Opinion
CV126026883S
11-05-2015
Michael Glynn v. The Morganti Group, Inc. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#160)
Robin L. Wilson, J.
FACTS
On February 7, 2012, the plaintiff, Michael Glynn, filed a complaint against the defendants, The Morganti Group, Inc. (Morganti), Earthmovers, Inc. (Earthmovers), and the Town of Newtown, alleging claims of negligence based on injuries sustained by the plaintiff from an alleged slip and fall that occurred on April 15, 2011. On December 29, 2014, Morganti successfully moved to implead the third-party defendant, Electrical Contractors, Inc. (Electrical). On April 21, 2015, Electrical filed an appearance. Nine days later, on April 30, 2015, the plaintiff filed an amended complaint that alleged a negligence claim against Electrical based on the same incident. In his amended complaint, the plaintiff alleges the following facts. On April 15, 2011, the plaintiff was gainfully employed as a truck driver by Supreme Corporation a/k/a Aaron's Supreme Storage (Aaron's). On April 15, 2011, the plaintiff was lawfully on the property known as Newtown High School, 12 Berkshire Road, Sandy Hook, Connecticut. On April 15, 2011, Aaron's was summoned to the property located at 12 Berkshire Road, Sandy Hook, Connecticut to pick up a trailer that had been parked on the site. As the plaintiff attempted to raise the trailer legs to hitch the trailer, the plaintiff was caused to slip on a piece of slick material/plank which was set under the trailer landing legs and which was buried in mud. The plaintiff's injuries were caused by the defendant Electrical in that it failed to act in accordance with contractual responsibilities to ensure the property was reasonably safe; that it caused or permitted debris to be left in a position where it would cause potential harm to other persons; that it failed to conduct inspections of the property; that it failed to inspect the conditions of the parked trailers on the premises; and that it permitted a dangerous condition in violation of the Occupational Safety & Health Administration. As a direct and proximate result of the defendant's conduct, the plaintiff sustained injuries and seeks damages.
The cause of action against the Town of Newtown was withdrawn.
On June 22, 2015, Electrical filed a motion for summary judgment as to count three of the plaintiff's amended complaint, on the ground that the plaintiff's claim is barred by the two-year statute of limitations established by § 52-584. In support of its motion, the defendant filed a memorandum of law. On July 24, 2015, the plaintiff filed an opposing memorandum of law. This matter was heard at short calendar on July 27, 2015.
DISCUSSION
" Summary judgment shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to a 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." (Citation omitted; internal quotation marks omitted.) Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 313, 87 A.3d 546 (2014). See also Practice Book § 17-49. " [T]he 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 . . . 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." (Emphasis added; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 320, 77 A.3d 726 (2013).
" [I]t is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial . . . Summary judgment should be denied where the affidavits of the moving party do not affirmatively show that there is no genuine issue of fact as to all of the relevant issues of the case . . . Accordingly, the rule that the party opposing summary judgment must provide evidentiary support for its opposition applies only when the moving party has first made out a prima facie case for summary judgment . . . [I]f the party moving for summary judgment fails to show that there are no genuine issues of material fact, the nonmoving party may rest on mere allegations or denials contained in his pleadings . . ." (Citations omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, supra, 310 Conn. 320-21.
Electrical argues that the plaintiff's claim is barred by the two-year statute of limitations pursuant to § 52-584, as a matter of law because the plaintiff's injuries occurred on April 15, 2011, but the plaintiff did not commence action until April 30, 2015. Specifically, Electrical argues that the plaintiff sustained injuries on April 15, 2011 and that the amended complaint against Electrical was filed more than four years later on April 30, 2015. Such a claim against Electrical is barred by the two-year statute of limitations established by § 52-584. Additionally, Electrical argues that even though the plaintiff complied with the timeliness requirements set forth in General Statutes § 52-102a(c), his claim is still time barred under § 52-584.
Section 52-584 provides in relevant part: " No action to recover damages for injury to the person, or to real or personal property, 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, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed."
Section 52-102a(c) provides: " The plaintiff, within twenty days after the third-party defendant appears in the action, may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the original complaint, and the third-party defendant, as against such claim, shall have available to him all remedies available to an original defendant, including the right to assert set-offs or counterclaims against the plaintiff."
In response, the plaintiff asserts that Electrical's motion for summary judgment should be denied because although the plaintiff failed to comply with § 52-584, his action against Electrical was nonetheless timely pursuant to § 52-102a(c). That is, the plaintiff asserts that his claim against Electrical arises out of the same transaction or occurrence underlying the original complaint, and that he commenced the action within twenty days of Electrical filing an appearance.
