Opinion
HHDCV146055162S
11-14-2016
Michael F. Boutiette, Executor of the Estate of Estelle N. Tratiak v. Grace Johnson
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Robert B. Shapiro, Judge
This matter is before the court concerning the defendant Grace Johnson's motion for summary judgment. The defendant contends that the plaintiff's claims against her are barred by the applicable statute of limitations, General Statutes § 52-584, and not saved by the accidental failure of suit statute, General Statutes § 52-592. In particular, the movant asserts that the Supreme Court's recent decision in Dorry v. Garden, 313 Conn. 516, 98 A.3d 55 (2014) is dispositive here. The plaintiff asserts that his claim is not time-barred by § 52-584, and the accidental failure of suit statute applies, since a timely action was previously commenced, and service of process in the current action occurred within the one-year period afforded by § 52-592.
Section 52-584 provides, in relevant part, " No action to recover damages for injury to the person, . . . caused by negligence, . . . 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 . . ."
Section 52-592(a) provides, in relevant part, " If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service . . . the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action . . . for the same cause at any time within one year after the determination of the original action . . ."
The court heard oral argument on September 26, 2016. After consideration, for the reasons stated below, the motion is granted.
I
Background
As alleged in the complaint, this action arises from an incident which occurred on March 26, 2012 at the Veterans Memorial Ice Skating Rink (VMSR) in West Hartford, Connecticut, where the decedent, Estelle N. Tratiak, was on the ice conducting a skating lesson for a third person when a minor female skater struck the decedent from behind, causing her to fall and sustain serious personal injuries, which eventually led to her death. See complaint, PP10, 12. In paragraph 1, the plaintiff alleges that the decedent died on April 1, 2012.
The plaintiff alleges that the defendant was also working at the VMSR as a skating instructor, for the Town of West Hartford, at the time of the incident. See complaint, PP6-7. In paragraph 11, the plaintiff alleges that the incident was caused by the defendant's negligence, in one or more ways, including failing to properly supervise the actions of the minor female skater prior to the collision.
In paragraph 15 of the complaint, the plaintiff alleges that the action is being brought pursuant to the accidental failure of suit statute, General Statutes § 52-592.
In his statement of facts in his memorandum in opposition (#109), pages 1-2, the plaintiff asserts that he originally commenced suit against the defendant by making service on March 19, 2014, at what, in good faith, was believed to be her abode, at an address in Glastonbury, Connecticut. The plaintiff submitted exhibits to demonstrate his good faith effort.
The plaintiff also states that, in the original action, the court granted the defendant's motion to dismiss on October 2, 2014. He states that he commenced this new action against the defendant pursuant to the accidental failure of suit statute by serving her with process on or about October 27, 2014. He argues that he can maintain this action because he made a diligent, good faith effort to determine the personal residence of the defendant in the original action.
The Marshal's return of service states that in hand service was made on October 27, 2014.
In the original action, Michael Boutiette, Executor of the Estate of Estelle Tratiak v. Linda Putkonen, Docket No. HHD CV 14 6049906, the court's (Rittenband, J.T.R.) decision on the defendant's motion to dismiss, dated October 2, 2014 (#102.87), stated, " The Defendant Grace Johnson has sustained her burden of proof and the Court finds that [in] 2012 she left her residence at 66 Gates Farm Rd., Glastonbury Ct and moved to 246 Williams Street in Middletown, which became her usual place of abode. The Court finds that the service of process was not proper and the motion to dismiss is therefore granted." Thus, the defendant proved that the Glastonbury address was not her usual place of abode when service was attempted in March 2014.
Additional references to the factual background are set forth below.
II
Standard of Review
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. 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 . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013).
" A material fact is [a] fact that is significant or essential to the issue or the matter at hand . . . [A] material fact . . . [is] a fact which will make a difference in the result of the case." (Citations omitted; internal quotation marks omitted.) Voris v. Middlesex Mut. Assur. Co., 297 Conn. 589, 601, 999 A.2d 741 (2010).
III
Discussion
In Dorry v. Garden, supra, 313 Conn. 518-19, the Supreme Court addressed whether a wrongful death action had been timely commenced as required by General Statutes § 52-555 and the accidental failure of suit statute, General Statutes 52-592. The court stated that " the savings statute allows for an action to be saved if it was commenced within the time limited by law, even if improper service was made within that time, if the defendant had effective notice during that time period." Id., 532. The Supreme Court concluded that the claims there were not time-barred since the defendants had actual notice within the requisite time period. See id., 530-31, 533-34.
General Statutes § 52-555 provides, in relevant part, " (a) In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages . . . provided no action shall be brought . . . but within two years from the date of death, and except that no such action may be brought more than five years from the date of the act or omission complained of."
Thus, Dorry v. Garden, supra, makes it clear that a diligent, good faith effort to effectuate service of process is insufficient as a matter of law to commence an action for the purposes to § 52-592. The plaintiff's evidence of his diligent, good faith effort to effectuate service in the original action therefore does not present material facts as to the issue.
The plaintiff has not provided evidence to show that the defendant had effective notice of the original action within the requisite time period. Accordingly, he has failed to show that § 52-592(a) applies to save his claims against the defendant.
Rather, the evidence shows that the defendant was served with process in this action on October 27, 2014, more than two years after the date of the incident on March 26, 2012 and more than two years after the decedent's death on April 1, 2012. Under either § § 52-584 or 52-555, this action is time-barred.
CONCLUSION
For the reasons stated above, the defendant's motion for summary judgment is granted. It is so ordered.