Opinion
No. CV 04 4002738
July 14, 2006
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
On August 18, 2004, the plaintiffs in this action, William F. Leahey (Leahey) and Linda M. Leahey, (Mrs. Leahey), husband and wife, brought this five-count complaint against the defendant, Lawrence D. Coon Sons, Inc., (Coon) seeking damages for injuries to Leahey and loss of consortium to Mrs. Leahey. The defendant is a general contractor engaged in the business of constructing various types of barns.
This matter pertains to an incident which is alleged to have occurred on August 21, 2002. On or about June of 2000, Leahey and Coon entered into a contract where Coon agreed to construct a tobacco shed on the premises owned by both plaintiffs. The contract called for the construction of an 8-bent tobacco shed. The defendant was to furnish material and labor to complete the shed at a cost of $45,800.00. The shed was completely constructed no later than July 2000. The defendant performed no further work for Leahey after July of 2000. Leahey alleges that on August 21, 2002, he was in the tobacco shed, standing on a "girt," a board inside the shed approximately six to eight feet above ground, when the girt gave way, causing the plaintiff to fall and sustain personal injuries and losses
Count 1 of the plaintiffs' amended complaint sounds in negligence. Count 2 sounds in recklessness. Counts 3 and 4 allege product liability claims under General Statutes § 52-572m. Count 5 is alleged on behalf of Mrs. Leahey for loss of consortium. On April 24, 2006, the defendant filed its answer and denied liability under all five counts. It also interposed several special defenses to the amended complaint. With respect to Counts 1, 2 and 5, it plead the three-year bar of General Statutes § 52-584, the statute of repose, as a special defense. It also plead that the product liability claims in Counts 3 and 4 fail to state a legally sufficient cause of action.
The defendant has moved for summary judgment, claiming it is entitled to judgment as a matter of law since: (1) Leahey's claims sounding in negligence and recklessness are time barred by the three-year statute of repose set forth in General Statutes § 52-584; (2) Leahey's claims under the product liability act, General Statutes § 52-572m et seq. must fail, as the defendant was not a products seller as that term is defined in the act; and (3) Mrs. Leahey's loss of consortium claim must fail as it is derivative of her husband's nonviable claims.
For the following reasons, the motion for summary judgment is granted.
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." Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Id. "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material fact which, under applicable principles of substantive law, entitle [said party] to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citation omitted.) Miles v. Foley, 253 Conn. 381, 386, 752 A.2d 503 (2000). "It is not enough . . . for the opposing party merely to assert the existence of such a disputed issue [however]. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment] . . . Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Citations omitted.) Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997). Requiring the nonmovant to produce such evidence does not shift the burden of proof. Rather, it ensures that the nonmovant has not raised a specious issue for the sole purpose of forcing the case to trial. See Farrell v. Farrell, 182 Conn. 34, 39, n. 4, 438 A.2d 415 (1980) ("[i]ndeed, the whole summary judgment procedure would be defeated if, without any showing of evidence, a case could be forced to trial by a mere assertion that an issue exists"). Id.
In a motion for summary judgment, the party seeking to have the case disposed of summarily has the initial burden of showing that there exists no genuine issue of material fact. See Miles v. Foley, supra, 253 Conn. 386. A "material fact" is a "fact that will make a difference in the result of the case." Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990); Mountaindale Condominium Assn. v. Zappone, 59 Conn.App. 311, 315, 757 A.2d 608 (2000).
Discussion A. The Product Liability Claims — Counts 3 and 4
Our product liability law, General Statutes § 52-572m et seq., sets forth the exclusive remedy for all claims alleged to have been caused by defective products. Gajewski v. Pavelo, 36 Conn.App. 601, 611, 652 A.2d 509 (1994), aff'd 236 Conn. 27 (1996). Leahey alleges in the third and fourth counts that Coon sold him defective products, specifically "rough sawn/full size lumber" and hardware ("metal suspension brackets"), which were used to construct and affix the removable girts. The defendant maintains it is not a product seller within the definition of the statute. Instead, the defendant claims it was a general contractor in the business of providing construction services; in this case, the service of building a tobacco barn.
At oral argument on June 5, 2006 and in their brief in opposition to the motion for summary judgment, the plaintiffs claimed that the shed also is a product, but that is not alleged in the complaint. A party cannot expand its theories of liability in affidavits or other documents apart from the pleadings. Any issues raised must be those a party opposing a motion for summary judgment is entitled to raise through his pleadings. Collum v. Chapman, 40 Conn.App. 449, 453, 671 A.2d 1329 (1996).
