Opinion
No. CV 06 5001848
December 4, 2008
MEMORANDUM OF DECISION
The defendant, Toys R Us — Delaware, Inc. ("Toys R Us — DE"), filed a motion for summary judgment on June 9, 2008 on the ground that this action is barred by the statute of limitations, the doctrine of res judicata and/or collateral estoppel. In response, the plaintiff, Judith Davis, filed a memorandum of law in opposition to the motion for summary judgment on July 25, 2008, arguing that she has a remedy under § 52-593, and that the present claim was brought within the applicable one year statute of limitations. Toys R Us — DE also filed a motion for judgment of dismissal on July 24, 2008, to which the plaintiff filed a memorandum in opposition on August 15, 2008. The matters were heard on the short calendar on August 18, 2008. For reasons more fully set forth herein, this court grants the defendant's motion for summary judgment.
By way of factual background, on July 11, 2003, the plaintiff filed a complaint against Toys R Us following an August 11, 2001 incident in which a box allegedly fell on her back while she was a patron at the defendant's Hamden, Connecticut store. Docket No. CV 030479848. This action (First Action) was dismissed by the court, Corradino, J., on October 12, 2003, without objection, for insufficiency of service of process. The plaintiff then filed a second action (Second Action) on December 15, 2003 against Toys R Us and Toys R Us — DE, pursuant to General Statutes § 52-592 for accidental failure of suit. Docket No. CV 030484824. Defendant Toys R Us — DE filed a motion for summary judgment on January 8, 2004, which the court, Thompson, J., granted on April 19, 2004, because Toys R Us — DE had never been a party in the First Action. On April 13, 2005, the court, Robaina, J., dismissed the remaining action as to defendant Toys R Us without objection, because Toys R Us is only a brand name and not a legal entity. Finally, on January 20, 2006, the plaintiff filed the present action against Toys R Us — DE pursuant to General Statutes § 52-593. Toys R Us — DE filed an answer and special defenses on March 10, 2006, alleging as defenses comparative negligence, the statute of limitations, the doctrine of res judicata, the doctrine of collateral estoppel and an insufficiency of a cause of action.
"Practice book § 17-49 provides that summary judgment shall be rendered forthwith if 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.) Rivers v. New Britain, 288 Conn. 1, 10, 950 A.2d 1247 (2008).
"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." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
Toys R Us — DE argues that there are no genuine issues of material fact as to its special defenses of (1) applicable statute of limitations; (2) doctrine of res judicata; (3) doctrine of collateral estoppel; and/or (4) failure to state a claim upon which relief could be granted. Specifically, Toys R Us — DE argues that the statute of limitations period, which is governed by General Statutes § 52-584, expired on August 11, 2003, two years from the date of the August 11, 2001 incident. Further, Toys R Us — DE argues that § 52-592, the accidental failure of suit statute, which provides for a one-year statute of limitations, only applies to Toys R Us, not to Toys R Us — DE. Finally, the defendant argues that § 52-593, the statute governing actions against wrong defendant, is inapplicable in this case because the second action did not fail to name the correct defendant. Alternatively, Toys R Us — DE argues that even if § 52-593 does apply, it is still entitled to judgment because the present action was brought more than one year after the judgment in the First Action.
The plaintiff responds that because the underlying personal injury action was dismissed for failing to sue the proper defendant, she has a remedy under § 52-593. The plaintiff further, argues that because the Second Action was not dismissed against Toys R Us until April 2005, the plaintiff had until April 13, 2006 by which to bring a claim against the proper defendant, Toys R Us — DE. Accordingly, the plaintiff concludes that the present claim, which was brought on January 13, 2006, was brought within the one-year statute of limitations.
I.
Section 52-584 provides in relevant part that "[n]o 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 . . ." The alleged injury in this action occurred on August 11, 2001. The instant action was brought on January 20, 2006, more than four years after the alleged negligence. Therefore, unless this action is saved by some other statutory provision, it clearly has been brought beyond the statute of limitation.
II.
Pursuant to § 52-592, "Accidental failure of suit; allowance of new action," "[i]f any action, commenced within the time limited by law, has failed . . . to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed . . . the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment." General Statutes § 52-592(a).
While the plaintiff brought the Second Action within the one year time limitation of § 52-592(a), the accidental failure of action statute only saves the claims against Toys R Us, not the ones against Toys R Us — DE. In the Second Action, judgment entered for defendant Toys R Us — DE because it had never been a party to the First Action and the statute of limitations had run. In its decision, the court held that "this case involves insufficiency of service rather than a complete lack of service . . . Thus, section 52-592(a) of the Conn. Gen. Statutes is available as to Toys R Us. However, since Toys R Us Delaware, Inc. was not named in the original complaint, summary judgment is granted as to Toys R Us Delaware, Inc. and denied as to Toys R Us." Davis v. Toys R Us, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 030484824 (April 20, 2004, Thompson, J.). Accordingly, § 52-592(a) does not preclude the court entering judgment for Toys R Us-DE.
