Opinion
No. CV04 0085213S
February 25, 2005
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
I. FACTUAL BACKGROUND
The plaintiff, Nancy Bottiglieri, brought this complaint against the defendants alleging that Sit On It, Inc., manufactured and sold the office chair in question to the co-defendant, BKM Enterprises, and that BKM Enterprises sold said chair to the plaintiff's employer. This case is brought pursuant to the Connecticut Products Liability Act (CPLA), Connecticut General Statutes § 52-572.
The defendant, BKM, argues that it is not a "product seller" within the meaning of the CPLA. It argues that it sold the chair to the plaintiff's employer on or about April 2000 and that the plaintiff utilized the chair until October 2001 when it was sent out for repairs due to its frayed fabric. It was then returned to the employer for use by the plaintiff whereupon the plaintiff sustained injuries when falling from the chair on 10/08/01.
The defendant BKM, argues that it was simply engaged in a repair service to the frayed fabric and that such services are not within the purview of the CPLA. This is true.
"Once a particular transaction is labeled a `service,' as opposed to a `sale' of a `product,' it is outside the purview of our product liability statute." Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 403, 528 A.2d 805 (1987) (holding that the transfer of blood by a hospital to a patient is a service and not a "sale" of a "product"); see also L. Cohen Co. v. Dun Bradstreet, Inc., 629 F.Sup. 1425, 1431 (D.Conn. 1986) (credit report not a "product" within the meaning of §§ 52-572m et seq.); Curtis v. Northeast Utilities, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 511572 (December 5, 1994, Norko, J.) ( 13 Conn. L. Rptr. 137, 140) (electricity is not a "product" within the meaning of the products liability act).
"[T]he rendering of professional services to an individual customer (in contrast to rendering such services as part of a process of mass production) does not subject the professional to liability in a defective product action." Paktor v. Seppala Aho Construction, Superior Court, judicial district of New Haven at New Haven, Docket No. 303445 (October 18, 1990, Berdon, J.) ( 2 Conn. L. Rptr. 606) (the PLA does not encompass the professional services rendered by an architect to an individual customer); Colangelo v. Norwalk YMCA, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 075487 (May 29, 1987, Emmett, J.) ( 2 C.S.C.R. 732, 733) (same). "Where the contract is basically one for the rendition of services, and the materials are only incidental to the main purpose of the agreement, the contract is not one for the sale of goods." Hines v. JMJ Construction Co., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 506329 (January 11, 1993, Miano, J.) ( 8 Conn. L. Rptr. 232, 235) (concrete subcontractor provided services when it erected sidewalk and therefore is not a seller or manufacturer of a product under the PLA). See also Dumitrie v. Fernap, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 288824 (April 25, 1994, Pittman, J.) ( 11 Conn. L. Rptr. 449, 450) (one in business of constructing sidewalks engaged in performance of service rather than sale of product under the PLA); Eagen v. Harnischfeger Corp., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 074329 (November 5, 1990, Lewis, J.) ( 2 Conn. L. Rptr. 662) (general contractor not a product seller within the meaning of the PLA).
Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995). "[A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." (Internal quotation marks omitted.) Id., 752. "[A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Emphasis in original.) Id.
Any claim for negligence that the plaintiff may have had against BKM Enterprises for the initial sale is time-barred by Connecticut General Statutes § 52-584 in that the injury took place on October 8, 2001 and this claim was brought on April 20, 2004.
Thus, the question presented is whether or not the repair of the fabric comes under the purview of the CPLA. Services such as this one do not come under the purview of the CPLA and, as such, the Motion for Summary Judgment is granted.
The Court
SHLUGER, J.