Opinion
No. TTD CV 05 4007061 S
November 7, 2007.
MEMORANDUM OF DECISION
The defendant, Paychex Inc., objects to the request for leave to amend the operative complaint filed by the plaintiff Tinian Trust Holdings, on the basis that the statute of limitations bars the addition of a negligence count.
This litigation began as a small claims matter on October 20, 2004. After counterclaims were lodged by the defendant, the plaintiff moved for transfer to the regular docket. This motion was granted on June 2, 2005.
The original small claims "Notice of Suit" alleged that the defendant had assigned all rights to a judgment to the plaintiff and breached the contract of assignment and express warranties contained therein. The assignment is alleged to have occurred on September 3, 2004.
On June 14, 2005, the plaintiff amended its complaint to expand on the breach of contract and warranty claims and separate them into two counts. On October 1, 2007, the plaintiff requested leave to amend its complaint again to add a third count asserting that the defendant negligently supervised the employee with whom the plaintiff entered the putative assignment.
In its reply brief, the plaintiff relies on the relation back doctrine to rescue the new negligence claim from the time limitations for negligence actions under General Statutes § 52-584. Amendments relate back to the date of the original pleading unless they allege a new cause of action. Giglio v. Connecticut Light and Power Co., 180 Conn. 230, 239 (1980)." A cause of action is that single group of facts which is claimed to have brought about an unlawful injury. . ." Id. "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 remain substantially the same." Id. The court holds that the proposed third count, sounding in negligence, propounds a new and distinct cause of action, relying on a new set of alleged facts, and, therefore, the relation back doctrine is inapplicable.
The mere fact that the claimed injury is the same is insufficient to invoke the relation back doctrine. Sharp v. Mitchell, 209 Conn. 59, 73 (1988). In that case, our Supreme Court ruled that an allegation of negligent supervision of employees regarding the use of an underground storage area was different from a cause of action based on negligent construction of that storage area, even though the dangerous storage area resulted in the deaths of three persons. Id. "The evidence concerning whether the defendant . . . was negligent when he sent three employees into a dangerous area is not necessarily relevant to evidence concerning who designed and constructed the underground area." Id., 73-74.
In Patterson v. Szabo Food Service of New York, 14 Conn.App. 178 (1988), the Appellate Court held that an allegation of negligent installation of a slippery floor created a new cause of action with respect to an original claim of negligent maintenance of that same floor. Id., 182. "[T]he substitute complaint does not merely expand and amplify the allegations made in support of [the original] cause of action." Id.
Two trial court cases have determined that a claim for vicarious liability of an employer for an employee's negligence sets forth a different cause of action from negligent supervision of that same employee and denied recourse to the relation back doctrine to save the new claim from the prohibitory effect of the statute of limitations. Fuller v. Larke, Superior Court, New Haven J.D., d.n. CV 94-301800 (November 12, 1996), Corradino, J.; and Clair v. Fairty, Superior Court, Tolland J.D., d.n. CV 98-67230 (October 27, 2000), Sferrazza, J.
Clearly, in the present case the original two counts of breach of contract and express warranty, with respect to an assignment of a judgment, are distinct from a claim that the defendant negligently supervised the employee who allegedly assigned the judgment to the plaintiff without authority to do so. Very different evidence would be necessary to establish negligent supervision, including the likelihood of expert witnesses regarding the appropriate standard of care. A whole new set of defenses and legal theories would arise, for example, contributory negligence.
The court sustains the defendant's objection and denies the request for leave to amend the complaint.