Section 52-584, which sets forth the statute of limitations governing negligence actions, is comprised of two rules, colloquially referred to as the discovery rule and the repose rule. The discovery rule of § 52-584 states that actions " shall be brought . . . within two years from the date when . . . in the exercise of reasonable care [the injury ] should have been discovered . . ." (Emphasis added.) The repose rule of § 52-584 is an exception to the discovery rule and states that " no such action may be brought more than three years from the date of the act or omission complained of . . ." With respect to the discovery rule, our Supreme Court has observed that " the term injury is synonymous with legal injury or actionable harm, " and held that " [a]ctionable harm occurs when the plaintiff discovers, or in the exercise of reasonable care, should have discovered the essential elements of a cause of action." (Internal quotation marks omitted.) Tarnowsky v. Socci, 271 Conn. 284, 288, 856 A.2d 408 (2004).
Section 52-102a(c), which governs direct actions by plaintiffs against third-party defendants, states that claims must be asserted " within twenty days after the third-party defendant appears in the action . . ." In Vincent v. Litchfield Farms, Inc., 21 Conn.App. 524, 574 A.2d 834, 835, cert. denied, 215 Conn. 815, 576 A.2d 546 (1990), the plaintiff brought an action sounding in negligence, seeking damages for injuries she had sustained in a fall in the parking lot of a restaurant operated by the defendant. Id., 525. Prior to the expiration of § 52-584, the defendant filed a third-party complaint against its landlords seeking indemnification. Pursuant to § 52-102a(c), within twenty days after the landlords appeared, the plaintiff filed an amended complaint naming them as co-defendants in the original action. Id., 526-27. The plaintiff's complaint against the landlords, however, had been served after the statute of limitations pursuant to § 52-584 had run. Id.
In Vincent, our Appellate Court reaffirmed the provisions of § 52-102a(c) and Practice Book § 10-11, finding that " [t]he legislative history reveals that General Statutes § 52-102a(c) and, therefore, Practice Book § [10-11] are based upon Rule 14(a) of the Federal Rules of Civil Procedure. That history shows that there was no intent on the part of the legislature to enlarge the rights of an original plaintiff or to extend the time in which he or she might bring a direct action against a third-party defendant. Instead, the intent underlying the enactment of § 52-102a(c) was to adopt the federal impleader procedure for the purpose of judicial economy." Id., 527.
The Appellate Court held that the plaintiff's compliance with § 52-102a(c) and § 10-11 did not insulate her against the defendant's claims that the amended complaint was timed barred pursuant to § 52-584. Id., 528. The Appellate Court opined that " [t]he plaintiff's complaint was amended after the statute of limitations had run as to the third party defendants. The claim was, therefore, time-barred, and the trial court was correct in granting the third-party defendant's motion for summary judgment [against her]." Id. See also Travelers Indem. Co. of Connecticut v. Gilmore Constr., LLC, Superior Court, Judicial District of Hartford, Docket No. CV-10-6009524-S, (Dec. 29, 2011, Woods, J.) (53 Conn. L. Rptr. 284) (finding that there are no genuine issues of material fact where applicable statute of limitations is two years under § 52-584, that statute is not tolled by the filing of a third-party complaint, and that the amended complaint was not timely); Bodle v. Westfield Mgmt., Inc., Superior Court, judicial district of Ansonia-Milford, Docket No. CV-12-6009796-S (Jan. 14, 2014, Brazzel-Massaro, J.) (57 Conn. L. Rptr. 465) (granting summary judgment where plaintiff failed to bring a direct action within applicable two-year statute); Thomasi v. Smith, Superior Court, judicial district of New Haven, Docket No. CV-13-6038025-S (Dec. 9, 2014, Nazzaro, J.) (59 Conn. L. Rptr. 438) (granting summary judgment where there was no genuine issue of material fact that plaintiffs' claim was time barred under § 52-584 notwithstanding their claimed compliance with § 52-102a(c)).
The present case is analogous to Vincent . Here, the plaintiff alleges in count three that he was injured in a slip and fall incident on April 15, 2011, which under § 52-584, gave the plaintiff until April 15, 2013 to assert a claim against Electrical. The plaintiff did not do so until April 30, 2015, when the plaintiff amended his complaint and for the first time named Electrical as a defendant. Therefore, the direct action against Electrical was not brought within the applicable two-year statute. Although the plaintiff complied with the time limitations of § 52-102a(c), such statute does not extend the statute of limitations. Therefore, Electrical's motion for summary judgment as to count three is granted.
CONCLUSION
For the foregoing reasons, the defendant's motion for summary judgment is granted.