Opinion
No. X04 HHD CV-08-5026631 S
December 9, 2010
MEMORANDUM OF DECISION
This matter is before the court concerning summary judgment motions (##129, 147) filed by defendants Thomas Charboneau, III, and Easton Sports, Inc. (Easton) (motions). The plaintiff filed objections, to which the movants each replied. The court heard oral argument concerning the motions on October 14, 2010. After consideration, and for the reasons stated below, Charboneau's motion is granted and Easton's motion is denied.
I
Background
In his two-count complaint, the plaintiff, Jamie D'Agostino, alleges that on or about June 2, 2007, he was pitching in a softball game at the Connecticut Sports Complex in North Branford, Connecticut, when Charboneau was batting and hit a very hard line drive while using an Easton Synergy II bat. The batted ball allegedly struck the plaintiff in the face, causing serious physical injuries.
"Upon best information and belief," the plaintiff alleges that the bat had been modified and/or altered by Charboneau, or by a third party with Charboneau's consent, prior to the incident game. See complaint, second count, ¶ 5. The plaintiff also alleges that Charboneau's conduct in modifying and/or altering the bat was intended to increase the swing speed of the bat, thereby increasing batted ball speed. He alleges that the increased batted ball speed resulted in a speed that exceeded his ability to react and deflect and/or evade contact with the ball. He claims that Charboneau was negligent in one or more ways. See complaint, second count, ¶ 8.
In his first count, the plaintiff alleges that his injuries were caused by Easton's sale and distribution into the stream of commerce of a defective and unreasonably dangerous bat, in violation of the Connecticut Products Liability Act, General Statutes § 52-572m et seq.
In his motion, Charboneau asserts that, after the softball game incident, Easton inspected the bat, and determined that there were no obvious signs of bat alteration. Charboneau avers that he made no alteration, change, or modification to the bat. Rather, according to his affidavit, he simply used his bat during softball games. He argues that the plaintiff's allegations against him are asserted without proof.
In response, the plaintiff presents excerpts of deposition transcripts, discovery responses, and other documentary evidence. He contends that the evidence demonstrates genuine issues of material fact regarding whether Charboneau modified or altered the bat.
In its motion, Easton argues that the plaintiff cannot establish either the existence of a defective condition in the bat or the requisite causal connection between the alleged defective bat and his injuries. Easton also argues that it did not increase the risks of injury associated with softball by the sale, manufacture or distribution of the bat.
In response, the plaintiff first asserts that his expert's opinions and conclusions about the bat may not be attacked in the context of a motion for summary judgment; rather, they may be challenged in a motion to preclude expert testimony. Second, the plaintiff argues that a reasonable jury could find the bat defective because it produces a batted ball speed that exceeds pitcher response time and that the bat was a substantial factor in causing the incident Finally, he contends that genuine issues of material fact exist with respect to Easton's special defense of assumption of risk.
Additional references to the background of this matter are set forth below.
II
Standard Of Review
"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 . . . 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]." (Citation omitted; internal quotation marks omitted.) Bonington v. Westport, 297 Conn. 297, 305, 999 A.2d 700 (2010).
"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." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).
III
Discussion
A
Charboneau
"In athletic competitions, the object obviously is to win. In games, particularly those played by teams and involving some degree of physical contact, it is reasonable to assume that the competitive spirit of the participants will result in some rules violations and injuries." Jaworski v. Kiernan, 241 Conn. 399, 407, 696 A.2d 332 (1997). The "Supreme Court appreciated the tension between promoting vigorous athletic competition and protecting competitors. As a matter of policy, it concluded that a balance between the two objectives can be achieved `by allowing a participant in an athletic contest to maintain an action against a coparticipant only for reckless or intentional conduct and not for merely negligent conduct.' Id., 409." Vaillancourt v. Latifi, 81 Conn.App. 541, 547-48, 840 A.2d 1209 (2004). In particular the Supreme Court noted that "[i]f simple negligence were adopted as the standard of care, . . . every batter struck by a pitch . . . would have the ingredients for a lawsuit if injury resulted." Jaworski v. Kiernan, supra, 241 Conn. 409-10.
