Opinion
No. CV08-5006399
April 21, 2010
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, AS AMENDED (#130 #146)
I. History and Nature of the Proceedings
On December 24, 2007, the plaintiff Carol D. Anderson ("Mrs. Anderson"), filed a two-count complaint sounding in negligence against the Marriott Hotel Services, Inc. d/b/a Marriott Hotel Services ("defendant") and Corporate Ridge Hotel Limited Partnership ("Corporate Ridge"). The second amended complaint, dated December 12, 2008, serves as the operative complaint for purposes of the court's ruling on the pending motion and reflects the following changes to the original complaint: (1) the addition of Host Hotels Resorts Limited Partnership ("Host") as a party defendant, and a negligence count against Host; (2) the addition of Robert Anderson as a party plaintiff (hereinafter referred to as "Mr. Anderson"), and a fourth count for Mr. Anderson's loss of consortium. On January 23, 2008, Mrs. Anderson withdrew her claims against Corporate Ridge, and on March 23, 2010, both plaintiffs withdrew their claims against Host, leaving Marriott as the sole remaining defendant. The plaintiffs allege the following facts. Mrs. Anderson was entering the Rocky Hill Marriott a/k/a Hartford Rocky Hill Marriott through its lobby, and as she placed her foot on the marble floor, she slipped and fell on a wet/icy surface and sustained injuries. The defendant owned, maintained, managed, controlled and/or possessed the premises, and was responsible for the repair, maintenance or operation of the lobby area, and had a duty to keep the lobby and/or walking areas of the premises well maintained, reasonably safe for travel, and free and clear of ice, snow and debris. The plaintiffs further allege that Mrs. Anderson's slip and fall was caused by the negligence of the defendant in a number of ways, including failing to properly remove ice and snow that had accumulated upon the lobby area, failing to inspect the lobby area in a timely fashion to discover the accumulation of ice and snow in an area where pedestrians could be reasonably expected to walk; failing to keep the floor clean and dry in the lobby area where pedestrians could reasonably be expected to walk; permitting ice and or snow to remain upon the lobby area for an unreasonably long period of time; failing to erect signs and other warning to alert pedestrians to the icy and slippery condition in the lobby area.
The plaintiffs' third amended complaint, filed October 9, 2009 (#135.35), merely clarifies and more fully describes Mrs. Anderson's injuries and losses.
The court notes that Mrs. Anderson alleges in paragraph #6g of the first count of the operative complaint that the defendant, "failed to adequately light the lobby area as to allow pedestrians to adequately perceive the icy and slippery condition upon the lobby area" and further alleges in paragraph #6h that the defendant, "failed to adequately carpet and/or place with other suitable covering upon the lobby area so pedestrians could walk upon the lobby area without slipping." These allegations, although not addressed by either party in their memoranda, certainly present additional factual issues apart from identifying the source of the accumulation of ice and snow in the lobby area and the length of time the condition existed prior to Mrs. Anderson's fall on December 31, 2005.
Mr. Anderson alleges that, as a result of the defendant's negligence, he has been denied the consortium of his wife, Mrs. Anderson.
On August 26, 2009, the defendant filed its initial motion for summary judgment (#130) on the ground that there is no genuine issue of material fact as to whether Mrs. Anderson will be able to prove at trial that the defendant had notice of the alleged defect that caused her alleged fall and subsequent injuries. Its motion is supported by a memorandum of law, excerpts from the deposition of each of the plaintiffs, and several trial court cases. On January 22, 2010, Mrs. Anderson filed her oppositional memorandum (#143), submitting additional excerpts from the aforementioned depositions, and numerous photographs of the marble hotel lobby floor. On February 5, 2010, the defendant filed its reply (#145) to the plaintiff's memorandum. At that time, it also filed an amended motion for summary judgment (#146), which adds an additional ground for its motion — that the action is time-barred by the applicable statute of limitations. The defendant briefed this statute of limitations ground in its memorandum attached to its original motion for summary judgment (#130) but inadvertently omitted this ground from the face of its original motion. Finally, on March 15, 2010, the defendant filed a supplemental memorandum in support of its motion for summary judgment (#148), which was merely a cover letter with complete copies of both plaintiffs' depositions attached.
Although the motions for summary judgment were filed by both Marriott and Host, the court refers to the "defendant's" motion in the singular because Marriott is the sole remaining defendant in this action.