General Statutes § 52-572m(a) defines a "product seller" as follows: "Any person or entity, including a manufacturer, wholesaler, distributor or retailer who is engaged in the business of selling such products whether the sale is for resale or for using or consumption."
In order to maintain a product liability claim, a plaintiff must establish and prove that the defendant was engaged in the business of selling the product in question. Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 403, 528 A.2d 805 (1987). Whether or not a defendant is a product seller is a question of law. Burkett v. Petrol Plus of Naugatuck, Inc., 216 Conn. 65, 72, 579 A.2d 26 (1990); Lang v. Brom Builders, Inc., Superior Court, judicial district of New Haven at New Haven, Docket No. CV 95-0369766S (February 3, 1998, Hartmere, J.) ( 21 Conn. L. Rptr. 225); Acmat Corp. v. Jansen Rogan Cons., Superior Court, judicial district of New Britain at New Britain, Docket No. CV 96-047469S (August 23, 1999, Rubinow, J.) ( 25 Conn. L. Rptr. 463). The Connecticut Product Liability Act excludes from the definition of a "product seller" entities that are in the business of installation and entities that are in the business of repairs and service. "Where the contract is basically one for the rendition of services, and the materials are only incidental to the main purpose of the agreement, the contract is not one for the sale of goods." Gulash v. Stylorama, 33 Conn.Sup. 108, 111, 364 A.2d 1221 (1975). "Once a particular transaction is labeled a `service,' as opposed to a `sale' of a `product' it is outside the purview of our product liability statute." Zichichi v. Middlesex Memorial Hospital, supra, 204 Conn. 403.
"When distinguishing between a service and a product, some courts focus on the object of the contract. See Paul v. McPhee Electrical Contractors, 46 Conn. 18, 23, 698 A.2d 354 (1997) (holding that an electrician who installed a light fixture was not a product seller since there was no indication that the electrician was involved in placing light fixtures into the stream of commerce); Gilbane Building Co. v. Stamford Towers, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 118788 (August 31, 1995, D'Andrea, J.) (holding that a construction manager was not a product seller of allegedly defective precast panels where sufficient facts were not alleged to demonstrate that the construction manager was in the business of selling precast panels); Ferguson v. EBI Medical Systems, Superior Court, judicial district of New London, Docket No. 527663 (August 1, 1995, Hurley, J.) ( 15 Conn. L. Rptr. 94) (holding that a hospital rendered services, and was not a product seller, where the hospital ordered and installed an allegedly defective wrist fixator during surgery on the plaintiff since the contract was basically one for the rendition of services and the materials used were merely incidental to the main purpose of the contract); and Hines v. JMJ Construction Co., Superior Court, judicial district of Hartford at Hartford, Docket No. 506329 (January 11, 1993, Miano, J.) ( 8 Conn. L. Rptr. 232) (holding that a subcontractor who constructed a sidewalk performed services)."
The case relied on by the plaintiffs, State v. McGriff, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 88-0349847 (April 22, 1992, Schaller, J.) is inapposite because the products liability defendant in that case was the purveyor of specially treated wood used in the roof trusses, not the general contractor of the building.
In Truglio v. Hayes Construction Co., 66 Conn.App. 681, 785 A.2d 1153 (2001), the appellate court addressed the issue of whether a sidewalk constructed using the "form and pour" method was a product. It concluded that the essence of the relationship between the defendant and the buyer was the furnishing of a service, not the sale of a sidewalk, because the sidewalk was composed of concrete that was transported in liquid form to the site and then poured. The court also held that ". . . a party be considered a product seller where a sale of a product is a principal part of the transaction and where the essence of the relationship between the buyer and seller is not the furnishing of professional skill or services." (Citations omitted; internal quotation marks omitted.) Id., 685. There is no Connecticut appellate authority that addresses whether the construction of a building constitutes a sale of a product. Most Connecticut trial courts that have addressed the issue have held that a general contractor is not in the business of selling component parts that are incorporated into the structure of the building and, therefore, is not a "product seller" under the Product Liability Act. Gilbane Building v. Stamford Towers, supra; Lang v. Brom Builders, Inc., supra; (general contractor who built a home with prefabricated chimney not engaged in the business of selling or leasing prefabricated chimneys, but rather in the business of constructing homes); Tofolowskyv. Bilow, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 97-63795S (March 20, 2001, Sferrazza, J.), (general contractor who oversaw construction of a house did not qualify as a product seller with respect to allegedly defective concrete); Regal Steel, Inc. v. Farmington Ready Mix, Inc., 36 Conn.Sup. 137, 414 A.2d 816 (1980), (defendant who allegedly constructed and improperly bolted steel columns to convert columns to concrete foundation was not a product seller within scope of the products liability act).
