Opinion
No. X06-CV-03-0177267 S
September 25, 2003
MEMORANDUM OF DECISION
The issue before the court is the applicability of the Connecticut Product Liability Act, General Statutes § 52-572m et seq., to a company which performed services on an allegedly defective product prior to another company placing the product into the stream of commerce, ultimately to the injury of a user of that product. I conclude that the definition of "product seller" contained in the Connecticut Product Liability Act does not include a company whose only role in the sale of a defective product is the provision of services prior to the product's sale.
In his complaint in this action, the plaintiff Edward Caine alleges that on January 28, 2000, while employed by Manafort Brothers, he was seriously injured using a defective propane cylinder at a construction site. He alleges that the product was defective in that propane gas or propane liquid was released from the propane cylinder and ignited, while the safety-cap was still in place, causing an explosion.
The action was brought against four defendants: National Propane Corp. of Connecticut ("National Propane"), McKnight Cylinder Corporation ("McKnight"), Midwest Cylinder Corporation ("Midwest"), and Tech Air of Connecticut, Inc. ("Tech Air"). The complaint asserts that about December 1997, McKnight received a cylindrical tank containing liquid propane gas from National Propane. McKnight agreed to "repair, refurbish, re-condition, test and/or recertify" the propane cylinder, which it presumably did. McKnight then returned the propane tank to National Propane. National Propane sold the cylinder to Tech Air who, in January 2000, sold it to Manafort Brothers, for general use in its business.
The plaintiffs' complaint similarly asserts that Midwest repaired, refurbished, re-conditioned, tested and re-certified the propane cylinder and returned it to National Propane.
McKnight has moved to strike the fourth count of the complaint which asserts against it a violation of the Connecticut Product Liability Act. McKnight has also moved to strike that portion of the fifth count brought CT Page 10881-j against it which asserts a loss of consortium claim by Tina Caine, Edward Caine's wife.
McKnight contends that it merely provided services to National Propane regarding the re-conditioning, testing and re-certification of the propane cylinder and it therefore does not qualify as a product seller under the provisions of Connecticut Product Liability Act. The plaintiffs argue that the allegations of their complaint are sufficient to establish that McKnight was a "product seller" as defined by General Statutes § 52-572m (a). I agree with the defendant that the plaintiffs' complaint, when stripped of its legal conclusions, does not allege sufficient facts to prove that McKnight was a product seller for purposes of a product liability claim.
"The purpose of a motion to strike is to contest the legal sufficiency of the allegations of any complaint to state a claim upon which relief can be granted. In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. The court must construe the facts in the complaint most favorably to the plaintiff. A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Citations and internal quotation marks omitted.) Novametrix Medical Systems v. BOC Group, Inc., 224 Conn. 210, 214 (1992).
Our product liability statute authorizes a product liability claim against "product sellers." General Statutes § 52-572n (a). A product seller is defined in relevant part 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 (a). It was also true under the common law that, in order to recover under the tort of product liability, the plaintiff was required to prove that the defendant was engaged in the business of selling the product. Potter v. Chicago Pneumatic Tool Company, 241 Conn. 199, 214 (1997).
Our product liability statute only covers the sale of products; it does not apply to services. Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 403 (1987). See also Truglio v. Hayes Construction Co., 66 Conn. App. 681, 684 (2001) and Paul v. McPhee Electrical Contractors, 46 Conn. App. 18, 23 (1997). "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, supra, 204 Conn. 403.
The facts contained in the plaintiffs' complaint in this case assert CT Page 10881-k that McKnight received the propane cylinder at issue from National Propane and agreed for compensation to "repair, refurbish, recondition, test and/or re-certify" the cylinder. It can also be reasonably inferred from the complaint that McKnight did in fact do so. The complaint further alleges that the propane cylinder was returned by McKnight to National Propane which then sold the propane tank to Tech Air who in turn sold it to Manafort Brothers for its use. These factual allegations do not amount to a sale of a product by McKnight. The actions of repair, refurbish, re-condition, test and recertification are simply services that McKnight provided National Propane so that National Propane could engage in the business of selling the cylinder. McKnight did not itself engage in the business of selling the cylinder. It was engaged in the business of providing repair, recertification and testing services.