Concerning softball, in discussing the fact that "the majority of jurisdictions addressing this issue has chosen to adopt either a reckless or an intentional conduct standard of care when determining liability for injuries that occur during an athletic contest," id., 410, the court cited a New Jersey case, in which "the [p]laintiff was playing catcher in a pickup softball game and was injured when [the] defendant, attempting to score from second base, either slid or ran into him at home plate. In rejecting the negligence standard, the [New Jersey] court concluded: `One might well conclude that something is terribly wrong with a society in which the most commonly-accepted aspects of play — a traditional source of a community's conviviality and cohesion — spurs litigation. The heightened recklessness standard recognizes a commonsense distinction between excessively harmful conduct and the more routine rough-and-tumble of sports that should occur freely on the playing fields and should not be second-guessed in courtrooms.'" (Internal quotation marks omitted.) Jaworski v. Kiernan, supra, 241 Conn. 411.
"Although Jaworski concerned soccer players, it is equally foreseeable to us that injuries will occur to competitors in a game of softball." (Footnote omitted.) Vaillancourt v. Latifi, supra, 81 Conn.App. 548. "In the sense that softball players are exposed to risk of injury by pitched or thrown balls, softball is a contact sport . . . Players are not liable for harms which they knew or should have known, based on `the normal expectations of participants in the sport.' Jaworski, supra at 406-07. The possibility of being struck in the face by a ball thrown between bases is a normal expectation for a baserunner." D'Amico v. Tomkalski, Superior Court, judicial district of Waterbury, Docket No. CV 98 0147377 (November 30, 2001, Doherty, J.) ( 31 Conn.L.Rptr. 72). The same may be said for the possibility of a softball pitcher being struck in the face by a batted ball. The possibility of such an occurrence is within the normal expectation of softball participants.
Although the cause of action pleaded against Charboneau sounds in negligence, not in reckless or intentional conduct, he filed an answer (#110), in which he denied the plaintiff's allegations of negligence. Charboneau's motion asserts that he is entitled to summary judgment on the basis of the facts pleaded against him by the plaintiff.
In support of his motion, Charboneau presented his affidavit; an affidavit from Jon Brandt, the Connecticut State Director of the United States Slo-Pitch Softball Association (USSSA) in 2007; and excerpts from Charboneau's deposition. In his affidavit, Charboneau stated that he did not make any alterations, changes, or modifications to the bat. He bought the bat from another individual on eBay, for the sum of $415.00, paid by credit card. See Exhibit A to Charboneau's affidavit, a receipt, which states that the purchase was made on May 25, 2006, more than one year before the incident. The bat is listed as "NEW." The price is listed as $400.00, plus $15.00 for shipping and handling.
After the June 2, 2007 incident in which the plaintiff was struck by the batted ball, and on the same day, Brandt approached Charboneau, and requested that he turn over the bat for inspection, which Charboneau did. Brandt sent the bat to Dewey Chauvin, director of bat engineering for Easton, for testing. See Brandt affidavit, ¶ 6. According to Chauvin's letter of June 20, 2007, sent to David Evaul of the USSSA in Plano, Texas, with which the bat was returned to Evaul, Easton visually inspected the bat and concluded that "[t]here are no obvious signs of bat alteration." See Exhibit B to Charboneau affidavit. The bat was eventually returned to Brandt, who gave it back to Charboneau. See Brandt affidavit, ¶ 8. Brandt advised Charboneau that he could not use the bat in games since it had been involved in an accident. See Charboneau deposition, p. 44. Charboneau discarded the bat two weeks after he received it back. See Charboneau deposition, p. 44. Thus, in addition to his own statements denying that he altered, modified, or changed the bat, Charboneau also presented evidence showing that, after visual inspection, the bat had no obvious signs of alteration.
In his deposition (Exhibit C to plaintiff's objection), Chauvin stated that he did not go beyond conducting a visual inspection since doing so had the potential of compromising the bat. See Chauvin deposition, p. 246-47. For example, no barrel compression testing or X-ray testing was done. See Chauvin deposition, p. 247-49. Additional pages in Exhibit C were provided by supplement. See #180.
Both Charboneau and the plaintiff presented excerpts from Charboneau's deposition.
