Opinion
No. CV04 4001003S
May 11, 2005
MEMORANDUM OF DECISION RE MOTION TO STRIKE
This action is brought pursuant to the Connecticut Product Liability Act (CPLA), General Statutes § 52-572m et seq., and arises out of the plaintiff's consumption of unpasteurized apple cider. In the amended complaint, dated January 17, 2005, the plaintiff, Carol Abrams, sets forth four counts against the defendants, Terry H. Jones d/b/a Jones Family Farm, Beardsley's Cider Mill Orchard, LLC, Berkshire Cider Co., Inc. (Berkshire), and Grove Street Enterprises, Inc. (Grove). The complaint alleges that on October 20, 2002, she purchased and consumed unpasteurized apple cider manufactured, prepared, supplied and/or sold by the defendants. The complaint also alleges, inter alia, that the apple cider was defective and unreasonably dangerous in that it was unpasteurized, infected with E. coli 015787 and/or unfit for human consumption. As a result of consuming the unpasteurized apple cider, the plaintiff suffered injuries and damages.
On March 11, 2005, the defendants, Berkshire and Grove, filed an answer and three special defenses. The special defenses, respectively, assert: (1) comparative negligence; (2) modification of the product by third parties; and (3) misuse of the product and/or failure to maintain.
Before the court is the plaintiff's motion to strike filed on March 23, 2005, accompanied by a memorandum of law. The plaintiff moves to strike the first special defense on the ground that contributory or comparative negligence is not a defense to a product liability action. The plaintiff moves to strike the second special defense on the ground that it fails to set forth any facts which show that a third party altered or modified the product. Finally, the plaintiff moves to strike the third special defense on the ground that it fails to set forth any facts to support a conclusion that the product was misused or improperly maintained. The defendants object to the motion to strike with a memorandum of law dated April 15, 2005.
A motion to strike is the proper procedural vehicle to attack the validity of the special defenses. "Whenever any party wishes to contest . . . the legal sufficiency of any answer to any complaint . . . including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39(a). "The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." (Internal quotation marks omitted.) Homecomings Financial Network, Inc. v. Starbala, 85 Conn.App. 284, 288-89, 857 A.2d 366 (2004). In ruling on a motion to strike a special defense, "the trial court [is obligated] to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992).
The first special defense asserts that "the defendants are entitled to a reduction of any award of compensatory damages due to the comparative responsibility of or attributed to the plaintiff." "The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." (Emphasis added; internal quotation marks omitted.) Danbury v. Dana Investment Corp., 249 Conn. 1, 17, 730 A.2d 1128 (1999); see also Practice Book 10-50. In her supporting memorandum of law, the plaintiff argues that General Statutes §§ 52-572l and 52-572o, and Connecticut case law provide that comparative negligence is not a valid special defense to a product liability claim. The defendants cite Elliot v. Sears, Roebuck Co., 229 Conn. 500, 642 A.2d 709 (1994), to support their argument that CPLA did not eliminate consideration of the claimant's conduct in determining liability or the amount of damages. The defendants' contention is accurate to the extent that a jury can reduce damages based on the degree of the plaintiff's negligence. It is not, however, equivalent to a claim that the plaintiff "has no cause of action."
General Statutes § 52-572l provides in relevant part that "[i]n causes of action based on strict tort liability, contributory negligence or comparative negligence shall not be a bar to recovery."
General Statutes § 52-572o provides in relevant part that "the comparative responsibility of, or attributed to, the claimant shall not bar recovery but shall diminish the award of compensatory damages proportionately, according to the measure of responsibility attributed to the claimant."
In Norrie v. Heil Co., 203 Conn. 594, 600, 525 A.2d 1332 (1987), the Connecticut Supreme Court held that General Statutes § 52-572l "eliminated contributory negligence as a defense to products liability actions . . ." On previous consideration, this court, Hartmere, J., has held that "[s]ince General Statutes § 52-572o is the applicable comparative negligence statute in a product liability case and under the statute a plaintiff's damages are only diminished in proportion to the plaintiff's negligence and the statute does not bar recovery, comparative negligence cannot be specially pled in a product liability action because this special defense does not demonstrate that the plaintiff has no cause of action." Petrol Plus v. Fred D'Onofrio, Inc., Superior Court, judicial district of New Haven, Docket No. CV 93 0351700 (September 20, 1995, Hartmere, J.).
Likewise, several other Superior Courts have held that a special defense of comparative negligence is not permitted in a product liability action. See Danielson v. Cummings Insulation Co., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 00 0375887 (November 15, 2000, Moran, J.); Yavorka v. Anderson Desk, Inc., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 95 0555423 (September 23, 1997, Wagner, JTR); Khongdy v. Die-Quip Corp., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 93 0244695 (May 20, 1996, Silbert, J.) ( 17 Conn. L. Rptr. 127); Greenwood v. Eastmen-Kodak Company, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. CV 92 0452919 (March 25, 1994, Lavine, J.); Sterling v. Vesper Corp., Superior Court, judicial district of Litchfield, Docket No. 060771 (August 30, 1993, Pickett, J.) ( 10 Conn. L. Rptr. 58).
Consistent with this court's prior holding and Connecticut case law, the court finds that the defense of comparative or contributory negligence in a product liability action fails to demonstrate that the plaintiff has no cause of action. Accordingly, the motion to strike the first special defense is granted.
The plaintiff also moves to strike the second special defense on the ground that the defendants failed to allege any facts to support their legal conclusion. The second special defense asserts that "the defendants are not responsible for any injuries, damages or losses alleged to have been sustained by the plaintiff which were caused by the alteration or modification of the product by a third party for whose conduct these defendants are not responsible."
"The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway." Bennett v. Automobile Ins. Co. of Hartford, 230 Conn. 795, 802, 646 A.2d 806 (1994). Practice Book § 10-1 requires that "[e]ach pleading shall contain a plain and concise statement of the material facts on which the pleader relies . . ." Furthermore, Practice Book § 10-50 provides that "[f]acts which are consistent with [the plaintiff's statement of fact] but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged."
Simply stated, the second special defense fails to allege any facts to support their defense and therefore fails to comply with Connecticut procedure. The plaintiff's motion to strike the second special defense is granted.
Lastly, the plaintiff moves to strike the defendants' third special defense on the ground that the defendants failed to allege any facts to support its special defense. The third special defense asserts that "the defendants are not responsible for any injuries, damages or losses alleged to have been sustained by the plaintiff which were caused by the misuse of the product and/or failure to have the product properly maintained." In their memorandum of law, the defendants state that they intend to file an amended special defense to set forth additional facts.
The defendants again fail to plead any facts to support their conclusion. The third special defense is legally insufficient, and the motion to strike the third special defense is granted.
Based on the foregoing, the plaintiff's motion to strike the first, second and third special defenses is granted.
The Court
By Hartmere, J.