Opinion
No. CV-03-0083429 S
November 12, 2004
RULING ON MOTION FOR SUMMARY JUDGMENT ( # 110)
In this case, the plaintiff Carmen Tamburrino (Tamburrino) claims to have sustained personal injuries when, as he was going to read an outside electrical meter, he fell upon an accumulation of ice and snow in the area leading to the meter on the premises of the defendants, Yves and Christine Allard (Allards). The Allards have moved for summary judgment on the ground that this lawsuit is barred by the statute of limitations, General Statutes § 52-524, because it was brought against them more than three years after Tamburrino was injured. Tamburrino asserts that the statute of limitations does not serve as a bar to this lawsuit because the case falls within the parameters of General Statutes § 52-593, the "wrong defendant" statute. The Allards maintain that even if the provisions of § 52-593 apply, Tamburrino failed to act reasonably to discover the identity of the proper defendants. To this argument, Tamburrino replies that if the court concludes that § 52-593 requires a plaintiff to exercise reasonable care, there are genuine issues of material fact as to the reasonableness of the steps he took to discover the proper party defendants and summary judgment is precluded.
General Statutes § 52-584 provides, in pertinent part, that: "No action to recover damages for injury . . . caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the action or omission complained of . . ." The three-year time limit is a statute of repose because it sets a time beyond which a negligence action is absolutely barred. "[T]he three year repose period represents a legislative compromise between the public policy of protecting individuals from the uncertainty that could result from unduly protracted time limits for filing legal claims and the public policy favoring the vindication of meritorious claims in court." Tarnowsky v. Socci, 271 Conn. 284, 296, 856 A.2d 408 (2004).
General Statutes § 52-593 provides, in pertinent part, that: "When a plaintiff in any civil action has failed to obtain judgment by reason of failure to name the right person as defendant therein, the plaintiff may bring a new action and the statute of limitations shall not be a bar thereto if service of process in the new action is made within one year after the termination of the original action."
"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." (Brackets omitted; internal quotation marks omitted.) Miles v. Foley, 253 Conn. 381, 385, 752 A.2d 503 (2000). "A defendant's motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact. Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 543, 494 A.2d 555 (1985)." (Internal quotation marks omitted.) Brunswick v. Safeco Ins. Co., 48 Conn.App. 699, 704, 711 A.2d 1202, cert. denied, 247 Conn. 923, 719 A.2d 1168 (1998). A statute of limitations defense may be raised by way of a motion for summary judgment. Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996).
The following facts are undisputed: This action was commenced on October 20, 2003 when the writ, summons and complaint were filed in the Superior Court in Milford. The complaint alleged that Tamburrino was injured on January 2, 2000 when he fell as a result of a defective condition existing on premises owned by the Allards. Previously, on February 7, 2001, Tamburrino had filed suit in the Superior Court in Milford (docket no. 01-0073277) (the original action) against Thomas Dalton and Judith Scholz, adjoining neighbors of the Allards, for the same incident. Tamburrino had brought suit against these defendants based on records provided to him by his employer indicating that they were the responsible parties for the area in which he had fallen. On September 30, 2003, summary judgment was entered in the defendants' favor in the original action on the ground that they were the wrong defendants.
There is an inherent conflict between statutes of limitations such as § 52-584, which seek to protect defendants from stale claims and promote finality in the litigation process, and savings statutes, such as § 52-593 and § 52-592 (the "accidental failure of suit" statute), see Rocco v. Garrison, 268 Conn. 541, 556, 842 A.2d 352 (2004), which seek to provide diligent plaintiffs refuge from the harsh application of a statute of limitations based on the honest mistakes of the plaintiff or others or from uncontrollable circumstances. Because savings statutes enable parties "to institute actions despite the expiration of the statute of limitations," McKeever v. Fiore, 78 Conn.App. 783, 795, 829 A.2d 846 (2003), courts have been sensitive to this conflict by recognizing the remedial nature of the savings statutes but refusing to construe them in a manner that "would undermine the purpose of the statute of limitations." Isidro v. State, 62 Conn.App. 545, 551, 771 A.2d 257 (2001) (considering § 52-593); Rosario v. Hasak, 50 Conn.App. 632, 639, 718 A.2d 505 (1998) (considering § 52-592). The circumstances that lead to a plaintiff's request for relief under a savings statute are not irrelevant. See Ruddock v. Burrowes, 243 Conn. 569, 577, 706 A.2d 967 (1998); Gillum v. Yale University, 62 Conn.App. 775, 782, 773 A.2d 986, cert. denied, 256 Conn. 929, 776 A.2d 1146 (2001).