After an extensive review of the court file, in particular, the allegations contained in the plaintiffs' complaint, the memoranda and accompanying documents filed by each of the parties, the cases cited by each and giving due consideration to the arguments of counsel, the court will deny the defendant's motion for summary judgment as to the first count and grant said motion as to the fourth count.
II. Summary Judgment
In Tuccio Development, Inc. v. Neumann, 111 Conn.App. 588, 593-94 (2008), Judge McLachlan explains the well-settled law in Connecticut governing summary judgments:
The law governing summary judgment and the accompanying standard of review are well settled. Practice Book § [17-49] requires that 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. A material fact is a fact that will make a difference in the result of the case . . . The facts at issue are those alleged in the pleadings . . .
In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . .
It is frequently stated in Connecticut's case law that, pursuant to Practice Book §§ 17-45 and 17-46, a party opposing a summary judgment motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . [T]ypically [d]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred . . . Moreover, [t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue . . . Such assertions are insufficient regardless of whether they are contained in a complaint or a brief . . . Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact.
Although the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion . . . a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment . . . A party opposing a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.
(Citation omitted; internal quotation marks omitted.)
III. Count One: Negligence A. Claims of the Parties
As to notice, the defendant argues that there is no genuine issue of material fact as to whether the plaintiffs will be able to prove at trial that the defendant was on notice of the alleged defect that caused the plaintiff's alleged fall and subsequent injuries. It asserts that there is no evidence of a specific defect to allow the fact finder to decide if the defect existed or if the defendant should be charged with notice of it. There is also no evidence that the defendant was placed on actual notice. As to constructive notice, the defendant argues that no evidence exists that the allegedly dangerous ice and water condition existed for such a length of time that the defendant, in the exercise of reasonable care, should have discovered it and remedied it. Furthermore, evidence of general or overall weather conditions outdoors is insufficient to permit an inference that the dangerous condition had been there for any significant length of time prior to Mrs. Anderson's fall.
Mrs. Anderson responds that the defendant had actual notice of the defect, described as the two-to three-foot icy and wet area of the hotel's entranceway, in that the defendant placed a warning sign in that area, which is the area where she fell. Mrs. Anderson argues that the defendant also had constructive notice of the condition that caused her injury. She focuses on the defendant's duty, arguing that "the issue is not the length of time that a condition may have existed, but whether the defendant should have discovered it in the exercise of reasonable care." Mrs. Anderson asserts that because snow and ice were being tracked into the lobby onto the marble flooring, there was a greater likelihood of danger to the hotel's guests, giving rise to a greater duty to reasonably inspect the area in question. The plaintiffs point to the following evidence which they assert demonstrates that the condition lasted for a reasonable time, and the defendant should have discovered it in the exercise of reasonable care: "(1) It was a snowy and stormy day and night; (2) the walkway leading to the hotel lobby was lined with snow and ice; (3) the hotel lobby floor was shiny marble that becomes extremely slippery when wet; (4) the defendant had placed a warning sign in the immediate entrance; (5) the hotel lobby was covered in water and ice with no mats; (6) there was an employee mopping up water and ice in the lobby."
Mrs. Anderson also argues that because the defendant created the unsafe condition by failing to take the proper steps necessary to clean up and/or prevent the dangerous condition, according to case law, she does not have the burden of proving notice. The court declines to address this argument as it finds that there is a genuine issue of material fact concerning both actual and constructive notice.
B. Applicable Law
"It is undisputed that the plaintiff in this case was a business invitee of the defendant and that, consequently, the defendant owed the plaintiff a duty to keep its premises in a reasonably safe condition . . . Typically, [for the plaintiff to recover for the breach of a duty owed to [her] as [a business] invitee, it [is] incumbent upon [her] to allege and prove that the defendant either had actual notice of the presence of the specific unsafe condition which caused [her injury] or constructive notice of it . . . [T]he notice, whether actual or constructive, must be notice of the very defect which occasioned the injury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it." (Citations omitted; internal quotation marks omitted.) Baptiste v. Better Val-U Supermarket, Inc., 262 Conn. 135, 140 (2002).
Moreover, "[o]n the question of notice, the trier's consideration must be confined to the defendant's knowledge and realization of the specific condition causing the injury, and such knowledge cannot be found to exist from a knowledge of the general or overall conditions obtaining on the premises." (Internal quotation marks omitted.) Boretti v. Panacea Co., 67 Conn.App. 223, 228 (2001), cert. denied, 259 Conn. 918 (2002).
