Opinion
No. CV 10 6005803
May 26, 2011
MEMORANDUM OF DECISION RE MOTION TO STRIKE (NO. 119)
Facts and Procedural History
This action arises from injuries sustained by Jeffrey Belton, as a result of a chair that broke and caused him to fall to the floor. The plaintiff brought suit against Shack Foods of Connecticut, LLC ("Shack Foods"), by a complaint filed on September 1, 2010. Subsequently, on January 28, 2011, Shack Foods filed an apportionment complaint against ISA International, Inc. ("ISA"). ISA filed a motion to dismiss Shack Foods' apportionment complaint on February 22, 2011. Shack Foods filed an objection to ISA's motion on April 14, 2011. The parties appeared for oral argument on April 18, 2011.
Discussion
In his single-count complaint against Shack Foods, Belton alleges the following. "The injuries sustained by the plaintiff, Jeffrey Belton, were caused by the negligence of . . . Shack Foods of Connecticut, LLC . . . their officers, agents, servants or employees in one or more of the following respects in that they: failed to maintain a safe and hazard-free dining area for the use of patrons; placed a defective and unsafe chair, or allowed a defective and unsafe chair to be placed, where unsuspecting patrons would use it; failed to inspect the restaurant and its chairs to ensure that the chairs were reasonably safe; failed to warn the plaintiff of the dangerous condition of the chair; failed to take reasonable precautions to safeguard people lawfully in said dining area; failed to make reasonable inspections of the dining area to learn of the dangers and defective conditions of the area; kept the floor in a condition that allowed the chair to slide out from beneath the plaintiff was otherwise heedless or reckless."
In its apportionment complaint against ISA, Shack Foods alleges the following. "The subject chair which [Belton] claims was defective and caused injury was a chair manufactured, sold, or distributed by . . . ISA International, Inc. and marketed said chair as sufficient for use in a commercial restaurant establishment . . . ISA sold or distributed the subject chair to Shack Foods . . . If [Belton] suffered injuries in the manner alleged in the complaint, which is denied, those injuries were caused by . . . ISA's violation of Connecticut General Statutes § 52-572n et seq., or in the alternative its negligence, in that they: negligently designed the subject chair; sold or distributed said chair or caused said chair to be sold or distributed in a defective or dangerous condition; it failed to warn and instruct the plaintiff that the product was dangerous and subject to failure in the conditions in which it was used; the warnings and instructions which were given and which accompanied the product were inadequate and failed to provide sufficient notice of the dangerous propensities of the chair; it misrepresented to the plaintiff and the general public that the product in question was safe for use by the public; it failed to disclose to the plaintiff and the general public the dangerous propensities of the chair; it was negligent in failing to properly and adequately test the chair prior to marketing it; it defectively designed and manufactured said product and used improper materials in the production of said product; it breached an implied warranty of merchantability in that said chair was not of merchantable quality and fit for its intended purpose; and it breached its expressed warranties that the product was safe and effective for its intended use."
ISA moves to dismiss the apportionment complaint filed by Shack Foods because the allegations "are product liability claims against a product seller." ISA argues that Shack Foods, the defendant in Belton's negligence action, may not use the apportionment statutes, §§ 52-102b(a) and 52-572h, to assert a products liability claim against it. As a result, ISA contends that the court lacks subject matter jurisdiction over the apportionment action.
As a preliminary matter, the court notes that "[a] motion to dismiss is an improper vehicle to challenge the propriety of an impleader complaint. Practice Book [§ 10-31]. An attack upon the sufficiency of an impleader complaint should be made by a motion to strike." Commissioner v. Lake Phipps Land Owners Corporation, 3 Conn.App. 100, 102 n. 2, 485 A.2d 580 (1985). The Appellate Court has acknowledged and affirmed the treating of a motion to dismiss as a motion to strike when appropriate. Id.
Following the Appellate Court's reasoning, this court will treat the present motion to dismiss as a motion to strike. "[A] motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court . . . [The court must] construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).
In its memorandum in opposition, Shack Foods argues that its claims against ISA concern ISA's negligent conduct in providing it with an inappropriate, improper and insufficient product, which fall outside of the products liability statute. For the following reasons, the court agrees with Shack Foods and denies ISA's motion to strike the apportionment complaint.
In New Haven Terminal v. Hungerfords, Inc., Superior Court, judicial district of New Haven, Docket No. CV 05 6000015 (August 8, 2007, Cosgrove, J.) ( 44 Conn. L. Rptr. 258), the court addressed the very issue raised by ISA's motion. In that case, the original complaint was filed by New Haven Terminal, Inc. (NHT) and alleged that Hungerfords breached its contract, duty of care and duty of warranty in failing to properly inspect, repair and monitor the reinstallation of a pump associated with NHT's bulk liquid storage tank (pump). NHT alleged that when the pump was used it malfunctioned, dispersing diesel fuel into New Haven Harbor and compelling NHT to conduct an extensive pollution recovery and containment operation. It was discovered that the wrong O-Ring had been used during the repair of the pump and that the O-Ring failed and caused the oil spill. See id., 258-59.
