Opinion
No. CV 08 5006965
November 15, 2010
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT [#143]
FACTS
The plaintiffs, Frank Crandall and Carolyn Crandall, commenced the present action by summons and complaint against the defendant, Troy Crandall, on February 20, 2008. On June 23, 2008, the plaintiffs filed an amended two-count complaint against the defendant for personal injuries allegedly sustained by Frank Crandall as the result of a slip and fall. The plaintiffs' complaint alleges the following facts. At all relevant times, Carolyn Crandall owned two adjacent properties located at 168 Lambtown Road and 170 Lambtown Road in Ledyard, Connecticut. A common driveway exists between the two properties. The defendant entered into a rental agreement with Carolyn Crandall to occupy the property located at 170 Lambtown Road. Pursuant to the rental agreement, the defendant was responsible for the ice and snow removal, and sanding of the common driveway. On March 2, 2006, Frank Crandall slipped on a patch of ice and/or snow on the common driveway, causing him to sustain personal injuries. Count one, brought by Frank Crandall, alleges a claim for negligence, and count two, brought by Carolyn Crandall, alleges a claim for loss of consortium.
On May 28, 2008, the defendant filed an answer, special defenses and counterclaim apportionment complaint against Carolyn Crandall. In his apportionment complaint, the defendant alleges that Frank Crandall's injuries were due to Carolyn Crandall's negligence on the grounds that she had a nondelegable duty to keep the premises reasonably safe. As a result, the defendant further alleges in his apportionment complaint that Carolyn Crandall is proportionately liable for a share of the damages Frank Crandall may recover in the underlying action pursuant to General Statutes § 52-572h. On July 18, 2008, Frank Crandall filed a complaint against Carolyn Crandall pursuant to General Statutes § 52-102b(d). In his complaint, Frank Crandall brings a negligence claim against Carolyn Crandall, alleging that Carolyn Crandall owed a duty to keep the common driveway reasonably safe.
General Statutes § 52-102b(d) provides: "Notwithstanding any applicable statute of limitation or repose, the plaintiff may, within sixty days of the return date of the apportionment complaint served pursuant to subsection (a) of this section, assert any claim against the apportionment defendant arising out of the transaction or occurrence that is the subject matter of the original complaint."
On September 9, 2008, Carolyn Crandall filed a motion to strike the defendant's apportionment complaint on the grounds that because Carolyn Crandall owed a nondelegable duty as the owner of the premises to keep the common driveway reasonably safe, apportionment of fault under § 52-572h is not permitted. The court, Peck, J., granted Carolyn Crandall's motion to strike the defendant's apportionment complaint on November 24, 2008. Carolyn Crandall also filed a motion to strike Frank Crandall's complaint on September 9, 2008, on the grounds that an attempt to bring a direct action based upon the defendant's apportionment complaint must fail because the apportionment claim was insufficient as a matter of law. The court, Peck, J., denied Carolyn Crandall's motion to strike Frank Crandall's complaint on November 26, 2008, pursuant to Carpenter v. Law Offices of Dressler Associates, LLC, 85 Conn.App. 655, 858 A.2d 820, cert. denied, 272 Conn. 909, 863 A.2d 700 (2004) and Isner v. Ryefield II Assn., Inc., Superior Court, judicial district of Tolland, Docket No. CV 05 5000044 (May 15, 2006, Peck, J.).
On April 16, 2010, Carolyn Crandall filed a motion for summary judgment as to Frank Crandall's complaint on the grounds that the complaint is barred by the two-year statute of limitations under General Statutes § 52-584. Carolyn Crandall filed a memorandum of law in support of her motion. On September 22, 2010, Frank Crandall filed a memorandum in opposition to Carolyn Crandall's motion. Carolyn Crandall filed a reply memorandum in further support of her motion on October 4, 2010. On that same date, Frank Crandall filed a supplemental brief in opposition to Carolyn Crandall's motion. Frank Crandall filed a surreply in opposition to Carolyn Crandall's reply brief on October 7, 2010.
General Statutes § 52-584 provides in relevant part: "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, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed."
