Opinion
3:22-CV-665 (SVN)
2023-05-03
L. Z. PPA Kim Zern, Plaintiff, v. BIGAIRBAG B.V., Defendant.
Timothy E. Fitzpatrick, Fitzpatrick Mariano Santos Sousa P.C., Naugatuck, CT, for Plaintiff. David Norman-Schiff, Kevin M. Smith, Wiggin & Dana, New Haven, CT, for Defendant.
Timothy E. Fitzpatrick, Fitzpatrick Mariano Santos Sousa P.C., Naugatuck, CT, for Plaintiff. David Norman-Schiff, Kevin M. Smith, Wiggin & Dana, New Haven, CT, for Defendant. RULING AND ORDER ON DEFENDANT'S MOTION TO DISMISS Sarala V. Nagala, United States District Judge.
Minor Plaintiff L.Z., through her next friend and mother Kim Zern, brought this product liability action in state court against Defendant, BigAirBag B.V., claiming that she suffered injury from a defect in a product Defendant supplied to an adventure park. Defendant removed the case to federal court and then filed the present motion to dismiss, claiming that Plaintiff fails to state a plausible product liability claim. For the reasons described below, the Court GRANTS IN PART and DENIES IN PART Defendant's motion.
I. FACTUAL & PROCEDURAL BACKGROUND
The complaint contains the following allegations, which are accepted as true for the purpose of the present motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). On April 17, 2019, Plaintiff went to Thrillz Adventure Park in Danbury, Connecticut. Compl., ECF No. 1-2, ¶ 9. She jumped off a trampoline launch pad onto an improperly inflated airbag that was manufactured by Defendant. Id. ¶¶ 6, 9. Plaintiff sustained injuries to her legs, hips, and back, and her mother incurred expenses for medical care and treatment. Id. ¶¶ 13, 15.
Thereafter, Plaintiff initiated a negligence action in Connecticut state trial court against several corporations who together owned and operated the park. Civ. No. FST-CV-20-6047552-S; see generally ECF No. 17 at 11-53 (state court complaint against the Thrillz defendants).
The state court defendants are: Thrillz, LLC d/b/a Thrillz High Flying Adventure Park; Thrillz Franchise Corp., LLC; Thrillz Franchising, LLC; Thrillz Supply, LLC; and Performance Rigging Solutions, LLC (collectively, "the Thrillz defendants").
In April of 2022, while the state court case was in discovery, Plaintiff filed the present action against Defendant in Connecticut Superior Court, claiming that Defendant violated the Connecticut Product Liability Act ("CPLA"), Conn. Gen. Stat. § 52-572m et seq. Specifically, Plaintiff asserts seven theories of product liability: manufacturing defect, Compl. ¶¶ 12(a), 12(o); design defect, id. ¶¶ 12(a), 12(j), 12(n); malfunction, id. ¶ 10; failure to warn, id. ¶ 12(e); breach of the implied warranty of merchantability, id. ¶ 12(h); negligence, id. ¶ 12(i); and fraudulent misrepresentation, id. ¶¶ 12(f), 12(g). Defendant subsequently removed the matter to federal court, invoking this Court's diversity jurisdiction. ECF No. 1. Plaintiff filed a motion to remand the case back to Connecticut Superior Court, which the Court denied. ECF No. 23; Zern v. Big Air Bag B.V., No. 3:22-CV-665 (SVN), 2022 WL 17829030, at *1 (D. Conn. Dec. 21, 2022).
Defendant has now moved to dismiss the complaint in its entirety, contending that Plaintiff fails to plausibly state a product liability claim under any theory of liability.
Initially, Defendant also moved to dismiss on the ground that the action was untimely pursuant to the CPLA's statute of limitation, Conn. Gen. Stat. § 52-577a. In response, Plaintiff argued that the tolling of the CPLA's statute of limitation during the COVID-19 pandemic rendered her claim timely, ECF No. 31-1 at 7 (citing Governor Lamont's Executive Orders 7G and 10A), and Defendant's reply brief has conceded that point, ECF No. 31 at 1 n.1. Accordingly, the Court will not further address the timeliness of the present action.
II. LEGAL STANDARD
A. Federal Rule of Civil Procedure 12(b)(6)
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a case or cause of action for failure to state a claim upon which relief can be granted. When determining whether a complaint states a claim upon which relief can be granted, highly detailed allegations are not required, but the complaint must "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. This plausibility standard is not a "probability requirement," but imposes a standard higher than "a sheer possibility that a defendant has acted unlawfully." Id. In undertaking this analysis, the Court must "draw all reasonable inferences in [the plaintiff's] favor, assume all well-pleaded factual allegations to be true, and determine whether they plausibly give rise to an entitlement to relief." Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks omitted).
However, the Court is not "bound to accept conclusory allegations or legal conclusions masquerading as factual conclusions," id., and "a formulaic recitation of the elements of a cause of action will not do," Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Consequently, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). Ultimately, "[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679, 129 S.Ct. 1937.
