Opinion
No. CV 98 0358826
January 7, 2004
MEMORANDUM OF DECISION RE (#178) DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
In this action, the plaintiff, Maria Barragan, seeks to recover damages from the defendants, Norwalk transit district (transit district) and Carlos Laster (Laster) for injuries she sustained when exiting a transit district bus. The plaintiff alleges she was injured on November 23, 1996, when the rear exit door of the bus closed on her while she was turning around to help her infant son off the bus. On November 19, 1998, in the original summons and complaint, the plaintiff listed both the transit district and "`John Doe' driver" as defendants. According to the marshal's return, he served both defendants on November 19, 1998, by leaving process with the person in charge at the transit district's office.
In the original complaint, the plaintiff alleged that at the time she was injured, John Doe was operating the bus as an agent or employee of the transit district. She alleged that the transit district was vicariously liable to her for John Doe's conduct and directly liable to her under the theory of negligent entrustment. She also alleged a negligence claim against John Doe.
On January 5, 1999, the defendants filed a motion to dismiss on the grounds that Connecticut does not permit a party to bring an action against a person whose identity is unknown and that the unknown driver was an indispensable party to the plaintiff's claims against the transit district. The plaintiff objected to the motion, asserting that the transit district refused to identify the bus driver.
On August 16, 1999, the plaintiff filed a motion to amend the complaint accompanied by a proposed amended complaint and a motion to cite in, in which she asked the court to allow her to amend her complaint to name Carlos Laster as the bus driver and to cite Laster into the action in the place of John Doe. The transit district opposed both motions on the ground that the court could not rule on them until it ruled on the transit district's motion to dismiss.
On September 14, 1999, the court, Rush, J., entered the following order: "The parties agree that Connecticut does not permit suit against an unknown party and, therefore, the suit against John Doe as set forth in the Third Count is dismissed. As to the defendant Norwalk transit district, the plaintiff must prove agency and negligence but there is no requirement that the agent must be a party defendant. The motion to dismiss is denied as to the District. The objection to the motion to cite in (119) is overruled as fraudulent concealment would prevent the operation of any applicable statute of limitations. Motion to cite in (123) is granted with the dates endorsed on the motion." In the order portion of the motion to cite in, the court ordered that the plaintiff amend her complaint to show Laster's interest in the action on or before October 15, 1999, and serve process on Laster "on or before the second day following November 2, 1999."
On September 24, 1999, the transit district filed a motion to reargue and a motion to stay the service and filing of the amended complaint. The court, Rush, J., denied both motions on October 18, 1999.
On December 7 and 21, 1999, respectively, the plaintiff served process, including an amended complaint, on the transit district and Laster.
In the first and second counts, of the amended complaint, the plaintiff again alleged claims against the transit district for negligence and negligent entrustment. Count three was a negligence claim against Laster. The operative complaint is the fourth revised amended complaint which the plaintiff filed on August 13, 2002, and which contains the same three causes of action. Laster filed an answer and special defenses, including a special defense that the plaintiff's claim against him is barred by the statute of limitations set forth in General Statute § 52-584.
On May 16 and 18, 2003, respectively, Laster filed a motion for summary judgment as to count three and a memorandum in support thereof. On August 20, 2003, the plaintiff filed a memorandum in opposition. On September 3, 2003, Laster filed a reply to plaintiff's memorandum in opposition.
A "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." Wilson v. New Haven, 213 Conn. 277, 279 (1989). "Practice Book § 17-49 provides that 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." (Internal quotation marks omitted.) Webster Bank v. Oakley, 265 Conn. 539, 545 (2003).
Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." Miller v. United Technologies Corp., 233 Conn. 732, 751 (1995). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252 (2003).
"Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806 (1996). Summary judgment is appropriate on statute of limitation grounds when the "material facts concerning the statute of limitations [are] not in dispute"; Burns v. Hartford Hospital, 192 Conn. 451, 452 (1984); and "is proper where the affidavits do not set forth circumstances which would serve to avoid or impede the normal application of the particular limitations period." Collum v. Chapin, 40 Conn. App. 449, 453 (1996).
Laster asserts that there is no genuine issue of material fact and he is entitled to judgment as a matter of law as to count three because the plaintiff did not bring her claim against him within the statute of limitations for a negligence claim. Laster argues that the amended complaint was served on him over three years from the date when the plaintiff first sustained or discovered her injury and thus is barred by the statute of limitations in General Statutes § 52-584. In support of its motion, the defendant submits an affidavit of his attorney, Alan S. Tobin.
The plaintiff first argues that pursuant to the reasoning utilized in Tarnowsky v. Socci, 75 Conn. App. 560, cert. granted, 263 Conn. 921 (2003), the statute of limitations did not begin to run until July 1999, when she learned Laster's name thus making the service of the amended complaint on December 21, 1999 timely.
Next, the plaintiff argues that her claim against Laster is not time barred because the amended complaint relates back to the date of the original complaint. In the alternative, the plaintiff argues that Laster's motion should be denied because she exercised due diligence in attempting to discover Laster's identity and the defendants clearly attempted to fraudulently conceal this information to thwart her efforts to identify him by his correct name. In support of her memorandum in opposition, the plaintiff submits the following evidence: her own affidavit, an affidavit of her husband, Juan Barragan, the marshal's return on the original complaint and an affidavit from her counsel.
