Opinion
No. CV 04 4000648
May 2, 2005
MEMORANDUM OF DECISION RE MOTION TO STRIKE #107
FACTS
On September 2, 2004, the plaintiffs, Paul and Janina Selens, commenced this present action by filing a six-count complaint against the defendants, Shop-Rite Supermarket, Wakefern Food Corp., Perdue Farms and Carmella Crawford. Count one alleges product liability against Shop-Rite Supermarket and Wakefern Food Corp. and count two alleges product liability against Perdue, Inc. Counts three and four allege loss of consortium against Shop-Rite Supermarket and Perdue, Inc., respectively and counts five and six allege negligence and loss of consortium against Carmella Crawford respectively. This action arises from an alleged incident that occurred on or about December 31, 2003. The plaintiffs allege that on or about December 31, 2003, they purchased a chicken for consumption labeled "[Perdue] Rotisserie Chicken `Original,' 1.75 lbs." from Shop-Rite Supermarket. The plaintiffs further allege that Paul Selens, while eating a portion of the chicken, swallowed and ingested a plastic tab that was imbedded inside the meat of the chicken. Further, the plaintiffs allege that the ingestion of this plastic tab caused severe and permanent injuries to Paul Selens' digestive system. The plaintiffs seek monetary damages, punitive damages pursuant to General Statutes § 52-240b, court costs and any other relief the court deems appropriate. On November 26, 2004, the defendants filed a motion to strike counts five and six of the complaint, along with a supporting memorandum of law. The defendants moved to strike on the following grounds: (1) the common-law negligence claims contained in counts five and six are barred by the exclusivity provision of the Connecticut Products Liability Act, (2) these counts are legally insufficient as a matter of law and (3) these counts fail to state claims upon which relief may be granted. On December 28, 2004, the plaintiffs filed an objection to the defendants' motion to strike. The plaintiffs assert that these claims are not barred by the exclusivity provisions of the Connecticut Products Liability Act (CPLA) and are legally sufficient to withstand a motion to strike. The defendants' motion to strike counts five and six of the complaint filed November 26, 2004, is presently before the court and is the subject of this memorandum. This matter was heard on the short calendar on January 3, 2005.
Plaintiff incorrectly refers to the defendant throughout the complaint as Purdue, Inc. The registered name, of the corporation, however, is Perdue, Inc., located at 31149 Old Ocean City Road, Salisbury, MD 21804. Accordingly, subsequent reference to this defendant will be to Perdue, Inc.
General Statutes § 52-240b provides: "Punitive damages may be awarded if the claimant proves that the harm suffered was the result of the product seller's reckless disregard for the safety of product users, consumers or others who were injured by the product. If the trier of fact determines that punitive damages should be awarded, the court shall determine the amount of such damages not to exceed an amount equal to twice The damages awarded to the plaintiff."
The defendants moving to strike counts five and six are: Wakefern Food Corporation, Shop-Rite Supermarket and Carmella Crawford.
General Statutes § 52-572m et seq.
DISCUSSION
"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." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 498. Furthermore, "[i]t is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). "Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Vacco v. Microsoft Corp., 260 Conn. 59, 65, 793 A.2d 1048 (2002). Moreover, "[i]f a motion to strike is directed to the entire complaint, the motion must fail if any of the plaintiffs claims is legally sufficient." Kovacs v. Kasper, 41 Conn.Sup. 225, 226, 565 A.2d 18 (1989).
The plaintiffs in count five of the complaint allege that Crawford, as general manager of Shop-Rite, "had the duty to ensure that the employees of Shop-Rite who handle food products, including the employees who cooked the rotisserie chickens, were adequately and properly trained in the proper methods for the safe handling of food products." The plaintiffs further allege that Paul Selens' injuries were caused by the negligence of Crawford, in one or more of the following ways, by her failure to: "ensure that employees . . . were properly trained regarding food handling procedures"; "enact procedures or processes to ensure that foreign bodies could not become embedded and concealed"; "warn or instruct the plaintiff of the dangerous propensities of the rotisserie chickens; "inspect the rotisserie chickens in question"; "ensure that the proper procedures were in place for inspection of said chickens"; "to enact specific procedures for the removal of all plastic tabs from Perdue chickens prior to the time of cooking."
The plaintiffs in count six incorporate the allegations of count five and further allege that "[a]s a result of said incident, the plaintiff, Janina Selens, suffered the loss of society, affection, moral support, services, companionship and consortium of her husband, Paul Selens."