In response to Charboneau's motion, the plaintiff presented excerpts of deposition transcripts, discovery responses, and other documentary evidence. In asserting that genuine issues of material fact exist, the plaintiff presents no direct evidence to show that Charboneau modified or altered the bat. Instead, the plaintiff asserts that the jury must decide whether to believe Charboneau's denial, based on adverse inferences which may be drawn from his conduct: (1) Charboneau purchased the bat on eBay for more than the manufacturer's suggested retail price; and (2) following Easton's inconclusive inspection, and knowing that the bat may be evidence in a lawsuit, Charboneau discarded the bat after the plaintiff requested it from him.
See discussion below.
1. Price Paid For The Bat
As to the price of the bat, the plaintiff provided excerpts of Easton's discovery responses. See plaintiff's Exhibit F. Interrogatory 42 concerned the price: "Please state your suggested retail price for the Subject Bat during each year in which it was sold?" Without waiving its objections, Easton responded, "Defendant believes the suggested retail price was $329.95." From this, the plaintiff asserts that the jury could infer that Charboneau knowingly purchased a bat which had been modified to enhance its performance and then used it in the game in question.
The court is unpersuaded that such an inference is permissible here. First, at the hearing on the motions, Charboneau objected, asserting that it was inappropriate for the plaintiff to raise this argument. As discussed above, the allegations in the complaint are that the bat was modified and/or altered by Charboneau, or by a third party with Charboneau's consent. See complaint, second count, ¶ 5. The gravamen of these allegations is that either Charboneau modified or altered the bat or that a third party did so with his consent. The plaintiff does not allege that Charboneau purchased the bat knowing that previously it had been altered to enhance performance.
"A plaintiff's right to recover has traditionally been based on the allegations made in his complaint. A plaintiff may not allege one cause of action and recover upon another . . . While this principle still remains in force today, courts now follow a more liberal policy in passing on claims of variance between the pleadings and the proof offered . . . A court will overlook a variance between the pleadings and proof unless that variance is so material as to prejudice the other party in the presentation of its case." (Citations omitted; internal quotation marks omitted.) Web Press Services Corp. v. New London Motors, Inc., 203 Conn. 342, 359-60, 525 A.2d 57, following remand, 205 Conn. 479, 533 A.2d 1211 (1987).
Here, the inference which is sought is based on a material and prejudicial variance from what is alleged. Having to defend against allegations that Charboneau himself modified or altered the bat, or that a third party did so with his consent, is quite different from defending against a different theory, about which the complaint did not place Charboneau on notice, an allegation that the price for which the bat was purchased proves that Charboneau knowingly paid a premium in order to obtain an altered bat. The latter theory necessarily involves evidence concerning the availability of Synergy II bats at the time in question, both from retail sellers and from non-retail sellers, either on-line or in stores, or elsewhere, as well as evidence of the prices at which such bats could be purchased at that time. The allegations in the complaint do not involve such market factors.
Second, even if the complaint were construed so as to have put Charboneau on notice of such an allegation, the inference is unwarranted since it is based on speculation. "[S]peculative evidence . . . cannot serve as a basis for opposition to a motion for summary judgment." Nolan v. Borkowski, 206 Conn. 495, 507, 538 A.2d 1031 (1988). "A material fact . . . [is] a fact which will make a difference in the result of the case . . . A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." (Internal quotation marks omitted.) Jones v. H.N.S. Management Co., 92 Conn.App. 223, 227, 883 A.2d 831 (2005).
A triable issue is not established by conjecture. "A `genuine' issue has been variously described as a `triable,' `substantial' or `real' issue of fact; . . . and has been defined as one which can be maintained by substantial evidence . . . Hence, the `genuine issue' aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred." (Citations omitted; internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378-79, 260 A.2d 596 (1969).
"Because [t]he only kind of an inference recognized by the law is a reasonable one . . . any such inference cannot be based on possibilities, surmise or conjecture . . . It is axiomatic, therefore, that [a]ny [inference] drawn must be rational and founded upon the evidence . . . However, [t]he line between permissible inference and impermissible speculation is not always easy to discern. When we `infer,' we derive a conclusion from proven facts because such considerations as experience, or history, or science have demonstrated that there is a likely correlation between those facts and the conclusion. If that correlation is sufficiently compelling, the inference is `reasonable.' But if the correlation between the facts and the conclusion is slight, or if a different conclusion is more closely correlated with the facts than the chosen conclusion, the inference is less reasonable. At some point, the link between the facts and the conclusion becomes so tenuous that we call it `speculation.' When that point is reached is, frankly, a matter of judgment . . . [P]roof of a material fact by inference from circumstantial evidence need not be so conclusive as to exclude every other hypothesis. It is sufficient if the evidence produces in the mind of the trier a reasonable belief in the probability of the existence of the material fact . . . Thus, in determining whether the evidence supports a particular inference, we ask whether that inference is so unreasonable as to be unjustifiable . . . In other words, an inference need not be compelled by the evidence; rather, the evidence need only be reasonably susceptible of such an inference. Equally well established is our holding that a jury may draw factual inferences on the basis of already inferred facts." (Citations omitted; footnote omitted; internal quotation marks omitted.) State v. Copas, 252 Conn. 318, 338-40, 746 A.2d 761 (2000).