B. The CPLA
The CPLA provides the exclusive remedy in Connecticut for all claims against a product seller for harm caused by the product. Conn. Gen. Stat. §§ 52-572m(b), 52-572n(a); Gerrity v. R.J. Reynolds Tobacco Co., 263 Conn. 120, 128, 818 A.2d 769 (2003). Specifically, the CPLA allows a plaintiff to bring a single product liability claim arising from theories of strict liability, negligence, failure to warn, breach of express or implied warranty, and misrepresentation, allowing for simplified pleading. Conn. Gen. Stat. § 52-572m(b); LaMontagne v. E.I. Du Pont de Nemours & Co., 41 F.3d 846, 855 (2d Cir. 1994) (citing Winslow v. Lewis-Shepard, Inc., 212 Conn. 462, 470-71, 562 A.2d 517 (1989)); Moss v. Wyeth Inc., 872 F. Supp. 2d 162, 165 (D. Conn. 2012). Because the CPLA was not intended to alter the substantive product liability rights that have existed at common law, the court should look to the common law requirements of each theory of liability asserted in the single CPLA claim. LaMontagne, 41 F.3d at 855-56.
III. DISCUSSION
Defendant has moved to dismiss Plaintiff's complaint in its entirety, arguing that Plaintiff fails to state any claims upon which relief can be granted. The Court first addresses Plaintiff's strict liability theories, followed by her other theories of Defendant's potential liability.
A. Strict Liability Theories
Product liability law holds manufacturers "strictly liable for unreasonably dangerous products that cause injury to ultimate users." Potter v. Chi. Pneumatic Tool Co., 241 Conn. 199, 210, 694 A.2d 1319 (1997). Several of Plaintiff's CPLA theories—manufacturing defect, design defect, malfunction, and failure to warn—sound in strict liability. Strict tort liability "relieves the plaintiff from proving that the manufacturer was negligent and allows the plaintiff to establish instead the defective condition of the product as the principal basis of liability." Id. at 211, 694 A.2d 1319. "To recover under the doctrine of strict liability in tort, a 'plaintiff must prove that: (1) the defendant was engaged in the business of selling the product; (2) the product was in a defective condition unreasonably dangerous to the consumer or user; (3) the defect caused the injury for which compensation was sought; (4) the defect existed at the time of the sale; and (5) the product was expected to and did reach the consumer without substantial change in condition.' " Metro. Prop. & Cas. Ins. Co. v. Deere & Co., 302 Conn. 123, 131, 25 A.3d 571 (2011) (quoting Potter, 241 Conn. at 214, 694 A.2d 1319); accord Bifolck v. Philip Morris, Inc., 324 Conn. 402, 434, 152 A.3d 1183 (2016) (quoting the Restatement (Second) of Torts § 402A (1965)). See also Hunte v. Abbott Labs., Inc., 556 F. Supp. 3d 70, 82 (D. Conn. 2021) (explaining that all strict liability claims under the CPLA are governed by the same five elements).
Most of Defendant's arguments for dismissal of Plaintiff's strict liability theories turn on the second element, the defective and dangerous condition of the product. A product "may be defective due to a flaw in the manufacturing process, a design defect or because of inadequate warnings or instructions." Vitanza v. Upjohn Co., 257 Conn. 365, 373, 778 A.2d 829 (2001). In addition, "[f]or a product to be 'unreasonably dangerous,' it 'must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.' " Metro. Prop. & Cas. Ins. Co., 302 Conn. at 131, 25 A.3d 571 (quoting Potter, 241 Conn. at 214-15, 694 A.2d 1319). The Court considers each theory of strict liability in turn.
1. Manufacturing Defect
"A manufacturing defect is a flaw in the manufacturing process which causes the product to deviate from the design standards and intended specifications." McConologue v. Smith & Nephew, Inc., 8 F. Supp. 3d 93, 109 (D. Conn. 2014) (citing Miller v. United Techs. Corp., 233 Conn. 732, 779, 660 A.2d 810 (1995)); see also Moss, 872 F. Supp. 2d at 166 ("Generally speaking, a manufacturing defect is a mistake in the assembly process, which results in a product that differs from the manufacturer's intended result." (citing Miller, 233 Conn. at 779, 660 A.2d 810)). "To plausibly state a manufacturing defect claim, [a plaintiff] 'must plead factual content showing the plausibility' that the [product] deviated from 'the intended design and specifications in some way.' " Leonard v. Gen. Motors, L.L.C., 504 F. Supp. 3d 73, 94-95 (D. Conn. 2020) (quoting Karazin v. Wright Med. Tech., Inc., No. 3:17-cv-823 (JBA), 2018 WL 4398250, at *3 (D. Conn. Sept. 14, 2018)). But the Court cannot require the plaintiff to possess "technical or scientific knowledge about the inner workings of the product, which would contravene the notice pleading requirement of Federal Rule of Civil Procedure 8, even under the Iqbal-Twombly standard." Mals v. Smith & Nephew, Inc., No. 3:19-cv-1770 (VLB), 2020 WL 3270835, at *3 (D. Conn. June 17, 2020) (quoting Williamson v. Stryker Corp., No. 12 Civ. 7083 (CM), 2013 WL 3833081, at *4 (S.D.N.Y. July 23, 2013)); accord Leonard, 504 F. Supp. 3d at 95. Rather, the plaintiff can state a plausible manufacturing defect claim by simply identifying a specific component of the product that was allegedly defective and the general manner in which it was so. Leonard, 504 F. Supp. 3d at 95; Mals, 2020 WL 3270835, at *3; Phila. Indem. Ins. Co. v. Lennox Indus., Inc., No. 3:18-cv-217 (CSH), 2019 WL 1258918, at *4 (D. Conn. Mar. 18, 2019) (Lennox I).
