Hurlburt v. City of West Haven

Full title: Clifford Hurlburt v. City of West Haven

Court: Superior Court of Connecticut

Date published: Jul 5, 2017

CV166061635S (Conn. Super. Ct. Jul. 5, 2017)

Opinion

CV166061635S

07-05-2017

Clifford Hurlburt v. City of West Haven

Robin L. Wilson, J.

UNPUBLISHED OPINION

MEMORANDUM OF DECISION RE MOTION FOR PERMISSION TO AMEND (#119)

Robin L. Wilson, J.

I

STATEMENT OF CASE AND PROCEDURAL HISTORY

The plaintiff, Clifford Hurlburt commenced this action by service of writ summons and complaint against the defendant, City of West Haven. The return date is December 27, 2016, and the case was returned to court on December 14, 2016. The plaintiff's single-count revised complaint which is the operative complaint dated August 18, 2016, alleges intentional conduct by the defendant and alleges the following facts. The plaintiff was a letter carrier employed by the United States Postal Service. At approximately 10:50 a.m. on April 16, 2015, as the plaintiff was making his appointed rounds on a public walkway in the vicinity of 32 Anderson Avenue in West Haven, Connecticut, he was attacked by a vicious and unleashed Pit Bull dog owned by the Brungard/Knight family of that address. The plaintiff alleges that as a result of the dog's vicious attack, he suffered life threatening injuries, some of which are permanent in nature.

The plaintiff alleges that the events that occurred on April 16, 2015, " were proximately caused by the intentional refusal of the responsible officials of the defendant to enforce, with respect to this particular dog and this particular family, the provisions of Conn. Gen. Stat. § § 22-232, 22-332c, 22-332d, 22-336, 22-338, 22-339, 22-258, 22-358, 22-362, 22-363, 22-364, 22-364a and 22-367, the provisions of Sections 22-336-13 et seq., of the Regulations of Connecticut State Agencies, and the provisions of Sections 89-1 through 89-8 of the Ordinances of the City of West Haven. The plaintiff further alleges that the dog described was known to the defendant's responsible officials, for a long time prior to the events of April 16, 2015, to be vicious and dangerous. This dog attacked others prior to the plaintiff and those attacks had been reported to the appropriate and responsible officials of the defendant. The owners of the dog, to the actual knowledge of the defendant's responsible officials, had repeatedly and habitually violated state and municipal laws and ordinances . . . but the defendant affirmatively permitted them to do so, and to continue to do so, without sanctions of any kind . . . The plaintiff, as a letter carrier regularly assigned to deliver the mail on a route which included the location [at 32 Anderson Avenue] was an identifiable victim of the dog . . . The certainty that the said dog would attack the plaintiff was known to the defendant's responsible officials, who were aware of prior attacks by the dog and affirmatively refused to take the actions to protect the plaintiff and others likely to fall victim to the dog as mandated by Conn. Gen. Stat. § § 22-332, 22-332c, 22-332d, 22-336, 22-338, 22-339, 22-358, 22-362, 22-363, 22-364, 22-364a, and 22-367, the provisions of Sections 22-336-13 et seq., of the Regulations of Connecticut State Agencies, and the provisions of Sections 89-1 through 89-8 of the Ordinances of the City of West Haven . . .¹

1 The General Statutes referenced in the plaintiff's revised complaint and proposed amended complaint are contained in Chapter 435 and govern " Dogs and Other Companion Animals. Kennels and Pet Shops."

" The plaintiff's injuries were proximately caused by the affirmative refusal of the defendant to take prior to April 16, 2015, the actions against the dog and its owners [as mandated by state statutes and city ordinances] of the City of West Haven." Pl. Rev. Compl. ¶ 11, 3-8, pp. 1-3.

