Opinion
No. CV 02-0467765 S
April 8, 2005
MEMORANDUM OF DECISION RE REQUEST FOR LEAVE TO AMEND SECOND REVISED AMENDED COMPLAINT # 126
This action arises out of a sexual assault on the plaintiff on August 18, 1999, by male prisoners while she was being transported to court in a state owned prisoner transit vehicle. The plaintiff, Sandra Carvahlo Caruso, commenced this action on August 7, 2002, by serving process, including a one-count products liability complaint on the defendants, Kovatch Corp., Fire Resources, Inc. (Fire Resources), KME Fire Apparatus, American Modular Body Corp. and Ranger Fire Apparatus, Inc.
Fire Resources, Inc. is the only defendant who filed an objection to the plaintiff's request for leave to amend the complaint.
The plaintiff subsequently amended the complaint twice. In the second revised amended complaint which the plaintiff filed on November 7, 2002, she alleges a products liability claim against each of the defendants but does so in separate counts for each defendant. In count two, the plaintiff alleges that Fire Resources is liable for her injuries in that Fire Resources manufactured, designed, distributed, modified and/or sold the partition in the vehicle that divided her from the male prisoners, failed to properly inspect the partition before selling it, failed to warn of possible design defects and failed to properly maintain the partition, thus, contributing to the plaintiff's psychological and physical injuries.
On November 15, 2002, Fire Resources filed an answer to the second-amended complaint denying that it designed, produced, tested, distributed and sold the partition in question. Fire Resources admitted the plaintiff's allegation that it modified the vehicle as to the rear door but denied her allegations as to the partition. On November 30, 2004, Fire Resources filed a motion for summary judgment on the ground that "there exists no genuine issue of material fact with respect to whether [Fire Resources) was a product seller within Connecticut Product Liability Act." Fire Resources submitted a memorandum in support of its motion for summary judgment. On December 2, 2004, Kovatch Corp. and KME filed a motion for summary judgment on the grounds that, to the extent that they are a successor in interest to Fire Resources, they cannot be held liable for the plaintiff's injuries in that there is no genuine issue of material fact that Fire Resources is not liable to her as a product seller.
On December 23, 2004, the plaintiff filed a request for leave to amend the second revised-amended complaint. Fire Resources filed an objection to the request on January 4, 2005. The plaintiff filed a reply to the objection on January 19, 2005, and Fire Resources filed a response to the plaintiff's reply on February 8, 2005. The case had been scheduled to proceed to trial on March 8, 2005.
DISCUSSION
A plaintiff may amend a complaint within the first thirty days after the return day. Practice Book § 10-59. After the thirty-day period passes, the plaintiff may amend the complaint by filing a request to leave to amend. Practice Book § 10-60. If another party objects to the request, "[i]t is within the discretion of the trial court to grant or deny an amendment, and a decision to deny an amendment [even] during a trial will not be disturbed unless there is a clear abuse of that discretion." (Internal quotation marks omitted.) Connecticut National Bank v. Voog, 233 Conn. 352, 364-65, 659 A.2d 172 (1995). "While our courts have been liberal in permitting amendments . . . this liberality has limitations. Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment . . . The motion to amend is addressed to the trial court's discretion which may be exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial." (Internal quotation marks omitted.) Dow Condon Inc. v. Brookfield Development Corp., 266 Conn. 572, 583, 833 A.2d 908 (2003).
The plaintiff seeks to amend the complaint to eliminate all her products liability claims against all of the defendants and to instead allege a single claim of negligence against Fire Resources based on its installation, inspection, repair and refurbishment of the partition and its failure to warn the state as to the partition's faulty components.
Fire Resources objects to the plaintiff's request for leave to amend on the grounds that (1) the proposed amendment states a new and different cause of action that does not relate back to the original claim, and (2) even if the proposed amendment does relate back to the original complaint, it is barred by the statute of limitations that would have precluded the claim when the original complaint was filed in that the suit was commenced more than three years from the date its negligent acts and/or omissions occurred.
Because Fire Resources' second argument is dispositive of the matter at issue, it is considered first. In opposing Fire Resources' second argument, the plaintiff counters that the action is not time barred because the statute of limitations on a claim of negligence does not begin to run until the plaintiff discovers the identity of the entity who caused her injury. In this case, the plaintiff argues, she was not aware that Fire Resources was responsible for maintaining the partition until it filed its motion for summary judgment on November 30, 2004.
In addition, the plaintiff argues that the request to amend should he granted because her negligence claim relates back to her products liability claims in that the facts supporting both claims are identical and the negligence claim amplifies and expands on her products liability claims. The plaintiff also maintains that the negligence claim is not time barred because the objective of the statute of limitations is to provide fair notice of a claim to the adverse party, and in this case, Fire Resources had ample notice that she was asserting a claim against it based on the sexual assault incident. Finally, the plaintiff argues that granting her request to amend will not cause undue hardship, delay or unfairness to Fire Resources.
According to General Statutes § 52-584: "No 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 . . ." Id. The statute contains two provisions, a two-year statute of limitations and a three-year statute of repose. See Barrett v. Montesano, 269 Conn. 787, 793-94, 849 A.2d 839 (2004). Our Supreme Court recently determined that "the two-year statute of limitations set forth in § 52-584 does not begin to run until a plaintiff knows, or reasonably should have known, the identity of the tortfeasor." Tarnovsky v. Socci, 271 Conn. 284, 297, 856 A.2d 408 (2004). Fire Resources is not, however, relying on the two-year limitations period, but rather on the three-year repose provision. "Unlike the two-year limitation section of § 52-584, the repose portion of § 52-584 which provides that `no action may be brought more than three years from the date of the act or omission complained of bars' the bringing of suit more than three years after the alleged negligent conduct of a defendant regardless of when a plaintiff discovers the proximate cause of his harm or any other essential element of a negligence cause of action." (Internal quotation marks omitted.) Barrett v. Montesano, supra, 269 Conn. 793. "Therefore, an action commenced more than three years from the date of the negligent act or omission complained of is barred by the statute of limitations contained in § 52-584, regardless of whether the plaintiff had not, or in the exercise of care, could not reasonably have discovered the nature of the injuries within that time period. Witt v. St. Vincent's Medical Center, 252 Conn. 363, 369, 746 A.2d 753 (2000). In Tarnovsky, the court expressly stated that "[w]e emphasize that a plaintiff's ignorance of the identity of a tortfeasor will not excuse the plaintiff's failure to bring a negligence action within three years of the date of the act or omission complained of." Tarnovsky v. Socci, supra, 271 Conn 297.
According to the affidavit that Fire Resources submitted in support of its motion for summary judgment and the deposition testimony that the plaintiff submitted in opposition to a prior motion for summary judgment, Fire Resources completed its work on the transit vehicle on July 17, 1998. The plaintiff does not dispute this date. The plaintiff commenced the original action on August 7, 2002, by service of process on the defendants. This is more than three years from July 17, 1998, the date Fire Resources completed its work on the vehicle. Accordingly, the plaintiff's negligence claim is barred by the three-year statute of limitations in § 52-584.
For the foregoing reasons, the plaintiff's request for leave to amend the complaint is denied.
Martin, J.