An inference may not be drawn when there is no evidence to support it; rather, it would amount to impermissible speculation to do so. See Eichman v. JJ Building Co., 216 Conn. 443, 456-57, 582 A.2d 182 (1990). Where the link between the evidence and the proposed inference is "attenuated and speculative," a jury may not draw a reasonable inference. DiStefano v. Milardo, 276 Conn. 416, 426, 886 A.2d 415 (2005).
Here, the proposed inference is based on the price which Charboneau paid when he bought the bat from another person on eBay. "[E]Bay operates a popular Internet Web site that allows private sellers to list goods they wish to sell, either through an auction or at a fixed price." eBay, Inc. v. Mercexchange, LLC, 547 U.S. 388, 390, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006). The plaintiff asserts that the eBay sale price, $415.00, so far exceeded the manufacturer's suggested retail price of $329.95 that the jury may infer that Charboneau knowingly purchased a previously altered bat for the purpose of using it for enhanced bat performance.
There are several problems with the suggested inference. The plaintiff has not shown that Synergy II bats were available for retail purchase at the time in question, either in stores or on-line. The plaintiff also has not shown at what prices such bats could be purchased from retail sellers at that time. There is no evidence before the court showing that retail sellers actually sold Synergy II bats for the suggested retail price at the time Charboneau bought his bat on eBay, or even that any such bats were available for retail sale at any price at that time, in May 2006. The fact that Easton's suggested retail price was $329.95 does not mean that stores or other sellers sold the Synergy II bat for that price. They may have sold it for more than that. If such bats were not readily available for retail purchase at the time in question, a higher price for a scarce item would likely ensue. See Eamiello v. Liberty Mobile Home Sales, Inc., 208 Conn. 620, 649, 546 A.2d 805 (1988) (substantial portion of price paid attributable to scarcity).
In its presentation, Easton submitted Chauvin's affidavit, in which he stated that the subject model bat was sold between April 2004 and June 2005. See Easton's Exhibit G, ¶ 8. Thus, Easton stopped selling it almost a year before Charboneau bought one on eBay in May 2006.
Also, the plaintiff has not shown how other, non-retail sellers were pricing such bats for sale at the time or even if any others were available for sale on eBay or elsewhere then. The individual seller here may have set the price at which he wanted to sell the bat at a higher price simply hoping that a purchaser would pay it, perhaps without comparison shopping to see if other such bats were available for less. In view of the lack of supporting evidence presented by the plaintiff, the fact that Easton suggested a lower retail price than that for which Charboneau bought the bat on eBay in May 2006 does not permit a jury to infer that the bat had been altered, since such an inference impermissibly would be based on speculation.
2. Spoliation
The court next addresses the plaintiff's argument that an adverse inference may be drawn from the fact that, following Easton's inconclusive inspection, and knowing that the bat may be evidence in a lawsuit, Charboneau discarded the bat after the plaintiff requested it from him. The plaintiff argues that Charboneau's haste in disposing of the bat is evidence from which the jury may infer that he had altered or modified the bat.
In Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 905 A.2d 1165 (2006), the Supreme Court reiterated that "the trier of fact may draw an inference from the intentional spoliation of evidence that the destroyed evidence would have been unfavorable to the party that destroyed it . . . To be entitled to this inference, the victim of spoliation must prove that: (1) the spoliation was intentional, in the sense that it was purposeful, and not inadvertent; . . . (2) the destroyed evidence was relevant to the issue or matter for which the party seeks the inference; and (3) he or she acted with due diligence with respect to the spoliated evidence . . . [T]he adverse inference is permissive, and not mandatory . . ." (Citations omitted; footnote omitted; internal quotation marks omitted.) Id., 237. "Intentional spoliation of evidence is defined as the intentional destruction, mutilation, or significant alteration of potential evidence for the purpose of defeating another person's recovery in a civil action." (Internal quotation marks omitted.) Id., 243.
