Opinion
CV166059852S
04-20-2017
Barbara Labutis fka Barbara McIntyre v. City of Meriden/Meriden Public Library et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE OBJECTION TO REQUEST FOR LEAVE TO AMEND COMPLAINT AND AMENDMENT (#126)
Robin L. Wilson, J.
I
STATEMENT OF CASE AND PROCEDURAL HISTORY
The plaintiff, Barbara Labutis, commenced this negligence action by service of writ, summons and complaint against the defendants, City of Meriden/Meriden Public Library, Karen Roesler, Director of Library Services, Meriden Public Library, Mark Zebora, Director of Parks and Recreation and Building Maintenance, City of Meriden, and Robert P.E. Bass, Director of Public Works, City of Meriden (collectively defendants). The return date is February 9, 2016. The complaint was returned to court on January 19, 2016, and alleges the following facts.
On January 2, 2014, the plaintiff entered the Meriden Public Library with the intention of returning a book. Upon opening the front door and stepping onto the threshold, the plaintiff fell to the floor due to an accumulation of water, wet snow and/or slush on the floor at the threshold of the front entrance area. As a result of the fall, the plaintiff suffered significant bodily injuries and losses. The complaint which is in six counts alleges that the plaintiff's injuries were proximately caused by the negligence of the defendants in that they: " a. failed and neglected to remove the accumulated water, wet snow, and/or slush at and inside the front entrance to the Meriden Public Library when they knew or should have known that such failure and neglect would result in a condition dangerous to persons, such as the plaintiff; b. failed and neglected to warn persons, such as the plaintiff, of the hazard posed by accumulated water, wet snow, and/or slush at the front entrance to the Meriden Public Library; c. failed and neglected to apply salt or sand or some other substance on the accumulated water, wet snow, and/or slush at the front entrance to the Meriden Public Library; d. allowed shoveled snow to be deposited in the area of the front entrance; e. failed and neglected to mop or otherwise remove water, wet snow, and/or slush from the threshold and to dry the surface; f. knew, or in the exercise of reasonable care, should have known that said condition was dangerous and unsafe to persons, such as the plaintiff, yet they failed and neglected to correct the same by making or causing the same to be reasonably safe; g. failed to inspect said entrance area/threshold with sufficient frequency to discover and rectify said hazardous condition; h. failed to provide a safe means of ingress and egress from the Meriden Public Library; i. failed to follow the City's rules and procedures for inspection and remedying hazards to patrons entering the building; j. failed to adhere to a program of routine maintenance and to keep the premises where the plaintiff fell in a reasonably safe condition; k. failed to adequately train their agents, servants and employees to recognize and prevent slippery accumulations at the building's entrance; l. failed and neglected to notify the proper department and/or person of the necessity to apply salt or sand or some other substance on the accumulated water, wet snow, and/or slush at the front entrance to the Meriden Public Library; m. allowed the premises to exist with a defective threshold which allowed water to seep in on and about the threshold and surrounding area at said door; n. failed to use an anti-slip surface on the threshold and floor inside the door in the vicinity of the plaintiff's fall; and o. allowed the flooring surface inside the main entrance to become worn, magnifying the hazard when wet." Pl. Compl., 12/29/2015, par. 10(a)-(o), pp. 3-4.
On February 24, 2017, the plaintiff filed a request for leave to amend and amended complaint. The proposed amended complaint repeats the allegations of the original complaint and adds allegations by referencing violations of various building and safety codes, specifically that the defendants " n. failed to use an anti-slip surface on the threshold and floor inside the door in the vicinity of the plaintiff's fall, in violation of Section 7.1.6.4 of the Connecticut Fire Safety Code; p. failed to maintain the building entrance in a safe condition, in violation of Section 3401.2 of the International Building Code as adopted by the 2005 Connecticut State Building Code; q. failed to provide a slip resistant walking surface at the means of egress, in violation of Section 1003.4 of the International Building Code as adopted by the 2005 Connecticut State Building Code; r. failed to provide a safe transition from adjacent surfaces, in violation of ASTM Safe Walking Standard F1637-10 Section 5.4.5; and s. failed to provide a proper mat, runner or other means of ensuring that the building entrance was kept dry during inclement weather, in violation of ASTM Safe Walking Standard F1637-10, Section 5.4.1." Pl. Amended Compl., 2/23/2017, par. 10(n), (p)-(s), p. 4.