The Court concludes that the allegations of the complaint plausibly state a manufacturing defect claim. Relevant here, Plaintiff specifically alleges that Defendant's airbag "did not hold the appropriate and/or safe level of fill, pressure, and/or inflation for use by the plaintiff when landing on the airbag," Compl. ¶ 12(b), that it "did not allow for the appropriate and/or safe potential displacement volume for use by the plaintiff upon landing on the airbag," id. ¶ 12(c), and that Defendant "failed to manufacture the airbag in accordance with its applicable manufacturing specifications" or otherwise failed to manufacture the airbag as intended, id. ¶ 12(o). Through these allegations, Plaintiff identifies two specific aspects of the airbag that were allegedly defective—its level of fill and the displacement of fill upon impact. In addition, drawing all reasonable inferences in Plaintiff's favor, the complaint alleges that those defective aspects of the airbag were attributable to Defendant's failure to manufacture the airbag as intended in accordance with applicable specifications. Although the complaint could certainly benefit from further factual detail, the allegations of the complaint identify specific aspects of the airbag that deviated from the airbag's intended design in some way, and such allegations are sufficient to plausibly state a manufacturing defect claim. See Leonard, 504 F. Supp. 3d at 94-95. In that respect, Defendant's attempt to analogize the present case to Lennox I, in which a court in this district dismissed a complaint that contained "no facts indicating the specific component or mechanism that was defective," is not persuasive. See Lennox I, 2019 WL 1258918, at *3-4.
Plaintiff also alleges that Defendant "used improper materials in the construction of" the airbag, although Plaintiff does not allege what materials were used to construct the airbag or how they were defective. See Compl. ¶ 12(m).
Indeed, other courts in this district have found allegations similar to those in the present case—identifying a specific defective component but not explaining precisely how the defective component was manufactured out of specification—sufficient to plausibly state manufacturing defect claims. Karazin, 2018 WL 4398250, at *3 (denying a motion to dismiss where the plaintiff identified an aspect of the product that was "out of specification"); Mals, 2020 WL 3270835, at *3 (denying a motion to dismiss where the plaintiff identified an aspect of his knee replacement insert that failed); Phila. Indem. Ins. Co. v. Lennox Indus., Inc., No. 3:18-cv-217 (CSH), 2020 WL 705263, at *5 (D. Conn. Feb. 12, 2020) (Lennox II) (denying a motion to dismiss because, although the allegations of the complaint did not "identify the specific manufacturing specifications that were disregarded" by the defendants, they were "sufficient to establish that [the] [d]efendants' products suffered from a manufacturing defect"). One court in this district denied a motion to dismiss after noting that the complaint specifically alleged how the product differed from applicable regulatory standards, McConologue, 8 F. Supp. 3d at 105-06; but other courts in this district have explained that such allegations are not necessary to survive a motion to dismiss because oftentimes the specific manufacturing deviation is factual information within the manufacturer's exclusive control until the initiation of discovery. Karazin, 2018 WL 4398250, at *3; Mals, 2020 WL 3270835, at *3; Lennox II, 2020 WL 705263, at *5.
Of course, at summary judgment and beyond, a plaintiff must proffer specific evidence from which a reasonable jury can find that there was a mistake in the manufacturing process such that the product differed from the manufacturer's intended result. Schmidt v. Conagra Foods, Inc., No. 3:14-cv-1816 (SRU), 2020 WL 7027445, at *7-8 (D. Conn. Nov. 30, 2020) (granting summary judgment for a defendant where the plaintiff failed to present such evidence).
Similarly, here, Plaintiff's allegations identifying specific aspects of the airbag relating to the fill level and displacement of fill that were not manufactured as intended are sufficient to plausibly state a manufacturing defect claim. The absence of allegations identifying how those aspects of the airbag were not manufactured as intended is not fatal to the claim at this early stage of the case. Defendant's motion to dismiss is thus denied with respect to Plaintiff's manufacturing defect claim.