As to due diligence, "the spoliator must be on notice that the evidence should be preserved . . . If the spoliated evidence was necessary for inspection or testing, the party who seeks the inference must have taken all appropriate means to have the evidence produced. This may include, if necessary, an attempt to obtain a court-ordered inspection." (Citation omitted; footnote omitted.) Beers v. Bayliner Marine Corp., 236 Conn. 769, 778, 675 A.2d 829 (1996).
"It must also be noted that the inference does not supply the place of evidence of material facts and does not shift the burden of proof so as to relieve the party upon whom it rests of the necessity of establishing a prima facie case, although it may turn the scale when the evidence is closely balanced." (Internal quotation marks omitted.) Id., 779.
Charboneau testified at his deposition that, about four weeks after the incident, the plaintiff telephoned him and asked Charboneau to provide the bat to him. See Charboneau deposition, p. 75. The plaintiff informed him that the plaintiff "wanted to go after Easton." See Charboneau deposition, p. 76. (Additional pages to plaintiff's Exhibit A, excerpts from Charboneau's deposition, were provided by supplement. See #180.) The plaintiff also made this request in writing. See plaintiff's Exhibit B, Easton's requests to admit directed to Charboneau, No. 3.
The plaintiff testified that he asked Charboneau to provide the bat to him after Charboneau received it back from testing. See plaintiff's Exhibit G, deposition of plaintiff, p. 177. The plaintiff sent emails to Charboneau and left voice mail messages making the same request. See plaintiff's deposition, p. 191; plaintiff's Exhibits H and I (emails). On July 10, 2007, by email, the plaintiff informed Charboneau that he had "two Synergy 2s" for Charboneau to choose from and asked if Charboneau would like to make a trade. See plaintiff's Exhibit H. By that time, the plaintiff had retained an attorney concerning the incident. At the latest, counsel was retained by early July. See plaintiff's deposition, pp. 175-76, 177. The plaintiff testified that he wanted the bat to be preserved for testing, to help build his case. See plaintiff's deposition, pp. 190, 191.
When Brandt returned the bat to Charboneau, Charboneau was aware that the plaintiff wanted possession of it. See plaintiff's Exhibit B, Easton's requests to admit directed to Charboneau, No. 5. Charboneau did not get the bat back until almost the end of the season. See Charboneau deposition, p. 76. The season ends at the end of October or beginning of November. See Charboneau deposition, p. 76. As discussed above, two weeks after Charboneau received it, it was discarded.
There is insufficient evidence here to support the requested adverse inference, since it is clear that the plaintiff's efforts did not meet the due diligence requirement. As discussed above, the bat was sought for testing. No formal notice was provided to Charboneau demanding that the bat be preserved as evidence. All appropriate means to have the bat produced were not undertaken since there is no evidence of an attempt to obtain a court-ordered inspection. See Beers v. Bayliner Marine Corp., supra, 236 Conn. 778.
Under these circumstances, whether or not Charboneau knew that Easton would only visually inspect the bat, and not test it, which plaintiff raised at oral argument, is immaterial.
In addition, as explained above, the plaintiff has presented no evidence to show that Charboneau altered or modified the bat. Even if there was an evidentiary basis for the requested adverse inference, the inference does not take the place of evidence of material facts and does not shift the burden of proof so as to relieve the plaintiff of presenting such evidence in response to Charboneau's motion. See id., 779.
Charboneau has met his burden to show that he is entitled to judgment as a matter of law. As to his claim against Charboneau, the plaintiff has not presented evidence that demonstrates the existence of a disputed material factual issue. See Bonington v. Westport, supra, 297 Conn. 305.
B
Easton
As discussed above, the plaintiff's claim against Easton is grounded in products liability. Pursuant to General Statutes § 52-572n(a), "[a] products liability claim . . . may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence . . . for harm caused by a product." "It is now beyond dispute that this provision provides the exclusive remedy for a claim falling within its scope, thereby denying a claimant the option of bringing common law causes of action for the same claim." (Internal quotation marks omitted.) Mazurek v. Great American Insurance Co., 284 Conn. 16, 27, 930 A.2d 682 (2007).
