Opinion
No. CV04-0489914-S
March 9, 2006
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
In this case a youngster was injured in a physical education class when he struck his face against an electrical box protruding from the gym wall. It is claimed that the injuries resulting to the student was due to the negligence of the defendant teacher and the defendant principal, notice was sent to the City of New Haven regarding the complaint. The defendants have now filed a motion for summary judgment. It is claimed that the defendants are entitled to governmental immunity, that the plaintiffs' suit is barred by the statute of limitations and that the Third and Sixth Counts seeking indemnification from the city must therefore also be dismissed.
In light of its decision regarding the statute of limitations claim the court will not discuss the governmental immunity claim.
I
There is no dispute that the subject matter giving rise to this case occurred not on April 18, 2002 as alleged but on April 11, 2002. The marshal did not receive the summons and complaint until April 16, 2004 and Section 52-584 provides that:
No action to recover damages for injury to the person, caused by negligence shall be brought but within two years from the date when the injury is first sustained or discovered.
The medical report and the school's accident report indicate the accident happened April 11, 2002. The plaintiff does not contest the factual representations of the defendant but rather claims that "the defendants waived their right to assert a statute of limitation defense." P.B. § 10-30 says to contest the court's jurisdiction a motion to dismiss must be filed within thirty days after the entry of an appearance. P.B. § 10-31 says a motion to dismiss may be used to assert lack of jurisdiction over the person and P.B. § 10-32 says that "any claim of lack of jurisdiction over the person . . . is waived if not raised by a motion to dismiss filed . . . within the time provided by § 10-30."
The plaintiff's quote from L.G. DeFelice Son Inc. v. Town of Wethersfield, 167 Conn. 509, 511 (1975), which in turn quoted from Lewis v. Rosen, 149 Conn. 734, 735 (1962) to the effect that "generally limitations on actions . . . are considered procedural or personal and thus subject to waiver . . ." They go on to argue that although subject matter jurisdiction cannot be waived "personal jurisdiction may be created through consent or waiver," Bridgeport v. Debek, 210 Conn. 175, 180 (1989). Debek quotes with approval language from Castro v. Viera, 207 Conn. 420, 433-34 (1988) to the effect that "Facts showing the service of process in time, form and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person." The plaintiffs conclude by arguing the third special defense was not filed until June 28, 2005 so any statute of limitations defense was already waived pursuant to the foregoing Practice Book provisions.
The court is constrained to disagree with the plaintiffs' position. Of course the statute of limitations can be waived. In Moore v. McNamara, 201 Conn. 16, 22 (1986) the court said quoting in part from earlier cases:
"A statute of limitations is generally considered to be procedural, especially where the statute contains only a limitation as to time with respect to a right of action and does not itself create the right of action . . ." This is so because it is considered that the limitation merely acts as a bar to a remedy otherwise available . . . Where a statute of limitations is procedural, it is subject to waiver; unless specifically pleaded it is deemed waived and the remedy continues beyond the prescribed period.
The exception to this rule not applicable here is a situation "Where . . . a specific limitation is contained in the statute that creates the right of action and establishes the remedy (in such a case) the remedy exists only during the prescribed period and not thereafter. In this situation, the statute of limitations is considered substantive or jurisdictional rather than procedural or personal and therefore may not be waived . . ." Id., 201 Conn. at p. 22, 23.
The fact that a statute of limitations is procedural or personal and thus may be waived, however, has nothing to do with the appropriate procedural mechanism to raise the defense.
Since early times it has been the rule in our state that "the defense of the statute of limitations is to be raised by answer or in certain cases by demurrer and is not a proper matter for a plea to the jurisdiction," Jakiela v. Ellison, 114 Conn. 731, 732 (1932); Fetzer v. Miscoe Spring Water Co., 141 Conn. 364, 365 (1954). In Ross Realty Corp. v. Surkis, 163 Conn. 388, 391 (1972) the court noted that: "The defendants were attempting to interpose the defense of the statute of limitations. Such a defense must be specially pleaded and cannot be raised by a plea in abatement." (Plea in Abatement performed many of the functions now allocated to our motion to dismiss, see West Conn. Digest. "Pleadings," § 106).
As said in Pearson v. Hydraulic Co., 141 Conn. 646, 649 (1954): "A motion to dismiss is not the proper method of putting in issue the sufficiency of a complaint or a claim that an affirmative defense exists."
That is exactly what a statute of limitations defense is — an affirmative defense. The Practice Book sections must be read together and P.B. § 10-50 explicitly says
No facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue. Facts which are consistent with such statement but which show notwithstanding, that the plaintiff has no cause of action, must be specially alleged. Thus . . . the statute of limitations . . . must be specially pleaded . . .
That such a defense must be "specially pleaded" means, in the context of P.B. § 10-50, that it must be raised by special defense. As Horton and Knox note in their commentary to P.B. § 10-50 a motion to strike may be filed to raise the statute of limitations defense if both sides "agree that the complaint contains all the pertinent facts" and even if the parties do not so agree the "issue may be determined on the complaint if it is patent that all facts necessary to a determination of the issue are `apparent on the record' Abate v. Barkers of Wallingford, Inc., 27 Conn.Sup. 46, 48 . . . (1967)," Conn. Superior Court Rules, 2006 ed., Horton Knox, pp. 472-73. But the point is in the order of pleadings at P.B. § 10-6 the motion to strike and the answer including any special defense follow any filing of a motion to dismiss by the defendant.
In light of the foregoing the court must grant the motion for summary judgment and does so on the basis that the action was not brought within the time limits set forth in the controlling statute of limitations.