Opinion
CV156027964S
05-24-2016
Krystyna Zderkiewicz v. DS Partners, LLC
UNPUBLISHED OPINION
MEMORANDUM RE REVISED REQUEST FOR LEAVE TO AMEND
PETER EMMETT WIESE, JUDGE.
I
PROCEDURAL HISTORY
The present case is a slip and fall action with a complex procedural history. The plaintiff, Krystyna Zderkiewicz, commenced the present action on December 17, 2014, by service of process on the defendants, DS Partners, LLC (DS Partners), and Norpaco, Inc. (Norpaco). On January 8, 2015, the plaintiff filed the original complaint. As explained by the plaintiff in her revised request to amend, " the third page of the [original complaint] was mistakenly excluded from the copy that was filed. The complete [o]riginal [c]omplaint was re-filed on January 29, 2015, under the technical description of 'Revised Complaint' on the docket." Subsequently, on August 3, 2015, the plaintiff filed a first amended complaint. On December 29, 2015, the defendants moved for summary judgment as to all three counts of the plaintiff's first amended complaint. On February 3, 2016, the plaintiff filed both her objection to the motion for summary judgment, as well as her request for leave to amend complaint, and proposed third amended complaint. On February 17, 2016, the defendants filed an objection to the request for leave to amend complaint. On March 10, 2016, the plaintiff withdrew the prior request for leave to amend, and filed her revised request for leave to amend complaint, and fourth amended complaint. Although DS Partners did not object to the latest amended complaint in writing, on March 28, 2016, during oral argument, DS Partners requested that the court treat its earlier objection as applicable to the revised request.
The complaint was dated December 11, 2014.
The motion for summary judgment is presently pending before the court.
The plaintiff did not file a second amended complaint.
On March 15, 2016, the plaintiff filed a withdrawal, and withdrew all claims against Norpaco. As such, because Norpaco is no longer a party in the present action, motions filed by the defendants will be treated as if filed only by DS Partners.
In the proposed fourth amended complaint, the plaintiff has brought a claim against DS Partners for negligence in the first count, and for recklessness in the second count. Presently before the court is the plaintiff's revised request for leave to amend complaint, and fourth amended complaint, as well as DS Partners' objection to the same. DS Partners objects to the revised request to amend the complaint on the grounds that: (1) the plaintiff's proposed amended complaint alleges an entirely new set of allegations and a cause of action which does not relate back to the earlier complaints, and is thus barred by the statute of limitations; (2) the proposed amended compliant would cause undue delay and prejudice to DS Partners.
By filing the latest amended complaint, the plaintiff has withdrawn all claims against the alleged tenant, Norpaco. The plaintiff also withdrew the claim for private nuisance against DS Partners, which was alleged in the August 3, 2015 first amended complaint.
DS Partners' earlier objection will be treated as applicable to the revised request to amend the complaint.
II
DISCUSSION
" Practice Book § 10-60 allows a plaintiff to amend his or her complaint more than thirty days after the return day by judicial authority, written consent of the adverse party, or filing a request for leave to amend with the amendment attached." Gonzales v. Langdon, 161 Conn.App. 497, 517-18, 128 A.3d 562 (2015). " Whether to allow an amendment is a matter left to the sound discretion of the trial court . . . A trial court may allow, in its discretion, an amendment to pleadings before, during, or after trial to conform to the proof . . . Factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment . . . The essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay a trial." (Internal quotation marks omitted.) Fountain Pointe, LLC v. Calpitano, 144 Conn.App. 624, 640, 76 A.3d 636, cert. denied, 310 Conn. 928, 78 A.3d 147 (2013).
" The trial court is in the best position to assess the burden which an amendment would impose on the opposing party in light of the facts of the particular case." (Internal quotation marks omitted.) Ed Lally & Associates, Inc. v. DSBNC, LLC, 145 Conn.App. 718, 747, 78 A.3d 148, cert. denied, 310 Conn. 958, 82 A.3d 626 (2013). " Although requests for leave to amend pursuant to § 10-60 are subject to the court's discretion, our courts have been liberal in permitting amendments . . . Courts traditionally deny leave to amend only if [1] the amendment would prejudice the defendant by causing undue delay or [2] the amendment does not relate back to the matters pleaded in the original complaint." (Citation omitted; internal quotation marks omitted.) Gonzales v. Langdon, supra, 161 Conn.App. 518.
