Opinion
No. FST CV 05 5000225 S
January 26, 2007
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S MOTION TO AMEND COMPLAINT
On September 13, 2005, plaintiff, Johnny Mitchell, filed a two-count complaint sounding in negligence and recklessness against three defendants, Patrick Selezan, Michael Forestiere and Madelyn Forestiere. Therein, plaintiff alleges that defendant Selezan physically attacked him, causing him injury. Plaintiff further claims that defendants, the Forestieres, owned the property where the alleged attack occurred. On November 6, 2006, defendants, the Forestieres, filed a motion for summary judgment on the ostensibly well taken premise that plaintiff's complaint alleges insufficient facts to state a cause of action for negligence against them. Defendants filed their motion after the applicable statute of limitations had passed. Subsequently, plaintiff requested leave to amend his complaint to cure the legal insufficiency of his original complaint.
The court has discretion in the interest of justice to rule upon a later-filed motion even if it moots out or "ruins" an earlier-filed motion. Here, defense counsel conceded at argument that he awaited the tolling of the statute in order to leave the plaintiff unable to amend the complaint, there being arguably no case to amend into upon a defendant's summary judgment victory.
This court has occasionally resisted such efforts at similar pleading strategy and taken up the earlier motion. See Ings v. Ings, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 00 0070942 (October 10, 2002, Nadeau, J.) ( 33 Conn. L. Rptr. 161). See also Conference Center Ltd. v. TRC, 189 Conn. 212, 216-17 (1983) ("[a] trial court maybe well-advised to exercise leniency when amendments are proffered in response to a motion for summary judgment . . ."); Knoob v. North Branford, Superior Court, judicial district of New Haven, Docket No. CV 96 0389536 (April 6, 1999, Devlin, J.) ( 24 Conn. L. Rptr. 337) (rejecting defendant's insistence that it was entitled to have its motion for summary judgment decided before plaintiff's subsequently filed request to amend complaint); Socha v. LM Hospital, Superior Court, judicial district of New London, Docket No. 531484 (March 15, 1996, Hurley, J.) (granting plaintiff's motion to amend complaint and thus finding moot defendant's pending motion for summary judgment).
This can also be justified in the name of judicial economy, in that the court does not have to decide the existing summary judgment motion, which the movant concedes would be moot if the amendment is allowed. The defendants here argue, however, that to allow the plaintiff to amend his complaint would be improper because the statute of limitations having passed, the relation back doctrine bars salvation of the cause pleaded therein. In particular, the defendants maintain that the plaintiff's original complaint contained such insufficient allegations against the defendants that there is no viable cause of action to which the proposed amended complaint could relate back. Contrary to the defendants' position, this court finds that despite the sparse allegations in his original complaint, the plaintiff nevertheless placed the defendants on sufficient notice, regarding the nature of the claim against them, to satisfy the purpose of the relation back doctrine.
In Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 775 (2006), the Supreme Court explained the doctrine as follows: "The relation back doctrine has been well established by this court. 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 . . . 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.)
In distinguishing between amplification and the introduction of a new cause of action, cases have focused on whether the proposed amendment draws on an "entirely new and different factual situation . . ." Deming v. Nationwide Mutual Ins. Co., supra, 279 Conn. 775. See also Gurliacci v. Mayer, 218 Conn. 531, 549 (1991); Barrett v. Danbury Hospital, 232 Conn. 242, 264 (1995); Patterson v. Szabo Food Service of New York, Inc., 14 Conn.App. 178, 182, cert. denied, 208 Conn. 807 (1988). In Barrett, for example, the court did not apply the relation back doctrine, because "[t]he additional claims arose out of events that occurred the day after the events that were the subject of the original complaint . . ." Barrett v. Danbury Hospital, supra, 232 Conn. 264. See also Patterson v. Szabo Food Service of New York, supra, 14 Conn.App. 183 (new cause of action where original complaint alleged that defendant failed to keep floor clean and amended complaint alleged faulty installation of floor and creation of dangerous condition on slippery floor).
By contrast, the court permitted the plaintiff to amend his negligence complaint to include a recklessness claim in Gurliacci. There, the court explained that the new theory of liability arose out of the same facts contained in the original complaint, and thus merely "amplified arid expanded upon the previous allegations . . ." Gurliacci v. Mayer, supra, 218 Conn. 549. Similarly, the plaintiff in the present case seeks to enhance his negligence claim against the defendants by alleging additional facts arising out of the same incident described in the plaintiff's original complaint.
The case law also emphasizes that the relation back doctrine forgives amendments only where such application will not unfairly prejudice the defendant. See Billy Leo, LLC v. Michaelidis, 87 Conn.App. 710, 715 (2005). Thus, courts will not apply the doctrine where the defendant was unaware that he would become a party to the action; Palazzo v. Delrose, 91 Conn.App. 222, 226, cert. denied, 276 Conn. 912 (2005) (original complaint did not refer at all to defendant); or had no inclination as to the nature of the plaintiff's claim against him. O'Brien v. Coburn, 39 Conn.App. 143, 147-48 (1995) (pleadings did not provide sufficient notice of nature of plaintiff's theory of liability at trial, thereby subjecting defendant to unfair surprise).
The present case does not involve such unfairness. Rather, the plaintiff named the defendants in his original complaint and included their capacity as owners of the property where the alleged assault occurred. This should have apprised the defendants not only that the plaintiff would seek to recover from them, but also that plaintiff would claim that defendants, as owners, should have better protected plaintiff while he was on their property.
It is with these thoughts in mind that the court will permit the amended complaint and deny the motion for summary judgment. Such a ruling is, of course, without prejudice to a new motion for summary judgment because of the possibility that it may still be well taken regarding non-relation back considerations. See, Conference Center, Ltd v. TRC, supra, 189 Conn. 215. It is also noted that, as in Knoob v. North Branford, supra, Superior Court, Docket No. CV 96 0389536, this case is not on the trial list.
Defendants' motion for summary judgment is denied and plaintiff's motion to amend his complaint is granted.