Hungerfords filed an apportionment complaint alleging that Flowserve and Kenneth Industrial were directly involved with Hungerfords' prior rebuilding of the pump, and provided the mechanical seal at that time, including the O-Ring. Hungerfords claimed that, but for the incompatibility of the O-Ring composition, the fuel leakage would not have happened, and therefore, that any negligence on its part is directly attributable to Flowserve and Kenneth Industrial. See id., 259.
Flowserve moved to strike the apportionment complaint, contending that since NHT's original complaint against Hungerfords sounded in negligence, Hungerfords could not file an apportionment complaint that sounded in product liability. Flowserve, like ISA in the present case, relied upon Allard v. Liberty Oil Equipment, Co., 253 Conn. 787, 756 A.2d 237 (2000). In its objection to Flowserve's motion to strike, Hungerfords argued that it sought to apportion liability to Flowserve based on Flowserve's negligent conduct in providing Hungerfords with the wrong product, not on a theory that Flowserve provided them with a defective product. See id., 259-60.
The court began its analysis by examining the apportionment statutes. "Hungerfords filed its apportionment complaint pursuant to General Statutes §§ 52-102b and 52-572h. General Statutes § 52-102b(a) provides in part: `A defendant in any civil action to which section 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability.' General Statutes § 52-572(h)(o) provides in part: `[T]here shall be no apportionment of liability or damages between parties liable for negligence and parties liable on any basis other than negligence . . .'" Id., 260.
The court then went on to discuss the Supreme Court's decision in Allard v. Liberty Oil Equipment, Co., supra, 253 Conn. 787. See id. In Allard, the court interpreted "any civil action to which section 52-572h applies" within the meaning of § 52-102b, to mean a civil action based on negligence. See 253 Conn. 793-95. The Allard court further determined that § 52-572h does not permit an apportionment complaint that seeks to limit its allegations against a product seller, as defined by § 52-572m, to allegations of negligence. See id., 798-99. The Allard court reached this decision by determining whether the apportionment defendant was a "product seller" within the meaning § 52-572m, and, therefore, that despite the limitations by the apportionment plaintiff of its allegations of misconduct to allegations of negligence, the allegations of the apportionment complaint constituted a "product liability claim" with the meaning of § 52-572m(b). See id., 799-800. The Allard court concluded that "it would be inconsistent with the provisions of § 52-572h . . . to permit a defendant sued in negligence to claim apportionment against a product seller whose alleged misconduct tracks that of product liability, solely because the party seeking apportionment chooses to limit its allegations to those sounding in negligence . . ." CT Page 12333 Id., 804.
After discussing the Allard holding, the court concluded: "Two issues are therefore determinative of Flowserve's motion to strike count one of the apportionment complaint. First, the court must determine whether the pleadings indicate that Flowserve is a product seller as defined by General Statutes § 52-572m(a) of the product liability act. Second, the court must determine whether the apportionment complaint involves Flowserve's actions as a product seller." New Haven Terminal v. Hungerfords, Inc., supra, 44 Conn. L. Rptr. 260.
In addressing the first issue, the court stated: "General Statutes § 52-572m(a) defines a `product seller' as `any person or entity, including a manufacturer, wholesaler, distributor or retailer who is engaged in the business of selling such products whether the sale is for resale or for use or consumption.' General Statutes § 52-572m(e) defines a product manufacturer to include `product sellers who design, assemble, fabricate, construct, process, package or otherwise prepare a product or component part of a product prior to its sale to a user or consumer.' In the present case, Hungerfords alleges in its apportionment complaint that Flowserve provided the mechanical seal, including the O-Ring component; that representatives of Flowserve indicated that the mechanical seal was good; that Hungerfords sent the mechanical seal back to Flowserve, which then rebuilt the seal; and that Flowserve returned the mechanical seal to Hungerfords, along with a bill of materials stating that the O-Ring was comprised of Viton. Flowserve, therefore, qualifies as a manufacturer and a product seller as defined under the product liability act." Id., 260.
The court continued: "The next issue is whether the claims raised by Hungerfords amount to claims for relief covered by the scope of the product liability act. Pursuant to § 52-572m(b), a product liability claim `includes all claims or actions brought for personal injury, death or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product. Product liability claim shall include, but is not limited to, all actions based on the following theories: Strict liability in tort; negligence; breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent; misrepresentation or nondisclosure, whether negligent or innocent.' In reading the product liability statutes together, however, the Supreme Court has noted that `the [liability act] was designed in part to codify the common law of product liability, and in part to resolve, by legislative compromise, certain issues among the groups interested in the area of product liability. The [liability act], however, was not designed to eliminate claims that previously were understood to be outside the traditional scope of a claim for liability based on a defective product. Given this contextual framework, we conclude[d] that a product liability claim under the [liability] act is one that seeks to recover damages for personal injuries, including wrongful death, or for property damages, including damage to the product itself, caused by the defective product.' Harley v. Heart Physicians, P.C., 278 Conn. 305, 325-26, 898 A.2d 777 (2006) (allegations contained in plaintiffs' CUTPA claim `had asserted either that the defendant's product was defectively designed or that the defendant, in a deceptive manner, failed to warn properly about the functioning of the pacemaker, and, therefore, the claim was barred by the exclusivity provision of the Connecticut Product Liability Act')." Id., 260-61.