The Supreme Court "has long held that in order to prevail in a design defect claim, [t]he plaintiff must prove that the product is unreasonably dangerous . . . We have derived our definition of `unreasonably dangerous' from comment (i) to [2 Restatement (Second), Torts, § 402A], which provides that the article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. 2 Restatement (Second), supra, § 402A, comment (i). This `consumer expectation' standard is now well established in Connecticut strict products liability decisions." (Internal quotation marks omitted.) Wagner v. Clark Equipment Co., 243 Conn. 168, 189, 700 A.2d 38 (1997).
1. Expert Testimony
In contending that the plaintiff cannot prove that the bat was unreasonably dangerous under the consumer expectation standard, Easton cites excerpts from the deposition testimony of the plaintiff's expert, Michael V. Ciocco. No motion to preclude expert testimony has been presented to the court for adjudication. See, in contrast, Dimmock v. Lawrence Memorial Hospital, Inc., 286 Conn. 789, 795, 796-97, 945 A.2d 955 (2008) (after court granted motion to preclude expert testimony, court granted motion for summary judgment).
Easton's piecemeal attacks on portions of Ciocco's deposition testimony do not provide a sufficient basis on which the court may evaluate that testimony or the opinions contained therein. In making available parts of his deposition testimony, Easton has not met its burden, as the movant, to show that it is quite clear what the truth is, and to exclude any real doubt as to the existence of any genuine issue of material fact. See CT Page 282 Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 11.
2. Defective Product
Easton argues that, since the plaintiff testified that he was aware of the risk of getting hit by a batted ball, the product cannot be considered unreasonably dangerous. Easton also asserts that it has produced substantial evidence to show that, even if there was a danger associated with the bat, it was a known danger and one which the ordinary consumer would expect, making it incumbent on the plaintiff to produce admissible evidence to the contrary.
As explained above, in seeking summary judgment the burden of proof is on Easton, as the movant, and the evidence must be viewed in the light most favorable to the opponent, the plaintiff. When the movant's presentation fails to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents in opposition establishing the existence of such an issue. See Bonington v. Westport, supra, 297 Conn. 305.
While a plaintiff would have no products liability claim against a defendant sports equipment manufacturer for protection against the risks which are inherent in a sport voluntarily played by that plaintiff, such a claim may be made where the product is dangerous to an extent beyond that which would be contemplated by the ordinary consumer, making it "unreasonably dangerous." See Wagner v. Clark Equipment Co., supra, 243 Conn. 189. Easton's evidentiary presentation does not establish that its Synergy II bat's design did not unreasonably increase the risk of harm from a batted softball, over and above that inherent in the sport, so that it was not unreasonably dangerous.
For example, in support of its motion, Easton submits the affidavit of Chauvin, its director of bat engineering. See Easton's Exhibit G. In paragraphs 7-9, he avers that the Synergy II bat met standards established by the Amateur Softball Association for batted-ball speed testing. He concludes that the subject bat performed at a safe level, including in allowing a reasonable and safe time for a pitcher to react to a batted ball. See Chauvin affidavit, ¶ 17. Such conclusory statements are insufficient to support a showing 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. See Practice Book § 17-49; Buell Industries, Inc. v. Greater New York Mutual Insurance Co., 259 Conn. 527, 557; 791 A.2d 489 (2002). The excerpts of Chauvin's deposition testimony which Easton presented, see Easton Exhibit F, are also insufficient for this purpose.
3. Causation
In its memorandum, page 29 n. 8, Easton acknowledges that, ordinarily, causation is an issue to be determined by the trier of fact. "Although the issue of causation generally is a question reserved for the trier of fact . . . the issue becomes one of law when the mind of a fair and reasonable person could reach only one conclusion, and summary judgment may be granted based on a failure to establish causation." Abrahams v. Young Rubicam, Inc., 240 Conn. 300, 307, 592 A.2d 709 (1997).
