Opinion
No. LPL-01-0451972S
December 20, 2004
RULLNG ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This civil action seeking damages for personal injuries due to alleged lead poisoning of the minor plaintiff was brought by way of a complaint, dated May 16, 2001 and served on May 22, 2001, in five counts alleging causes of action for, respectively, negligence, negligence per se, the breach of an implied warranty of habitability, recklessness and a violation of the Connecticut Unfair Trade Practices Act (CUTPA). The parties agree that a prior action, brought on behalf of the minor plaintiff and making identical claims, was the subject of a judgment of nonsuit in 1998. The defendants have moved for summary judgment in this case on the ground that all the claimed causes of action are time-barred by the applicable statutes of limitations. In response, the plaintiff has claimed that this action is saved by General Statutes § 52-592, the accidental failure of suit statute, and that the third count, alleging breach of an implied warranty of habitability, falls within the six-year limitation period of General Statutes § 52-576. There are no disputed issues of fact involved in the decision of this motion.
I.
The plaintiff first relies on the accidental failure of suit statute, General Statues § 52-592. If § 52-592 does not apply, the first, second, fourth and fifth counts of the complaint would be barred by the applicable statutes of limitation. There is an inherent conflict between statutes of limitations, which seek to protect defendants from stale claims and promote finality in the litigation process, and savings statutes such as § 52-592, see Rocco v. Garrison, 268 Conn. 541, 556, 848 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." 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 relevant to its applicability. 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).
The first, second and fourth counts are governed by the two-year statute of limitations contained in General Statutes § 52-584. The fifth count is governed by the three-year statute of limitations contained in General Statutes § 42-110g(f).
The underlying procedural facts regarding the applicability of the accidental failure of suit statute are not disputed. An action was originally brought on behalf of the minor plaintiff against the defendants Vincent H. Nastri and Mary J. Nastri (Nastris) on February 5, 1997 seeking to recover damages for personal injuries based on alleged exposure to lead-based paint (the first case). In August 1997, the Nastris filed a motion for order of compliance regarding court-ordered non-standard discovery. On October 27, 1997, the court (Licari, J.) ordered full compliance as mandated by the standing orders governing discovery in lead paint cases (LPL discovery) within 60 days. Notice was sent to counsel by way of a JDNO. On December 31, 1997, the Nastris filed a motion for judgment of nonsuit predicated on the plaintiff's failure to comply with the court's October 27, 1997 order. That motion was granted by the court (Moran, J.) on March 2, 1998 and notice again was sent to counsel by way of a JDNO. Two days later, on March 4, 1998, the plaintiff filed an objection to the motion for judgment of nonsuit. Thereafter, no steps were taken in connection with the first case until May 21, 2001 when a motion to set aside nonsuit was filed. That motion was denied by the court (Lager, J.) on June 4, 2001 for lack of jurisdiction. See Bufferd v. Yost, 51 Conn.App. 1, 719 A.2d 487 (1998). Meanwhile, this action had been commenced on May 22, 2001.
Akridge v. Nastri, Superior Court, Judicial District of New Haven, docket no. LPL-CV-97-0397087S.
The JDNO was issued on March 12, 1998 and received by counsel on March 17, 1998.
The accidental failure of suit statute, General Statutes § 52-592, provides, in pertinent part, that "if a judgment of nonsuit has been rendered . . . the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action . . ." The plaintiff has taken the untenable position that the operative date for purposes of § 52-592 is the court's denial of the motion to set aside the judgment of nonsuit on June 4, 2001. However, the determinative action in the first case was the granting of the motion for judgment of nonsuit on March 2, 1998. Notice of this ruling was issued on March 12, 1998. Thus, the plaintiff could have commenced a second action within the provisions of § 52-592 up to March 12, 1999. Henriquez v. Allegre, 68 Conn.App. 238, 789 A.2d 238 (2002). The first, second, fourth and fifth counts are not saved by § 52-592 because they were brought more than one year after the judgment of nonsuit entered and they are barred by the applicable statutes of limitation.
Plaintiff concedes that this action was commenced before the court ruled on the motion to set aside the judgment of nonsuit in the first case.
