Opinion
No. CV 01 0181768
July 31, 2003
MEMORANDUM OF DECISION
In a decision dated April 24, 2003, this court granted a motion for summary judgment filed by the defendants, Howard Kinlock and Petagaye Kinlock. The motion was based on the original complaint in which the plaintiff, Ivelisse Hernandez, alleged that she was a tenant at 27 Lowe Street, Norwalk, a residential apartment building owned and maintained by the defendants. The plaintiff further alleged that on December 9, 1998, while walking down the stairs between the second and third floors of her apartment, she slipped and fell "as a result of the loose carpeting on the stairs," thereby sustaining personal injuries. The cause of action was based on negligence.
The basis for the motion for summary judgment was that the stairs between the second and third floors of the subject premises were within the apartment leased by the plaintiff because she rented both the second and third floors and were thus not controlled or maintained by the lessors, the defendants. The court held that as a matter of law a lessor who is not in possession or control of certain parts of the demised premises cannot be held liable for injuries sustained in such a location by the lessee, citing Stokes v. Lyddy, 75 Conn. App. 252, 815 A.2d 263 (2003) ("[U]nder the common law, landlords have a duty to use reasonable care to maintain in a reasonably safe condition those areas of their premises over which they exercise control . . . [A]s a matter of common law, although landlords owe a duty of reasonable care as to those parts of the property over which they have retained control, landlords generally [do] not have a duty to keep in repair any portion of the premises leased to and in the exclusive possession and control of the tenant . . . In other words, [t]he generally accepted rule imposing liability on a landlord is that it is the duty of a landlord to use reasonable care to keep in reasonably safe condition the parts of the building over which he reserves control") (Citations omitted; internal quotation marks omitted.) Id., 260.
On November 6, 2002, about one week after the defendants filed their CT Page 8722-cl motion for summary judgment, the plaintiff moved to amend her complaint in order to add an allegation that the plaintiff "fell and was unable to stop herself from falling because as (sic) the safety handrails had been removed by the landlord which constituted a hazardous condition and which condition had existed for a time prior thereto."
The defendants objected to the filing of the amended complaint on the ground that this allegation about the removal of handrails constituted a new cause of action which was barred by General Statutes § 52-584 relating to personal injury actions. The date of the accident was December 8, 1999. The motion to amend the complaint is dated November 6, 2002, more than two years after the accident.
After the decision of April 24, 2003, granting summary judgment, the plaintiff moved to reargue and the motion was granted. At the reargument, the plaintiff maintains that she should be permitted to amend her complaint to include the allegation about the removal of the handrails because it represents a violation of the municipal housing or state building codes. The proposed amended complaint itself does not allege a housing code violation as such, but, at reargument, the plaintiff referred specifically to such a violation. The plaintiff further argues that the proposed revised complaint containing the allegation about the handrails relates back to the original complaint and hence the statute of limitations did not prevent the new allegation.
In her memorandum of law, the plaintiff stated as follows: "Although the plaintiff does not specifically name the statute or wording "building code violation" the plaintiff's amended complaint alleges facts amounting to a building code violation."
The defendants contend, however, that the claim about the handrails constituting a violation of the municipal housing code is an entirely new cause of action and does not relate back to the original claim of negligence concerning defective and loose stair carpeting. The court agrees with the defendants that the new claim regarding the removal of handrails as violating a housing or building code does not relate back to the original claim of common-law negligence.
"It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but where an entirely new and different factual situation is presented, a new and different cause of action is stated . . . Our relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims . . ." (Internal quotation marks omitted.) Alswanger v. Smego, 257 Conn. 58, 65, 776 A.2d 444 (2001). "[A]mendments relate back to the date of the complaint unless they allege a new cause of action." CT Page 8722-cm Giglio v. Connecticut Light Power Co., 180 Conn. 230, 239, 429 A.2d 486 (1980).
In Falby v. Zaremski, 221 Conn. 14, 25, 602 A.2d 1 (1992), our Supreme Court held that the proposed amended complaint in that case to include both common-law negligence and liability based on the dog-bite statute should have been granted because the plaintiff had alleged both theories of liability in his original complaint, although, because they were separate causes of action, they should have been set forth in two different counts. In this case, the plaintiff did not allege a statutory or code violation in her complaint, but attempts to add the claim well over two years after the accident.
Because it is a different cause of action, the alleged violation of a building or housing code or ordinance does not relate back to the original complaint. Therefore, the motion to amend the complaint to include a statutory or code violation is denied.
Accordingly, after reargument, the original decision to grant the defendants' motion for summary judgment based on a cause of action for common-law negligence is reaffirmed.
So Ordered.
Dated at Stamford, Connecticut, this 31st day of July 2003.
William B. Lewis, Judge