"What constitutes a reasonable length of time within which the defendant should have learned of the defect, how that knowledge should have been acquired, and the time within which, thereafter, the defect should have been remedied are matters to be determined in the light of the particular circumstances of each case. The nature of the business and the location of the defective condition would be factors in this determination. To a considerable degree, each case must be decided on its own circumstances." (Quotation marks omitted; citations omitted.) Sauro v. Arena Co., 171 Conn. 168, 171 (1976). There is no set period of time which is determinative. See e.g., Aaronson v. New Haven, 94 Conn. 690, 693 (1920) (thirty minutes); Sokolowski v. Medi Mart, Inc., 24 Conn.App. 276, 286-87 (1991) (something more than 15 minutes). Abundant evidence is not required to demonstrate, directly or circumstantially, that there was a sufficient length of time to discover a defective condition if a reasonable inspection had been conducted, but some evidence is required. Gulycz v. Stop Shop Cos., 29 Conn.App. 519, 521, cert. denied, 224 Conn. 923 (1992)." Williams v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV 07 5009397 (November 19, 2009, Lager, J.).
C. Discussion 1. Knowledge/Proof of the Existence of the Specific Defect
The defendant argues that, based on her deposition testimony, Mrs. Anderson has no knowledge and realization of the specific condition that she now says caused her injury. Therefore, there is nothing to submit to the jury regarding notice. It relies on Riccio v. Harbor Village Condominium Association, Inc., 281 Conn. 160 (2007), to support its position that Mrs. Anderson only had knowledge of the general conditions the day of her fall, and not the specific defect she claims caused the fall. In Riccio, the court cited another Connecticut case, that "[m]ere proof of the presence of some snow or ice or both does not necessarily show a breach of [a] defendant's duty. In such a case as this, the burden rests upon the plaintiff, first, to offer evidence sufficiently describing the condition of the [property] so as to afford a reasonable basis in the evidence for the jury to find that a defective condition in fact existed; and, secondly, to offer evidence from which the jury could reasonably conclude that the defendant had notice of this condition and failed to take reasonable steps to remedy it after such notice. Drible v. Village Improvement Co., 123 Conn. 20, 23-24 (1937)." (Internal quotation marks omitted.) Id., 164. The defendant maintains that because Mrs. Anderson does not recall seeing any ice or pool of water or anything that caused her to slip (Mrs. Anderson's deposition, page 51), and that she testified in her deposition that she remembers only looking toward and walking in the direction of the check-in desk, (Mrs. Anderson's deposition, page 50), that she can only present evidence of the general conditions of the day of her fall.
There is, however, evidence that Mrs. Anderson was able to identify the specific defect that caused her to fall. Mrs. Anderson describes the defect as "the two to three foot icy and wet area of the entranceway" of the hotel. She testified in her deposition that "[i]t was so slippery as if my feet cannot stay on the ground to step and they just couldn't. Felt like they just couldn't stay on that floor it was so slippery." (Mrs. Anderson's deposition, page 51.) Mr. Anderson testified that his wife told him that "[she] slipped on the ice" (Mr. Anderson's deposition, page 42), and "[s]he was always saying that she fell on the ice that was in the lobby" (Mr. Anderson's deposition, page 45). Emphasis added. He further testified that he saw a Marriott employee about three feet from the door with "rags . . . absorbing and shoveling the ice aside" (Mr. Anderson's deposition, page 33), which suggests there was also water coming from the ice, either from the ice itself melting, or from the snow on the pieces of the ice (Mr. Anderson's deposition, page 41), melting. After Mr. Anderson entered the lobby, he asked a Marriott employee where his wife was and was told, "We're doing the best we can of containing the water and ice." (Mr. Anderson's deposition, page 33.) In addition, Mr. Anderson testified that when he entered the hotel lobby, he thought he was "stepping more on the water and the ice and he was sweeping the ice away. So I think a lot of it had been around the immediate area when I come through the door, but it was — I was stepping mainly in water." (Mr. Anderson's deposition, page 35). He also testified that "[t]here was also water, but he had, through his mopping — not with a mop, but with a cloth, most of the ice was brought together in a bunch where I would assume it might have been scattered prior to that. And the water was in front of the ice. So different sizes of ice, noticeable as ice." (Mr. Anderson's deposition, pages 40-41.) While the defendant argues that Mrs. Anderson did not specifically identify the ice that she fell on as that which Mr. Anderson later testified he saw on the floor, there is enough circumstantial evidence to suggest that she slipped on the ice that was already present in the lobby when she walked into the hotel. The different sizes of ice and the pool of water suggest that the ice had been there for some period of time and had melted. Furthermore, both plaintiffs testified that the floor at the Marriott was marble (Mrs. Anderson's deposition, page 50; Mr. Anderson's deposition, page 33), and Mr. Anderson testified that there were no mats down (Mr. Anderson's deposition, page 34), suggesting the floor was slippery.