The defendants have filed an objection to the plaintiff's motion for leave to amend and amended complaint on grounds that the plaintiff improperly submits its amendment as a basis for her objection to the defendants' motion for summary judgment, and the amendment asserts a new cause of action which is time barred by the applicable statute of limitations.
In reply to the defendants' objection the plaintiff argues that the filing of her amendment after the filing of defendants' motion for summary judgment is procedurally appropriate and the amendment relates back to the original complaint. Oral argument was heard on defendants' objection at short calendar on April 17, 2017.
II
DISCUSSION
A
Standard of Review
" It is beyond dispute that a trial court may allow in its discretion, an amendment to pleadings before, during or, . . . after the trial to conform to proof." (Citations omitted; emphasis in original.). Town of New Hartford et al. v. Connecticut Resources Recovery Authority, 291 Conn. 433, 486, 970 A.2d 592 (2009). " A trial court has wide discretion in granting or denying amendments to pleadings [pursuant to § 10-60 of the Connecticut Practice Book] and rarely will the [Appellate Court] overturn the decision of the trial court." Intercity Dev., L.L.C. v. Andrade, 286 Conn. 177, 190, 942 A.2d 1028 (2008); Grigerik v. Sharpe, 56 Conn.App. 314, 319, 742 A.2d 434 (2000). " It is the defendant's burden to show that the trial court clearly abused its discretion in allowing the plaintiffs to amend their complaint." Intercity, supra, 286 Conn. 190.
" It is well settled that whether to allow an amendment to the pleadings rests within the discretion of the trial court . . . The essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay a trial . . . The trial court is in the best position to assess the burden which an amendment would impose on the opposing party in light of the facts of the particular case . . ." (Citations omitted; internal quotation marks omitted.) Summitwood Development., L.L.C. v. Roberts, 130 Conn.App. 792, 800, 25 A.3d 721 (2009). " In exercising its discretion . . . a court should ordinarily be guided by its determination of the question whether the greater injustice will be done to the mover by denying him his day in court on the subject matter of the proposed amendment, or to his adversary by granting the motion . . ." Grigerik, supra, 56 Conn.App. 320.
The plaintiff is correct that there is ample legal authority for amending a complaint after the filing of a motion for summary judgment. In Miller v. Fishman, 102 Conn.App. 286, 925 A.2d 441 (2007), the Appellate Court found that the trial court abused its discretion in refusing to consider the plaintiff's amended complaint when ruling on the defendant's motion for summary judgment noting that " [h]ad the plaintiffs been allowed to amend their complaint . . . the basis for summary judgment would have fallen away." Id., 291. See also Jacob v. Dometic Origo Ab, 100 Conn.App. 107, 916 A.2d 872 (2007) (court found trial court's failure to allow amendment to complaint after motion for summary judgment was an abuse of discretion where case was not scheduled for trial until nearly three months after the amendment was offered); and DPF Financial Holdings, LLC v. Lyons, 2012 WL 2477906, Judicial District of Windham (Vacchelli, J., May 30, 2012) (allowing an amendment to complaint filed nine months after defendant had filed motion for summary judgment. " As defendants point out, they moved for summary judgment on the CUTPA claims nearly nine months ago. The proposed amendments purport to address the defects identified in their motion for summary judgment. Defendants complain that to allow amendment now would permit plaintiffs to take unfair advantage of defendants' time and energy. That argument is understandable, but not dispositive. The fact that a motion for summary judgment is pending does not, per se, preclude the allowance of a request for leave to amend to cure the potential defects identified. Whether to allow the amendment in that circumstance remains a matter within the discretion of the trial court. Miller v. Fishman, 102 Conn.App. 286, 292-93, 925 A.2d 441 (2007), cert. denied, 285 Conn. 905, 942 A.2d 414 (2008)").