Appellate Courts in other states have split in determining this issue:
See Blagg v. Fred Hunt Co., 272 Ark. 185, 612 S.W.2d 321 (1981), (holding that defendant builder, who improperly installed a carpet, could be liable under state strict liability statute because construction of a home interpreted as a "product" under the statute); Gay v. Cornwall, 6 Wash.App. 595, 494 P.2d. 1371 (1972) (holding defendant builder strictly liable to purchaser for defects in construction); cf. Wright v. Creative Corp., 30 Colo.App. 575, 498 P.2d. 1179 (1972) (holding that defendant builder, who installed non-shatterproof glass, was not subject to strict liability under products liability theory, regardless of whether he was a mass-installer of said product); Maack v. Resource Resign Construction, Inc., 875 P.2d 570 (Utah GT.App. 1994) (holding defendant builder not a "seller" of stucco used in construction of private residence).
The Restatement, Third, of Torts notes that courts have been reluctant to impose products liability on building contractors building and selling one building at a time unless they sell a building that contains a variety of appliances and other manufactured equipment or when the building itself has been prefabricated — and thus manufactured — and later assembled on or off the site. Restatement, Third, of Torts, § 19, comment e, 270-71 (1997). Some courts also have held mass-builders of large housing projects with standardized dwellings liable as product sellers. See Schipper v. Levitt Sons, Inc., 297 A.2d 314 (N.J. 1965). See also Model Uniform Product Liability Act § 102(A)(1), 44 Fed.Reg. 62, 714, 62, 717-19 (1979) (builder vendor strictly liable only if it is a mass producer and seller of standardized dwellings, including modular homes).
Part of the problem is that Connecticut's product liability statute, unlike other states' laws and the Model Uniform Product Liability Act, does not define the word "product." Truglio v. Hayes Construction Co., supra, 66 Conn.App. 684. Absent a controlling definition, whether a "product" is involved is sometimes determined by examining the public policies behind the imposition of strict liability in tort for defective products. Some of the policy considerations include: (1) the public interest in life and health; (2) the invitations and solicitations of the manufacturer to purchase the product; (3) the justice of imposing the loss on the manufacturer who created the risk and reaped the profit; (4) the superior ability of the commercial enterprise to distribute the risk of injury as a cost of doing business; (5) the disparity in position and bargaining power that forces the consumer to depend entirely on the manufacturer; (6) the difficulty in requiring the insured party to trace back along the channel of trade to the source of the defect in order to prove negligence; and (7) whether the product is in the stream of commerce. Thus, a swimming pool, built by a defendant contractor, was not a "product" because for one, the opportunity for cost spreading via mass-marketed products was nonexistent. Board of Education v. W.R. Grace Corp., 609 A.2d 92, 106 (N.J.Super.CT. Law Div. 1992). See Restatement Third, Law of Torts, § 19, comment a, 272 (1997). None of the Restatement's seven factors support the plaintiffs' argument that Coon is a product seller.
"Product" is defined in the Model Uniform Product Liability Act as "any object possessing intrinsic value, capable of delivery either as an assembled whole or as a component part or parts, and produced for introduction into trade or commerce." 44 Fed.Reg. 62, 717.
There is no proof submitted that the defendant is engaged in the business of selling lumber or hardware. It constructed a finished tobacco shed for Leahy. On the basis of the documents submitted, Coon cannot be regarded as engaging in the business of selling lumber or hardware or placing these items in the stream of commerce. Paul v. McPhee Electrical Contractors, supra, 46 Conn.App. 23.
The contract between the parties was basically for the rendition of a service, the construction of a tobacco shed, and the materials used were merely incidental to the main purpose of the contract. Ferguson v. EBI Medical Systems, supra.
The court concludes as a matter of law that the contract between Leahey and Coon was for the service of constructing a tobacco shed in which the defendant would furnish material and labor necessary to complete construction. The contract, annexed to both the plaintiff and defendant's memoranda, does not specify the hardware or boards claimed to be defective or itemize the prices for the materials that are mentioned. It was not a contract for the sale of goods such as lumber and hardware, and the defendant is not a product seller as defined in the statute.
