Opinion
No. CV 030566178
June 19, 2006
On June 25, 2003, the plaintiff, Plas-Pak Industries, Inc., filed a two-count complaint against the defendant, Prime Electric, LLC, in negligence and products liability for injuries suffered by the plaintiff's employee, Richard Couture, on April 4, 2003, from an explosion of an electrical subpanel purchased from and installed by the defendant. On July 30, 2003, Richard Couture, and his wife, Diana Couture, filed a motion to intervene, which was granted by the court, Hurley, J., on August 22, 2003. On January 20, 2005, the intervening plaintiffs filed an amended complaint with four counts, alleging claims in negligence, products liability, loss of consortium and recklessness based on products liability, respectively.
The intervening plaintiffs' complaint alleges the following facts. In May 2001, the defendant assembled, sold and installed an electrical subpanel in the plaintiff's manufacturing plant. On April 4, 2003, Richard Couture, a maintenance worker for the plaintiff, attempted to install a replacement circuit breaker in the subpanel when an electrical discharge from the subpanel created an explosion that burned him. The plaintiff has been paying Richard Couture medical and indemnity benefits pursuant to its obligation under the Workers' Compensation Act, General Statutes §§ 31-275 et seq.
The defendant has filed a motion for summary judgment on counts two and four of the intervening plaintiffs' complaint. This motion was supported by a memorandum of law and the following evidence: (1) an uncertified excerpt of the deposition of Lawrence Hmurcik, the plaintiff's expert, and (2) an uncertified excerpt of the deposition of Joseph Cristino, the intervening plaintiffs' expert.
"[B]efore a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be . . . Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Citation omitted; internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005). Because the intervening plaintiffs failed to object to the defendant's use of unauthenticated evidence and there is no dispute to their authenticity, this court will consider such documents in its determination of the motion for summary judgment. See Mates v. Syed, Superior Court, judicial district of Waterbury, Docket No. CV 04 4001655 (January 12, 2006, Brunetti, J.); Farina v. Modzelewski, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 01 0075133 (November 10, 2004, Curran, J.T.R.) ( 38 Conn. L. Rptr. 261, 262 n. 1), aff'd, 94 Conn.App. 203, 891 A.2d 138 (2006).
The plaintiff has filed a memorandum of law in opposition to the defendant's motion for summary judgment. The intervening plaintiffs also submitted the following evidence in support: (1) a copy of an estimate from the defendant in the amount of $10,090.27; (2) a copy of the invoice from the defendant in the amount of $10,090.27; (3) a copy of check number 021690 payable to the defendant in the amount of $10,090.27; (4) a copy of the defendant's design layout for the project; and (5) a copy of the signed and sworn affidavit of Charles Frey, the president and chief executive officer of the plaintiff, authenticating the copies of the exhibits presented.
The original signed and sworn affidavit of Charles Frey is a part of the court's file as an exhibit to the plaintiff's opposition to the defendant's motion for summary judgment filed on December 28, 2005.
Standard for deciding Motion for Summary Judgment
"Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 399, 876 A.2d 522 (2005). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 46-47, 881 A.2d 194 (2005).
"Although [the Supreme Court has] recognized . . . that, in complex cases, it may be more difficult to determine in advance of trial whether there exist any disputes regarding material facts, the opinions do not stand for the proposition that summary judgment is inappropriate in complex cases where the absence of disputes regarding material facts can be established. Succinctly stated, as a matter of law, no case is too complex for summary judgment." Gould v. Mellick Sexton, 263 Conn. 140, 147, 819 A.2d 216 (2003).
Merits of the Motion for Summary Judgment
In its motion for summary judgment, the defendant argues that counts two and four of the intervening plaintiffs' complaint "are not within the scope of the Products Liability Act." Specifically, the defendant argues that all of the allegations in the intervening plaintiffs' complaint, as well as the plaintiffs' and intervening plaintiffs' expert testimony, solely allege that the circuit breaker was improperly installed. Since there is no allegation that the subpanel or circuit breaker was defective, the defendant argues that these claims do not fall within the products liability act. The defendant further argues that General Statutes § 52-572n of the products liability act is the exclusive remedy against a product seller for damages arising from the manufacture and installation of a defective product and whether the defendant is a product seller pursuant to this statute is a question of law for the court. Thus, the defendant argues that, since it is not a product seller, there is no material issue of fact and it is entitled to summary judgment.