On June 12, 2017, the plaintiff filed a motion for permission to file amended complaint and an amended complaint which sounds in negligence. More specifically, the proposed amended complaint mirrors the August 18, 2016 revised complaint, except that the plaintiff, instead of alleging in paragraph 4 that " [t]he events described in Paragraph 3, and the injuries resulting, were proximately caused by the intentional refusal of the [defendant's] responsible officials, " the plaintiff now alleges in paragraph 4 that " [t]he events described in Paragraph 3, and the injuries resulting, were proximately caused by the negligent refusal of the responsible officials . . ." Likewise, in paragraphs five, seven and eight, the plaintiff in the revised complaint alleges intentional conduct on the part of the defendant, however, in the proposed amended complaint the plaintiff now alleges negligent conduct.

The defendants have filed an objection to the proposed amendment on grounds that the plaintiff's new allegations of negligence against the defendant sets forth a new cause of action that is barred by General Statutes § 52-584 and does not relate back to the filing of the operative complaint and the granting of the plaintiff's request will cause undue prejudice to the defendant. The plaintiff filed a reply to the defendant's objection and argues that " the defendant has pending a motion for summary judgment based upon an alleged defect in the Revised Complaint which was not previously raised by a motion to strike. The plaintiff has moved to correct any such defect--if it exists--by amendment." The plaintiff argues that the defendant's objection to the amendment is therefore not well taken. The plaintiff's motion for permission to amend appeared on this court's June 26, 2017 short calendar as take papers.

II

DISCUSSION

At the outset, the court notes that the plaintiff's contention that the defendant's motion for summary judgment challenges the legal sufficiency of his revised complaint is without merit. This court has reviewed the defendant's motion for summary judgment and, contrary to the plaintiff's argument, the motion does not challenge the legal sufficiency of the plaintiff's revised complaint. The defendant challenges the plaintiff's intentional tort claims and argues that pursuant to General Statutes § 52-557n(a)(2)(A), ² the defendant is not liable for the intentional acts of its responsible officials, and, even if the allegations pled by the plaintiff are considered to be negligent in nature, the plaintiff's claims are barred pursuant to Conn. Gen. Stat. § 52-557n(a)(2)(B) ³ because such acts are discretionary and the plaintiff was not an identifiable victim subject to imminent harm. Simply stated, what the defendant argues in its motion for summary judgment is that, as a matter of law, it is not liable to the plaintiff. The defendant does not argue that the plaintiff's complaint is legally insufficient.

2 General Statutes § 52-557n(a)(2)(A) provides in relevant part: " Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct."

3 General Statutes § 52-557n(a)(2)(B) provides in relevant part: " Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law."

Presently before this court is the plaintiff's motion for permission to amend his complaint to add a cause of action sounding in negligence and the defendant's objection thereto. The defendant claims that this is a new cause of action which does not relate back to the revised complaint, and which is barred by the two-year statute of limitations for negligence claims pursuant to General Statutes § 52-584.⁴

4 General Statutes § 52-584 provides: " Limitation of action for injury to person or property caused by negligence, misconduct or malpractice. No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, 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."

A

Standard of Review

" It is beyond dispute that a trial court may allow in its discretion, an amendment to pleadings before, during or, . . . after the trial to conform to proof." (Citations omitted; emphasis in original.). Town of New Hartford et al v. Connecticut Resources Recovery Authority, 291 Conn. 433, 486, 970 A.2d 592 (2009). " A trial court has wide discretion in granting or denying amendments to pleadings [pursuant to § 10-60 of the Connecticut Practice Book] and rarely will the [Appellate Court] overturn the decision of the trial court." Intercity Dev., L.L.C. v. Andrade, 286 Conn. 177, 190, 942 A.2d 1028; 286 Conn. 177, 942 A.2d 1028 (2008); Grigerik v. Sharpe, 56 Conn.App. 314, 319, 742 A.2d 434 (2000). " It is the defendant's burden to show that the trial court clearly abused its discretion in allowing the plaintiffs to amend their complaint." Intercity, supra, 286 Conn. 190.

" It is well settled that whether to allow an amendment to the pleadings rests within the discretion of the trial court . . . The essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay a trial . . . The trial court is in the best position to assess the burden which an amendment would impose on the opposing party in light of the facts of the particular case . . ." (Citations omitted; internal quotation marks omitted.) Summitwood Development., L.L.C. v. Roberts, 130 Conn.App. 792, 800, 25 A.3d 721 (2009). " In exercising its discretion . . . a court should ordinarily be guided by its determination of the question whether the greater injustice will be done to the mover by denying him his day in court on the subject matter of the proposed amendment, or to his adversary by granting the motion . . ." Grigerik, supra, 56 Conn.App. 320.

