Opinion
No. HHD CV08-5018512 S
November 9, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#145)
This action was instituted by Natalie Padberg Bartoo, a minor, by her mother, Carol Padberg, against Lake Compounce, L.P. and alleges that the minor plaintiff suffered injuries when she was descending a water slide at the defendant's theme park. Lake Compounce then brought a Third-Party complaint against Whitewater West Industries LTD, which allegedly designed and installed the water slide, and A.S.A. MFG, Inc., whose products were allegedly used in the slide. Subsequently, the plaintiffs amended their complaint to include product liability claims against Whitewater and A.S.A.
Before the court is Whitewater's motion to strike the First Count of the Third-Party complaint because the common-law indemnification claim alleged in that count is barred by the Connecticut Product Liability Act. This court agrees.
The parties each cite to Supreme Court precedent in support of their respective positions. Whitewater cites the Court's decision in Kyrtatas v. Stop Shop, Inc., 205 Conn. 694 (1988). There the Court held that common-law indemnity principles based on the concept of active versus passive liability do not apply in the context of a statutory product liability action. In Kyrtatas the plaintiffs brought an action under the Connecticut Product Liability Act against Stop Shop as a result of injuries the plaintiff husband had received when a can of aerosol window cleaner exploded and struck him in the face. The plaintiffs also sued the company who designed and filled the can and the company that manufactured the can. Cross complaints were filed by the defendants against the other defendants seeking common-law indemnity for whatever damages the plaintiffs might recover. The Supreme Court held that the legislature had abrogated common-law indemnification in the context of a product liability suit. The Court stated that: "We conclude that the common law doctrine of indemnification is inconsistent with provisions of the product liability act concerning comparative responsibility, award of damages, and contribution under General Statutes 52-572o." Id., 699. Therefore the court ordered that the judgment for Stop Shop on its cross complaint for indemnification be set aside, and the case be remanded with direction to render judgment in accordance with the jury's findings concerning the comparative responsibility of the named plaintiff and the defendants.
Lake Compounce cites the later Supreme Court decision in Malerba v. Cessna Aircraft Company, 210 Conn. 189 (1989). There the plaintiff brought a product liability action against the defendant, Cessna Aircraft Company, seeking damages for personal injuries sustained in an airplane accident. The defendant then brought a third-party complaint against the aircraft's owner and the aircraft's mechanic, seeking indemnification and contribution. The trial court granted the plaintiff's motion to strike the third-party complaint. The Supreme Court reversed. The Court concluded "that common law indemnification continues as a viable cause of action in the context of product liability claims and that the comparative responsibility principles that serve as its foundation do not bar a later determination of liability as between an indemnitee and an indemnitor." Id., 198-9. The Court did not discuss its earlier decision in Kyrtatas but noted simply that: "Our holding in Kyrtatas v. Stop Shop, Inc., 205 Conn. 694, 702 n. 2, 535 A.2d 357 (1988), was specifically limited to its factual circumstances which are different from the procedural posture in which we find this case." Id., fn.9. The Court referenced its footnote in Kyrtatas which stated: "Our holding applies to situations in which all potential defendants are parties to the suit. In such a situation, a jury's findings concerning the relative responsibility of the parties are conclusive, and are entitled to res judicata status. On some occasions, a plaintiff may not sue all potential defendants. A defendant may implead a third party who may be liable for all or part of the plaintiff's claim against him. Practice Book 117. In this case we need not consider the effect of a jury's findings concerning comparative responsibility in a subsequent indemnification suit against a joint tortfeasor who had not been made a party in the suit in which the verdict and findings of the jury were rendered." Kyrtatas v. Stop Shop, Inc., 205 Conn. 694, 702 fn.2 (1988).
Since the plaintiff here has pled a cause of action against all the defendants, including those subject to the third-party complaint, unlike in Malerba, but as in Kyrtatas, the motion to strike is granted. The relative responsibility of all the parties will be determined pursuant to the principles established in our Product Liability Act. This is consistent with a recent lower court decision on this subject by Judge Aurigemma in Mateo v. Pereira, Superior Court, Judicial District of Hartford at Hartford, Docket No. CV 07-5012193 S, S (Aug. 13, 2009) [48 Conn. L. Rptr. 418], in which the court granted the defendant's motion to strike the common-law indemnification claim of the co-defendant/third-party plaintiff on the ground that a claim for common law-indemnification is legally insufficient under the Product Liability Act. There the plaintiff in this product liability action had pled over against a third-party defendant against whom the original defendant had sought to pursue a claim for common-law indemnification. The court held that: "The court finds that Kyrtatas is controlling law under the circumstances of this case. A majority of the lower court decisions follow Kyrtatas when the defendants in a case are first-party defendants. Although there is general language in the Malerba opinion concerning the principles of indemnification as they relate to the Products Liability Act, Malerba did not overrule Kyrtatas. It limited its holding to situations in which all potential defendants are parties to the suit . . . Malerba holds that common-law indemnification continues as a viable cause of action in a product liability case in which a named defendant has filed a third-party complaint against a third-party defendant. The holdings are not inconsistent." (Internal quotation marks and citation omitted.) Id.
This court agrees with the trial court's decision in Mateo and grants the motion to strike.