B. The Negligence and Recklessness Claims — Counts 1 and 2
The appropriate statute of repose for actions alleging injuries to persons or property where such injuries allegedly arise out of negligence or reckless misconduct is General Statutes § 52-584. Nardi v. AA Electronic Security Engineering, Inc., 32 Conn.App. 205, 210, 628 A.2d 991 (1992). § 52-584 provides in pertinent part: "No action to recover damages for injury to the person . . . caused by negligence, or by reckless or wanton misconduct . . . shall be brought but within two years from the date when the injuries were 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 . . ." General Statutes § 52-584.
"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 limitations 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).
The date of the act or omission complained of, as that phrase is used in § 52-584, is "the date when the [reckless or] negligent conduct of the defendant occurs and . . . not the date when the plaintiff first sustains damage." Witt v. Saint Vincent's Medical Center, 252 Conn. 363, 369, 746 A.2d 753 (2000), quoting Blanchette v. Barrett, 229 Conn. 256, 265, 640 A.2d 74 (1994).
"The statutory clock on this three-year time limit begins running when the negligent [or reckless] conduct of the defendant occurs . . . Consequently, an action may be time barred even if no injury is sustained during the three years following a defendant's act or omission." (Citation omitted.) Nardi v. AA Electronic Security Engineering, Inc., supra, 32 Conn.App. 210-11. "The three-year time limit is a statute of repose because it specifies the time limit beyond which an action under § 52-584 is absolutely barred." (Citation omitted.) Graetz v. Brito, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 95-0052517S (March 2, 1998, Flynn, J.) ( 21 Conn. L. Rptr. 436).
In their objection to the motion for summary judgment, the plaintiffs claim that although the statute of repose in § 52-584 would normally bar their claims in counts 1 and 2 of the complaint, which were brought more than three years after the act or omission complained of, the negligent or reckless installation of the girt, the statute of limitations should be tolled under the "continuing course of conduct" doctrine.
Under proper circumstances the statute of limitations "may be tolled under . . . the continuing course of conduct doctrine, thereby allowing a plaintiff to commence his or her lawsuit at a later date." Blanchette v. Barrett, 229 Conn. 256, 265, 640 A.2d 74 (1994). However, "in order to support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such wrong . . . Where [the Supreme Court has] upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty [or an inherently dangerous product] or some later wrongful conduct of a defendant related to a prior act." (Internal quotation marks omitted.) Id., 275. "The continuing course of conduct doctrine reflects the policy that, during an ongoing relationship, lawsuits are premature because specific tortious acts or omissions may be difficult to identify and may yet be remedied." Id., 276. "For example, the doctrine is generally applicable under circumstances where `it may be impossible to pinpoint the exact date of a particular negligent act or omission that caused injury' or where the negligence consists of a series of acts or omissions and it is appropriate to allow the course of [action] to terminate before allowing the repose section of the statute of limitations to run . . ." Sanborn v. Greenwald, 39 Conn.App 289, 295-96, 664 A.2d 803, cert. denied, 235 Conn. 925, 666 A.2d 1186 (1995), quoting Blanchette v. Barrett, supra, 229 Conn. 277.
The plaintiffs do not allege in their complaint or in their objection to the defendant's motion for summary judgment that there existed a "special relationship" between themselves and the defendant to implicate the first type of continuous course of conduct recognized by the courts. Indeed, although "what is meant by the special relationship required by this principle is not clear . . . it does mean something more than evidence of either a terminated . . . or on-going relationship." Rivera v. Fairbank Management Properties, Inc., supra, 45 Conn.Sup. 154, 159, n. 1, 703 A.2d 808 (1997) ( 20 Conn. L. Rptr. 338). At least one Superior Court case has analyzed the question of the existence of a "special relationship" for purposes of the continuing course of conduct doctrine in terms of whether a fiduciary or confidential relationship existed between the parties. Van Deusen v. Dratch, Superior Court, judicial district of Litchfield, Docket No. 068758 (May 7, 1996, Picket, J.). "A fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other . . . The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him." Id., quoting Dunham v. Dunham, 204 Conn. 303, 322, 528 A.2d 1123 (1987). "In the present case, there is no allegation by the plaintiffs that any special relationship existed between themselves and the defendant, nor does the evidence as construed in a light most favorable to the plaintiffs reveal such a relationship. Therefore, the court will turn to the next possible basis for their continuing course of conduct argument, namely that the defendant engaged in some subsequent wrongful conduct related to the prior act of the improper installation of the girt." (Citation omitted.) Graetz v. Brito, supra.