The first issue before the court is whether the fourth amended complaint relates back to the revised complaint. The second issue that will be addressed is whether the amendment would prejudice DS Partners by causing undue delay.
A. Relation Back Doctrine
" Our relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims . . . To relate back to an earlier complaint, the amendment must arise from a single group of facts . . . In determining whether an amendment relates back to an earlier pleading, we construe pleadings broadly and realistically, rather than narrowly and technically . . . [T]he complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties . . . Our reading of pleadings in a manner that advances substantial justice means that a pleading must be construed reasonably, to contain all that it fairly means, but carries with it the related proposition that it must not be contorted in such a way so as to strain the bounds of rational comprehension . . . Finally, in the cases in which we have determined that an amendment does not relate back to an earlier pleading, the amendment presented different issues or depended on different factual circumstances rather than merely amplifying or expanding upon previous allegations." (Internal quotation marks omitted.) Briere v. Greater Hartford Orthopedic Group, P.C., 158 Conn.App. 66, 74-75, 118 A.3d 596, cert. denied, 319 Conn. 910, 123 A.3d 882, cert. granted, 319 Conn. 950, 125 A.3d 529 (2015).
" With reference to the original complaint, our inquiry as to whether the plaintiffs' proposed amendment related back centers on whether the proposed amendment set forth new causes of action . . . A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief . . . A right of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some delict on the part of the defendant. The facts which establish the existence of that right and that delict constitute a cause of action . . . A change in, or an addition to, a ground of negligence or an act of negligence arising out of the single group of facts which was originally claimed to have brought about the unlawful injury to the plaintiff does not change the cause of action . . . 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 remains substantially the same, but where an entirely new and different factual situation is presented, a new and different cause of action is stated." (Emphasis omitted; internal quotation marks omitted.) Id., 75.
In Dimmock v. Lawrence & Memorial Hospital, Inc., 286 Conn. 789, 806, 945 A.2d 955 (2008), the Supreme Court observed that " [a]lthough . . . allegations that assert an alternative basis for liability arising from the same facts can relate back to the original complaint . . . we are unaware of any case in which this court has held that new allegations that replace and directly contradict those in the operative complaint have been deemed to amplify, and hence relate back, to those in the operative complaint." (Citation omitted; emphasis in original.)
In the negligence claim against DS Partners, the revised complaint alleged that, on December 29, 2012, the plaintiff, after completing her shift working on the property, was walking across the parking lot of the property, when she slipped and fell on ice, causing her to sustain injuries. The plaintiff further alleged, in relevant part, that DS Partners was the landlord in possession and control of the property, including the parking lot. The plaintiff alleged that DS Partners was negligent in one or more of the following ways: (1) in that it failed to maintain the parking lot in a reasonably safe condition; (2) in that it failed to inspect or discover the unsafe and/or dangerous condition existing in said parking lot when reasonable care required it to do so; (3) in that it failed to warn the plaintiff of the unsafe and/or dangerous condition of the parking lot when reasonable care required it to do so; (4) in that it failed to treat and/or remove ice from the parking lot in a reasonable manner; (5) in that it knew or should have known that ice was located on the parking lot but failed to remedy the same in the appropriate manner.
The plaintiff also incorporated the allegation from the negligence claim against Norpaco, which states that Norpaco was in possession and control of the property, including the parking lot, pursuant to a lease agreement with the owner, DS Partners.
The preceding allegations remain largely unchanged in the fourth amended complaint. The most significant additions to the negligence claim against DS Partners are that: (1) the plaintiff further clarified that Norpaco did not have control of the parking lot's drainage and grading, and that DS Partners owned, possessed, and controlled the property, including the parking lot's drainage and grading; and (2) the plaintiff added allegations regarding the alleged water runoff from the hill that flowed into the parking lot, creating a pool of water that would freeze during winter conditions. The only issue presently before the court are the allegations regarding the water runoff.
The issue of whether DS Partners was in control of the property, especially the parking lot, is the subject of the pending motion for summary judgment.
In the fourth amended complaint, the plaintiff further alleges, in relevant part:
" 8. . . . [I]t was the duty of defendant DS Partners to exercise ordinary care to maintain the parking lot in a reasonably safe condition, including the parking lot's drainage and grading.