2. Actual Notice
There is also evidence that the Marriott had actual notice of the ice and water on the marble floor in its lobby. Mr. Anderson testified at his deposition that "[t]here was a sign . . . about three or four feet also by — not too far from where the guy was cleaning up. I can't remember the exact position, but I do remember you could see it when you walked in, but it was rather immediate. It was like one of those signs that you see on the highway where it says falling rock and then you get within an inch and then a rock hits your head, that type of thing." (Mr. Anderson's deposition, page 34.) The sign was "yellow" (Mr. Anderson's deposition, page 34), and "[i]t might have said — it probably — I can't say for sure danger, ice, or something like that" (Mr. Anderson's deposition, page 35). Additionally, Mr. Anderson stated at his deposition that a Marriott employee was bent over with rags, "and he was like absorbing and shoveling the ice aside." (Mr. Anderson's deposition, page 33.) The sign warned specifically of the ice. Mr. Anderson stated that he walked through the hotel door and "immediately I saw there was water and ice on the ground . . ." (Mr. Anderson's deposition, page 32.) The presence of the sign warning specifically of the ice, the hotel employee's response that they were trying their best to contain the water and ice, and the presence of different sizes of ice in the water, all suggest that the Marriott was aware of, and therefore had actual notice of, the ice and water on the hotel lobby's marble floor.
The present case is distinguishable from Riccio, supra. In Riccio, the defendant could only show that the defendant had actual notice of the ice at the time of the fall, and actual notice of the ice after the fall, there was no actual notice of the ice before she fell. In the present case, the posted sign, the presence of the employee cleaning up the ice and water, and that "[t]here was considerable ice and water on the ground" (Mr. Anderson's deposition, page 40), all suggest that the hotel had actual notice of the icy and wet area of the entranceway where Mrs. Anderson fell before she fell. In addition, Mr. Anderson testified that he spoke with a woman who witnessed Mrs. Anderson's fall. "I think I spoke more to the woman than to my wife about what happened. She had seen the whole thing." (Mr. Anderson's deposition, page 58.)
3. Constructive Notice
There also exists evidence that the Marriott had constructive notice of the ice and water on the marble floor in its lobby. The defendant relies on Green v. H.N.S. Management Co., 91 Conn.App. 751 (2005), to establish the defendant's lack of constructive notice. In Green, the plaintiff claimed to have sustained injuries as a result of slipping and falling on "water, snow and ice" on the floor of the aisle of the bus on which she was a passenger. Id., 753. In reaching its conclusion that the driver had no notice of the allegedly dangerous condition, the court cited Byrne v. Connecticut Co., 123 Conn. 304 (1937), another case involving a slip and fall on ice on a bus which found that "[t]here was no evidence that there had been any formation of ice on the step previous to the accident or that the driver knew there was any ice there or could have seen the patch described by the plaintiff from where he sat." (Internal quotation marks omitted.) Id., 762. And, "the circumstances of the case did not permit an inference that the ice had existed for a sufficient period of time to establish constructive notice." Id. The plaintiff in Byrne described the ice "as a small patch three inches in diameter which felt hard when she stepped upon it . . ." (Internal quotation marks omitted.) Id., 763. That description, and "the fact that many people had been getting on and off the [bus], would not permit an inference that the ice had been on the step any particular length of time; it might have been caused by the passengers who boarded the [bus] at the preceding stop or have formed after that stop . . . Translated into terms of duty, this would mean that the driver was under an obligation at every stop the bus made to examine the step. Under the existing conditions this was too high a measure of care to impose upon the defendant." (Internal quotation marks omitted.) Id. The court in Green similarly found that the ice that allegedly caused the plaintiff to fall "might have been caused by the passengers who boarded immediately prior to the plaintiff" (citation omitted; internal quotation marks omitted), id., 764, and, therefore, there was no evidence to establish the driver had notice. Absent notice, there was no duty to warn.