The intervening plaintiffs argue in response that the present case involves a hybrid sales-service contract so if the defendant falls within the scope of the statute is a mixed question of law and fact that is more properly determined by the jury. They argue that a material issue of fact exists to preclude summary judgment because (1) the defendant ordered, installed and designed the subpanel and put this defective item into the stream of commerce; (2) the defendant was responsible for choosing the vendor; and (3) that they relied on the defendant's decisions.
The Connecticut products liability act, General Statutes §§ 52-572m et seq., governs product liability claims, which is defined as "all claims or actions brought for personal injury, death or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product." General Statutes § 52-572m(b). "[A] product liability claim . . . may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability and warranty, for harm caused by a product." General Statutes § 52-572n(a). A "product seller" is defined as "any person or entity, including a manufacturer, wholesaler, distributor or retailer who is engaged in the business of selling such products whether the sale is for resale or for use or consumption." General Statues § 52-572m(a).
"The doctrine of strict liability in tort is concerned with the character of the product injected into the stream of commerce, not with the specific conduct of the defendant." (Internal quotation marks omitted.) Lang v. Brom Builders, Inc., Superior Court, judicial district of New Haven, Docket No. CV 95 0369766 (February 3, 1998, Hartmere, J.) (21 Conn. L. Rtpr. 225), quoting Wagner v. Clark Equipment, 243 Conn. 168, 195, 700 A.2d 38 (1997). "To maintain a product liability action under § 52-572m et seq., the plaintiff must establish and prove, inter alia, that . . . the defendant was engaged in the business of selling the product . . . [and] the defect existed at the time of the sale . . . Once a particular transaction is labeled a `service,' as opposed to a `sale' of a `product,' it is outside the purview of our product liability statute." (Citations omitted; emphasis in original; internal quotation marks omitted.) Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 403, 528 A.2d 805 (1987). "Whether the defendant is a product seller is a question of law for the court to decide. Burkert v. Petrol Plus of Naugatuck, Inc., 216 Conn. 65, 72, 579 A.2d 26 1990)." Wallace v. Gerard Medical, Inc., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 00 0274660 (April 7, 2003, Wiese, J.) ( 34 Conn. L. Rptr. 464, 465).
"A more difficult issue is presented by a hybrid sales-service transaction. In determining whether a particular transaction falls under the products liability statute, one factor that courts take into consideration is whether the service of the defendant or the product transmitted was the principal thing bargained for . . . Where the contract is basically one for the rendition of services, and the materials are only incidental to the main purpose of the agreement, the contract is not one for the sale of goods . . . In Truglio v. Hayes Construction Co., 66 Conn.App. 681, 684-85, 785 A.2d 1153 (2001), the court looked to the commentary of the Draft Uniform Products Liability Law for guidance as to the meaning of `product' and `product seller.' The court favorably cited the suggestion in the commentary that a party be considered a product seller where a sale of a product is a principal part of the transaction and where the essence of the relationship between the buyer and seller is not the furnishing of professional skill or services . . . In applying this standard, the court held that the construction of a sidewalk was the furnishing of a service, not the sale of a product." (Citations omitted; emphasis in original; internal quotation marks omitted.) Wallace v. Gerard Medical, Inc., supra, 34 Conn. L. Rptr. 465. "[T]he court may deny a motion for summary judgment when the object of a hybrid transaction raises factual issues . . ." (Citations omitted.) Travelers Property Casualty v. Ducci Electrical Contractors, Superior Court, judicial district of Litchfield, Docket No. CV 98 0075903 (November 8, 2000, Matasavage, J.).