" 9. The defendant DS Partners created an unsafe condition when . . . it constructed the parking lot of the [p]roperty with improper drains and grading, immediately adjacent to the hill, such that . .., water runoff from the hill flowed into the parking lot of the [p]roperty and created pooled water in the parking lot of the [p]roperty that failed to properly drain.
" 10. The defendant DS Partners created an unsafe condition when . . . it modified the parking lot of the [p]roperty with additional improper drains, such that . . . water runoff from the hill continued to flow into the parking lot of the [p]roperty and created pooled water in the parking lot of the [p]roperty that failed to properly drain.
" 11. . . . DS Partners knew or should have known that water runoff from the hill flowed into the parking lot of the [p]roperty and created pooled water in the parking lot of the [p]roperty.
" 12. . . . DS Partners knew or should have known that ice formed in the parking lot of the [p]roperty when water flowed over and pooled on the pavement in freezing temperatures.
" 13. . . . DS Partners knew or should have known that when ice formed in the parking lot of the [p]roperty and it snowed, the snow covered the ice, making the ice invisible to anyone walking on the parking lot."
DS Partners objects to these allegations regarding water runoff, and argues that the plaintiff's amended complaint contains an entirely new and different factual situation from the revised complaint in that it no longer focuses on the mere failures or omissions on the part of the defendant. DS Partners contends that the amended complaint instead focuses on new claims that it created and maintained a dangerous condition, namely, that DS Partners constructed improper drains in the parking lot, which caused the water to pool in the parking lot and turn into ice.
DS Partners points out that our courts have suggested that allegations that a defendant has negligently installed or constructed materials do not relate back to allegations that the defendant was merely negligent through failures or omissions. See, e.g., Sharp v. Mitchell, 209 Conn. 59, 72-75, 546 A.2d 846 (1988) (allegation that defendants are liable under a dual capacity theory because of the negligent construction and design of underground fuel storage area did not relate back to allegation that defendants were negligent in ordering employees to enter area); Sandvig v. A. Dubreuil & Sons, Inc., 68 Conn.App. 79, 86, 789 A.2d 1012 (2002) (allegation that defendant negligently damaged floor tiles when it installed handicap access ramp did not relate back to allegation that defendant negligently installed tile floor on which plaintiff fell because proving that defendant actively damaged tiles requires a different factual predicate than to prove that defendant failed to repair already damaged or exposed tiles), appeal dismissed, 270 Conn. 90, 851 A.2d 290 (2004); Patterson v. Szabo Food Service of New York, Inc., 14 Conn.App. 178, 183, 540 A.2d 99 (allegation that defendant installed or maintained highly polished and slippery terrazzo floor and employed method of food distribution that created dangerous condition on slippery floor did not relate back to allegation that defendant had failed to clean floor and keep it free of food deposits), cert. denied, 208 Conn. 807, 545 A.2d 1104 (1988).
Nevertheless, DS Partners' argument is not persuasive because the present case is distinguishable. Although the fourth amended complaint in the present case includes allegations regarding the construction of drains and grading, the plaintiff does not allege that DS Partners was negligent because of these affirmative acts. Instead, much like in the revised complaint, the plaintiff claims that DS Partners was negligent in that it: (1) failed to maintain the parking lot in a reasonably safe condition; (2) failed to inspect or discover the unsafe and/or dangerous condition existing in said parking lot when reasonable care required it to do so; (3) failed to warn the plaintiff of the unsafe and/or dangerous condition of the parking lot when reasonable care required it to do so; and (4) knew or should have known that ice was located on the parking lot, but failed to remedy the unsafe and/or dangerous condition in said parking lot that allowed the ice to form.
As argued by the plaintiff, the additional allegations regarding the water runoff and negligent construction of drains may serve as factual support that, as alleged in the revised complaint, DS Partners possessed and controlled the parking lot at the time that the plaintiff was injured. More importantly, as also argued by the plaintiff, " it is DS Partners' failures to adequately address the unsafe conditions created by its original errors despite knowing about their regular reoccurrence that form the basis for DS Partners' negligence . . ." As such, when viewed broadly and realistically, the additional allegations in the fourth amended complaint regarding the water runoff and the drainage construction amplify and expand upon the previous allegations regarding the improper maintenance of the parking lot, and these allegations do not set forth new causes of action. These additional allegations provide factual support that DS Partners knew or should have known about the unsafe conditions in the parking lot, but failed to correct them. In other words, the negligence claim remains, in essence, a slip and fall case regarding the improper maintenance of the parking lot, rather than a claim regarding DS Partners' affirmative act of improperly installing drains.