2. Design Defect
A design defect exists "when the product is otherwise properly manufactured, but is nonetheless unreasonably dangerous because its attributes can cause unexpected injury." Moss, 872 F. Supp. 2d at 166; accord Leonard, 504 F. Supp. 3d at 95 (quoting Karazin, 2018 WL 4398250, at *4). A plaintiff may establish that a product is "unreasonably dangerous" under a "risk-utility" or "consumer expectation" test. Bifolck, 324 Conn. at 434, 152 A.3d 1183. Under the "risk-utility" test, a product is unreasonably dangerous to the consumer if: (1) a "reasonable alternative design was available that would have avoided or reduced the risk of a harm" and its absence rendered the product unreasonably dangerous; or (2) the risk of harm "so clearly exceeds the product's utility that a reasonable consumer, informed of those risks and utility, would not purchase the product." Id. at 434-35, 152 A.3d 1183. Under the "consumer expectation" test, a product is unreasonably dangerous if it "fail[s] to perform as safely as an ordinary consumer would expect when used in a reasonably foreseeable manner." Karazin, 2018 WL 4398250, at *4; see also Bifolck, 324 Conn. at 436, 152 A.3d 1183.
The risk-utility test governs most design defect cases, whereas the consumer expectation test is generally secondary. Bifolck, 324 Conn. at 434-36, 152 A.3d 1183. See also Izzarelli v. R.J. Reynolds Tobacco Co., 321 Conn. 172, 201, 136 A.3d 1232 (2016) (discussing the applicability of the risk-utility test, sometimes referred to as the "modified consumer expectation test," compared to the "ordinary" consumer expectation test); Potter, 241 Conn. at 222, 694 A.2d 1319 (same).
At the pleading stage, courts do not require detailed factual allegations that a design defect renders a product unreasonably dangerous; rather, the complaint must simply identify a specific problem with the product's design. Lennox I, 2019 WL 1258918, at *4; cf. Karazin, 2018 WL 4398250, at *4 ("Pointing to the entirety of the device in question, without more, is not sufficient to state a claim of design defect."). The plaintiff must plead facts permitting a reasonable inference that the design of the product was unreasonably dangerous under either the risk-utility or consumer expectation test. Schulz v. Medtronic, Inc., No. 3:21-cv-414 (MPS), 2022 WL 503960, at *3 (D. Conn. Feb. 18, 2022). A plaintiff is not required to plead a specific alternative design to survive a motion to dismiss. Moss, 872 F. Supp. 2d at 169 (citing Potter, 241 Conn. at 219, 694 A.2d 1319); Mals, 2020 WL 3270835, at *5.
Drawing all reasonable inferences in favor of Plaintiff, the Court concludes that the allegations of the complaint plausibly state a design defect claim, though the question is a close one. Plaintiff specifically alleges that Defendant's airbag "did not hold the appropriate and/or safe level of fill, pressure, and/or inflation for use by the plaintiff when landing on the airbag," Compl. ¶ 12(b); that it "did not allow for the appropriate and/or safe potential displacement volume for use by the plaintiff upon landing on the airbag," id. ¶ 12(c); that, as a result, the airbag "could not be used without unreasonable risk of injury to the plaintiff," id. ¶ 12(d); and that it was foreseeable to Defendant that "minor children would be depending on the safety of its airbag to safely break their fall when jumping off a launch pad," id. ¶ 11. As noted above, through these allegations, Plaintiff identifies two specific aspects of the airbag that were allegedly defective—its level of fill and the displacement of fill upon impact. While these allegedly defective aspects of the airbag can be read to support a manufacturing defect claim, the same aspects of the airbag can also be read in the alternative to support a design defect claim. Indeed, the complaint alleges that "a reasonable alternative design could have reduced or avoided the danger, and/or the design of the airbag marketed is manifestly unreasonable in that the risk of harm from the product so clearly exceeds its utility that a reasonable, informed consumer would not purchase or use the product." Id. ¶ 12(n).
Again, the complaint would benefit from further factual detail, and the allegations are close to mere recitations of the relevant legal standards. But, on the whole, the allegations of the complaint permit inferences that the risk of the product as designed outweighed its utility and that the defective fill level and displacement caused the airbag to not break Plaintiff's fall in a safe manner that an ordinary consumer would expect. Such allegations are sufficient to plausibly state a design defect claim. See Leonard, 504 F. Supp. 3d at 96 (denying motion to dismiss where the plaintiff alleged that a car's airbag and seat belt systems "failed to perform as safely as a consumer ordinarily would expect under the consumer expectation test"); DiBlasi v. Smith & Nephew, Inc., No. 3:20-cv-566 (MPS), 2021 WL 619509, at *2 (D. Conn. Feb. 17, 2021) (denying motion to dismiss in light of "sparse" allegations permitting an inference that the product failed to perform as safely as an ordinary consumer would expect when using it in a reasonably foreseeable manner); Mals, 2020 WL 3270835, at *4-5 (denying motion to dismiss where allegations that a knee replacement failed after only two months permitted a reasonable inference that it did not perform as safely as an ordinary consumer would expect). Indeed, those allegations render this case distinguishable from Karazin, in which the plaintiff failed to identify any aspect of the product that was defectively designed. See Karazin, 2018 WL 4398250, at *4. In light of the allegations in the present case identifying specific aspects of the airbag that were allegedly defective, from which an inference of an unreasonably dangerous design defect can be drawn, Defendant's motion to dismiss is denied with respect to Plaintiff's design defect claim.