" The Connecticut Supreme Court has upheld the trial court's denial of a request to amend, where the request was filed after a motion for summary judgment. Citizen National Bank v. Hubney, 182 Conn. 310, 438 A.2d 430 (1980) (where the court upheld the denial of request to amend where the request was filed after a motion for summary judgment was granted). See also Conference Center Limited v. TRC, 189 Conn. 212, 216-17, 455 A.2d 857 (1983). While it is true that the Supreme Court has held that [it] is not an abuse of discretion to sustain an objection to a request to amend proffered in response to a motion for summary judgment and after a motion for summary judgment has been granted, '[t]he law is well settled that belated amendments to the pleadings rest in the sound discretion of the trial court [and such court] may be well-advised to exercise leniency when amendments are proffered in response to a motion for summary judgment, rather than on the eve of trial.' (Citations omitted.) Conference Center Ltd. v. TRC, supra, 189 Conn. at 216-17. 'In [the cases cited], the Court did not analyze the trial court's decision to deny the motion to amend, but simply confirmed that the trial court has discretion in granting or denying such motions and will be reversed only when there is clear evidence of abuse of discretion.' Flaherty v. Borough of Naugatuck, supra, Superior Court, Docket No. 05 4004400." CBRE Realty Finance v. Mototown Properties, Superior Court, judicial district of Hartford, Docket No. HHDCV-085025668, (July 17, 2012, Robaina, J.).
Thus, the court will not sustain the defendant's objection on procedural grounds but rather will exercise its discretion in determining whether to allow the amendment. In that regard, the court must first determine whether the new allegations " relate back" to the original complaint.
B
Relation Back Doctrine
Our Supreme Court recently clarified the relation back doctrine in Briere v. Greater Hartford Orthopedic Group, P.C., 325 Conn. 198 (2017). The court stated:
" The relation back doctrine has been well established by this court." Alswanger v. Smego, 257 Conn. 58, 64, 776 A.2d 444 (2001). There is a " 'well settled' body of case law holding that 'a party properly may 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 . . . If a new cause of action is alleged in an amended complaint . . . it will [speak] as of the date when it was filed . . . A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief . . . A change in, or an addition to, a ground of negligence or an act of negligence arising out of the single group of facts which was originally claimed to have brought about the unlawful injury to the plaintiff does not change the cause of action . . . 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 [when] an entirely new and different factual situation is presented, a new and different cause of action is stated.' . . . DiLieto v. County Obstetrics & Gynecology Group, P.C., 297 Conn. 105, 140, 998 A.2d 730 (2010).' (Emphasis in original; footnote omitted.) Finkle v. Carroll, 315 Conn. 821, 837-38, 110 A.3d 387 (2015).
" 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 . . . Barrett v. Danbury Hospital, 232 Conn. 242, 263-64, 654 A.2d 748 (1995)." (Internal quotation marks omitted.) Alswanger v. Smego, supra, 257 Conn. at 65, 776 A.2d 444. " [I]n the cases in which we have determined that an amendment does not relate back to an earlier pleading, the amendment presented different issues or depended on different factual circumstances rather than merely amplifying or expanding upon previous allegations." Grenier v. Commissioner of Transportation, 306 Conn. 523, 560, 51 A.3d 367 (2012).
More specifically, where the proposed allegations promote a change in or an addition to a ground of negligence arising out of a single group of facts we have allowed use of the relation back doctrine. Gurliacci v. Mayer, 218 Conn. 531, 549, 590 A.2d 914 (1991) (" new allegations did not inject two different sets of circumstances and depend on different facts . . . but rather amplified and expanded upon the previous allegations by setting forth alternative theories of liability" [citation omitted; internal quotation marks omitted]); see DiLieto v. County Obstetrics & Gynecology Group, P.C., supra, 297 Conn. at 139-43, 998 A.2d 730 (allegation that defendant physician failed to ensure that specific surgeon participated in surgery related back to allegation that defendant physician failed to communicate pathology results to that surgeon prior to surgery); Wagner v. Clark Equipment Co., 259 Conn. 114, 119, 788 A.2d 83 (2002) (allegation that forklift was defective because backup alarm failed to sound when forklift was engaged in reverse did relate back to allegations that forklift was defective because it lacked, inter alia, backup alarm that sounded sufficiently distinct to warn plaintiff); Barnicoat v. Edwards, 1 Conn.App. 652, 654, 474 A.2d 808 (1984) (allegations of different defects in house construction related back to other claims of defect in house construction in breach of contract claim); Miller v. Fishman, 102 Conn.App. 286, 299-300, 925 A.2d 441 (2007) (allegations describing specific manner in which defendant obstetrician delivered minor plaintiff and precise injuries minor plaintiff sustained related back to allegations that defendant negligently managed delivery of minor plaintiff), cert. denied, 285 Conn. 905, 942 A.2d 414 (2008). On the other hand, where new allegations directly contradict those in the operative complaint we have held that they do not relate back to those in the operative complaint. Dimmock v. Lawrence & Memorial Hospital, Inc., 286 Conn. 789, 806-08, 945 A.2d 955 (2008) (allegation that defendant surgeons used incorrect spinal fusion material during surgery contradicted, and therefore did not relate back to, allegation that surgeons should not have performed surgery at all on plaintiff); see also Alswanger v. Smego, supra, 257 Conn. at 61, 776 A.2d 444 (allegation of lack of informed consent regarding surgical resident's participation in surgery did not relate back to allegation that defendant physician and defendant hospital had failed to disclose all material risks in connection with plaintiff's surgery, care and treatment); Keenan v. Yale New Haven Hospital, 167 Conn. 284, 285-86, 355 A.2d 253 (1974) (allegation of lack of informed consent to surgery did not relate back to allegation of negligence in performing surgery).
