Opinion
No. AAN-CV08-5004696S
December 17, 2009
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #135
FACTS
This lawsuit arises out of an alleged slip and fall occurring in a driveway. The plaintiff, Raymond Daniels, originally commenced this action by service of process on December 4, 2007, against the defendant Aldo Staffieri. The defendant LM Landscaping (LM) was not originally a party to the action. As described below, LM was added as a defendant by service of process on August 19, 2008. The operative complaint is the amended complaint filed on August 26, 2008, which contains allegations against both defendants. In count one of the amended complaint, the plaintiff alleges negligence based on premises liability against Staffieri. In count two, the plaintiff alleges a similar cause of action against LM.
In the amended complaint, the plaintiff alleges the following facts: On the morning of December 10, 2005, the plaintiff slipped and fell on snow and ice on the driveway on the premises located at 409 North Main Street in Ansonia, Connecticut, suffering severe injuries. The plaintiff was a tenant at the premises, which was owned, controlled, maintained and/or managed by the defendants. The defendants had a duty to the plaintiff, as a lawful invitee, to keep the driveway free of dangerous conditions, including snow and ice. The plaintiff seeks money damages.
On March 3, 2008, the court, Ronan, J., granted permission to Maytag Corporation to join the action as an intervening plaintiff. In its intervening complaint filed on February 21, 2008, the intervening plaintiff alleges that the plaintiff was its employee, and that his injuries arose out of and occurred in the course of his employment. Accordingly, the intervening plaintiff seeks compensation for any sums it has paid or will pay to the plaintiff pursuant to the Workers' Compensation Act.
On August 11, 2008, the court, Hartmere, J., granted the plaintiff's motion to have LM made a party defendant. In his motion, filed on June 16, 2008, the plaintiff alleged that he had recently learned that LM may have been contractually responsible for maintaining the premises where the injury occurred. Subsequently, the plaintiff served LM with the summons and amended complaint on August 19, 2008.
The plaintiff's motion to cite in is entitled "Motion to Cite in Third Party Defendant" and requests that LM be made a third-party defendant. Only a party defendant may bring in a third-party defendant through a motion to implead. See General Statutes § 52-102a. The amended complaint, however, identifies LM as a first-party defendant.
On August 25, 2009, LM filed the present motion for summary judgment along with a memorandum of law. LM argues that the applicable statute of limitations expired before the plaintiff filed the amended complaint with the court. The intervening plaintiff filed an objection on September 9, 2009, and the plaintiff filed a substantially similar objection on September 10, 2009. The motion was heard at short calendar on September 14, 2009.
On July 27, 2009, LM filed a motion to dismiss the action based on lack of subject matter jurisdiction and the statute of limitations; objections were filed by the plaintiff and the intervening plaintiff on August 21, 2009. The court, Radcliffe, J., on August 24, 2008, denied the motion without prejudice to file a motion for summary judgment.
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).
"Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996). Summary judgment is appropriate on statute of limitation grounds when the "material facts concerning the statute of limitations [are] not in dispute . . ." Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984).
In support of its motion for summary judgment, LM argues that the plaintiff's claim is subject to a two-year statute of limitations found in General Statutes § 52-584. LM also argues that, since the plaintiff was injured on December 10, 2005, the plaintiff was required to bring a claim against it on or before December 10, 2007. Because the plaintiff did not file the amended complaint until August 15, 2008, LM asserts that the statute of limitations expired.
The amended complaint is dated August 15, 2008, but was not actually filed until August 26, 2008.
For purposes of the statute of limitations, "an action is deemed to be commenced on the date service is made on the defendant." Stingone v. Elephant's Trunk Flea Market, 53 Conn.App. 725, 729, 732 A.2d 200 (1999). Therefore, it would be improper to use the date that the amended complaint was filed with the court in determining whether the statute of limitations has expired. See id., 730. Instead, the relevant fact would be the date that the plaintiff served the summons and amended complaint on LM in this case, August 19, 2008.
In their objections, the plaintiff and the intervening plaintiff argue that the two-year statute of limitations in § 52-584 did not begin to run until the plaintiff learned that LM might be responsible for his injuries. This occurred on March 20, 2008, they argue, when Staffieri produced a statement be made to his insurance company in which he disclosed that he had a contract with LM for snow and ice removal services. Therefore, they conclude, the plaintiff served the summons and complaint on LM within the two-year period.
Section 52-584 provides: "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 . . ." "In the context of applying § 52-584 . . . an injury occurs when a party suffers some form of actionable harm . . . Actionable harm occurs when the plaintiff discovers, or in the exercise of reasonable care, should have discovered the essential elements of a cause of action . . . A breach of duty by the defendant and a causal connection between the defendant's breach of duty and the resulting harm to the plaintiff are essential elements of a cause of action in negligence; they are therefore necessary ingredients for actionable harm." (Citation omitted; internal quotation marks omitted.) Lindsay v. Pierre, 90 Conn.App. 696, 700, 879 A.2d 482 (2005).
As pointed out by both the plaintiff and the intervening plaintiff, Tarnowsky v. Socci, 271 Conn. 284, 856 A.2d 408 (2004), controls this case. In Tarnowsky, the Supreme Court held 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 . . . When the plaintiff . . . knew or should have known the [tortfeasor's identity is a question. to be determined by the fact finder . . ." Id., 297.
It is undisputed that the plaintiff claims he was injured on December 10, 2005, and that LM was served with the summons and amended complaint on August 19, 2008. LM presents no evidence, however, supporting its claim that the plaintiff knew or should have known of its identity more than two years before it was served. The only evidence regarding this issue is from the affidavit of the plaintiff, attached to his objection. In his affidavit, the plaintiff states that he did not know about LM's contract with Staffieri until his attorney disclosed this fact to him following Staffieri's response to the plaintiff's request for production made on March 20, 2008.
The plaintiff and intervening plaintiff also argue that they served LM within the separate three-year time limit also found in § 52-584. Section 52-584 further provides that no action to recover for personal injury clue to negligence "may be brought more than three years from the date of the act or omission complained of . . ." This three-year period commences when the allegedly negligent acts or omissions occur, regardless of whether the plaintiff knows of the identity of the tortfeasor; Tarnowsky v. Socci, supra, 271 Conn. 297; or when the actual injury occurs or is discovered. Witt v. St. Vincent's Medical Center, 252 Conn. 363, 369, 746 A.2d 753 (2000). LM has put forth no evidence demonstrating that the allegedly negligent acts and omissions described in the amended complaint occurred more than three years prior to August 19, 2008.
CONCLUSION
For the foregoing reasons, the defendant is not entitled to summary judgment. The motion is therefore denied.