"To determine whether something is a service or a product, some courts have focused on the object of the contract." Mangual v. Abdul, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 01 0383808 (April 1, 2002, Rush, J.), citing Truglio v. Hayes Construction Co., supra, 66 Conn.App. 692. "When the contract is basically one for the rendition of services, and the materials are only incidental to the main purpose of the agreement, the contract is not one for the sale of goods . . ." (Internal quotation marks omitted.) Herrick v. Middlesex Hospital, Superior Court, judicial district of Middlesex, Docket No. CV 03 0100932 (June 27, 2005, Silbert, J.) ( 39 Conn. L. Rptr. 624, 626).
The defendant relies on Lang v. Brom Builders, Inc., supra, Superior Court, Docket No. CV 95 0369766, and ACMAT Corp. v. Jansen Rogan Construction Engineers, Superior Court, judicial district of New Britain, Docket No. CV 96 0474249 (August 23, 1999, Robinson, J.) (25 Conn. L. Rptr 463), for the proposition that the contract involved here is a service contract. In Lang, the plaintiffs brought suit under the products liability act against the general contractor, the subcontractor and the stove shop, for a fire that occurred in their home due to a faulty prefabricated chimney. Lang v. Brom Builders, Inc., supra, Superior Court, Docket No. CV 95 0369766. The court held that the contractor was not a product seller under the act because he was not engaged in the business of selling or leasing prefabricated chimneys. Id. Rather, he "was hired as the general contractor to provide the service of building the [plaintiffs'] home, and the materials used to install the chimney were merely incidental to the main purpose of the agreement." Id.; see Paul v. McPhee Electrical Contractors, 46 Conn.App. 18, 23, 698 A.2d 354 (1997) (an electrician is not a product seller where the plaintiffs failed to allege that the defendant was in the business of selling light fixtures or involved in placing light fixtures into the stream of commerce). The court also held that the subcontractor was not a product seller where the subcontractor did not purchase nor sell the prefabricated chimney, but rather merely installed it. Lang v. Brom Builders, Inc., supra, Superior Court, Docket No. CV 95 0369766.
In ACMAT, the second case relied on by the defendant, the plaintiff contracted with an architecture and engineering company to provide professional advice for the design and construction of the heating, ventilation and air condition (HVAC) system, which contracted with the defendant to assist it in fulfilling its obligation to the plaintiff. ACMAT Corp. v. Jansen Rogan Construction Engineers, supra, 25 Conn. L. Rptr. 464. The plaintiff than contracted with the apportionment defendant to supply an automatic temperature control system to operate the HVAC system, which the plaintiff alleged was defective and improper. Id. The contract provided that the apportionment defendant "shall furnish . . . all plant, labor, materials, supplies and equipment to perform such work . . ." Id., 467. The court held that "the essence of the contract was basically for the rendition of services" and that "the hybrid transaction [was] dominated by the service component and not the manufacturing and furnishing of a product component." Id., 468.
In the present case, the ultimate issue on the motion for summary judgment is whether the defendant was a product seller within the meaning of the products liability act. The contract between the defendant and Plas-Pak Industries provides for an "800 amp buss load shedding" at a cost of $9,519.12. Below this description, the contract further provides: "Install 3-125 amp 480 volt copper feeds in EMT conduit from the main switchgear sub panel to machine #4-#5-#6. Each unit will have its own fused disconnect switch and existing feeds from 800a buss will be removed and capped. All work will be done during normal working hours Monday-Friday 7 a.m.-4 p.m." The contract does not clearly delineate whether the cost is for the goods or the services. Furthermore, this case is distinguishable from ACMAT because the contract in the present case associates the cost with the item to be provided and secondarily describes the services to be provided. This case is also distinguishable from Lang because the defendant herein was responsible for designing and ordering the subpanel. See Travelers Property Casualty v. Ducci Electrical Contractors, supra, Superior Court, Docket No. CV 98 0075903 (motion for summary judgment denied where the defendant was responsible for ordering the units, may have been responsible for choosing the vendor and where the contract did not clearly state whether it was for the purchase of goods or services).
Conclusion
The court finds that there is a genuine issue of material fact as to whether the defendant was a product seller to fall within the meaning of the products liability act. Accordingly, the Motion for Summary Judgment (No. 167) is denied.