Finally, the court analyzed the allegations of the apportionment complaint. "In the present case, Hungerfords alleges that `Flowserve knew or should have known that Hungerfords would reasonably rely on the representations of the apportionment defendants to provide a Viton O-Ring for use in a pump intended for diesel fuel;' that `Flowserve knew or should have known that Viton is compatible with diesel fuel'; that `Flowserve knew or should have known that synthetic EPDM elastomer which was provided to Hungerfords, contrary to Hungerfords' specific order and contrary to Flowserve's own bill of materials purporting to deliver Viton, was not compatible with diesel fuel intended for the pump;' and that `Flowserve's representations to Hungerfords that the O-Ring provided was Viton was a material misrepresentation negligently made by apportionment defendants as a statement of fact intended to induce Hungerfords to act and rely upon it.' These allegations address the conduct of Flowserve, rather than any defect in the O-Ring Flowserve supplied, and therefore the allegations fall outside the exclusivity provision of the product liability statute." Id., 261.
The court noted that its conclusion was supported by two Superior Court decisions. See id., 261; see also Alevras v. United Builders Supply Co., Inc., Superior Court, judicial district of New London, Docket No. CV 05 4002473 (June 21, 2006, Jones, J.) ( 41 Conn. L. Rptr. 499) (denying motion to strike because the allegations concerned defendant's conduct and did not seek recovery for personal injury, death, or property damage in relation to the product itself); Drennan v. Geist, Superior Court, judicial district of Middlesex, Docket No. CV 99 89114 (January 2, 2002, Shapiro, J.) (patient's claim that the insert implanted in her during operation was the wrong insert was not a viable product liability claim).
In light of these decisions, the court concluded: "Hungerfords' allegations that Flowserve supplied them with the wrong O-Ring address the conduct of Flowserve rather than any defect in the O-Ring Flowserve supplied, and therefore the allegations fall outside the exclusivity provision of the product liability statute. Hungerfords' apportionment complaint sounds in negligence and is, therefore, legally sufficient to state a claim upon which relief can be granted under General Statutes § 52-572(h)(o). Flowserve's motion to strike . . . is denied." Id., 261.
In regard to the allegations at issue in the present case, the court will engage in the two-part analysis outlined in New Haven Terminal v. Hungerfords, Inc., Superior Court, supra, 44 Conn. L. Rptr. 260. First, the pleadings clearly indicate that ISA is a product seller and/or manufacturer as defined by General Statutes §§ 52-572m(a) and 52-572m(e). Specifically, Shack Foods alleges that: "The subject chair . . . was a chair manufactured, sold, or distributed by . . . ISA International, Inc. and marketed said chair as sufficient for use in a commercial restaurant establishment . . . ISA sold or distributed the subject chair to Shack Foods . . ."
Next, the court must determine whether the apportionment complaint involves ISA's actions as a product seller. Shack Foods alleges: "If [Belton] suffered injuries in the manner alleged in the complaint, which is denied, those injuries were caused by . . . ISA's violation of Connecticut General Statutes § 52-572n et seq., or in the alternative its negligence, in that they: negligently designed the subject chair; sold or distributed said chair or caused said chair to be sold or distributed in a defective or dangerous condition; it failed to warn and instruct the plaintiff that the product was dangerous and subject to failure in the conditions in which it was used; the warnings and instructions which were given and which accompanied the product were inadequate and failed to provide sufficient notice of the dangerous propensities of the chair; it misrepresented to the plaintiff and the general public that the product in question was safe for use by the public; it failed to disclose to the plaintiff and the general public the dangerous propensities of the chair; it was negligent in failing to properly and adequately test the chair prior to marketing it; it defectively designed and manufactured said product and used improper materials in the production of said product; it breached an implied warranty of merchantability in that said chair was not of merchantable quality and fit for its intended purpose; and it breached its expressed warranties that the product was safe and effective for its intended use."
Admittedly, this is a close call. Many of Shack Foods' allegations clearly involve ISA's actions as a product seller, including that it negligently designed the chair and/or sold or distributed the chair in a defective or dangerous condition. The court is satisfied, however, that Shack Foods' allegations, including that it "misrepresented to the plaintiff and the general public that the product in question was safe for use by the public," fall outside the exclusivity provision of the product liability statute. This allegation in particular is directed at ISA's conduct, and not its product, the subject chair. Thus, Shack Foods' apportionment complaint sounds in negligence and is, therefore, legally sufficient to state a claim upon which relief can be granted under General Statutes § 52-572(h)(o).
Conclusion
ISA's motion to strike Shack Foods' apportionment complaint is hereby denied.