Opinion
No. X04 CV 05 4004267 S.
December 11, 2006.
MEMORANDUM OF DECISION
The defendant Little "B" Barn, LLC, has moved for summary judgment on the ground that a prior action against it, brought by the same plaintiff, was decided on the merits and that this action, therefore, is barred by notions of res judicata. As a corollary, the defendant urges, the action is not saved by the accidental failure of suit statute. Finally, there still is no underlying genuine issue of fact on the merits, according to the defendant, and judgment ought to issue in its favor. The plaintiff urges that the prior case was decided on jurisdictional grounds and thus does not bar a subsequent action, and that there is a genuine dispute on the merits. I find that the prior action was decided on the merits and that this action is barred by the doctrine of res judicata. I need not decide the related grounds urged by the defendant.
This is a products liability action brought pursuant to General Statutes §§ 52-572m et seq. The prior complaint, brought in docket number X04 CV 03 0103844 S, alleged that the Little "B" Barn sold a defective helmet to the plaintiff and that the plaintiff suffered injury as a result. The complaint impliedly alleged that the defendant was a "product seller," a necessary element under the statute. The defendant moved for summary judgment on the ground that it was not a product seller as to the product in issue, because it was not the owner of the business at the time the helmet was sold, it did not sell the helmet in question, and it did not purchase the liabilities of the seller. The court, Quinn, J., agreed that there was no genuine issue of fact and that the defendant was not the seller of the product for the purpose of product liability. The court granted summary judgment in favor of the defendant on July 30, 2004. Although the plaintiff argued a theory of successor liability, the court decided that no facts had been alleged to support such a theory and ordered that judgment be entered. The plaintiff does not appear to have appealed from that judgment, but rather filed the subsequent action now before the court. The current action again alleges that Little "B" Barn was a product seller, and this time includes more specific allegations regarding successor liability.
The standards governing summary judgment are well established. 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." LaFlamme v. Dallessio, 261 Conn. 247, 250 (2002); Practice Book § 17-49. The party moving for summary judgment bears the burden of proving the absence of a genuine dispute as to any material fact; and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. "Equally well settled is that the trial court does not sit as the trier of fact when ruling on a motion for summary judgment . . . [T]he trial court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Citations omitted; internal quotation marks omitted.) Field v. Kearns, 43 Conn.App. 265, 269-70, cert. denied, 239 Conn. 942 (1996). "To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." Witt v. St Vincent's Medical Center, 252 Conn. 363, 373 n. 7 (2000); D.H.R. Construction Company v. Donnelly, 180 Conn. 430, 434 (1980). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. The test is whether a party would be entitled to a directed verdict on the same facts. Sherwood v. Danbury Hospital, 252 Conn. 193, 201 (2001); Serrano v. Burns, 248 Conn. 419, 424 (1999); Forte v. Citicorp Mortgage, Inc., 66 Conn.App. 475 (2000). In Connecticut, "[a] trial court should direct a verdict for a defendant if, viewing the evidence in the light most favorable to the plaintiff, [the trier of fact] could not reasonably and legally reach any other conclusion than that the defendant is entitled to prevail." (Internal quotation marks omitted.) Colombo v. Stop Shop Supermarket Co., 67 Conn.App. 62, 64 (2001), cert. denied, 259 Conn. 912 (2002).
A subsequent action is barred by res judicata if four conditions are met: (1) there must be an identity of parties; (2) the same transaction must be in issue; (3) the first judgment must have been rendered on the merits; and (4) the parties must have had the opportunity to have fully litigated the matter, such that appellate review must have been available. Tirozzi v. Shelby Insurance Co., 50 Conn.App. 680, 686-87 (1998); Rosenfield v. Cymbala, 43 Conn.App. 83, 87 (1996). At first glance, on the materials submitted, it seems obvious that all four elements are satisfied, and that summary judgment ought therefore enter in favor of the defendant. The plaintiff argues, however, that the first case was decided not on the merits but on jurisdictional grounds. The reasoning seems to stem from the unremarkable proposition that a products liability action is a statutory cause of action. See, e.g., Allard v. Liberty Oil Equipment Co., 253 Conn. 787, 805 (2000). Citing a line of cases including F.D.I.C. v. Peabody, N.E., Inc., 239 Conn. 93 (1996), the plaintiff argues that the court has no jurisdiction to entertain a statutory cause of action if a necessary element has not been pleaded. The plaintiff argues that judgment in the prior action in this case was entered because the plaintiff had not pleaded successor liability as to Little "B" Barn. Completing the syllogism, the plaintiff argues that the prior action must, then, have been decided on jurisdictional grounds rather than on the merits. The accidental failure of suit statute, General Statutes § 52-592, then allows this action to proceed because the prior action was not tried on its merits but rather was dismissed for want of jurisdiction.
The argument is imaginative but ultimately unpersuasive. I do not necessarily accept as a rule for general application the proposition that a failure to plead an element of a statutory cause of action creates a lack of subject matter jurisdiction such that a judgment cannot be on the merits. I do not believe that a close reading of the cases cited by the plaintiff so demonstrates. More simply, however, the prior action in this case was not dismissed because a necessary element was not pled. It was pled that the defendant sold the product. It was demonstrated to the satisfaction of Judge Quinn, however, that there was no genuine issue of fact as to the element of product seller. Part of her reasoning, to be sure, was premised on the notion that the theory of successor liability, advanced in argument as a means of being a product seller, had not been pled. But "successor liability" is not an element of a products liability action; it is but one means of satisfying the element of "product seller." Being a product seller in some way, of course, is an element when one is proceeding against one in the sales chain, and this was pled.
In F.D.I.C. v. Peabody Equipment, supra, for example, the issue was whether the state had waived sovereign immunity as to actions in which the plaintiff alleged contingent liability. A defendant sought to bring a third-party indemnity action against the state, and alleged, necessarily, that if it was liable to the plaintiff, the state was liable to it. The Supreme Court held that the state had not waived sovereign immunity in such a scenario, and, as a result, subject matter jurisdiction was lacking.
In Contadino v. Devito, 71 Conn.App. 697 (2002), also cited by the plaintiff, an action was brought against a party who turned out to be deceased. That action was dismissed, because the party was deceased. A second action was brought against the administrator of the estate. The second action was allowed to proceed because, rather unremarkably, the first action had not been decided on the merits but rather because the "wrong party" had been sued.
The plaintiff cited a number of other cases as well, but none involved situations where the prior action had been decided on the merits, and a second action was allowed to proceed because the first action had not sufficiently pled facts in the face of a motion for summary judgment. Suppose an action had pled the required the elements, but the court did not allow a count to be submitted to the jury because no evidence had been presented on the count as pled. It seems unlikely that a second case pleading the same transaction but on a more refined theory would not be barred by res judicata. The party's remedy is to appeal the ruling in the first case.
The plaintiff could have appealed from the decision of Judge Quinn. That issue is not before me. I do find, in any event that her decision was on the merits and that judgment shall enter in favor of the defendant on this action.