Opinion
No. CV 09 5013809S
December 8, 2009
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE THE PLAINTIFF'S COMPLAINT, #103
This matter is before the court concerning the defendant's motion, dated October 23, 2009, to strike the plaintiff's complaint. The court has considered the parties' written submissions and for the reasons set forth below, the motion is granted.
I BACKGROUND
The plaintiff alleges that she was injured in a slip and fall in the defendant's retail business located in New Britain, Connecticut, on July 20, 2007. The alleged slip and fall occurred while the plaintiff was returning an item she had previously purchased at the store. She alleges that one of the terms and conditions of the offer of sale of its goods is a liberal return policy, allowing for the return of goods if the goods are not satisfactory. According to the plaintiff, an implied term of the contract was that the defendant would keep the premises in a safe condition for the plaintiff to exercise her right to return purchased goods.
In the complaint, dated July 21, 2009, and filed with the court on August 11, 2009, the plaintiff alleges that as a result of the defendant's breach of contract regarding the maintaining of its premises in a safe condition for the contract right to return, the plaintiff fell, and as a result, suffered physical injuries, which required medical attention, such of which are or likely to be permanent, as well as loss time from her employment and a loss in her earning capacity. Her claims for relief are: (1) compensatory damages; (2) costs; and (3) such other relief as may be deemed in the premises appropriate.
In the defendant's motion to strike, Target contends that the complaint should be stricken because it improperly purports to bring a breach of contract claim seeking recovery of tort based damages in a "thinly veiled attempt to avoid the fact that she has not filed the negligence claim within the applicable statute of limitations for such a claim." The plaintiff contends that "while the failure of the defendant to discharge his contractual duties may sound in negligence the plaintiff's cause of action is for a breach of the contractual relationship between the parties." (Plaintiff's memorandum of law in support of Plaintiff's objection.)
General Statutes § 52-584 provides in 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." (Emphasis added.)
II DISCUSSION
The standard of review on a motion to strike is well established. "We take the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 317-18, 907 A.2d 1188 (2006). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
The Supreme Court, in Gazo v. Stamford, 255 Conn. 245, 263, 765 A.2d 505 (2001), discussed pleading breach of contract based on tort liability. "Just as [p]utting a constitutional tag on a nonconstitutional claim will no more change its essential character than calling a bull a cow will change its gender . . . putting a contract tag on a tort claim will not change its essential character. An action in contract is for the breach of a duty arising out of a contract; an action in tort is for a breach of duty imposed by law. [W]hen the claim is one for personal injury, the decision usually has been that the gravamen of the action is the misconduct and the damage, and that it is essentially one of tort, which the plaintiff cannot alter by his pleading." (Internal quotation marks omitted.) Id. While the court in Gazo was addressing a third-party beneficiary to a contract in relation to the breach of contract claim, "its analysis extended beyond that particular contractual relationship." CT Page 851 Saunders v. Haab, Superior Court, judicial district of Litchfield at Litchfield, Docket No. CV 04 4000008 (February 2, 2005) (applying Gazo in context of motion to strike where alternate theories of recover were pleaded).
The court is also guided in its adjudication of the motion by the recent decision of the Appellate Court, which applied Gazo. In Pinette v. McLaughlin, 96 Conn.App. 769, 773, 901 A.2d 1269, cert. denied, 280 Conn. 929 (2006), our Appellate Court stated, "In Gazo, our Supreme Court concluded that the trial court properly had stricken the plaintiff's claim for breach of contract on the basis of his fall on an icy sidewalk because the claim, while cast in contract language, alleged a personal injury and sought damages for pain and suffering . . . The Supreme Court affirmed the trial court's decision striking the contract claim on the basis of the principle that `[a] plaintiff may not convert that liability into one sounding in contract merely by talismanically invoking contract language in his complaint . . .'" (Citation omitted; footnotes omitted; internal quotation marks omitted.) Id., 773.
"In Gazo, the court focused on the injury alleged and the nature of the relief sought to define the cause of action." Id., 774. "In a contract claim . . . the injury suffered usually is one of monetary loss arising out of the breach, and the damages are intended to place the injured party in the same position as he would have been in had the contract been performed and ordinarily do not encompass such losses as pain and suffering." (Internal quotation marks omitted.) Id., 773, n. 2.
The plaintiff cites the case of Bross v. Hillside Acres, Inc., 92 Conn.App. 773, 887, A.2d 420 (2006), for support of her position, which she argues was a similar factual situation. This court does not agree with the plaintiff's contention, however. In Bross, the plaintiff, conservatrix of the estate of Cox, sought to recover damages from the defendant for a breach of an implied contract allegedly entered into between Cox and the defendant. After the first amended complaint was stricken, the plaintiff filed a second amended complaint. "The plaintiff has set forth a seven paragraph complaint that alleges only a breach of contract cause of action and not a claim for damages caused by a personal injury. Unlike the [complaint in Gazo] the complaint contains no language that indicates a tort action. To be sure, the complaint alleges an assault on Cox, but that allegation is merely an instance of how the defendant breached its contractual obligations and duties. There is also no claim for any damages except those associated with the implied contract between the parties. [N]o language in the second amended complaint indicates a tort cause of action." Id., 785-86.
Unlike Bross, where the complaint alleged the basic elements of a breach of contract action, namely, formation, performance, breach and damages, the complaint sets forth facts and requested recovery which are generally understood as tort based. The plaintiff's claim is essentially a negligence claim "cloaked in contract garb" and insufficient to support a breach of contract action. What is alleged in the complaint is a cause of action seeking recovery for personal injuries based on claimed negligence arising from a contractual relationship. "[T]he plaintiff has merely alleged facts and damages to sustain only a tort claim." Petronio v. Burich, Superior Court, judicial district of New Britain at New Britain, Docket No. CV 01 0509130, n. 5 (April 13, 2002) [ 32 Conn. L. Rptr. 156] (granting motion to strike).
III CONCLUSION
For the foregoing reasons, the defendant's motion to strike the complaint is granted.
The court is aware that the plaintiff is unable to bring a tort-based negligence action as it is barred by the two-year statute of limitations to file a negligence claim. General Statutes § 52-584. However, the plaintiff fails to support the contract claim with contract based facts and damages that would sustain a contract cause of action.