" When comparing [the original and proposed amended] pleadings, we are mindful that, '[i]n Connecticut, we have long eschewed the notion that pleadings should be read in a hypertechnical manner. Rather, [t]he modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically . . . [T]he complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties . . . Our reading of pleadings in a manner that advances substantial justice means that a pleading must be construed reasonably, to contain all that it fairly means, but carries with it the related proposition that it must not be contorted in such a way so as to strain the bounds of rational comprehension.' . . . Deming v. Nationwide Mutual Ins. Co., [279 Conn. 745, 778, 905 A.2d 623 (2006)]." Dimmock v. Lawrence & Memorial Hospital, Inc., supra, 286 Conn. at 802, 945 A.2d 955.
. . .
If new allegations state a set of facts that contradict the original cause of action, which is the transaction or occurrence underpinning the plaintiff's legal claim against the defendant, then it is clear that the new allegations do not fall within the scope of the original cause of action and, therefore, do not relate back to the original pleading. But an absence of a direct contradiction must not end the trial court's inquiry. The trial court must still determine whether the new allegations support and amplify the original cause of action or state a new cause of action entirely. Relevant factors for this inquiry include, but are not limited to, whether the original and the new allegations involve the same actor or actors, allege events that occurred during the same period of time, occurred at the same location, resulted in the same injury, allege substantially similar types of behavior, and require the same types of evidence and experts.(Emphasis added; footnotes omitted.) Briere v. Greater Hartford Orthopedic Group, P.C., supra, 325 Conn. 207-11.
The new allegations set forth in the plaintiff's proposed amendment in the present case support and amplify those allegations of negligence contained in the original complaint by referencing various building and safety codes violations by the defendants. The allegations of slippery, wet and unsafe conditions and the lack of a non-skid surface at the library entrance are contained in the original complaint. Similar to the proposed amendment in Briere, the proposed allegations of building and safety code violations do not contradict the original complaint, but instead relate to the same transaction or occurrence underpinning the original claim. The proposed allegations constitute " [a] change in, or an addition to, a ground of negligence or an act of negligence arising out of the single group of facts which was originally claimed to have brought about the unlawful injury to the plaintiff [and therefore] does not change the cause of action." Id., 207.
This court concludes, after careful review of the allegations contained in the original complaint, and the proposed allegations of building code violations contained in the proposed amended complaint, and both read broadly, that the proposed new and changed allegations provide fair notice to the defendants because said allegations " fall [squarely] within the scope of the original cause of action"; Id., 210; namely, allegations of a slippery, wet and unsafe condition and the lack of a non-skid surface at the library entrance where the plaintiff fell; " which is the transaction or occurrence underpinning the plaintiff's legal claim against the defendant[s]." Id.
With respect to prejudice and whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay the trial, the court concludes that allowing the amendment will not work an injustice to the defendant and will not delay the trial. As the court has concluded that the defendants have been provided with fair notice because the new and changed allegations fall within the transaction underpinning the plaintiff's claim, the defendants have not been prejudiced. In addition, trial is not scheduled to commence until October 2017. Accordingly, the defendants have ample time to respond and prepare a defense to the amended complaint. The defendants' objection to the plaintiff's request for leave to amend is therefore overruled.
III
CONCLUSION
For the foregoing reasons, the defendants' objection to plaintiff's request for leave to amend and amended complaint is overruled.