B

Relation Back Doctrine

Our Supreme Court recently clarified the relation back doctrine in Briere v. Greater Hartford Orthopedic Group, P.C., 325 Conn. 198, 157 A.3d 70 (2017). The court stated: " 'The relation back doctrine has been well established by this court.' Alswanger v. Smego, 257 Conn. 58, 64, 776 A.2d 444 (2001). There is a " 'well settled" body of case law holding that 'a party properly may amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same . . . If a new cause of action is alleged in an amended complaint . . . it will [speak] as of the date when it was filed . . . A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief . . . A change in, or an addition to, a ground of negligence or an act of negligence arising out of the single group of facts which was originally claimed to have brought about the unlawful injury to the plaintiff does not change the cause of action . . . It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but [when] an entirely new and different factual situation is presented, a new and different cause of action is stated.' . . . DiLieto v. County Obstetrics & Gynecology Group, P.C., 297 Conn. 105, 140, 998 A.2d 730 (2010).' (Emphasis in original; footnote omitted.) Finkle v. Carroll, 315 Conn. 821, 837-38, 110 A.3d 387 (2015).

" 'Our relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims . . . Barrett v. Danbury Hospital, 232 Conn. 242, 263-64, 654 A.2d 748 (1995).' (Internal quotation marks omitted.) Alswanger v. Smego, supra, 257 Conn. at 65, 776 A.2d 444. '[I]n the cases in which we have determined that an amendment does not relate back to an earlier pleading, the amendment presented different issues or depended on different factual circumstances rather than merely amplifying or expanding upon previous allegations.' Grenier v. Commissioner of Transportation, 306 Conn. 523, 560, 51 A.3d 367 (2012).

" More specifically, where the proposed allegations promote a change in or an addition to a ground of negligence arising out of a single group of facts we have allowed use of the relation back doctrine. Gurliacci v. Mayer, 218 Conn. 531, 549, 590 A.2d 914 (1991) ('new allegations did not inject two different sets of circumstances and depend on different facts . . . but rather amplified and expanded upon the previous allegations by setting forth alternative theories of liability' [citation omitted; internal quotation marks omitted]); see DiLieto v. County Obstetrics & Gynecology Group, P.C., supra, 297 Conn. at 139-43, 998 A.2d 730 (allegation that defendant physician failed to ensure that specific surgeon participated in surgery related back to allegation that defendant physician failed to communicate pathology results to that surgeon prior to surgery); Wagner v. Clark Equipment Co., 259 Conn. 114, 119, 788 A.2d 83 (2002) (allegation that forklift was defective because backup alarm failed to sound when forklift was engaged in reverse did relate back to allegations that forklift was defective because it lacked, inter alia, backup alarm that sounded sufficiently distinct to warn plaintiff); Barnicoat v. Edwards, 1 Conn.App. 652, 654, 474 A.2d 808 (1984) (allegations of different defects in house construction related back to other claims of defect in house construction in breach of contract claim); Miller v. Fishman, 102 Conn.App. 286, 299-300, 925 A.2d 441 (2007) (allegations describing specific manner in which defendant obstetrician delivered minor plaintiff and precise injuries minor plaintiff sustained related back to allegations that defendant negligently managed delivery of minor plaintiff), cert. denied, 285 Conn. 905, 942 A.2d 414 (2008). On the other hand, where new allegations directly contradict those in the operative complaint we have held that they do not relate back to those in the operative complaint. Dimmock v. Lawrence & Memorial Hospital, Inc., 286 Conn. 789, 806-08, 945 A.2d 955 (2008) (allegation that defendant surgeons used incorrect spinal fusion material during surgery contradicted, and therefore did not relate back to, allegation that surgeons should not have performed surgery at all on plaintiff); see also Alswanger v. Smego, supra, 257 Conn. at 61, 776 A.2d 444 (allegation of lack of informed consent regarding surgical resident's participation in surgery did not relate back to allegation that defendant physician and defendant hospital had failed to disclose all material risks in connection with plaintiff's surgery, care and treatment); Keenan v. Yale New Haven Hospital, 167 Conn. 284, 285-86, 355 A.2d 253 (1974) (allegation of lack of informed consent to surgery did not relate back to allegation of negligence in performing surgery).