Here, both parties agree that the ice was tracked in from outside. However, the defendant argues that Green, supra, controls because, like the defect in that case, the slippery condition here could also have been caused by other patrons tracking in ice after Mrs. Anderson entered the hotel, or by Mrs. Anderson herself. Mrs. Anderson testified, as did the plaintiff in Green, supra, to the wintery weather outside. (Mrs. Anderson's deposition, page 47.) Further, the defendant points out that Mr. Anderson did not actually witness his wife's fall or enter the Marriott immediately after her fall. (Mr. Anderson's deposition, page 31.) When he finally did enter the hotel, Mrs. Anderson was resting on a sofa in the lobby and told him that she slipped on the ice, but nothing more, and he "assumed that she slipped on the same ice that [he] saw" on the floor. (Mr. Anderson's deposition, page 42.)
Green, supra, is distinguishable, however. In that case, the plaintiff slipped on ice on a bus, where the driver cannot be said to have seen the ice because of her position at the wheel. And in Byrne, supra, upon which Green bases its reasoning, the court found there was no evidence that the defendant could see the ice from where she sat. In the present case, all the circumstantial evidence presented reveals that the hotel workers were aware of the ice. Although Mr. Anderson did not witness his wife's fall, there is evidence that the hotel knew there was ice in the lobby. Based on the hotel employee's comment to Mr. Anderson that they were doing their best to contain the water and ice, and Mr. Anderson's testimony that he saw a substantial amount of ice in different-sized pieces on the floor when he entered all suggest that some time had passed in order for the ice to melt, which contributed to the puddle of water that Mr. Anderson testified he saw. He also testified that there was some snow on the pieces of ice (Mr. Anderson's testimony, page 41), and some time would have to have passed to allow the snow to melt to cause the great amount of water he testified to seeing in the lobby. Further, the sign warning about the ice suggests notice. Finally, an open hotel lobby is different from the narrow aisle of a bus. It can be assumed that given the weather outside, and the number of guests at the hotel that evening — New Year's Eve — that if the ice was tracked in onto the lobby floor, the hotel employees would have seen it. The employee's statement that they were trying to contain the ice and water the best they could suggests that it was the very ice that Mr. Anderson saw being rounded up that had caused Mrs. Anderson to fall.
The court in Green, supra, citing Byrne, supra, found it was an extraordinary duty for a bus driver to examine the step at every stop. However, a hotel lobby staffed with employees presents a different scenario. A bus driver's job is to transport people in a timely fashion from one location to the next, and he or she is one person sitting at the helm of a moving vehicle, with limited ability to see all the parts of a bus. The job of the hotel crew at check-in is markedly different, and checking the floor for substances that might pose a danger to patrons does not create the same onerous burden that it would for a bus driver.
Given the amount of water and ice that Mr. Anderson saw on the floor, it is questionable that Mrs. Anderson created it herself. There is also a question as to whether the ice and water was tracked in by people immediately before or after her. This is bolstered by the evidence. Mr. Anderson testified that he and his wife arrived somewhat later in the evening, "[c]ould be as late as 7:30" (Mr. Anderson's deposition, page 25), and that when they arrived," "there were maybe about seven or eight people walking around some at the desk [in the lobby]" (Mr. Anderson's deposition, page 40), "[t]here were quite a number of cars in the parking lot" already when they arrived at the hotel (Mr. Anderson's deposition, pages 25-26). If the Andersons arrived after a great number of guests had already arrived, evidenced by the number of cars observed in the parking lot, and the lobby was not crowded, an inference can be made that the rush of people tracking ice into the hotel lobby had ended by the time Mrs. Anderson made her way into the lobby. Still, the water and ice remained, creating an inference that some period of time had lapsed to allow the Marriott to manage clean-up.
The defendant argues that the Marriott did not owe invitees upon the property a duty to exercise reasonable diligence in removing dangerous accumulation of snow and ice until the end of a snowstorm and a reasonable time thereafter (emphasis added), Kraus v. Newton, 211 Conn. 191, 197-98 (1989), and that in the present case, there was an ongoing storm, and people may have tracked snow and ice into the hotel lobby. The law pertaining to removal of dangerous accumulations of snow and ice applies to accumulations outside, and does not translate into a hotel's duties concerning the inside of the hotel.
Viewing all the evidence in the light most favorable to the plaintiff, there is sufficient evidence from which the jury can infer that the Marriott had actual knowledge of the specific defect and that it existed for such length of time as to provide the defendant with actual or constructive notice thereof.
