Opinion
C.A. No. 00C-07-038-JRJ
Date Submitted: May 3, 2002
Date Decided: June 28, 2002
ORDER
1. On July 10, 2000, Plaintiff filed suit against the defendant May Department Stores Company ("May") for personal injuries arising out of a fall on an escalator at Strawbridge's on July 13, 1998. The plaintiff claimed negligence and breach of implied warranty. This suit was filed three days before the statute of limitations on the negligence claim expired.
2. On August 31, 2000, May filed an answer to the Plaintiff's complaint and a third-party complaint against Millar Elevator Service Company, Millar Service Company and Schindler Elevator Corporation (hereinafter collectively referred to as "Millar"), alleging negligence and breach of contract in connection with the installation, maintenance, service and inspection of the escalator.
3. On May 25, 2001, almost nine months after May answered the complaint and filed its third-party complaint, the plaintiff filed a motion to amend the complaint to add Millar as a defendant. The plaintiff sought to add Millar nearly three years after the accident and almost one year after the statute of limitations on any negligence claim expired.
4. On August 22, 2001, Millar filed a motion to dismiss, alleging: (1) the plaintiff failed to specifically allege that the amended complaint related back to the original complaint; (2) the amended complaint was barred by the statute of limitations; and (3) the plaintiff failed to show mistaken identity of any party and therefore did not meet the requirements of Super.Ct.Civ.R. 15(c).
5. The purpose of Rule 15 is to encourage the disposition of litigation on its merits. A decision to permit or deny an amendment under Rule 15 is left to the discretion of the trial judge. It is the general policy in this jurisdiction to be liberal in permitting amendments to pleadings unless the opposing party would be seriously prejudiced by the amendment. However, there are limits under Rule 15(c) on relation back to the original pleading in a case where the statute of limitations is implicated.
Wilson v. Consumer's Life Ins. Co. v. Lincoln Mercury of New Castle, Inc., 2001 WL 121169 at *2, Quillen, J. (Del.Super. 2000) (citations omitted).
Id.
Id.
6. There is a four-prong test to determine whether a proposed amendment to a complaint seeking to add a party "relates back" under the provisions of Rule 15(c). The test is as follows: (1) the basic claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) the party to be brought in must know, or should have known that, but for a mistake concerning identity of the proper party, the action would have been brought against it; and (4) the second and third requirements must have been fulfilled within the prescribed limitations period.
Marro v. Gopez, 1993 WL 138997 at *2, Del Pesco, J. (Del. Super) (citations omitted).
7. With respect to the first prong, there is no question that the claim against Millar arose out of the conduct set forth in the original complaint.
8. With respect to the second prong, the Court finds that because Millar was brought into the suit as a third-party defendant, it was on notice of the nature of the plaintiff's claims and would not be prejudiced in maintaining its defense. Thus, the real dispute here centers on the third and fourth prongs of the relation back test.
See Dennis v. I. Goldberg of Dover, Inc. v. Silicato Development Partnership, Del. Super., C.A. No. 88C-JA-18, P.J. Ridgely (1990).
9. With respect to the third prong, the "mistake requirement," this Court noted in Johnson v. Paul's Plastering, Inc., that the strict approach (that the mistake requirement covers only those cases in which the party seeking to amend has made a true mistake concerning the identity or the name of the proper party), "appears to have been somewhat tempered by the Supreme Court's ruling in Mullen v. Alarmguard, Del. Super., 625 A.2d 258, 265 (1993), and it is clear the rule is not limited to cases of misnomer."
1999 WL 744427 at *1, Quillen, J. (Del.Super.)
Id. (citations omitted).
Id.