The plaintiffs argue that the allegations of the complaint are sufficient to withstand a motion to strike because the complaint asserts that McKnight was engaged in the business of selling liquid propane gas storage tanks. The complaint does not however assert any facts which would show that McKnight was engaged in the business of selling this particular propane tank. The only factual allegations contained in the complaint assert that McKnight was engaged in the business of providing repair, re-certification and testing services.
The plaintiff also contend that the statutory definition of a product liability claim and a product seller are broad enough to encompass an entity that prepares or tests a defective product. The plaintiffs point to the language of the product liability statute which defines a "manufacturer" to include "product sellers who . . . prepare a product or component of a product prior to its sale to a user or consumer," § 52-572m (e), and the language that defines "product liability claim" to include "all claims or actions brought for personal injury . . . caused by the . . . preparation, . . . [or] testing . . . of any product," § 52-572m (b). The flaw in the plaintiffs' argument is that it ignores the statutory limitation that a product liability claim may only be brought against a "product seller," § 52-572n (a), and a product seller is limited to a person or entity engaged in the business of selling such products, § 52-572m (a). The statutory language to which the plaintiffs refer simply means that a product seller may be liable for defects that occur as a result of the preparation or testing of the product as well as for defects that occur in other enumerated ways such as during design, manufacture, assembly, or packaging. See § 52-572m (b). The defendant must still properly be a product seller engaged in the business of selling the product.
The plaintiffs contend that acceptance of McKnight's claim that the product liability statute fails to apply to entities providing services prior to sale of the product who are not product sellers would make it impossible to bring a product liability action in connection with a used product or one that had several sellers. This fear is unfounded. The point being made here is simply that the product liability statute requires, for liability, that the entity have been a product seller as defined by the statute. Successive sellers remain liable for selling a defective product. Marko v. Stop Shop, Inc., 169 Conn. 550, 556 (1975).
The plaintiffs also maintain that an entity that only provides services CT Page 10881-l related to a defective product is liable under our product liability statute where those services are provided prior to the sale of the defective product. As support for this position, the plaintiffs cite Rodia v. Tesco Corporation, 11 Conn. App. 391 (1987). The plaintiffs point to language in Rodia that the use in the statute of such terms as "preparation, installation and testing" are "quite broad enough to include the failure to maintain and repair a product prior to placing it in the stream of commerce," and that "the statute must be read to reach all conduct which affects the safety of a product prior to its entry into the stream of commerce." Id., 396. The factual scenario in Rodia is significantly different than the one before this court and the expansive language of the decision must be read in light of those facts.
In Rodia, the plaintiff who was injured while he was operating a forklift in the course of his employment sued Clark Equipment Company, the manufacturer of the forklift and Tesco Corporation ("Tesco"), the lessor of the forklift. Tesco had leased the forklift to C.N. Flagg Company ("Flagg"), the plaintiff's employer. The plaintiff's claim against Tesco was for the failure to repair or maintain the forklift prior to its delivery to Flagg. Flagg moved to intervene in the action in order to recover workers' compensation benefits it had paid to the plaintiff The trial court denied Flagg's motion to intervene on the grounds that General Statutes § 52-572r prohibited intervention in a product liability action. Thus, the question before the appellate court was whether the plaintiff's claim against Tesco constituted a product liability claim.
The appellate court held that it was. Critical to the court's determination that the plaintiff's claim constituted a product liability claim was its finding that Tesco was a "product seller" within the meaning of the product liability statute. Id., 395. Tesco was a lessor of the product and a lessor is specifically included in the definition of a product seller under the act. § 52-572m (a). The appellate court concluded that the broad language of the product liability statute encompassed lessors who allegedly fail to repair or maintain its product prior to leasing it. Rodia v. Tesco Corporation, supra, 11 Conn. App. 395.
Contrary to the assertion by the plaintiffs here, Rodia does not stand for the proposition that entities who are not product sellers within the meaning of the product liability statute are liable under the statute for services provided prior to the sale or lease of the product. Rather, Rodia holds that the product liability statute covers the pre-delivery negligent repair and maintenance of a product by a product seller who causes the defective product to be placed into the stream of commerce. The allegations of the plaintiffs' complaint concerning the defendant CT Page 10881-m McKnight do not allege such a scenario here.
In light of the above, the defendant McKnight's motion to strike the fourth and fifth counts of the plaintiffs' complaint is hereby granted.
BY THE COURT
Jon M. Alander Judge of the Superior Court