General Statutes § 52-584 provides, in pertinent part: "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 . . . 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."
It is undisputed that the accident at issue occurred on November 23, 1996, and that the plaintiff timely commenced her action against the transit district on November 19, 1998.
It is also undisputed, however, that the plaintiff did not commence her claim against Laster until December 21, 1999.
Both parties cite to Tarnowsky v. Socci, supra, 75 Conn. App. 560, in support of their arguments. In Tarnowsky v. Socci, the issue before the court was when the two-year statute of limitations in § 52-584 began to run in a circumstance in which an injured claimant immediately knew he was injured, but only later discovered the identity of the tortfeasor who caused his injury." Id., 562. The plaintiff, who was injured in a fall, brought an action against the owner and the tenant of that property on which he fell within two years of the date of his injury. Id., 562-63. Thereafter, through discovery, the plaintiff learned that another party, Peter Socci, had been hired to remove snow and ice from the property. Id., 563. More than two years after the date of his injury, but less than three years thereafter, the plaintiff brought a claim against Socci alleging that Socci had negligently failed to keep the area of the fall free from snow and ice. Id., 563. Socci then filed a motion for summary judgment based upon the two-year statute of limitations portion § 52-584. Id.
The court found that the plaintiff's claim was not barred by the two-year statute of limitations in § 52-584 because the Supreme Court has defined the term "injury" as it is used in that portion of the statute "to be an event that occurs when the plaintiff suffers actionable harm." Id., 565. According to the court, a claimant does not suffer actionable harm and thus his action, "is not time barred until he knows, or should have known, the identity of the negligent person who caused his injury to occur." Id., 569. The court was careful to explain, however, that "[t]he `actionable harm test' applies only to 'causes of action not barred by the repose portion of § 52-584 which bars suit brought more than three years from [the date of] the act or omission complained of.' " Id., citing Catz v. Rubenstein, 201 Conn. 39, 50 (1986). As to the three-year, or repose section of § 52-584 "[i]t is well established that the relevant date of the act or omission complained of, as that phrase is used in § 52-584, is the date when the negligent conduct of the defendant occurs and . . . not the date when the plaintiff first sustains damage . . . Therefore, an action commenced more than three years from the date of the negligent act or omission complained of is barred by the statute of limitations contained in § 52-584, regardless of whether the plaintiff had not or in the exercise of care, could not reasonably have discovered the nature of the injuries within that time period." (Citations omitted; internal quotation marks omitted.) Witt v. St. Vincent's Medical Center, 252 Conn. 363, 369 (2000).
The Tarnowsky case is inapplicable to the present case. The plaintiff was injured on November 23, 1996, and did not commence her claim against Laster until December 21, 1999. This is clearly more than three years after the "act or omission complained of." Thus the plaintiff's claim against Laster is barred by the three-year statute of repose unless one of the theories she advances apply and a genuine issue of material fact exists as to such theory.
The plaintiff argues that her claim should not be time barred because the amended complaint relates back to the date of the original complaint. "The relation back doctrine has been well established by this court . . . It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but where an entirely new and different factual situation is presented, a new and different cause of action is stated . . . Our relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims." Alswanger v. Smego, 257 Conn. 58, 64-65 (2001).
"An amended complaint, if permitted, relates back to and is treated as filed at the time of the original complaint unless it alleges a new cause of action . . . While an amendment that corrects a minor defect relates back to the date of the original complaint, one stating a separate cause of action is barred by the statute of limitations. Further, if the amendment is deemed to be a substitution or entire change of a party, it will not be permitted . . . If the amendment does not affect the identity of the party sought to be described in the complaint, but merely corrects the description of that party, the amendment will be allowed . . . The test applied in order to determine whether an amendment is correcting a misnomer as opposed to substituting a new party or claim requires consideration of the following: (1) whether the defendant had notice of institution of the action; (2) whether the defendant knew he was a proper party; and (3) whether the defendant was prejudiced or misled in any way." Kaye v. Manchester, 20 Conn. App. 439, 444 (1990).
Thus, the question of whether an amendment in which the plaintiff substitutes a named defendant for a John Doe defendant is an amendment "correcting a misnomer as opposed to substituting a new party; id.; depends on the test outlined above. See Longhenry v. Groton, Superior Court, judicial district of New London, Docket No. 539211 (December 15, 1998, Martin, J.) ( 23 Conn. L. Rptr. 562).