General Statutes § 52-592(a) protects a plaintiff from mistakes resulting from insufficient service of process due "unavoidable accident or the default or neglect of the officer" serving process, from mistakes made to assert jurisdiction and from mistakes due to "matter of form" that result from mistake, inadvertence or excusable neglect, as well as from the consequences resulting from the death of a party. However, § 592 does not protect a plaintiff from a disciplinary dismissal of an original action that did not result from mistake, inadvertence or excusable neglect. Ruddock v. Burrowes, 243 Conn. 569, 577, 706 A.2d 967 (1998). This is a fact bound determination.
In Isidro, the Appellate Court concluded that § 52-593 applies only "in cases in which the naming of the wrong defendant was the product of a reasonable and honest mistake of fact as to the identity of the truly responsible individual. To illustrate, § 52-593 would apply in a situation in which a plaintiff erroneously sues A under the mistaken belief that A negligently operated or owned a vehicle, when in fact B operated or owned the vehicle." (Internal, citations omitted). Isidro v. State, supra, 62 Conn.App. 550 (Emphasis supplied). The emphasized language sets forth a narrow test that fosters the conflicting policy interests served by savings statutes (vindication of a plaintiff's meritorious claim) and statutes of limitations (promotion of repose by sheltering a defendant from liability after a lapse of a reasonable period of time). See generally Tarnowsky v. Socci, 271 Conn. 284, 296, 856 A.2d 408 (2004).
In Tarnowsky v. Socci, 271 Conn. 284, 297, 856 A.2d 408 (2004), the Supreme Court held that "the two year statute of limitations set forth in § 52-584 does not begin to run until a plaintiff knows, or reasonably should have known, the identity of the tortfeasor [although] a plaintiff's ignorance of the identity of a tortfeasor will not excuse the plaintiff's failure to bring a negligence action within three years of the date of the act or omission complained of. When the plaintiff . . . knew or should have known the defendant's identity is a question to be determined by the fact finder . . ." The Appellate Court's construction of § 52-593 to require "a reasonable and honest mistake of fact" in naming the wrong defendant prevents § 52-593 from being used as a loophole to circumvent the three-year statute of repose when the plaintiff has failed to take reasonable steps to identify the tortfeasor.
The Appellate Court's construction of § 52-593 to require "a reasonable and honest mistake of fact" in naming the wrong defendant does not, however, require that the plaintiff demonstrate that he or she has exhausted every avenue to discover the identity of the tortfeasor. A plaintiff is eligible for the relief that § 52-593 provides if the original action was brought within the limitation period of § 52-584 against a person whom the plaintiff honestly, but mistakenly, believed as a matter of fact was the responsible party based on a reasonable investigation.
Viewing the evidence in this case in the light most favorable to the non-moving party, as required, see Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 550, 791 A.2d 489 (2002), Tamburrino has come forward with a sufficient evidentiary foundation to demonstrate he made a reasonable and honest mistake of fact in naming the defendants in the original action. In his affidavit, Tamburrino avers that he took photographs of the area in which he fell, attempted to ascertain the owners of the premises and was advised by his employer that the parties responsible for the area in which he fell were the defendants named in the original action. Accordingly, if the Allards continue to pursue the defense of the statute of limitations, Tamburrino should have the opportunity to demonstrate to the fact finder that he made the type of "reasonable and honest mistake of fact" that entitles a plaintiff to relief from the statute of limitations under the provisions of § 52-593.
The Allards have failed to demonstrate that there is no genuine issue of material fact and that they are entitled to judgment as a mater of law. Accordingly, the defendants' motion for summary judgment is denied.
LINDA K. LAGER, JUDGE