Opinion
No. CV-07-5013021
December 17, 2007
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT
This matter came before the court at short calendar on December 10, 2007, concerning the defendant's Motion for Summary Judgment, dated October 24, 2007. The defendant moves for summary judgment in this negligence action on the grounds that there is no genuine issue of material fact because the plaintiff's claim is barred by the statute of limitations, General Statutes § 52-584. In his Objection, dated December 4, 2007, the plaintiff contends that he had three years from the date of injury to bring an action pursuant to General Statutes §§ 52-577 and 52-584.
On August 31, 2007, the plaintiff commenced this action by serving the defendant with the writ of summons and complaint dated August 28, 2007. The plaintiff alleges that on September 4, 2004, he was a business invitee at the Grand Buffet. (Complaint ¶ 3.) He ordered the buffet, and one of the foods he took to eat was macaroni and cheese. (Complaint ¶¶ 4 and 5.) "[U]nbeknownst to the Plaintiff, embedded in the macaroni and cheese were hard, sharp pieces of seashells." (Complaint ¶ 6.) He "took a mouthful of the macaroni and cheese and when he bit down he experienced something hard and sharp cutting into the left side of his mouth, causing . . . injuries and losses . . ." (Complaint ¶ 7.) "The Plaintiff's resulting injuries and losses were caused by the negligence and/or carelessness of the Defendant . . ." (Complaint ¶ 8.) In its Answer, dated October 16, 2007, the defendant alleges statute of limitations as a special defense under § 52-584.
When a motion for summary judgment is filed, "[t]he judgment sought 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." Practice Book § 17-49. "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). "Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996).
The defendant argues that the applicable statute of limitations is § 52-584. The plaintiff contends § 52-577 applies as well. Contrary to the claims of the plaintiff, "[t]he three-year limitation of 52-577 is applicable to all actions founded upon a tort which do not fall within those causes of action carved out of 52-577 and enumerated in 52-584 or another section." Collens v. New Canaan Water Co., 155 Conn. 477, 491, 234 A.2d 825 (1967). Clearly, this claim sounds in negligence and falls within the actions enumerated in § 52-584. Section 52-584 provides:
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.
In Rivera v. Fairbank Management Properties, Inc., 45 Conn.Sup. 154, 157-62 (1997) [ 20 Conn. L. Rptr. 338], the court considered the different limitations under § 52-584. "At the outset, it must be understood that § 52-584 imposes two specific time requirements on prospective plaintiffs. The first requires a plaintiff to bring an action `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 . . ." The second provides that in no event shall a plaintiff bring an action `more than three years from the date of the act or omission complained of . . .' The statutory clock on this three-year time limit begins running when the negligent conduct of the defendant occurs . . . Consequently, an action may be time barred even if no injury is sustained during the three years following a defendant's act or omission . . . The three-year time limit is a statute of repose because it specifies the time beyond which an action under § 52-584 is absolutely barred . . .
"The continuing course of conduct doctrine has been applied to toll the three year repose section of the statute of limitations . . . The doctrine focuses on negligent conduct, that is specific tortious acts or omissions [which] may be difficult to identify and may yet be remedied . . . [T]he doctrine is generally applicable under circumstances where it may be impossible to pinpoint the exact date of a particular negligent act or omission that caused injury or where the negligence consists of a series of acts or omissions and it is appropriate to allow the course of [action] to terminate before allowing the repose section of the statute of limitations to run . . .
"Cases applying the continuing course of conduct doctrine have all involved the conduct of the defendant prior to the discovery of injury . . . Cases rejecting the doctrine have done so on the basis that the defendant's duty ends when the cause of action accrues . . . Further, while the principle has been stated that a statute of limitations may be tolled because a duty continued to exist after the cessation of the `act or omission' relied upon [if] there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to a prior act; . . . the principle has only been applied to toll a statute of limitations where conduct occurred prior to the discovery of the injury . . .
"The continuing course of conduct doctrine, with its focus on the conduct of the defendant, naturally applies to the repose section of the statute, with its act or omission language. If the act or omission that caused the harm is a series of acts or omissions comprising a continuing course of conduct, the doctrine serves to pinpoint its occurrence at the end of the course of conduct. To satisfy the repose section of the statute, only the endpoint of the conduct need occur within the three years prior to the filing date of the complaint . . .
"The two year limitation section focuses on the discovery of actionable harm . . ." (Citations omitted; internal quotation marks omitted.) Rivera v. Fairbank Management Properties, Inc., supra, 45 Conn.Sup. 157-60.
In the present matter, the three-year limitation is not applicable because the plaintiff discovered the injury on September 4, 2004. "[T]he triggering event is no longer the defendant's act or omission but the plaintiff's knowledge of the injury. The term `injury' as used in § 52-584 does not mean mere physical injury but requires actionable harm, that is, [a] breach of duty by the defendant and a causal connection between the defendant's breach of duty and the resulting harm to the plaintiff . . . Upon discovery of actionable harm, the policy behind the continuing course of conduct doctrine, to preserve the ongoing relationship with the hope that any potential harm from a negligent act or omission may yet be remedied, no longer has any force." Rivera v. Fairbank Management Properties, Inc., supra, 45 Conn.Sup. 161-62.
Thus, the court must examine the plaintiff's claim in light of the two-year statute of limitations. The plaintiff alleges that he sustained an injury at the defendant restaurant on September 4, 2004. The triggering event is the plaintiff's knowledge of the injury. The writ of summons and complaint was not served until August 31, 2007, almost three years after the injury was sustained and discovered. Clearly, this action was commenced beyond the two-year statute of limitations. Based on the foregoing, there is no genuine issue of material fact that this action is barred by the two-year statute of limitations under § 52-584. Accordingly, the motion for summary judgment is granted. Judgment is entered in favor of the defendant.
SO ORDERED