In support of its argument, Easton cites a number of factual issues. For example, it contends that the plaintiff alleges that Charboneau altered the bat. In Connecticut, plaintiffs are permitted to plead in the alternative. "Under our pleading practice, a plaintiff is permitted to advance alternative and even inconsistent theories of liability against one or more defendants in a single complaint." Dreier v. Upjohn Co., 196 Conn. 242, 245, 492 A.2d 164 (1985). In addition, Easton again relies on excerpts from Ciocco's deposition. As explained above, the court is unpersuaded that such partial statements show that plaintiff will not be able to prove his claim against Easton. Easton has not shown that a reasonable person could reach only one conclusion as to causation.
4. Assumption Of Risk
General Statutes § 52-572l provides, in relevant part, "[i]n causes of action based on strict tort liability, contributory negligence or comparative negligence shall not be a bar to recovery . . . Nothing in this section shall be construed as barring the defense of misuse of the product or the defense of knowingly using the product in a defective condition in an action based on strict tort liability." Easton argues that, by voluntarily participating in a recreational sports activity where a known risk was being hit by a batted ball, the plaintiff assumed the risk of injuries where the product did not increase the risks inherent in the sport itself.
Although Easton raised this argument in its presentation in support of its motion and referred to a special defense, and the plaintiff, in response, addressed the argument, the court's docket does not reflect that Easton has filed an answer to the plaintiff's complaint.
Here, of course, the allegedly defective product was used by Charboneau and allegedly injured the plaintiff. "`[K]nowingly using the product in a defective condition' has been defined narrowly. It is narrower than the common-law defense of assumption of the risk, which bars recovery when a person knows or as a reasonable person should know that in pursuing a certain course he will expose himself to the risk of injury, comprehends or ought as a reasonable person to comprehend the nature and extent of the risk and voluntarily subjects himself to it . . . In other words, the risk must be assumed knowingly and voluntarily. Mere negligence will not be sufficient to deny recovery." (Citations omitted; emphasis in original; internal quotation marks omitted.) Norrie v. Heil Co., 203 Conn. 594, 600, 525 A.2d 1332 (1987) (discussing § 52-572l).
Assumption of the risk may serve as a complete bar to recovery to a participant in a softball game, "who is deemed to have undertaken all of the risks inherent in the activity." Murphy v. Polytechnic University, 18 Misc.2d 623, 624, 850 N.Y.S.2d 339 (Sup. Ct. Kings County 2007), affirmed, 58 A.D.2d 816, 872 N.Y.S.2d 505 (2d Dept 2009) (denying summary judgment to defendant where plaintiff/softball player was struck in face by bat when her coach, who was demonstrating batting technique, purposely proceeded to swing when she was in range). "Certainly the risk of being hit by a bat or ball is a risk you forsee and thus assume when you play baseball and the cases that so hold are legion." Id., 625. "[A] voluntary participant in a sport or recreational activity consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. By his or her participation, the plaintiff assumes any risks that are known, apparent, or reasonably foreseeable consequences of participation. Participants do not, however, assume concealed or unreasonably increased risks, nor do they assume risks resulting from the defendant's reckless or intentional conduct." (Emphasis added; internal quotation marks omitted.) Id., 624.
Here, the plaintiff contends that he could not have assumed a risk of which he could not have been aware, since the defective nature of the bat created an unreasonably increased risk, which cannot be characterized as one which is inherent in the sport of softball. As discussed above, Easton's evidentiary presentation does not establish that its Synergy II bat's design did not unreasonably increase the risk of harm from a batted softball, over and above that inherent in the sport. In the absence of such a showing, summary judgment as to assumption of the risk would be inappropriate.
In its memorandum of law (#148), pages 1, 16, and in its reply (#175), Easton asserts that it has been deprived of an opportunity to test the performance of the bat and that this "missing" evidence is fatal to the plaintiff's claim against Easton. Easton's references to an affidavit by plaintiff's counsel in another case, and to a court order in that case concerning preserving a bat for testing are not substitutes for a presentation which provides analysis and citations to decisional authority on this subject. In their absence, the court need not address Easton's contention. See State v. Orr, 291 Conn. 642, 645 n. 4, 969 A.2d 750 (2009) (treating issue as abandoned where not briefed properly). See also discussion above, in connection with Charboneau's motion, concerning spoliation.
CONCLUSION
Based on the reasons stated above, Charboneau's motion for summary judgment is granted and Easton's motion for summary judgment is denied. Judgment may enter for Charboneau and against the plaintiff on the second count of the plaintiff's complaint. It is so ordered.