3. Malfunction Theory
Although product liability claims typically involve direct evidence of a specific product defect, White v. Mazda Motor of Am., 313 Conn. 610, 622-23, 99 A.3d 1079 (2014), a plaintiff may assert a "malfunction theory" of strict product liability, under which the jury infers the existence of a product defect at the time of the sale or distribution of the product on the basis of circumstantial evidence alone, "when direct evidence of a defect is unavailable." Metro. Prop. & Cas. Ins. Co., 302 Conn. at 133, 25 A.3d 571 (citing, among other cases, Potter, 241 Conn. at 218, 694 A.2d 1319); see also White, 313 Conn. at 625-26, 99 A.3d 1079. This theory is particularly viable when the product has been destroyed or is otherwise not available for inspection. See Metro. Prop. & Cas. Ins. Co., 302 Conn. at 131-32, 25 A.3d 571 (explaining that a plaintiff may be "unable to produce direct evidence of a defect because of the loss of essential components of the product," for example, due to "an explosion, a crash or a fire that damages or destroys much, if not all, of the product's components," or when the product has been "discarded or destroyed after the incident such that the parties are no longer able to examine it"); White, 313 Conn. at 623, 99 A.3d 1079 (explaining that the malfunction theory allows a plaintiff to establish a defect through circumstantial evidence when the product malfunction caused "the loss or destruction of the product, leaving the parties without direct evidence of the product's condition"); Leonard, 504 F. Supp. 3d at 97 (holding that a plaintiff plausibly stated a malfunction theory claim relating to a car's safety features by alleging that the car was "totaled" in the subject collision).
A jury may rely on circumstantial evidence to infer that a product that malfunctioned was defective at the time it left the manufacturer's control if the plaintiff presents evidence establishing that "(1) the incident that caused the plaintiff's harm was of a kind that ordinarily does not occur in the absence of a product defect, and (2) any defect most likely existed at the time the product left the manufacturer's or seller's control and was not the result of other reasonably possible causes not attributable to the manufacturer or seller." Metro. Prop. & Cas. Ins. Co., 302 Conn. at 140-41, 25 A.3d 571.
The Connecticut Supreme Court has declined to decide whether a plaintiff can state a claim under the malfunction theory "when the product is still available for inspection but the plaintiff nevertheless is unable to produce direct evidence of a specific defect." Metro. Prop. & Cas. Ins. Co., 302 Conn. at 132 n.4, 25 A.3d 571. Lower Connecticut state courts and federal courts in this district, however, have generally permitted malfunction theories only when the product was destroyed or otherwise unavailable for inspection. Decato v. Brandfon Motors, Inc., No. NNHCV116021419S, 2013 WL 4873069, at *7 (Conn. Super. Ct. Aug. 20, 2013) (granting summary judgment for the defendant on the plaintiff's malfunction theory claim because the subject product was available for inspection); Schmidt, 2020 WL 7027445, at *9 (same); Lennox I, 2019 WL 1258918, at *6 (dismissing a malfunction theory product liability claim where the plaintiff failed to plead that the subject products were unavailable for inspection); Lennox II, 2020 WL 705263, at *5 n.8 (finding the malfunction theory inapplicable where the plaintiff alleged that the product had been inspected).
Here, Defendant seeks dismissal of Plaintiff's malfunction theory on the ground that she fails to allege that the subject airbag was unavailable for inspection. Plaintiff's opposition brief devotes no discussion to this theory, which effectively concedes the issue. Because Plaintiff has offered no reason for this Court to deviate from the numerous other lower courts that permit a malfunction theory only when the product is alleged to be unavailable for inspection, the Court grants Defendant's motion to dismiss with respect to Plaintiff's malfunction theory.