There is no basis for the plaintiff's challenge that the JDNO was insufficient to put the plaintiff on notice that a judgment of nonsuit had entered. The court's notice identified the specific number of the motion and its nature and that it was granted by the court on March 2, 1998. Plaintiff's counsel was aware that a motion for judgment of nonsuit was pending because he had filed an objection to that motion. There has been no adequate explanation provided for the failure of plaintiff's counsel to address the court's March 1998 ruling in a timely manner by seeking to open the judgment of nonsuit. The inordinate delay here, in excess of three years, is sufficiently egregious to deny relief under § 52-592. See Rudduck v. Burrowes, 243 Conn. 569, 576, 706 A.2d 967 (1998).
II.
The third count claims a breach of the implied warranty of habitability. This count is governed by General Statutes § 52-576, which provides for a six-year statute of limitations. Martinez v. Maturana, Superior Court, judicial district of Hartford, docket no. 473382 (Aug. 12, 1998, Lager, J.) (22 Conn. L. Rptr.). An action accrues for the purposes of § 52-576 when the contract is breached, Beckenstein v. Potter Carrier, Inc., 191 Conn. 150, 156, 464 A.2d 18 (1983), and "ignorance of the fact that damage has been done does not prevent the running of the statute." (Internal quotation marks omitted; internal citation omitted.) Tolbert v. Connecticut Gen. Life Ins. Co., 257 Conn. 118, 124, 778 A.2d 1 (2003). An implied warranty of habitability is breached when a landlord fails to provide premises that are reasonably fit to be used as a dwelling place by the tenant. See Johnson v. Scandia Associates, Inc., 717 N.E.2d 24, 29-30 (Ind. 1999); Restatement (2d) Property, § 5.1, comment c. Under Connecticut law, when a dwelling is occupied by a person under the age of six, all defective lead-based surfaces must be abated or managed. General Statutes § 19a-111c; Regs. Conn. State Agencies § 19a-111-2. Thus, a dwelling, containing defective surfaces with toxic levels of lead is not suitable habitation for a person under the age of six, although it could be a suitable dwelling for a person who is six or older.
Restatement (2d) Property, § 5.1, comment c, provides that an implied warranty of habitability is breached if "[t]he leased property on the date the lease is made is unsuitable for residential purposes [because] it would be unsafe or unhealthy for the tenant to enter on the leased property and use it as a residence."
In this case, the claim made on behalf of the minor plaintiff is that the defendants delivered "to the plaintiff property that contained dangerous, hazardous and toxic lead paint on its interior and exterior surfaces." (Third Count, ¶ 9). To prevail on this claim, the plaintiff mist establish that the defendants knew, either actually or constructively, of the existence of lead-based paint hazards on the premises at the inception of the tenancy. See Diaz v. Shelat, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. 467395 (March 16, 1998, Lager, J.). The relevant tenancy is that of a person under the age of six, in this case the minor plaintiff, for whom occupancy would be unsafe.
The parties agree that the parents of the minor plaintiff initially resided at the premises pursuant to an oral month-to-month lease. Under Connecticut law, each month of such a tenancy constitutes a separate contract. See Martinez v. Maturana, supra, and cases cited therein. The minor plaintiff was born in February 1994. Thus, the first month in which the rental contract could have implied a warranty of habitability with respect to lead-based hazards would have been March 1994. Since the claim is that the Nastris delivered premises to the minor plaintiff that contained a latent hazardous lead-based defect, the breach of the implied warranty occurred at the time of the delivery of the premises in March 1994. Accordingly, the six-year statute of limitations bars the minor plaintiff's claims in the third count which had to have been brought by no later than March 2000.
As part of the exhibits in opposition to the motion for summary judgment, the plaintiff submitted the Nastris' responses to the court-approved non-standard interrogatories in which they stated that the minor child and his parents were tenants from February 1994 to May 1995, under an oral month-to-month lease; that rent payments ceased in May 1995; and that Donna Akridge, the minor plaintiff's mother, remained as a tenant at sufferance, rent-free, until the end of 1997.
There is no evidence before the court to indicate that a person under the age of six resided in the premises before the minor plaintiff's birth. If that were the case, however, there would have been an implied warranty of habitability regarding lead-based hazards at the inception of that person's tenancy which could affect the accrual date for statute of limitations purposes regardless of whether that person suffered from exposure to the lead-based hazard.
III.
Accordingly, the defendants' motion for summary judgment is granted as to all five counts of the complaint. Judgment shall enter in favor of the defendants Vincent H. Nastri and Mary J. Nastri and against the plaintiff on the complaint.
LINDA K. LAGER, JUDGE Presiding Judge for Lead Paint Litigation