" When comparing [the original and proposed amended] pleadings, we are mindful that, [i]n Connecticut, we have long eschewed the notion that pleadings should be read in a hypertechnical manner. Rather, [t]he modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically . . . [T]he complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties . . . Our reading of pleadings in a manner that advances substantial justice means that a pleading must be construed reasonably, to contain all that it fairly means, but carries with it the related proposition that it must not be contorted in such a way so as to strain the bounds of rational comprehension.' . . . Deming v. Nationwide Mutual Ins. Co., [279 Conn. 745, 778, 905 A.2d 623 (2006)]." Dimmock v. Lawrence & Memorial Hospital, Inc., supra, 286 Conn. at 802, 945 A.2d 955.

" If new allegations state a set of facts that contradict the original cause of action, which is the transaction or occurrence underpinning the plaintiff's legal claim against the defendant, then it is clear that the new allegations do not fall within the scope of the original cause of action and, therefore, do not relate back to the original pleading. But an absence of a direct contradiction must not end the trial court's inquiry. The trial court must still determine whether the new allegations support and amplify the original cause of action or state a new cause of action entirely. Relevant factors for this inquiry include, but are not limited to, whether the original and the new allegations involve the same actor or actors, allege events that occurred during the same period of time, occurred at the same location, resulted in the same injury, allege substantially similar types of behavior, and require the same types of evidence and experts." (Emphasis added; footnotes omitted.) Briere v. Greater Hartford Orthopedic Group, P.C., supra, 325 Conn. 207-11.

Here, the plaintiff's revised complaint dated August 18, 2016, alleges that the defendant's responsible officials and the defendant acted intentionally. The proposed amended complaint sets forth a new cause of action, alleging that the plaintiff's injuries were proximately caused by the defendant's negligence. This case arises out of a dog bite that occurred on April 16, 2015. The plaintiff had until April 16, 2017, to commence an action for injuries allegedly sustained as a result of the defendant's negligence. The proposed amended complaint was not filed until June 12, 2017. Therefore, if this new cause of action does not relate back to the allegations of the revised complaint, the plaintiff's claim is barred by the statute of limitations.

" The present case is akin to Keenan v. Yale New Haven Hospital, 167 Conn. 284, 286, 355 A.2d 253 (1974), in which [the Supreme Court] concluded that an amended complaint sounding in [the intentional torts of] assault and battery did not relate back to an original complaint sounding in negligence. In Keenan, the plaintiff amended the original complaint, which sounded in malpractice, to allege that the defendant surgeon had " assaulted the plaintiff by performing . . . [the subject surgery] without securing his informed consent." Id., at 285, 355 A.2d 253. Because " [a]cts amounting to negligence and acts amounting to assault and battery, not related to lack of due care, do not constitute a single group of facts, " [the court] concluded that the amended complaint did not relate back to the original complaint. Id., at 286, 355 A.2d 253. See also, Sherman v. Ronco, 294 Conn. 548, 561, 985 A.2d 1042 (2010) (court concluded that defending a claim alleging intentional and malicious conduct was not encompassed by a cause of action that originally was premised on negligent supervision. The counts against the defendant in the amended substitute complaint allege intentional torts and would rely on different facts than those necessary to prove negligence which was alleged in the original complaint).

Similarly, in the present case, in contrast to the allegations of intentional conduct alleged in the original revised complaint, the allegations against the defendant in the amended complaint allege negligence and would rely on different facts and evidence than those necessary to prove intentional conduct on the part of the defendant. Accordingly, this court concludes that the relation back doctrine does not apply, and, therefore, the amended complaint is time barred. The plaintiff's motion for permission to amend is therefore denied.

III

CONCLUSION

For the foregoing reasons, the plaintiff's motion for permission to amend is denied.