4. Failure to Warn
A product may be defective "because a manufacturer or seller failed to warn of the product's unreasonably dangerous propensities." Sharp v. Wyatt, Inc., 31 Conn. App. 824, 833, 627 A.2d 1347 (1993) (quoting Tomer v. Am. Home Prods. Corp., 170 Conn. 681, 689, 368 A.2d 35 (1976)). "Under such circumstances, the failure to warn, by itself, constitutes a defect." Id. (emphasis in original) (citing Giglio v. Conn. Light & Power Co., 180 Conn. 230, 236, 429 A.2d 486 (1980)). Connecticut General Statute § 52-572q, which specifically addresses failure-to-warn defect claims, provides that whether a product was defective due to inadequate warnings is a question of fact, turning on: (1) the "likelihood that the product would cause the harm suffered by" the plaintiff; (2) the "ability of the product seller to anticipate . . . that the expected product user would be aware of the product risk, and the nature of the potential harm"; and (3) "the technological feasibility and cost of warnings and instructions." Conn. Gen. Stat. § 52-572q(b); see also Sharp, 31 Conn. App. at 834, 627 A.2d 1347. In addition, a prevailing plaintiff must prove that, "if adequate warnings or instructions had been provided, the [plaintiff] would not have suffered the harm." Conn. Gen. Stat. § 52-572q(c); see also Lennox II, 2020 WL 705263, at *5. "Strict liability applies to failure to warn claims where adequate warnings or instructions were not provided and where the harm suffered would not have occurred had adequate warnings been given." Karazin, 2018 WL 4398250, at *5 (citing McConologue, 8 F. Supp. 3d at 100, and Conn. Gen. Stat. § 52-572q). See also Hunte, 556 F. Supp. 3d at 83 (explaining that failure to warn claims follow a three step analysis, considering first whether the plaintiff demonstrated the five elements for all strict liability claims, then whether the plaintiff demonstrated that the warnings provided were inadequate under Conn. Gen. Stat. § 52-572q(b), and finally whether the plaintiff demonstrated that the harm would not have occurred if adequate warnings had been provided under § 52-572q(c)).
Connecticut courts also recognize a negligent failure to warn theory. Gajewski v. Pavelo, 36 Conn. App. 601, 611, 652 A.2d 509 (1994). While neither Plaintiff's complaint nor her briefing makes clear what type of failure to warn theory she is pursuing, neither variation survives dismissal for the reasons explained herein.
A plaintiff is generally "not required to plead 'detailed factual allegations regarding exactly what instructions should have been provided,' as that information might not [be] available to the plaintiff 'prior to discovery.' " Lennox II, 2020 WL 705263, at *5 (quoting Karazin, 2018 WL 4398250, at *5). But a plaintiff cannot rely on conclusory allegations that fail to identify what warnings were provided or explain why they were inadequate. Mals, 2020 WL 3270835, at *6; Lennox I, 2019 WL 1258918, at *3; DiBlasi, 2021 WL 619509, at *3.
The Court concludes that the allegations of the complaint fail to state a strict product liability claim for failure to warn. Plaintiff alleges only that "the warnings and instructions which were given and which accompanied [the] airbag were inadequate and failed to provide sufficient notice to [Plaintiff] of the dangerous propensities of the said product." Compl. ¶ 12(e). But this conclusory and vague allegation is not enough to plausibly state a failure to warn claim. E.g., Lennox I, 2019 WL 1258918, at *3 (dismissing a failure to warn claim premised only on the plaintiff's conclusory assertion that the defendant failed to provide adequate and sufficient warnings). Importantly, Plaintiff has alleged nothing about what warnings were provided or how they were inadequate, and the absence of such allegations renders her claim fatally deficient. Leonard, 504 F. Supp. 3d at 98 (dismissing a failure to warn claim where the plaintiff "failed to offer any specific factual allegations concerning the warnings he did receive and how they were deficient"); Schulz, 2022 WL 503960, at *3 (same); DiBlasi, 2021 WL 619509, at *3 (same); Mals, 2020 WL 3270835, at *6 (same).
Plaintiff attempts to analogize her failure to warn claim to the one raised in Karazin, which was held to be sufficient to survive the motion to dismiss stage. Karazin, 2018 WL 4398250, at *5. But the failure to warn claim raised in Karazin is readily distinguishable from the claim in the present action. Whereas Plaintiff here failed to allege anything about what warnings were provided, the plaintiff in Karazin specifically cited various allegedly incorrect warnings provided by the defendant to the plaintiff's treating physician. Id. In addition, the plaintiff in that case identified specific risks that were within the defendant's knowledge and were omitted from the medical literature and other warnings, id.; those allegations stand in stark contrast to the complaint in the present action, which lacks any allegations regarding specific risks that were omitted from whatever warnings were provided by Defendant. Finally, Plaintiff's attempt to analogize Karazin strains the applicability of that court's holding. In Karazin, the court rejected the defendant's argument that the plaintiff was required to allege "exactly what instructions should have been provided." Karazin, 2018 WL 4398250, at *5. Here, too, Plaintiff need not have alleged specific instructions that should have been provided—but she was required to allege, at minimum, what instructions were provided and how they were deficient. See, e.g., Leonard, 504 F. Supp. 3d at 98; Schulz, 2022 WL 503960, at *3. She has not done so.
In sum, Plaintiff's failure to warn claim is not plausible because she fails to allege what warnings were provided and how they were inadequate. Defendant's motion to dismiss is thus granted with respect to Plaintiff's failure to warn claim.