11. In Mullen, the plaintiff was the victim of a fire and filed an action against the manufacturer of an allegedly defective fire alarm. At the deposition of Alarmguard's president, which occurred in the presence of his wife, the deponent testified that his wife's role was limited to overseeing inventory. The deponent's wife did not correct this statement. Later, after the statute of limitations expired, the plaintiff discovered that the wife was in fact responsible for approving sales contracts, and made decisions affecting design and safety. The plaintiff then attempted to amend the complaint to add the wife as a party. The Supreme Court held that Rule 15(c) applied to relate back this amendment because the newly named defendant should have known that, but for her husband's deception, she would have been named a party in the original complaint.
12. In Johnson, the plaintiff was injured while performing construction work at A.I. duPont Hospital for Children. Shortly before the two year statute of limitations expired, the plaintiff filed a complaint against Paul's Plastering, Inc., Kenny Jester, and three unknown defendants. Almost a year later, well after the two year statute of limitations had expired, the plaintiff amended his complaint to substitute two of the additional parties for two unknown parties: Joseph Rizzo Sons, Inc., the general contractor of the construction project, and A.I. duPont Hospital for Children. The hospital moved to dismiss, arguing that the amendment did not relate back under Rule 15(c). The Court in Johnson noted that, "[u]nlike the misled plaintiff in Mullen," the plaintiff was aware that the accident occurred at the A.I. duPont Hospital and alleged this fact in the original complaint. In Johnson, the plaintiff waited nearly one year after the statute of limitations ran before amending the Complaint to add the hospital. The Court held that the hospital was "aware" that an injury occurred because it occurred on its property and the hospital must have been aware the plaintiff knew it was somehow involved in the construction project because the construction was at the hospital. According to the Court in Johnson, if the hospital was aware of the initial complaint, it would have felt that plaintiff had voluntarily chosen not to name the hospital as a party. The hospital's identity as a potential party was "so painfully obvious" that it could not have possibly believed that plaintiff was simply unable to determine it's identity. In Johnson, Judge Quillen pointed out that, unlike in Mullen, the hospital had no reason to know that the plaintiff had simply failed to ascertain the proper party, nor did the hospital attempt to obscure its identity. According to Quillen, "[a] reasonable expectation that . . . [the plaintiff] voluntarily chose not to name . . . [the hospital] as a party should be protected and the amendment should not relate back."
Id. at *2.
Id.
13. In this case, the plaintiff was aware that her accident occurred on the escalator at Strawbridges Department Store in Christiana Mall. The Court finds its doubtful, and the plaintiff does not allege, that the plaintiff believed Strawbridge's manufactured the escalator upon which she was injured. The plaintiff claims that she did not know that Millar shared legal liability with May for injuries sustained by the plaintiff "at the time the original complaint was filed." The plaintiff does not explain why, although she knew or should have known that Millar may have some responsibility for the plaintiff's injuries as soon as May filed a third-party complaint against Millar in August 2000, that the plaintiff did not immediately attempt to amend her complaint. The fact that she chose not to amend the complaint as soon as the third-party complaint was filed was construed by Millar, and reasonably so, as an indication that the plaintiff deliberately chose not to sue Millar and had not made a mistake as to the identity of the proper parties. The plaintiff's argument that she made a mistake falls flat in light of her failure to promptly move to amend the complaint as soon as May alleged Millar bore responsibility for the plaintiff's injuries. Moreover, initial investigation of the circumstances surrounding the plaintiff's fall should have revealed the manufacturer's name on the escalator. If such an investigation was conducted and it did not reveal this information, the plaintiff could have undertaken to discover the identity of the manufacturer and the entity responsible for maintenance of the escalator prior to the expiration of the statute of limitations. There is no indication that the plaintiff did so. The circumstances suggest that when the plaintiff failed to move to amend her complaint to add Millar as a direct defendant after May filed a third-party complaint against Millar in August 2000, Millar reasonably believed that the plaintiff had made a strategic decision not to name it as a party. Like the hospital in Johnson, Millar had no reason to know that the plaintiff had simply failed to ascertain the proper party, nor did Millar obscure its identity.
For the reasons stated above, the Amended Complaint as to Millar is DISMISSED.
IT IS SO ORDERED.