Opinion
No. CV 10 6005803
June 1, 2011
RE MOTION TO STRIKE (NO. 119)
On May 27, 2011 the court vacated its decision denying this motion to dismiss. In this memorandum the court treats the motion as a motion to strike for the reasons hereinafter stated and grants the motion.
Facts and Procedural History
This action arises from injuries sustained by Jeffrey Belton, as a result of a chair that broke and caused him to fall to the floor. The plaintiff brought suit against Shack Foods of Connecticut, LLC ("Shack Foods"), by a complaint filed on September 1, 2010. Subsequently, on January 28, 2011, Shack Foods filed an apportionment complaint against ISA International, Inc. ("ISA"). ISA filed a motion to dismiss Shack Foods' apportionment complaint on February 22, 2011. Shack Foods filed an objection to ISA's motion on April 14, 2011. The parties appeared for oral argument on April 18, 2011.
Discussion
In his single-count complaint against Shack Foods, Belton alleges the following. "The injuries sustained by the plaintiff, Jeffrey Belton, were caused by the negligence of . . . Shack Foods of Connecticut, LLC . . . their officers, agents, servants or employees in one or more of the following respects in that they: failed to maintain a safe and hazard-free dining area for the use of patrons; placed a defective and unsafe chair, or allowed a defective and unsafe chair to be placed, where unsuspecting patrons would use it; failed to inspect the restaurant and its chairs to ensure that the chairs were reasonably safe; failed to warn the plaintiff of the dangerous condition of the chair; failed to take reasonable precautions to safeguard people lawfully in said dining area; failed to make reasonable inspections of the dining area to learn of the dangers and defective conditions of the area; kept the floor in a condition that allowed the chair to slide out from beneath the plaintiff; was otherwise heedless or reckless."
In its apportionment complaint against ISA, Shack Foods alleges the following. "The subject chair which [Belton] claims was defective and caused injury was a chair manufactured, sold, or distributed by . . . ISA International, Inc. and marketed said chair as sufficient for use in a commercial restaurant establishment . . . ISA sold or distributed the subject chair to Shack Foods . . . If [Belton] suffered injuries in the manner alleged in the complaint, which is denied, those injuries were caused by . . . ISA's violation of Connecticut General Statutes § 52-572n et seq., or in the alternative its negligence, in that they: negligently designed the subject chair; sold or distributed said chair or caused said chair to be sold or distributed in a defective or dangerous condition; it failed to warn and instruct the plaintiff that the product was dangerous and subject to failure in the conditions in which it was used; the warnings and instructions which were given and which accompanied the product were inadequate and failed to provide sufficient notice of the dangerous propensities of the chair; it misrepresented to the plaintiff and the general public that the product in question was safe for use by the public; it failed to disclose to the plaintiff and the general public the dangerous propensities of the chair; it was negligent in failing to properly and adequately test the chair prior to marketing it; it defectively designed and manufactured said product and used improper materials in the production of said product; it breached an implied warranty of merchantability in that said chair was not of merchantable quality and fit for its intended purpose; and it breached its expressed warranties that the product was safe and effective for its intended use."
Section 52-572n(a) states: "A product liability claim as provided in sections 52-240a, 52-240b, 52-572m to 52-572q, inclusive, and 52-577a 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."
ISA moves to dismiss the apportionment complaint filed by Shack Foods because the allegations "are product liability claims against a product seller." ISA argues that Shack Foods, the defendant in Belton's negligence action, may not use the apportionment statutes, to assert a products liability claim against it. As a result, ISA contends that the court lacks subject matter jurisdiction over the apportionment action.
As a preliminary matter, the court notes that "[a] motion to dismiss is an improper vehicle to challenge the propriety of an impleader complaint. Practice Book [§ 10-31]. An attack upon the sufficiency of an impleader complaint should be made by a motion to strike." Commissioner v. Lake Phipps Land Owners Corporation, 3 Conn.App. 100, 102 n. 2, 485 A.2d 580 (1985). The Appellate Court has acknowledged and affirmed the treating of a motion to dismiss as a motion to strike when appropriate. Id. Although this case arises under § 52-102b rather than § 52-102a the court is persuaded that a similar analysis is appropriate in this setting. Motions to dismiss address the subject matter jurisdiction of this court. Subject matter jurisdiction "is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . . A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy." (Internal quotation marks omitted.) Rayhall v. Akim, Co., 263 Conn. 328, 339, 819 A.2d 803 (2003). This court does have jurisdiction to resolve cases sounding in product liability as well as cases sounding in negligence — although not in the same action.
Following the Appellate Court's reasoning, this court will treat the present motion to dismiss as a motion to strike. "[A] motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court . . . [The court must] construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).
The third-party plaintiff opposes this motion. It claims that it has alleged claims of liability based upon product liability and in the alternative negligence. It did not, however choose to allege these disparate theories in separate counts. It argues, in essence that the motion to dismiss should be denied and that a motion to strike only those portions of the complaint sounding in product liability is the more appropriate remedy.
A review of the third-party complaint reveals a number of allegations that would state a "classic product liability claim." There is language in the apportionment complaint that states it is making a negligence claim in the alternative to a product liability claim but all of the specifications of "negligence" are in reality specifications falling within the ambit of a product liability claim. "(W)e fail to see why, if a claimant may not avoid the exclusivity provision of § 52-572n(a) by casting his pleading in common-law terms, a defendant seeking to bring in an apportionment defendant should be permitted to do so." Allard v. Liberty Oil Equipment Co., 253 Conn. 787, 800 (2000).
