Opinion
No. CV-10-6007184S
May 3, 2011
RULING ON DEFENDANT'S OBJECTIONS TO REQUEST FOR LEAVE TO AMEND COMPLAINT (#114 AND #116)
On January 8, 2010, the plaintiff Mario Martis (Martis) filed a single-count complaint against the defendant 456 Lombard, LLC (Lombard) sounding in common-law negligence and arising from an incident which occurred on January 19, 2008. On November 2, 2010, Martis filed a Request for Leave to Amend Complaint (#113) seeking to add two counts to the original complaint. On November 15, 2010, Lombard filed an objection to the request (#114) to which Martis replied on November 18, 2010 (#115). On December 2, 2010, Lombard filed a supplemental objection (#116) to which Martis replied on March 25, 2011 (#120). Both of the Lombard objections appeared on this court's non-arguable calendar (short calendar 10) on April 4, 2011 and were heard on May 2, 2011.
Generally, a trial court has wide discretion to permit an amendment to a complaint, see Dimmock v. Lawrence Memorial Hospital, Inc., 286 Conn. 789, 799, 945 A.2d 955 (2008), particularly when, as here, no trial date has even been set. "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 right of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some delict on the part of the defendant. The facts which establish the existence of that right and that delict constitute 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 where an entirely new and different factual situation is presented, a new and different cause of action is stated." Alswanger v. Smego, 257 Conn. 58, 64-65, 776 A.2d 444 (2001).
Lombard argues that the second count of the amended complaint dated November 2, 2010, alleging negligence per se, states a separate and distinct cause of action. While negligence per se is an independent cause of action from common-law negligence, Rivera v. Fairbank Management Properties, Inc., 45 Conn.Sup. 154, 165, 703 A.2d 808 (1997) [ 20 Conn. L. Rptr. 338], it differs from common-law negligence principally in its requirements that "(1) the plaintiff must be a member of the class protected by the statute; and (2) the injury must be of the type the statute was intended to prevent." Small v. South Norwalk Savings Bank, 205 Conn. 751, 760, 535 A.2d 1292 (1988). These are ordinarily questions of law. Coughlin v. Peters, 153 Conn. 99, 101, 214 A.2d 127 (1965). Otherwise, both common-law negligence and negligence per se require the same two essential elements — a breach of a duty and resulting harm proximately caused by the breach. See, e.g., RK Constructors, Inc. v. Fusco Corp., 231 Conn 381, 384, 650 A.2d 153 (1994); Coburn v. Lenox Homes, Inc., 186 Conn. 370, 375, 441 A.2d 620 (1982); Coughlin v. Peters, supra, 153 Conn. 102.
The principal difference between common-law negligence and negligence per se is that the latter doctrine "operates to engraft a particular legislative standard onto the general standard of care imposed by traditional tort law principles, i.e., that standard of care to which an ordinarily prudent person would conform his conduct," Wendland v. Ridgefield Construction Services, Inc., 184 Conn. 173, 178, 439 A.2d 954 (1981), so that conduct violative of the statute establishes the breach. "Although the common-law imposes on landlords only a duty to maintain in a reasonably safe condition those areas of their premises over which they exercise control, statutes may impose on landlords additional duties or obligations." Gore v. People's Savings Bank, 235 Conn. 360, 375, 665 A.2d 1341 (1995). In this case, the court concludes that the identity of the cause of action remains essentially the same as the second count of the amended complaint seeks to allege an alternative theory of negligence liability against a landlord.
Lombard further maintains that the second count is barred by the applicable statute of limitations. The court therefore must determine whether it relates back to the factual allegations of the original complaint. See New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 443, 970 A.2d 592 (2009). Although Martis has set forth an alternative theory of negligence liability premised on a violation of General Statutes § 47a-7(a) rather than the common-law in the second count, the factual allegations of the first count are fully incorporated within the second count. Those allegations are identical to the facts alleged in the original complaint.
The operative facts are that Martis was a tenant renting a basement apartment in premises owned by Lombard when he "awoke to find that there was a massive sewage backup in this apartment and that his body was submerged in raw sewage." ( ¶¶ 1-4.) The cause of the sewage backup was that the "sewer/plumbing system in his apartment [was in] a hazardous, dangerous and defective condition" (¶ 5) resulting from Lombard's conduct in failing to maintain the premises in a safe condition, permitting the sewer system to exist in a dangerous and defective condition and failing to remedy it or take preventive measures, and failing to replace or repair "the malfunctioning sewer system," (¶ 6(a)(b)(c)(d)(f)(j)), as well as additional acts or failures to act.
The gravamen of the original complaint and the second count of the amended complaint is that the existence of a defective sewer system on the premises that Lombard rented to Martis, which Lombard failed to remedy, caused harm to Martis. When, as here, the proposed amendment relies on the identical facts originally alleged, it is difficult for a defendant to claim lack of fair and adequate notice. See Gurliacci v. Mayer, 218 Conn. 531, 549, 590 A.2d 914 (1991) (an amendment adding an allegation that the defendant operated his motor vehicle "wilfully, wantonly and maliciously, or outside the scope of his employment" to a complaint that already alleged that the defendant operated the motor vehicle negligently while intoxicated merely stated an alternative theory of liability and did not inject a new set of facts or circumstances); Giglio v. Connecticut Light Power Co., 180 Conn 230, 237-39, 429 A.2d 486 (1980) (amendments specifying additional defects in a furnace system related back to original complaint that alleged a defective safety unit in the furnace). Since the alternative theory of negligence liability set forth in the second count of the amended complaint may be supported by the original factual allegations, the court concludes that the allegations relate back and are not time barred. See Sherman v. Ronco, 294 Conn. 548, 563, 985 A.2d 1042 (2010).
Accordingly, for the reasons stated above, the defendant's objections to the request for leave to amend are overruled.
As an additional ground in support of its objection, Lombard has argued that the facts alleged here do not provide a sufficient basis for a cause of action sounding in statutory negligence or negligence per se because there is no controlling appellate authority which holds that a defective plumbing system or sewage system amounts to a violation of General Statutes § 47a-7(a). A motion to strike is the proper vehicle to challenge the legal sufficiency of the second count of the amended complaint. Practice Book § 10-39(a).