Plaintiffs claim the facts in Count 1 that allege Coon "failed to warn . . . of the dangerous condition created by the installation of rough sawn lumber with a large knot," and "failed to have the structure inspected by the local building official after completion of the structure . . . before advising the plaintiff the structure was ready for use," are adequate to create a continuing course of conduct. In Count 2, plaintiff claims their allegation that the defendant "knowingly failed to warn the plaintiff of the dangerous condition created by the installation of rough sawn board with a large knot as a girt . . ." also supports its claim of a continuing course of conduct.
The alleged failure to warn of the dangerous condition that the plaintiff's claim caused Leahey to fall is an implicit contention that the statute of limitations did not begin to run until Leahey fell on August 21, 2002. This, however, is not the law. In Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 459 A.2d 115 (1983), the plaintiff fell into a hole and alleged that the defendant had created a "hazardous condition having a tendency to cause injury by failing to safeguard in some manner or warn others of the hole." The defendants submitted an affidavit in support of a motion for summary judgment indicating they had ceased work and that the contract had been completed more than three years before the plaintiff's fall. Id., 9-10. The Supreme Court stated, "The fact that the defendant may have been aware of this hole at the time the contract was completed, however, would not in itself establish a continuing duty to warn of the danger or to safeguard the hole. See Handler v. Remington Arms Co., 144 Conn. 316, 321, 130 A.2d 793 (1957); Vilcinskas v. Sears, Roebuck Co., 144 Conn. 170, 174, 127 A.2d 814 (1956); Mayo v. Northeast Connecticut Council of Governments, Superior Court judicial district of Windham at Putnam, Docket No. CV 99-9996743S (May 31, 2000, Sferrazza, J.) ( 27 Conn. L. Rptr. 288). The plaintiff presented no facts, by affidavit or in some other form . . . which would reasonably support an inference of continuing breach of duty by the defendant." Id., 13-14; Fichera v. Mine Hill Corporation, 207 Conn. 204, 209, 541 A.2d 472 (1988); Sandvig v. A. Dubreil Sons, Inc., Superior Court, judicial district of New London at Norwich, Docket No. CV 93-0104218S (March 29, 2000, Parker, J.). See also Prokdkin v. General Motors Corporation, 170 Conn. 289, 301, 365 A.2d 1180 (1976) (No continuing duty to warn after date of sale of defective product); Mayo v. Northeast Correction Council of Governments, Superior Court, supra, (any breach of duty to excavate a pit with safe barriers, including duty to inspect, occurred at the latest on the date the contractor ceased work).
Nothing in the plaintiffs' amended complaint supports a claim that the defendant had a continuing duty to warn of the alleged dangerous condition of the girt or to insure that building officials performed a final inspection. The claim that the defendant failed to have the shed inspected by the local building official after completion and before turning it over to the plaintiff for use is problematic for the plaintiffs because they cite no contractual provision, legal authority or customary business practice that implicated a continuing duty on the defendant's part to have the completed building inspected before or after the plaintiff began using it. The alleged act of failing to have the structure inspected before advising the plaintiff that it was ready for use would have occurred no later than 2000, when both sides admit the structure was completed and the defendant performed no further work. In addition, there are no allegations that the lack of inspection made the alleged defects in the girt any worse or that an inspection by the town building department would have uncovered them. See Cacace v. Morcaldi, 37 Conn.Sup. 735, 739, 435 A.2d 1035 (1981). As the holder of the permit, the plaintiff, prior to commencing use of the shed, was equally aware of the inspection requirement and responsible for insuring an inspection took place. Even if plaintiffs had evidence that defendant's failing to obtain a final inspection was a wrongful act, and that the plaintiffs lacked knowledge of the absence of such an inspection until the date of Leahey's injury, such circumstance still would not delay the start of the statute of limitations until the date of the "act or omission." It has been held that even where the wrongful act could not reasonably have been discovered until after the statute had run, § 52-584 would bar any action seeking damages for the "act or omission complained of." Fichera v. Mine Hill Corporation, supra, 212-13; Kennelly v. John-Manville Sales Corporation, 135 Conn. 176, 179-80, 62 A.2d 771 (1948).