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007).
"In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
Carolyn Crandall argues that her motion for summary judgment should be granted on the grounds that Frank Crandall's complaint was filed after the two-year statute of limitations lapsed under § 52-584. Carolyn Crandall further argues that the sixty-day period within which to bring a direct cause of action under General Statutes § 52-102b(d) is unavailable to Frank Crandall as an extension to the applicable statute of limitations because the apportionment complaint from which it derives was procedurally improper. Frank Crandall counters that, pursuant to more recent Connecticut case law, the viability of his complaint does not depend upon the viability of the defendant's apportionment complaint.
The Connecticut Appellate Court, in Carpenter v. Law Offices of Dressler Associates, LLC, supra, 85 Conn.App. 660-61, allowed a direct claim by a plaintiff against apportionment defendants to stand even though the underlying apportionment was subsequently stricken. Citing General Statutes § 52-102b(d), our Appellate Court found that while the apportionment complaint was "still in place, there was no reason that the plaintiff could not `plead over' against the apportionment defendants." Id., 661.
"More recent Superior Court decisions have interpreted Carpenter to mean that the lack of viability of the apportionment complaint is not fatal to a direct claim asserted by the plaintiff." (Internal quotation marks omitted.) Nieves v. Housing Authority, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 04 0200048 (November 7, 2007, Karazin, J.) ( 44 Conn. L. Rptr. 493, 495); see also Caruso v. Willow's Kawasaki, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 06 5002130 (July 13, 2007, Upson, J.) ( 43 Conn. L. Rptr. 767, 768) (noting if court found apportionment complaint is not viable, court would not be required to strike plaintiff's direct complaint against apportionment defendant filed while apportionment complaint was still pending); Taricani v. Cary's Real, LLC, Superior Court, judicial district of New Britain, Docket No. CV 04 5000087 (January 23, 2007, Shapiro, J.) ( 42 Conn. L. Rptr. 817, 818) (finding viability of plaintiff's complaint against apportionment defendant does not depend on viability of apportionment complaint); Isner v. Ryefield II Assn., Inc., supra, Docket No. CV 05 5000044 (denying motion to strike plaintiff's direct claim against apportionment defendant filed before apportionment complaint was deemed legally insufficient and within sixty-day period afforded plaintiff pursuant to § 52-102b(d)).
Carolyn Crandall cites several Superior Court cases in support of her argument that the statute of limitations applicable to Frank Crandall's complaint against her is not extended pursuant to § 52-102b(d) because the apportionment complaint was not procedurally proper. The majority of the relevant case law cited, however, was issued prior to the Carpenter decision. One exception is Raymundo v. Palmer Landing Community, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 04 5000055 (November 3, 2009, Brazzel-Massaro, J.) ( 48 Conn. L. Rptr. 762), in which the court found that once the apportionment complaint is no longer viable, the plaintiff's direct action against the apportionment defendant filed beyond the applicable statute of limitations could not survive a motion to dismiss. While the Raymundo decision was rendered subsequent to the Carpenter decision, the court in that case relied on authority issued prior to the Carpenter case in rendering its decision. As a result, this court finds that the case law submitted by Carolyn Crandall in support of her motion is unpersuasive in light of the Carpenter case and the subsequent Superior Court cases following that decision.
Pursuant to the foregoing, and in accordance with Carpenter v. Law Offices of Dressler Associates, LLC, supra, 85 Conn.App. 655, and its progeny, this court finds that the viability of Frank Crandall's complaint against Carolyn Crandall, which was timely filed while the apportionment complaint brought against Carolyn Crandall by the defendant was still pending, does not depend on the viability of the defendant's apportionment complaint. In light of the sixty-day window afforded to Frank Crandall by § 52-102b(d), during which time the statute of limitations was extended, his complaint against Carolyn Crandall is not barred by § 52-584. As a result, Carolyn Crandall's motion for summary judgment on these grounds as to Frank Crandall's complaint must be denied.
CONCLUSION
Based on the foregoing, the court hereby denies Carolyn Crandall's motion for summary judgment as to Frank Crandall's complaint.