The defendants base their motion to strike on three grounds: (1) the common-law negligence claims in counts five and six are barred by the exclusivity provision of the Connecticut Products Liability Act; (2) counts five and six are legally insufficient and (3) counts five and six fail to state claims upon which relief may be granted. The defendants argue, in their memorandum of law in support of the motion to strike, that "under the doctrine of respondeat superior a direct claim for common law negligence against the employee of Shop-Rite is legally insufficient." Specifically, the defendants argue that "based upon the common law doctrine of respondeat superior, an action sounding in common law negligence against the defendant Carmella Crawford, is for all intents and purposes a direct action for common law negligence against Shop-Rite." The defendant argues in sum, that because the "plaintiffs' have alleged that the defendant, Shop-Rite, was a product seller at the time of the incident, any claims against Shop-Rite fall under the Product Liability Act and any and all common law causes of action are barred."
The plaintiffs counter, in their objection to the motion to strike, by asserting that the defendant Crawford, is not a product seller within the definition of the CPLA and therefore, she is not subject to the provisions of the Product Liability Statute. Specifically, the plaintiffs argue that because the complaint makes no allegations that "Crawford ever manufactured, distributed or sold the chicken . . . [S]he is not a product seller, . . . is not subject to the provisions of the Product Liability Statute [and] remains responsible for her own acts of negligence." The plaintiffs recognize that "the Product Liability Act is an exclusive remedy for claims falling within its scope." The plaintiffs argue, however, that the claims against Crawford are directed against her personally and individually therefore, they fall outside the scope of the CPLA.
The Connecticut Product Liability Act § 52-572m et seq., provides in pertinent part that "[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 under the Act 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. The term product seller also includes lessors or bailors of products who are engaged in the business of leasing or bailment of products." (Internal quotation marks omitted.) General Statutes § 52-572m(a). Furthermore, the statute defines product liability claim 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. Product liability claim shall include, but is not limited to, all actions based on the following theories: Strict liability in tort; negligence; breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent; misrepresentation or nondisclosure, whether negligent or innocent." (Internal quotation marks omitted.) General Statutes § 52-572m(b).
It is well established that "[t]o state a claim for product liability under § 52-572m et seq., a plaintiff must allege that: (1) the defendant was engaged in the business of selling the product; (2) the product was in a defective condition, unreasonably dangerous to the consumer or user; (3) the defect caused the injury for which compensation was sought; (4) the defect existed at the time of the sale; and (5) the product was expected to and did reach the consumer without substantial change in condition." Battista v. Technical Energy Conservation, Superior Court, judicial district of New Haven (February 3, 1993, Fracasse, J.), citing Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 403, 528 A.2d 805 (1987).
In the present case, the plaintiffs in count five allege that Paul Selens' injuries were caused by the negligence of Crawford, in one or more of the following ways, by her failure to: "ensure that employees . . . were properly trained regarding food handling procedures"; "enact procedures or processes to ensure that foreign bodies could not become embedded and concealed"; "warn or instruct the plaintiff of the dangerous propensities of the rotisserie chickens"; "inspect the rotisserie chickens in question"; "ensure that the proper procedures were in place for inspection of said chickens"; "to enact specific procedures for the removal of all plastic tabs from Perdue chickens prior to the time of cooking." In count six the plaintiffs allege that "[a]s a result of said incident, the plaintiff, Janina Selens, suffered the loss of society, affection, moral support, services, companionship and consortium of her husband, Paul Selens."
"A products liability claim may only be asserted . . . against one who is a product seller." Wallace v. Gerard Medical, Inc., Superior Court, judicial district of New Haven at Meriden, (April 7, 2003, Wise, J.) ( 34 Conn. L. Rptr. 464), citing General Statutes § 52-572m(a); Zichichi v. Middlesex Memorial Hospital, supra, 204 Conn. 403. Our Supreme Court in Burkert v. Petrol Plus of Naugatuck, Inc., 216 Conn. 65, 73, 579 A.2d 26 (1990), provided guidance regarding the implementation of the exclusivity provision of the CPLA. In Burkert, the court held "[w]e have recently held that the Product Liability Act is an exclusive remedy for claims falling within in its scope. Winslow v. Lewis-Shepard, Inc., 212 Conn. 462, 471, 562 A.2d 517 (1989). In that case, however, we expressly limited our holding to claims falling within the scope of the statute. Id. Since the statute provides only that it is the exclusive remedy for claims against product sellers; General Statutes § 52-572n(a); we conclude that the statute does not foreclose common law claims against those who are not product sellers." (Internal quotation marks omitted.) Burkert v. Petrol Plus of Naugatuck, Inc., supra. 216 Conn. 73.
When viewed in the light most favorable to the pleader, as required in addressing a motion to strike, the allegations of the complaint do not allege facts sufficient to state a claim under the Connecticut Products Liability Act; thus, the common-law negligence claims fall outside the scope of the Act. The plaintiffs do not allege that Crawford, was a manufacturer, wholesaler, distributor, retailer or a person who engaged in the business of selling such products. The plaintiffs do not allege that Crawford sold the plaintiffs a defective product, i.e., the chicken. Furthermore, the plaintiffs do not allege that Crawford was a product seller nor are there any facts from which the court can infer that she was a product seller. General Statutes § 52-572m(a) defines "product seller" in relevant part 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. The term product seller also includes lessors or bailors of products who are engaged in the business of leasing or bailment of products." (Internal quotation marks omitted.) General Statutes § 52-572m(a). Moreover, the exclusivity provision of the Act provides: "[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." (Emphasis added.) General Statutes § 52-572n(a). The plaintiffs have not alleged that Crawford was a product seller under the Act; therefore, the provisions of the Act do not apply to the counts against her individually.