B. Negligence
Plaintiff has also alleged a claim for negligence. A negligence claim under the CPLA is governed by the principles of an ordinary cause of action for negligence. See LaMontagne, 41 F.3d at 856; Karazin, 2018 WL 4398250, at *6. "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." Sturm v. Harb Dev., LLC, 298 Conn. 124, 139, 2 A.3d 859 (2010) (internal quotation marks omitted); accord Lennox II, 2020 WL 705263, at *6. Determining whether the defendant owed a duty to the plaintiff is a legal question informed by "the circumstances surrounding the conduct" of the defendant. Gomes v. Com. Union Ins. Co., 258 Conn. 603, 615, 783 A.2d 462 (2001) (internal quotation marks omitted). The test for the existence of a duty entails: "(1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case." Id. at 616, 783 A.2d 462 (internal quotation marks omitted); accord Lennox II, 2020 WL 705263, at *6. "Breach of that duty occurs when a defendant fails to exercise reasonable care." Lennox II, 2020 WL 705263, at *6.
Here, the Court concludes that Plaintiff fails to plausibly state a negligence claim. Plaintiff asserts that Defendant owed her a duty of care because it was foreseeable to a manufacturer in Defendant's position that minor children would depend on the safety of the airbag, Compl. ¶ 11. Assuming, without deciding, that Defendant owed Plaintiff a duty of care, Plaintiff nonetheless alleges virtually nothing to suggest that Defendant breached that duty or that any such breach caused her injury. A product liability claim sounding in negligence "centers on the manufacturer's conduct," but the complaint contains no allegations from which the Court can infer that Defendant breached any duty owed to her or that such breach was the cause of Plaintiff's injury. Lennox II, 2020 WL 705263, at *6 (dismissing a negligence product liability claim where the plaintiff "pled no facts suggesting that" the defendants breached any duty owed or that "the defective condition of [the] products was caused by [the defendants'] acts or omissions"); see also Karazin, 2018 WL 4398250, at *7 (dismissing a negligence product liability claim due to "the absence of any specific factual allegations whatsoever as to the nature of [the defendant's] breach of its duty of care"). Plaintiff conclusorily asserts that Defendant "was negligent in failing to properly and adequately test the airbag prior to marketing it," Compl. ¶ 12(i), but this amounts to nothing more than a naked assertion devoid of any factual enhancement, which is insufficient to plausibly state a negligence claim. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937; McConologue, 8 F. Supp. 3d at 110; Mals, 2020 WL 3270835, at *7; DiBlasi, 2021 WL 619509, at *3. Plaintiff's arguments against dismissal consist of simply a laundry list of her conclusory allegations. ECF No. 31-1 at 13. Accordingly, the Court grants Defendant's motion to dismiss with respect to Plaintiff's negligence claim.
C. Breach of the Implied Warranty of Merchantability
Plaintiff next attempts to allege a claim for breach of the implied warranty of merchantability. The CPLA recognizes a claim for breach of the implied warranty of merchantability, governed by the Connecticut Uniform Commercial Code, Conn. Gen. Stat. § 42a-2-314. Walters v. Howmedica Osteonics Corp., 676 F. Supp. 2d 44, 55 (D. Conn. 2009); McConologue, 8 F. Supp. 3d at 115. That provision implies into most sales contracts a warranty that the product is "merchantable," Conn. Gen. Stat. § 42a-2-314(1), and a product is not merchantable when it is "not fit for the ordinary purposes for which" such product is used and "will not pass in the trade without objections." Leonard, 504 F. Supp. 3d at 99 (quoting Lennox II, 2020 WL 705263, at *8, and citing Conn. Gen. Stat. § 42a-2-314(2)). In addition, a claim for breach of the implied warranty of merchantability may be successfully asserted under the CPLA "notwithstanding [the fact that] the claimant did not buy the product from or enter into any contractual relationship with the product seller." Lennox II, 2020 WL 705263, at *8 (quoting Conn. Gen. Stat. § 52-572n(b)). "To state claim for breach of the implied warranty of merchantability, a party must allege that: '(1) a merchant sold the goods; (2) the goods were defective and not merchantable at the time of sale; (3) injury occurred to the buyer or his property; (4) the injury was caused by the merchant's defective product; and (5) notice was given to the seller of the claimed breach.' " Leonard, 504 F. Supp. 3d at 99 (quoting Lennox II, 2020 WL 705263, at *8); accord DiBlasi, 2021 WL 619509, at *4 (quoting Ferry v. Mead Johnson & Co., 514 F.Supp.3d 418, 445 (D. Conn. 2021)).
The allegations of the complaint here fail to state a plausible claim for breach of the implied warranty of merchantability. Although Plaintiff alleges that the airbag was not of merchantable quality, Compl. ¶ 12(h), she does not allege that she or anyone else ever notified Defendant of the alleged defect. For that reason, her claim for breach of the implied warranty of merchantability must be dismissed, and Defendant's motion to dismiss is thus granted in that regard. Leonard, 504 F. Supp. 3d at 99 (dismissing claim for breach of the implied warranty of merchantability where the plaintiff did not allege that he notified the defendant of the alleged defect); Gallinari v. Kloth, 148 F. Supp. 3d 202, 215 (D. Conn. 2015) (same), abrogated on other grounds by Corley v. United States, 11 F.4th 79, 84 (2d Cir. 2021); DiBlasi, 2021 WL 619509, at *4 (same).
