Opinion
No. LLI-CV-04-4000443S
January 30, 2006
MEMORANDUM OF DECISION
This is the plaintiff's motion to strike the defendant's first, second and third special defenses. For the reasons given, the motion to strike the first and second special defenses must be granted, but the motion to strike the third special defense must be denied.
The plaintiffs, Judd and Melissa Lemaire and Bernard Belancik, filed suit against the defendant, Farmington Ready Mix, Inc., a corporation who manufactures, distributes, and sells concrete. The one-count complaint makes the following allegations. On October 13, 2003, the defendant's agents delivered concrete to the plaintiffs, who spread and leveled it as it was delivered in the presence, they allege, of employees of the defendant. As a result of their exposure to the concrete, the plaintiffs allege, they each suffered severe chemical burns. The plaintiffs claim that, pursuant to General Statutes § 52-572m et seq., the defendant is liable for their injuries for several reasons, including that they failed to warn the plaintiffs of the risk of chemical burns from the concrete; that they failed to instruct the plaintiffs on the use of barrier creams and protective clothing; and that their agents failed to give these warnings and instructions despite the fact that they observed the plaintiffs spreading and leveling the concrete. The plaintiffs allege that their injuries involve severe burns, lasting scars, emotional distress due to that scarring, and financial losses for their treatment and care.
The defendant filed an amended answer and special defenses dated August 30, 2005, in which it asserted three special defenses. The first asserts a special defense of comparative responsibility. The second asserts product misuse. The third special defense asserts that the plaintiffs failed to mitigate their damages and reduce the extent of their injuries because they failed to obtain prompt medical attention, despite being instructed to do so.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted . . ." (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[A] plaintiff can [move to strike] a special defense . . ." Nowak v. Nowak, 175 Conn. 112, 116, 394 A.2d 716 (1978); see also Connecticut National Bank v. Voog, 233 Conn. 352, 354-55, 659 A.2d 172 (1995). "In ruling on a motion to strike, the court must accept as true the facts alleged in the special defenses and construe them in the manner most favorable to sustaining their legal sufficiency (Citations omitted.) Barasso v. Rear Still Hill Road, 64 Conn.App. 9, 13, 779 A.2d 198 (2001).
As to the first special defense, the plaintiffs argue that, since the purpose of a special defense is to demonstrate that the plaintiff has no cause of action, and because comparative responsibility, which they address as contributory negligence, addresses the issue of damages but does not bar recovery, this special defense is legally insufficient for failing to state a claim. The defendant argues that the special defense should not be stricken both because procedural rules require that it be affirmatively plead it if it is going to relied on and because the plaintiffs failed to cite any appellate cases that would show that it cannot assert such a special defense.
"The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action . . . In Norrie v. Heil Co., 203 Conn. 594, 600, 525 A.2d 1332 (1987), the Connecticut Supreme Court held that General Statutes § 52-572l eliminated contributory negligence as a defense to products liability actions . . . [S]everal [other] Superior Courts have held that a special defense of comparative negligence is not permitted in a product liability action . . . [T]he defense of comparative or contributory negligence in a product liability action fails to demonstrate that the plaintiff has no cause of action." (Emphasis in original.) (Citations omitted; internal quotation marks omitted.) Abrams v. Jones, Superior Court, Docket No. CV 04 4001003, judicial district of Ansonia-Milford at Derby (May 11, 2005, Hartmere, J.).
The court in Abrams v. Jones cites several other Superior Court decisions which all support the plaintiff's contention that this court should grant the motion to strike the first special defense because, since "under [General Statutes § 52-572o] a plaintiff's damages are only diminished in proportion to the plaintiff's negligence and the statute does not bar recovery, comparative negligence cannot be specially pled in a product liability action because this special defense does not demonstrate that the plaintiff has no cause of action." Abrams v. Jones, supra, Superior Court, Docket No. CV 04 4001003. The motion to strike the first special defense is granted.
As to the second special defense, the plaintiffs argue that product misuse is only a bar to the defendant's liability when the defendant alleges and demonstrates that the misuse was unforeseeable, which the plaintiffs claim the defendant did not do, because, they claim, the injuries had to be foreseeable since the plaintiffs were using the cement in the presence of the defendant's employees. The defendant argues that it has sufficiently pled product misuse because the defendant's employees did not foresee that the plaintiffs would misuse the cement because its employees warned the plaintiffs, offered to wash them off, and told them to go to the hospital.
Misuse of a product can be asserted as a special defense. Elliot v. Sears Roebuck Co., 299 Conn. 500, 642 A.2d 709 (1994). "Misuse occurs when a product is not used in a manner which should have been foreseen by the defendant. (Internal quotation marks omitted.) Norrie v. Heil Co., 203 Conn. 594, 600, 525 A.2d 1332 (1987). To prevail on the defense of product misuse, [the defendants must] establish that [the product] was misused, that the misuse was not foreseeable and that the misuse was the proximate cause of the plaintiff's injuries." (Citations omitted; internal quotation marks omitted.) Kuzoian v. Saybrook Country Barn, Inc., Superior Court, judicial district of New Britain, Docket No. CV 00 0501052 (Jan. 22, 2001, Shapiro, J.).
The defendant alleges in the second special defense that the plaintiffs exposed their skin to the cement without protective footwear or other necessary precautions; that they disregarded written instructions and warnings by the defendant's employees; and that they disregarded verbal warnings by the defendant's employees. The defendant, however, did not allege that the misuse was not foreseeable. Therefore, the plaintiffs' motion to strike the defendant's second special defense is granted.
As to the third special defense, failure to mitigate damages, the plaintiffs argue that, by pleading this, the defendant is implicitly acknowledging that it is liable, and is seeking only to diminish any award of damages. Therefore, because this special defense is not claiming that they have no cause of action, the plaintiffs argue that this special defense is legally insufficient. The defendant argues that there is a split of authority in Connecticut as to whether failure to mitigate damages must be pled affirmatively and that, because of this split, it should be allowed to plead it as a special defense in order to avoid it being barred when raised for the first time at a later date. "[I]t is proper to allege facts in a special defense whenever they explain the general denials and apprise the plaintiff of all the issues involved in the case . . . The [defendant's] [third] special defense put the plaintiffs on notice that failure to mitigate will be an issue at trial . . . The defendant is not specifically required to plead the failure to mitigate damages . . . The majority rule . . . is that although the defendant need not specially plead it, the defendant must bring forward evidence that the plaintiff could reasonably have reduced his loss or avoided injurious consequences, and he must finally convince the jury of this in order to succeed on this issue . . . Therefore, the defendant has the option of pleading failure to mitigate as a special defense." (Citations omitted; internal quotation marks omitted.) Barfield v. Gasparri, Superior Court, Docket No. 111081, judicial district of Waterbury (Oct. 13, 1993, Sylvester, J.) ( 10 Conn. L. Rptr. 243), see also Salzano v. Goulet, Superior Court, Docket No. CV 04 0287567, judicial district of New Haven at Meriden (September 22, 2005, Shluger, J.) ( 40 Conn. L. Rptr. 28). Therefore, the plaintiffs' motion to strike the third special defense is denied.