The present case is thus distinguishable from the previously cited cases, including Patterson v. Szabo Food Service of New York, Inc., supra, 14 Conn.App. 178, which was heavily relied upon by DS Partners. In Patterson, in the plaintiff's " original complaint, he alleged that the defendant was negligent in the following respects: (1) in failing to clean the floor properly in the area of the food line when it knew or should have known of the dangerous condition; (2) in failing to provide sufficient maintenance employees to keep the floor clean and free of slippery food deposits; (3) in violating federal and state occupational safety acts; and (4) in failing to warn the plaintiff Patterson of the dangerous and defective condition of the floor." Id., 181. In contrast, " [i]n the substitute complaint, it was alleged that the defendant was negligent (1) in that it had installed or maintained a highly polished and slippery terrazzo floor and maintained a self-service food dispensary where food was continually spilled on that floor, (2) in that it knew or should have known that the highly polished terrazzo was slippery and that food was being spilled on it, (3) in that using the self-service marketing method of the cafeteria and installing or maintaining a terrazzo floor therein created a defective and dangerous condition, (4) in that it was aware that when food was spilled on the terrazzo floor it became more slippery and unreasonably dangerous, (5) in that it knew or should have known that food was continually spilled on the terrazzo floor thereby making it more hazardous and dangerous but nevertheless did not change the material on the floor or install nonskid mats or change from self-service distribution of food or apply any abrasives on the floor or take any other precautions to protect the plaintiff Patterson and other customers, (6) in that spilling of food on said terrazzo floor was a recurring condition of which defendant knew or should have known but failed to remedy, and (7) that it used the self-service food dispensing system which required the handling of food by customers and resulted therefore in the frequent dropping of food onto the terrazzo floor which created a slippery and dangerous condition and that it knew or should have known that the nature of the self-service cafeteria, the general condition of the terrazzo floor and the pattern of conduct of customers would result in recurring spillage and in slippery and hazardous conditions." Id., 181-82. Thus, unlike the present case, Patterson changed the very nature of his negligence claim, and explicitly included new allegations of negligence based on affirmative acts of improper installation.
As to the plaintiff's recklessness claim, the plaintiff alleges largely identical allegations as in his negligence claim, except that the plaintiff alleges that DS Partners in fact knew about the alleged dangerous conditions. The plaintiff thus excluded the alternative " should have known."
The plaintiff's claim may relate back even where an alternate theory is alleged as long as the alternate theory is supported by the original factual allegations of the earlier complaint, as is the case here. See Sherman v. Ronco, 294 Conn. 548, 563, 985 A.2d 1042 (2010) (" If the alternate theory of liability may be supported by the original factual allegations, then the mere fact that the amendment adds a new theory of liability is not a bar to the application of the relation back doctrine . . . If, however, the new theory of liability is not supported by the original factual allegations of the earlier, timely complaint, and would require the presentation of new and different evidence, the amendment does not relate back." [Citation omitted.]); see also Gurliacci v. Mayer, 218 Conn. 531, 548-49, 590 A.2d 914 (1991) (allegations that defendant had acted wilfully, wantonly or maliciously, or outside scope of his employment when operating his automobile and striking plaintiff's motor vehicle related back to allegation that defendant had acted negligently in operating his automobile while intoxicated); Franc v. Bethel Holding Co., 73 Conn.App. 114, 133-35, 807 A.2d 519 (the court held, in this excavation and blasting case, that the trial court did not abuse its discretion in permitting the plaintiff's to add allegation of recklessness to its negligence claim in order to conform to the evidence), cert. granted, 262 Conn. 923, 812 A.2d 864 (2002) (appeal withdrawn October 21, 2003).
In the present case, for the reasons described in the preceding paragraph regarding the negligence claim, the recklessness claim merely amplifies and expands upon the previous allegations regarding the improper maintenance of the parking lot.
B. Injustice to Parties and Undue Delay
The court has examined the entire record presented. Factors to be considered in permitting motions to amend include length of the delay and fairness to the opposing parties. The proposed amendment will not delay the proceedings and it does not cause a new cause of action. Accordingly, the request to amend the complaint is granted.
III
CONCLUSION
For the foregoing reasons, the court grants the plaintiff's request to amend the complaint.
SO ORDERED.