with a "glossy slick paint" that made the stairs unreasonably dangerous. The painting contractor, one of the named defendants, filed an apportionment complaint against the paint supplier and alleged that the paint supplier "was negligent and careless by, among other things, recommending the use of a particular paint for the steps in question, failing to consider or recommend other paints for the project, failing to warn [the painting contractor] that surfaces coated with the paint would become slippery when wet, and failing to advise [the painting contractor] that it should add texturing material to the paint if the paint is used in pedestrian areas to make the surface more slip resistant." Id. The paint supplier moved to dismiss the apportionment complaint on the grounds that its allegations, "even though couched in the terms of negligence, sound in product liability and therefore may not be brought as apportionment claims." Id. In response, the painting contractor argued that the allegations "are not product liability claims within the meaning of the products liability statute because the claims concern the negligent conduct of [the paint supplier] and not the paint itself [and] there is no claim that the paint itself was defective." (Emphasis in original; internal quotation marks omitted.) Id. In determining that the apportionment complaint sounded in product liability, rather than negligence, the court noted: "[The painting contractor] alleges that [the paint supplier] was negligent in that it failed to warn [the painting contractor] that the particular paint in question would become slippery when wet and that it should add texturing materials to the paint before using it in high pedestrian areas. These allegations are obviously failure to warn claims that are explicitly included within the statutory definition of product liability claims." Id.
While some courts have found that conduct-based negligence claims against a product seller do not always fall within the statutory definition of product liability claims, such conduct involved the delivery or use of the incorrect product from what was initially ordered or prescribed. See, e.g., New Haven Terminal v. Hungerfords, Inc., Superior Court, J.D. of New Haven, Docket No. CV-05-6000015-S (8/8/07, Cosgrove, J.) (complaint sounded in negligence where product seller allegedly supplied wrong O-Ring for use in diesel fuel pump contrary to specific order by patron); Alevras v. United Builders Supply Co., Inc., Superior Court, J.D. of New London, Docket No. CV-05-4002473-S (6/21/06, Jones, J.) (counts were outside scope of products liability claim where product seller allegedly supplied wrong type of wood flooring contrary to specific order by patron); Drennan v. Geist, Superior Court, J.D. of Middlesex, Docket No. CV-99-89114-S (1/2/02, Shapiro, J.) (product liability count was insufficient where plaintiff "[did] not allege that the product had any ureasonably dangerous propensities of which this defendant failed to warn. The plaintiff very simply and clearly [alleged] that the polyethylene tibial insert implanted in the plaintiff was the wrong one").
"The interpretation of pleadings is always a question of law for the court ... In addition, [t]he allegations of the complaint must be given such reasonable construction as will give effect to [it] in conformity with the general theory which it was intended to follow, and do substantial justice between the parties." (Internal quotation marks omitted.) Sempey v. Hospital, 180 Conn.App. 605 (2018). "[I]n determining the nature of a pleading filed by a party, [the court is] not bound by the label affixed to that pleading by the party." (Internal quotation marks omitted.) Pellet v. Keller Williams Realty Corp., 177 Conn.App. 42 (2017); Suntech of Connecticut, Inc. v. Lawrence Brunoli, Inc., 173 Conn.App. 321, 350 n.29, cert. granted on other grounds, 326 Conn. 923 (2017) ("[T]he caption of a pleading is not controlling, but the substance of the allegation is controlling").
The failure to warn may, by itself, constitute a defect. Haesche v. Kissner, supra, 229 Conn. 218. The allegations of the plaintiffs’ amended complaint in the current case speak to the defective nature of the product in that the defendant allegedly failed to provide any warnings or instructions in connection with the sale of the Yamaha. This court concludes that the first count one of the amended complaint in the current case asserts a cause of action under the Connecticut Products Liability Act.
The defendant asserts that the plaintiffs cannot establish that the defendant’s conduct was a proximate cause of the plaintiff Kyle Monaco’s injuries. General Statutes § 52-572q(c) governs the issue of causation in warnings cases. Section 52-572q(c) provides that "the claimant shall prove by a fair preponderance of the evidence that if adequate warnings or instructions had been provided, the claimant would not have suffered the harm." "[T]he thrust of subsection (c) is that causation exists upon a showing that, had adequate warnings been provided, the harm would not have occurred." (Footnote omitted.) Sharp v. Wyatt, Inc., 31 Conn.App. 824 (1993), aff’d, 230 Conn. 12 (1994). "Causation within the meaning of [§ 52-572q(c) ] closely parallels the law of warnings in other jurisdictions. See Schutte v. Celotex Corporation, 196 Mich.App. 135, 492 N.W.2d 773 (1992) (proximate cause in failure to warn case requires showing that "an adequate warning would have prevented the plaintiff’s injury by altering the conduct involved"); Ayers v. Johnson & Johnson Co., 59 Wash.App. 287, 797 P.2d 527 (1990), aff’d, 117 Wash.2d 747, 818 P.2d 1337 (1991) ("[plaintiffs’] burden on causation was to prove that, had they been adequately warned of the risks, they would have treated the product differently and avoided the harm"); Felix v. Hoffman-LaRoche, Inc., 513 So.2d 1319 (Fla.App. 1987), aff’d, 540 So.2d 102 (Fla. 1988) (same); 1 M. Madden, Products Liability (2d Ed. 1988) § 10.7 (same); see also Raney v. Owens-Illinois, Inc., 897 F.2d 94, 96 (2d Cir. 1990) (causation in warnings cases requires that warnings would have been needed by claimant)." Id., 838 n.13.