In Paul v. McPhee Electrical Contractors, 46 Conn.App. 18, 19, 698 A.2d 354 (1997), the Appellate Court held that the defendant in a personal injury action based on negligence could not implead apportionment defendants on the basis of a products liability theory, which was controlled by the Connecticut Products Liability Act, § 52-572m et seq. In that case, the plaintiff was struck in the head by a light fixture that fell from the ceiling of the Foxwoods Casino, a building located on reservation land of the Mashantucket Pequot Tribe. See id. The plaintiff made a claim against the tribe in the tribal court and also brought a claim in Superior Court against the defendant, McPhee Electrical Contractors ("McPhee"), which had installed the light fixture in question. See id., 19-20.
McPhee impleaded Lighting Affiliates Ltd. ("Lighting Affiliates"), the seller of the light fixture, and Lightolier Company, Inc. ("Lightolier"), the manufacturer of the light fixture. It did not move for pennission to implead under General Statutes § 52-102a, but, like Shack Foods in the present case, served an apportionment complaint on Lighting Affiliates and Lightolier pursuant to § 52-102b. In the apportionment complaint, McPhee claimed that pursuant to the Product Liability Act, Lighting Affiliates and Lightolier were liable for an apportionment of damages claimed by the plaintiff, as well as for indemnification. Lighting Affiliates and Lightolier moved to strike the apportionment complaint. The trial court granted the motion to strike and McPhee appealed that decision. See id., 20.
Section 52-102a(a) states: "A defendant in any civil action may move the court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him. The motion may be filed at any time before trial and permission may be granted by the court if, in its discretion, it deems that the granting of the motion will not unduly delay the trial of the action nor work an injustice upon the plaintiff or the party sought to be impleaded."
The Appellate Court affirmed the trial court's decision striking the apportionment complaint. See id. It reasoned: "Subsection (a) of § 52-102b provides in relevant part: `A defendant in any civil action to which section 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability . . .' (Emphasis added.) Subsection (f) of § 52-102b further provides: `This section shall be the exclusive means by which a defendant may add a person who is or may be liable pursuant to section 52-572h for a proportionate share of the plaintiff's damages as a party to the action.' Thus, the statute unambiguously provides that a defendant may implead apportionment defendants under § 52-102b only if they are liable on a negligence basis pursuant to § 52-572h. Here, the defendant attempted to use § 52-102b to implead apportionment defendants liable, if at all, only under § 52-572m et seq., the Product Liability Act. A product liability claim is exclusively controlled by § 52-572m et seq., and thus can never be a claim arising under § 52-572h." Id., 21.
The court further explained: "Section 52-102b is clear and unambiguous. Section 52-102b sets forth its exclusive application for apportionment purposes and restricts its applicability to claims under § 52-572h. The defendant's apportionment complaint is not within the ambit of the statutory parameters. We conclude, therefore, that the trial court properly granted the motion to strike the apportionment complaint." Id., 22.
In Allard v. Liberty Oil Equipment Co. 253 Conn. 787 (2000), the Supreme Court discussed not only the exclusive remedy provided by § 52-102b but also the exclusive remedies created by the product liability statute § 52-572m et seq.
Finally, this action is distinguishable from New Haven Terminal v. Hungerfords, Inc., Superior Court, judicial district of New Haven, Docket No. CV 05 6000015 (August 8, 2007, Cosgrove, J.) ( 44 Conn. L. Rptr. 258). In that case, New Haven Terminal, Inc. (NHT) alleged that Hungerfords breached its contract, duty of care, and duty of warranty in failing to properly inspect, repair and monitor the reinstallation of a pump associated with NHT's bulk liquid storage tank, which malfunctioned, dispersing diesel fuel into New Haven Harbor and compelling NHT to conduct an extensive pollution recovery and containment operation. Hungerfords filed an apportionment complaint, the gravamen of which alleged that Flowserve and Kenneth Industrial were directly involved with Hungerfords' prior rebuilding of the pump and that they had negligently supplied an "O Ring" was made of a substance that could not be used in a pump that was moving petroleum products.
Flowserve moved to strike the apportionment complaint, contending that since NHT's original complaint against Hungerfords sounded in negligence, Hungerfords could not file an apportionment complaint that sounded in product liability. See id., 259. This court denied the motion concluding that Hungerfords' allegations against Flowserve sounded in negligence and addressed the conduct of Flowserve, rather than any defect in the product Flowserve supplied. Here, the apportionment complaint fails to contain any allegations addressing ISA's conduct, and instead, is limited to product liability claims relating to an alleged defect in the chair that ISA supplied to Shack Foods.
The court is satisfied that ISA's motion to "strike" should be granted. The McPhee court held that the defendant in a personal injury action based on negligence cannot implead an apportionment defendant on the basis of a products liability theory, given that § 52-102b unambiguously provides that a defendant may implead an apportionment defendant only if they are liable on a negligence basis pursuant to § 52-572h.
Here, the plaintiff's personal injury action against Shack Foods is based on the theory that Shack Foods negligently caused his injuries when a chair in its dining area broke, causing him to fall to the floor. Shack Foods' apportionment complaint, however, attempts to implead ISA on an articulated theory of negligence and products liability. Specifically, Shack Foods alleges that the subject chair was manufactured, sold, or distributed by ISA in a defective condition. Shack Foods further alleges negligent design, failure to warn, inadequate warnings and instructions, misrepresentation, failure to disclose, negligent testing of the chair, defective design and manufacture, and breach of implied and express warranties. As the apportionment plaintiff has not separately plead these theories of apportionment, the court must strike the entire apportionment complaint.