In the present case, the plaintiffs' common-law negligence claims are based upon allegations that the defendant was negligent in failing to properly enact procedures, train, warn, instruct, and inspect as part of her duties as a general manager of a supermarket. The plaintiffs' allegations do not rest upon a product seller selling a defective product that caused harm but rather upon the negligent acts of an employee in her managerial capacity. The plaintiffs' damages may also have been caused by the defendant's negligence in her managerial capacity. Therefore, the plaintiffs' common-law negligence claims are not precluded by the Connecticut Products Liability Act.
It is well settled that "[t]o properly state a cause of action under CPLA, a plaintiff must therefore allege facts which, if proved at trial, will establish that the thing which caused him harm was a thing which the defendant sold, leased or bailed to or any person, and thereby placed in the stream of commerce." (Internal quotation marks omitted.) Montanaro v. GAF Materials Corp., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 01 030478 (February 7, 2002, Thim, J.). Moreover, the court has recognized that the failure to allege that the defendant was engaged in the business of selling the product that caused the harm, brings the claim outside the purview of the CPLA. In Gilbane Building Co., v. Stamford Towers, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 91118788 (August 31, 1995, D'Andrea, J.), the court held that a construction manager was not a product seller of allegedly defective panels where "the defendant . . . failed to allege sufficient facts to demonstrate that the plaintiff [manager] was engaged in the business of selling the precast panels or was the seller of the precast panels." (Internal quotation marks omitted.) Id. Likewise, in the present case, the plaintiff neither alleges that Crawford was engaged in the business of selling chickens nor that Crawford put the chicken in the stream of commerce.
The defendants argue in their motion to strike that "under the doctrine of respondent superior a direct claim for common law negligence against the employee of Shop-Rite is legally insufficient." The defendants assert that "under the common-law principle of respondeat superior, an employer is vicariously liable for compensatory damages arising out of the tortious conduct of his employee when that conduct occurs during the course of the employee's employment." Specifically, the defendants argue that "the plaintiffs" allegations against . . . Crawford, assert that she was negligent while acting a general manager of Shop-Rite. Accordingly, based upon the common law doctrine of respondeat superior, an action sounding in common-law negligence against . . . Crawford, is for all intents and purposes a direct action for common-law negligence against Shop-Rite. Under the Product Liability Act, a claim for common-law negligence is improper and must be stricken."
It is well recognized that "[u]nder the doctrine of respondeat superior, the master becomes responsible for the same act for which the servant is liable, and for the same consequences. Ordinarily, there is a sound basis for indemnity, but not for any apportionment of damages between the two." (Internal quotation marks omitted). Falcon v. Deerfield Woods Condominiums Association, Superior Court, judicial district of New Haven, Docket No. CV 98 0418521 (December 18, 2000, Zoarski, J.T.R.), quoting W. Prosser W. Keeton, Torts (5th Ed. 1984) § 52, p. 346. "Thus it is generally agreed that there may be indemnity in favor of one who is held responsible solely by imputation of law because of a relation to the actual wrongdoer, as where an employer is vicariously liable for the tort of a servant . . ." W. Prosser W. Keeton, Torts (5th Ed. 1984) § 51, p. 341.
In the present case, the defendants have misapplied the doctrine of respondeat superior. The plaintiffs in counts five and six bring common-law negligence claims against the servant. The plaintiffs are not bringing these claims against the employer/master, Shop-Rite, seeking to hold it vicariously liable for the tortious conduct of its employee; therefore, the doctrine of respondeat superior does not apply in this case. Counts five and six of the complaint are clearly directed toward Crawford. Count five is labeled " Negligence v. Carmella Crawford" and count six is labeled " Loss of Consortium v. Carmella Crawford." Under the doctrine of respondeat superior the employer becomes vicariously liable based upon the relationship between the parties, irrespective of participation. Alvarez v. New Haven Register, Inc., 249 Conn. 709,720, 735 A.2d 306 (1999). It is this relationship that gives the employer a right to indemnification from the agent. The plaintiffs seek to hold the servant directly liable for her own negligent acts and are not seeking to hold the employer vicariously liable for the negligent acts of its employee. Accordingly, the doctrine of respondeat superior will not transform these claims against Crawford into a direct action against Shop-Rite.
CONCLUSION
Based upon the foregoing, the defendants' motion to strike counts five and six of the plaintiffs' complaint is hereby denied.
D. Michael Hurley, JTR