Questions regarding the existence of a causal link are generally reserved for the trier of fact; Haesche v. Kissner, supra, 229 Conn. 218; and the issue only becomes a question of law "when the mind of a fair and reasonable person could reach only one conclusion ... The question should be submitted to the trier of fact if there is room for a reasonable disagreement." (Internal quotation marks omitted.) Sharp v. Wyatt, Inc., supra, 835.
In the present case, the defendant has not presented evidence sufficient to show that there is no genuine issue of material fact that adequate warnings or instructions would not have altered Edward DeNicolais’ conduct in purchasing the Yamaha for his minor son. Although Edward DeNicolais testified, in a deposition, that he was "looking for particular model, the Raptor, but not just the Raptor, it was a particular model that came with the color scheme that it had," he also indicated that the defendant’s website, which he reviewed prior to making the purchase, "did not contain any representations, notice, or warnings saying that a Raptor 700 or any other ATV was to be used only by persons 16 years of age or older." The evidence further suggests that Edward DeNicolais only pursued the Yamaha for purchase because "[his minor son] made it clear that he wanted a Yamaha Raptor 700." There is no indication that Edward DeNicolais researched or was otherwise familiar with the Yamaha. Rather, the evidence suggests that Edward DeNicolais pursued the Yamaha solely at his minor son’s request. Reasonable minds could differ as to whether Edward DeNicolais, had he been informed that the Yamaha was not for use by persons under the age of sixteen years old, would still have completed the purchase. A genuine issue as to a material fact remains.
Third Count
"[A] plaintiff must have at least some business relationship with the defendant in order to state a cause of action under CUTPA." [Emphasis in original.] ) Pinette v. McLaughlin, 96 Conn.App. 769, cert. denied, 280 Conn. 929 (2006). The plaintiffs in the instant action have conceded in their memorandum of law in opposition to the defendant’s motion for summary judgment that there is no adequate business relationship between the plaintiffs and the defendant as required for a CUPTA cause of action and do not oppose this court’s granting of summary judgment on the third count.
Fourth Count
The plaintiffs assert a cause of action for violations of 15 U.S.C. § 2072, based on the defendant’s conduct related to the sale of the Yamaha, including the defendant’s alleged "[failure] to provide a proper ATV owner’s/operator’s manual," "[failure] to provide a certificate for a training course at the time of the subject sale," "[failure] to sell, or offer to sell, a helmet in conjunction with the sale of [the Yamaha]," "[failure] to require that the purchaser of [the Yamaha] sign an age acknowledgement document," and, furthermore, that the defendant allegedly sold the Yamaha "knowing that it would be used by a minor under the age of 16 years old." The plaintiffs allege that these violations of the aforementioned statute were a "direct, proximate and contributing cause of the accident and injuries sustained by [the plaintiff] Kyle Monaco," and, therefore, that the plaintiffs are entitled to an award of money damages and statutory damages as are permitted.
15 U.S.C. § 2072(a) provides in relevant part: "Any person who shall sustain injury by reason of any knowing (including willful) violation of a consumer product safety rule ... may sue any person who knowingly (including willfully) violated any such rule ..."
General Statutes § 52-572n(a) provides in relevant part: "A product liability claim ... 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." (Emphasis added.) "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 (1989). "The exclusivity provision makes the product liability act the exclusive means by which a party may secure a remedy for an injury caused by a defective product. The legislature stated that a product liability claim, as defined by the product liability act, shall be in lieu of all other claims against product sellers ... for harm caused by a product." [Emphasis omitted; internal quotation marks omitted.] ) Gerrity v. R.J. Reynolds Tobacco Co., 263 Conn. 120 (2003). Given this contextual framework, our Supreme Court has determined that a product liability claim within the scope of the Connecticut Products Liability Act is "one that seeks to recover damages for personal injuries, including wrongful death, or for property damages, including damage to the product itself, caused by the defective product." Gerrity v. R.J. Reynolds Tobacco Co., supra, 128. The Connecticut Products Liability Act serves as the exclusive remedy for a party who seeks recompense for those injuries caused by a product defect. Id. Additional claims for injuries not caused by the defective product, or claims pursued by a party on the basis of something other than personal injury, death, or property damage, are not barred by the exclusivity provision. Id.
In the present case, count four alleges that the defendant’s conduct, in violation of 15 U.S.C. § 2072, was a direct, proximate, and contributing cause of the accident and accompanying personal injuries sustained by the plaintiff Kyle Monaco for which the plaintiffs seek monetary damages.
This court concludes that the fourth count is a claim for personal injury caused by an allegedly defective product, within the scope of the CPLA. This court concludes that the plaintiffs’ cause of action for violations of 15 U.S.C. § 2072 is barred by the exclusivity provision of the Connecticut Products Liability Act.
CONCLUSION
For the foregoing reasons, the defendant’s motion for summary judgment as to count one is denied. The defendant’s motion for summary judgment as to counts three and four is granted.