IV. Count Four: Loss of Consortium Claim A. Claims of the Parties
The defendant argues that Mr. Anderson did not bring suit within two years from the date when the injury was first sustained or discovered pursuant to General Statutes § 52-584, because he was not named in either the original summons or complaint served on the defendant. The defendant asserts that the original complaint contained no loss of consortium claim and, therefore, argues that the loss of consortium claim that he made as of November 14, 2008, does not relate back to the original complaint. Mrs. Anderson responds that the court allowed that he be added as a new plaintiff by its order dated November 14, 2008. He argues that, although his claim was not in the original complaint, that complaint was properly amended to include the claim for loss of consortium, because it is derivative of Mrs. Anderson's negligence claims — arises out of bodily injury to the spouse who can no longer perform the spousal functions — and therefore relates back to the time of the original complaint. The defendant responds that the proper test is not whether the loss of consortium arose out of the same occurrence in the original pleadings, but rather if the new claim for loss of consortium would require presentation of different evidence, which the defendant maintains it would.
B. Applicable Law
"[A] party properly may 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 . . . If a new cause of action is alleged in an amended complaint, however, it will [speak] as of the date when it was filed . . . 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 the 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 [when] an entirely new and different factual situation is presented, a new and different cause of action is stated.' (Citations omitted; internal quotation marks omitted. Emphasis added.) Wagner v. Clark Equipment Co., 259 Conn. 114, 129-30 (2002).
Black's Law Dictionary (9th Ed. 2009) defines "delict" as "[a] violation of the law; esp., a wrongful act or omission giving rise to a claim for compensation; TORT."
"To summarize, in determining whether the relation back doctrine applies to an amended pleading, we inquire whether the amendment expands or amplifies the original facts alleged in support of a cause of action, or whether the amendment presents a new and different factual situation that would require the presentation of different evidence." Sherman v. Ronco, 294 Conn. 548, 555-56 (2010).
"A cause of action for loss of consortium is derivative only in the sense that it does not arise unless a spouse has sustained a personal injury. The other spouse's claim, however, is not for that injury but for the separate and independent loss he has sustained . . . Although the facts giving rise to the duty owed to the plaintiffs are the same, each spouse has an entirely different cause of action and the assertion of one spouse's right within the statutory period of limitations does not excuse the failure to assert the other's separate and independent right." Hull v. Cumberland Farms Food Stores, Inc., 35 Conn.Sup. 283, 286 (1979).
General Statutes § 52-584, which sets the statute of limitations for actions in negligence, states in pertinent part that "[n]o action to recover damages for injury to the person . . . 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 act or omission complained of . . ."
A number of superior courts have addressed the relation back of loss of consortium claims. In Allen v. Endrukaitis, 35 Conn.Sup. 286, 291 (1979), the court found the loss of consortium claim related back because the spouse bringing it beyond the statute of limitations was already a plaintiff and had previously raised claims of injury in the original complaint arising from the same events as the claim for loss of consortium. See also Strano v. Maxwell, Superior Court, judicial district of New Britain, Docket No. CV 91 0505137 (May 10, 1994, Corradino, J.) [ 11 Conn. L. Rptr. 510] (husband's loss of consortium claim related back because he was an original plaintiff and "had already asserted claims for medical and hospital expenses arising out of the injuries to his wife"). Contrast this with Astorino v. Torello Tire Co., Inc., Superior Court, judicial district of New Haven, Docket No. CV 94 0357545 (February 22, 1996, Hodgson, J.) ( 16 Conn. L. Rptr. 235, 236), cited by the defendant, where the court reasoned that while the claim for loss of consortium was derivative of the plaintiff's injury, it was a not "just a claim for another variety of damages," but rather " a new cause of action by a new party, and it would not relate back to the original complaint filed by a different party." (Emphasis added.)
C. Discussion
In the present case, Mr. Anderson was not an original plaintiff. Mrs. Anderson's motion to cite in Mr. Anderson as a party plaintiff was granted on November 12, 2008, at which time the court allowed the complaint to be amended to include Mr. Anderson's claim for loss of consortium. Mr. Anderson was not officially served until December 12, 2008. The loss of consortium claim is his only claim. At no time has he ever had an independent claim for injuries as in Allen or Strano, supra, and his claim for loss of consortium does not amplify or expand the claims of Mrs. Anderson for negligence. Mr. Anderson's loss of consortium claim is a new cause of action and as such does not relate back to the original complaint. Therefore, it is barred by the statute of limitations, which expired on December 31, 2007.
V. Conclusion
For the foregoing reasons, the defendant's motion for summary judgment (#130, as amended by #146) is DENIED as to the first count (Mrs. Anderson's claim of negligence) and GRANTED as to the fourth count (Mr. Anderson's loss of consortium claim).