Plaintiff contends that Leonard is distinguishable from the present case, but her argument misconstrues the holding of that case. The plaintiff in Leonard asserted claims for breach of the implied warranty of merchantability and breach of the implied warranty of fitness for a particular purpose, which are distinct claims with different requirements. Leonard, 504 F. Supp. 3d at 99. As noted above, the court dismissed the plaintiff's claim for breach of the implied warranty of merchantability because the plaintiff failed to allege that he ever notified the defendant of the claimed product defect. Id. The court then dismissed the plaintiff's claim for breach of the implied warranty of fitness for a particular purpose because the plaintiff failed to allege that he "actually relied on" the defendant or had any specific expectation of the product, which was a necessary requirement to plead that claim. Id. Plaintiff attempts to distinguish Leonard based on the allegation in the present complaint that she actually relied on the safety of Defendant's airbag, see Compl. ¶ 11, but she does not actually contend that her complaint raises a claim for breach of the implied warranty of fitness for a particular purpose, the claim for which such an allegation would be relevant. Moreover, she does not explain how her alleged reliance on the safety of Defendant's airbag renders her claim for breach of the implied warranty of merchantability plausible.
D. Fraudulent Misrepresentation
Finally, Plaintiff has alleged a claim for fraudulent misrepresentation. Courts in this district have subjected claims for fraudulent misrepresentation under the CPLA to the heightened pleading standard set forth in Federal Rule of Civil Procedure 9(b). Leonard, 504 F. Supp. 3d at 99 (citing Karazin, 2018 WL 4398250, at *7); Fed. R. Civ. P. 9(b) ("In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake."). Under that Rule, a plaintiff must "(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent." Karazin, 2018 WL 4398250, at *7 (quoting Rombach v. Chang, 355 F.3d 164, 170 (2d Cir. 2004)); accord Leonard, 504 F. Supp. 3d at 99-100.
The Court concludes that the allegations of the complaint fail to state a plausible fraudulent misrepresentation claim, as effectively conceded by Plaintiff. Plaintiff's only allegation pertaining to fraudulent misrepresentation is that Defendant "misrepresented to [Plaintiff] and the general public that the airbag in question was safe for use by the public." Compl. ¶ 12(f). Defendant contends that this conclusory allegation fails to identify any specific fraudulent statements, identify the speaker(s), identify when and where the statements were made, or explain why the statements were fraudulent, as required by Rule 9(b). For her part, Plaintiff appears to concede that the complaint, as currently alleged, does not satisfy the requirements of Rule 9(b); she argues only that such information is within Defendant's exclusive control. ECF No. 31-1 at 14. To be sure, as explained above, courts considering motions to dismiss CPLA claims have acknowledged that there may be some categories of factual and scientific information that a plaintiff cannot obtain prior to discovery. Leonard, 504 F. Supp. 3d at 95 (quoting Mals, 2020 WL 3270835, at *3, for the proposition that a court must not require a plaintiff to "possess technical or scientific knowledge about the inner workings of the product" for the purpose of a strict liability claim); Lennox II, 2020 WL 705263, at *5 (quoting Karazin, 2018 WL 4398250, at *5, for the proposition that a plaintiff does not need to plead what warnings should have been provided because such information might not be available to the plaintiff prior to discovery). But Plaintiff has not explained how any fraudulent statements by Defendant would be within Defendant's exclusive control; to the contrary, what little is alleged in the complaint suggests that any allegedly fraudulent statements were made to "the general public," and thus would be available to Plaintiff prior to discovery. See Compl. ¶ 12(f).
In sum, because Plaintiff identifies no fraudulent statements by Defendant and because Plaintiff has not explained why any such statements would be within Defendant's exclusive control, Defendant's motion to dismiss is granted with respect to Plaintiff's fraudulent misrepresentation claim.
IV. CONCLUSION
For the reasons described above, Defendant's motion to dismiss, ECF No. 28, is GRANTED IN PART and DENIED IN PART. Specifically, Defendant's motion is GRANTED with respect to Plaintiff's claims of malfunction, failure to warn, negligence, breach of the implied warranty of merchantability, and fraudulent misrepresentation. Defendant's motion is DENIED with respect to Plaintiff's remaining claims of strict liability based on the theories of manufacturing defect and design defect.
The parties shall submit a new joint Rule 26(f) Report by May 17, 2023. See ECF No. 33. In addition, Defendant shall file an answer to the complaint, with respect to the surviving claims, by May 24, 2023. To the extent Plaintiff desires to file an amended complaint to attempt to remedy the pleading deficiencies identified herein, she must file a motion for leave to amend the complaint pursuant to Federal Rule of Civil Procedure 15(a)(2) by May 24, 2023. Any motion to amend the complaint or join parties filed by Plaintiff after that deadline will be subject to the more stringent standard set forth in Federal Rule of Civil Procedure 16(b)(4). In the event that Plaintiff moves for leave to amend the complaint, discovery will not be stayed for the pendency of that motion.
SO ORDERED at Hartford, Connecticut, this 3d day of May, 2023.