"Several superior courts have held that the substitution of a named defendant for a John Doe defendant is not a mere correction of a misdescription, but rather brings in a new separate party. See Kerr v. Doe, Superior Court, judicial district of Waterbury at Waterbury, Docket No. 117897 (April 15, 1994, Sullivan, J.); Connecticut Resources Recovery Authority v. Refuse Gardens, Inc., Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. 364240, 6 Conn. L. Rptr. 221 (March 25, 1992, Schaller, J.). See also Marinelli v. Newtown Park Recreation, Superior Court, [judicial district of Danbury, Docket No. 324703, 19 Conn. L. Rptr. 300 (March 18, 1997, Moraghan, J.)] ('no evidence that the defendant [camp] counselors had notice of the action, knew they were proper parties, or would not be prejudiced by allowing the amendment'). But see Williams v. Schmidman, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. 536077 (February 26, 1997, Sullivan, J.) (prior law of the case allowed a motion to substitute properly named defendant for `John Doe' without requiring any additional service of process). The court finds the present case factually distinguishable." Longhenry v. Groton, supra, 23 Conn. L. Rptr. 562 (fact issue exists as to whether individual defendants were aware of suit prior to date they were served).
In the present case, the evidence shows that, at the time of the accident, the plaintiff screamed and other passengers on the bus shouted and the plaintiff directly confronted the driver immediately thereafter. (Plaintiff's Memorandum, Exhibit A.) The plaintiff's husband then contacted the transit district and informed a supervisor of the accident. The plaintiff and her husband went to the transit district's office and met with the supervisor in an attempt to identify the driver of the vehicle and file a report. The supervisor refused to identify the driver, said the driver did not know anything and would not give them a document to sign.
According to the marshal's return, he served both defendants on November 19, 1998, by serving process on Nancy Carroll, the person in charge at the transit district's office, who also accepted service for John Doe.
According to the plaintiff's attorney, the marshal was told that Carroll was authorized to accept service for the district and the driver. Moreover, in the original complaint, the plaintiff details the date, time and place where she was injured, as well as the route number of the bus she was riding.
Finally, the plaintiff identified Laster as the driver of the bus on which she was injured on August 16, 1999, when she filed her motion to amend her complaint and motion to cite him in as a defendant. It is undisputed that the plaintiff provided the transit district with copies of these documents. According to the record, the marshal served process on Laster, in hand, at the transit district's office on December 21, 1999. This provides some evidence that he was employed by the transit district during the relevant time.
The court finds that there are genuine issues of material fact as to whether Laster had notice of the action prior to the date he was served with process.
There is also a genuine issue of fact as to whether Laster knew he was a proper party to the action.
The court does not find any evidence of prejudice suffered by Laster. Accordingly, a question of material fact exists as to whether the December 1999 complaint relates back to the initial complaint. See Longhenry v. Groton, supra, 23 Conn. L. Rptr. 562.
The plaintiff argues, in the alternative, that the defendants fraudulently concealed Laster's identity. "General Statutes § 52-595 provides for the tolling of applicable statutes of limitation where the defendant has fraudulently concealed from the plaintiff the existence of a cause of action, in favor of the plaintiff, against the defendant." J.F.C. Endeavors, Inc. v. Pioneer Steel Ball Co, Inc., Superior Court, judicial district of Hartford at Hartford, Docket No. 587083, 26 Conn. L. Rptr. 133 (December 14, 1999, Hennessey, J.). "Under our case law, to prove fraudulent concealment, [a plaintiff is] required to show: (1) the defendant's actual awareness, rather than imputed knowledge, of the facts necessary to establish the [plaintiff's] cause of action; (2) [the] defendant's intentional concealment of these facts from the [plaintiff]; and (3) [the] defendant's concealment of the facts for the purpose of obtaining delay on the [plaintiff's] part in filing a complaint on [its] cause of action." Bartone v. Robert L. Day Co., 232 Conn. 527, 533 (1995).
General Statutes § 52-595 provides: "If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence."
"[W]hether General Statutes Sec. 52-595 is available to the [plaintiff], in tolling the statute of limitations, is a question of fact that should be determined at trial by the trier of fact." Bartone v. Robert L. Day Co., Inc., Superior Court, judicial district of Middlesex at Middletown, Docket No. 062749 (June 24, 1993, Arena, J.), aff'd., 232 Conn. 527 (1995).
As previously noted, the plaintiff presented evidence that on the day she was injured, her husband contacted the transit district and reported the plaintiff's injuries to a supervisor. Both the plaintiff and her husband went to the transit district's office in an attempt to identify the driver of the vehicle and to file a report. The supervisor, however, refused to provide them with the identity of the driver. Additionally, the plaintiff made numerous unsuccessful efforts to learn Laster's identity through discovery. Moreover, even after the plaintiff discovered Laster's identity, Laster did not appear for his deposition and the transit district's attorney refused to respond to the plaintiff's inquiries regarding whether he was representing Laster.
Finally, when the marshal attempted to serve process on Mr. Laster he was unable to do so for several days as he was being `given the run around' by the transit district and given inaccurate information as to where and when Laster could be found.
The evidence shows that genuine issues of material fact exist as to whether the defendants were actually aware that Laster was driving the bus when the plaintiff was injured and whether they intentionally concealed this information from the plaintiff to delay her bringing an action against Laster. Accordingly, a reasonable jury could find that the plaintiff's inability to discover Laster's identity was the result of fraudulent concealment on the defendant's part.
Based upon the foregoing reasons, the defendant Laster's motion for summary judgment on count three of the complaint is hereby denied.
BY THE COURT, JOSEPH W. DOHERTY, JUDGE.