III.
The plaintiff argues that the instant action is saved by § 52-593 because the Second Action was dismissed for failure to sue the proper defendant. The defendant counters that § 52-593 does not provide a remedy for the plaintiff in the instant matter, because she commenced action against the proper defendant, namely Toys R Us — DE, in the Second Action, but, she commenced the action beyond the statutory time limitations.
Section 52-593 provides that "[w]hen a plaintiff in any civil action has failed to obtain judgment by reason of failure to name the right person as defendant therein, the plaintiff may bring a new action and the statute of limitations shall not be a bar thereto if service of process in the new action is made within one year after the termination of the original action. If service of process in the original action has been made upon an agent of the defendant named in the new action, or if the defendant in the new action is a corporation and service in the original action has been made upon an officer or agent of the corporation, notice of any claim for damage shall be sufficient if given in the original action, pursuant to statutory provisions, to any officer or agent of the defendant in the new action."
"Our Supreme Court has recognized that § 52-593 applies only in circumstances in which the plaintiff's original action failed by reason of naming, in fact, the wrong defendant; that is, in cases in which the naming of the wrong defendant was the product of a reasonable and honest mistake of fact as to the identity of the truly responsible individual . . . To illustrate, § 52-593 would apply in a situation in which a plaintiff erroneously sues A under the mistaken belief that A negligently operated or owned a vehicle, when in fact B operated or owned the vehicle." (Citations omitted.) Kronberg v. Peacock, 67 Conn.App. 668, 672-73, 789 A.2d 510, cert. denied, 260 Conn. 902, 793 A.2d 1089 (2002).
"`Although [§ 52-593] is remedial and should be liberally construed, the statute applies only in cases where the original case ends because of the failure to name the right defendant.' [E. Stephenson, Connecticut Civil Procedure, 2003 Supplement (3rd Ed. 1997)], p. S-102." Udolf v. Mayflower Laundry Drycleaning Co., Superior Court, housing session at Hartford, Docket No. CVH 6685 (February 14, 2007, Bentivegna, J) (42 Conn. L. Rptr. 765, 766). See also Isidro v. State, 62 Conn.App. 545, 550, 771 A.2d 257 (2001) ("the plaintiff's original action was not dismissed because she failed to name the proper defendant as a matter of fact. Instead, the plaintiff's original action was dismissed because . . . the defendant was immune from liability"). See also Billerback v. Cerminara, 72 Conn.App. 302, 308, 805 A.2d 757 (2002) (§ 52-593 not applicable because first action dismissed for dormancy and not due to plaintiff's failure to name proper defendant) and Vessichio v. Hollenbeck, CT Page 19299 18 Conn.App. 515, 520, 558 A.2d 686 (1989) (§ 52-593 is inapplicable to plaintiff's action because the first action was "dismissed for failure to prosecute with due diligence" "and not for failure to name the right party").
"Under Connecticut law, a `right person,' as that term is used in § 52-593, is one who, as a matter of fact, is a proper defendant for the legal theory alleged." (Emphasis in original; internal quotation marks omitted.) Cogan v. Chase Manhattan Auto Financial Corp., 276 Conn. 1, 8, 882 A.2d 597 (2005). Under § 52-593, "the one year period in which to file a new action under § 52-593 begins when notice is issued that the original action has been terminated." Russell v. Thomas O'Connor Co., 42 Conn.App. 345, 347, 679 A.2d 420 (1996).
The First Action was dismissed for lack of sufficient service of process. In the Second Action the court entered judgment for Toys R Us-DE, the properly named and served defendant, because the statute of limitations had run and because Toys R Us — DE had not been a party in the First Action. Now, in this Third Action, the plaintiff argues that it should be allowed to proceed against Toys R Us — DE pursuant to § 52-593.
Notwithstanding the later dismissal of claims against Toys R Us in the Second Action, § 52-593 does not save this Third Action. The plaintiff failed to properly name or serve the defendant in the First Action, which was dismissed for insufficiency of service more than one year before the present action was brought. The plaintiff properly named and served the defendant in the Second Action, but beyond the statute of limitation. Therefore, under any articulable theory, § 52-593 does not save the plaintiff's action.
IV.
The defendant also moves for summary judgment arguing that the doctrines of res judicata and collateral estoppel bar the current action. It also argues that it is entitled to judgment because the plaintiff has failed to state a claim upon which relief can be granted. Because this court concludes that the statute of limitations period has run on the negligence claim against the defendant, and that neither § 52-592 nor § 52-593 save this action, the court declines to address the special defenses of res judicata, collateral estoppel, and failure to state claim. For reasons previously set forth in this memorandum, the court grants the defendant's motion for summary judgment.