Where courts have found that a duty to warn or take remedial measures continue to exist after the "act or omission" giving rise to the claimed injury, there has been, as noted earlier, "evidence of a special, fiduciary-type relationship between the parties or evidence of some later wrongful conduct on the part of the defendant related to the prior act. See Giglio v. Connecticut Light Power Co., 180 Conn. 230, 242, 429 A.2d 486 (1980) (repeated instructions and advice given to the plaintiff by the defendant concerning a furnace it had previously converted and left in a defective condition); Giambuzi v. Peters, 127 Conn. 380, 385, 16 A.2d 833 (1940) (`[w]hen injurious consequences arise from a course of treatment [by a physician], the statute does not begin to run until the treatment is terminated'); cf. Handler v. Remington Arms Co., 144 Conn. 316, 130 A.2d 793 (1957) (duty to warn of a defective cartridge, because it was an `inherently dangerous article,' held to continue in existence until the time of injury)." Nardi v. AA Electronic Security Engineering, supra 32 Conn.App., 212-13.
"[W]hen the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed. [T]he [continuing course of conduct] doctrine is generally applicable under circumstances where [i]t may be impossible to pinpoint the exact date of a particular negligent act or omission that caused injury or where the negligence consists of a series of acts or omissions and it is appropriate to allow the course of [action] to terminate before allowing the repose section of the statute of limitations to run. The doctrine is particularly suited to claims where the situation keeps evolving after the act complained of is complete, such as medical malpractice, rather than one where the situation cannot change . . ." (Citation omitted; internal quotation marks omitted.) McKeon v. Rinaldi, Superior Court, judicial district of Waterbury at Waterbury, Docket No. CV 04-4001110S (May 11, 2005, Matasavage, J.). "[T]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong . . . Where we have upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act." (Internal quotation marks omitted.) Sherwood v. Danbury Hospital, 252 Conn. 193, 203, 746 A.2d 730 (2000).
It is not in dispute that the defendant had no contact with the tobacco shed after its completion in July 2000. Without any such later contact, the fact that the defendant may have been or should have been aware of the dangers created by the girt at the time it completed its installation, or some time thereafter, does not establish any duty to warn or to correct the wrongdoing. Id., 213.
The girt, even if negligently installed, does not implicate the doctrine in Handler v. Remington Arms Co., supra, 144 Conn. 316. Unlike the defective ammunition in Handler, the girt did not pose an unreasonable risk of personal injury. Handler also involved the mislabeling of defective rounds which affirmatively encouraged the use of the inherently dangerous item long after the sale and right up to the point of misfire and injury.
As the court in Nardi v. AA Electronic Security Engineering, supra, 32 Conn.App. 205, noted, "We recognize that the effect of the statute of limitations can be harsh under circumstances . . . Our statute of limitations, however, has been interpreted to permit such a result for nearly forty years. It is not the function of this court to alter the will of the legislature merely because the results are unfair . . . Instead it is our duty to construe the language as used by the legislature . . . Absent any indication that the General Assembly no longer intends the phrase from the date of the act or omission complained of to be construed in accordance with [the] decision in Vilcinskas v. Sears, Roebuck Co., 144 Conn. 170, 127 A.2d 814 (1956)] . . . the three year limitation of General Statutes . . . 52-584 begins to run from the date of the negligent act." (Citations omitted; internal quotation marks omitted.) Id., 329, n. 4.
C. The Loss of Consortium Claim — Count 5
In Hopson v. St Mary's Hospital, 176 Conn. 485, 496, 408 A.2d 260 (1979), the Connecticut Supreme Court held that a wife has a right to bring an action for loss of consortium arising from a personal injury to her husband caused by the negligence of a third person and claim as elements of danger loss of companionship, society, affection, sexual relations and moral support. In Lynn v. Haybuster Manufacturing, Inc., 226 Conn. 282, 299, 627 A.2d 1288 (1993), the Supreme Court extended a spouse's right to action under the Product Liability Act. Such an action, however, is derivative of the injured spouse's cause of action and is no longer viable when the injured spouse's claims are nullified. "[I]f an adverse judgment bars the injured spouse's cause of action, any claim for loss of consortium necessarily fails as well." Musorofiti v. Vleck, 65 Conn.App. 365, 376, 783 A.2d 36 (2001).
CONCLUSION
For the reasons stated above, the motion for summary judgment is granted. Summary judgment shall enter for the defendants and against the plaintiffs on all five counts of the complaint.