Opinion
KNLCV156025415S
04-26-2016
Michael McCarthy v. ECP-PF:CT Operations, Inc. dba Planet Fitness et al
UNPUBLISHED OPINION
RULING RE DEFENDANTS' MOTION TO STRIKE
Robert F. Vacchelli, Superior Court Judge.
This case is an action by the plaintiff, Michael McCarthy, seeking money damages against the defendants, ECP-PF:CT Operations, Inc. d/b/a Planet Fitness and ECP-PF Holdings Group, Inc. d/b/a Planet Fitness. In essence, the plaintiff alleges that he was using a piece of exercise equipment known as a step climber at defendants' facility when the speed unexpectedly increased, causing him to lose his balance and fall backward at which time his right leg became entrapped under the equipment, resulting in serious personal injuries. The complaint is in four counts against the two defendants for negligence and product liability. Presently before the court is the defendants' motion to strike the product liability counts in Counts Three and Four. For the following reasons, the motion is granted.
I
A motion to strike is used " [w]henever any party wishes to contest . . . the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or any one or more counts thereof, to state a claim upon which relief can be granted . . ." Practice Book § 10-39(a)(1); Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). " In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Citation omitted; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). " The role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff has] stated a legally sufficient cause of action." (Citations omitted; internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). " It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Citations omitted; internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010).
" [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Citation omitted; internal quotation marks omitted.) Id., 252. Nevertheless, " [a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Citation omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.
II
The essential, pertinent facts, drawn from the factual allegations in the complaint, are as follows: On or about December 9, 2013, the plaintiff was a business patron of the defendant Planet Fitness health club, and was lawfully on the premises located at 42 Town Street, Norwich, CT, as an invitee. The defendants owned, possessed, maintained and/or controlled the premises and the equipment at the health club and controlled the use of the exercise equipment as well as the guidance, instruction and demonstration for the use of the exercise equipment. One such piece of equipment was a device known as a step climber. The step climber was provided by the defendants, through the ordinary course of business, to users and consumers of exercise equipment at the health club, including the plaintiff. The plaintiff was attempting to exercise with the step climber when the speed unexpectedly increased. The plaintiff could not decrease the speed, which caused him to lose his balance and fall backward, at which time his right leg became entrapped under the exercise equipment resulting in serious personal injury. The plaintiff alleges that the defendants are liable and legally responsible to the plaintiff for his injuries caused by the step climber pursuant to the Connecticut Product Liability Act, General Statutes § § 52-572m et seq., in a variety of particular ways alleged in Counts Three and Four of the complaint.
III
Defendants argue that the product liability counts should be stricken because the defendant is not a " product seller" as defined by General Statutes § 52-572m and, therefore, they cannot be held liable under a theory of product liability under the act. While conceding that the defendants did not give him control and possession of equipment in exchange for money " in the traditional sense of selling products, " plaintiff argues that, nevertheless, the counts should not be stricken because the health club was " in the business of providing use of exercise equipment in exchange for money." Plaintiff's Memorandum, p. 2. That, he argues, is activity that falls within the scope of the act and, therefore, the plaintiff's claims are legally cognizable. For the following reasons, the court concludes that the health club was not a product seller of the equipment under facts alleged, and the fact that the defendants were alleged to provide the plaintiff with the use of the equipment does not bring the case within the purview of the act. Therefore, the counts must be stricken.
The Connecticut Product Liability Act is asserted against a " product seller." General Statutes § 52-572n. A " product seller" is defined as " 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 use or consumption. The term 'product seller' also includes lessors or bailors of products who are engaged in the business of leasing or bailment of products." General Statutes § 52-572m(a). Whether a defendant is a product seller is a question of law. Burkert v. Petrol Plus of Naugatuck, Inc., 216 Conn. 65, 72, 579 A.2d 26 (1990). " While Burkert v. Petrol Plus of Naugatuck, Inc., . . . instructs that the issue of whether a defendant is a 'product seller' is determinable as a question of law, . . . there may be questions of fact underlying such a legal determination." Acquarulo v. A.O. Smith Corp., Superior Court, judicial district of Fairfield, Docket No. CV-09-5024498-S (December 30, 2011, Bellis, J.) . " Burkert teaches that whether an entity is sufficiently involved in the stream of commerce of a product to be a 'product seller' under [§ 52-572m] requires a fact intensive, case-by-case assessment." Svege v. Mercedes-Benz Credit Corp., 329 F.Supp.2d 272, 280 (D.Conn. 2004). On a motion to strike, the court accepts as true all facts that are well pleaded. Nestor v. Travelers Indemnity Co., 41 Conn.App. 625, 629, 677 A.2d 475, cert. denied, 239 Conn. 903, 682 A.2d 1004 (1996).
" The definition of 'product seller' provided by § 52-572m(a) is identical to the definition provided by § 102(1) of the Draft Uniform Product Liability Law (draft act), 44 Fed. Reg. 2996, 2997-98 (1979) . . . Because the legislature, in § 52-572m (a), adopted verbatim the language of § 102(1), [our courts] look to the commentary to § 102(1) of the draft act for guidance . . . Potter v. Chicago Pneumatic Tool Co., [241 Conn. 199, 230-31, 694 A.2d 1319 (1997)] . . . The commentary to § 102(1) of the draft act provides in relevant part: [Sec. 52-572m] does not address several definitional problems of 'product seller.' [I]t does not address the problem of the product seller engaged in a service . . . It is suggested 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; emphasis in original; internal quotation marks omitted.) Truglio v. Hayes Construction Co., 66 Conn.App. 681, 684-85, 785 A.2d 1153 (2001). " 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." (Internal quotation marks omitted.) Zbras v. St. Vincent's Medical Center, 91 Conn.App. 289, 294, 880 A.2d 999, cert. denied, 276 Conn. 910, 886 A.2d 424 (2005).
" General Statutes § 52-572m et seq. does not define the term 'product' . . ." Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 403, 528 A.2d 805 (1987). Courts have defined a " product" under the product liability act as " any item, thing, or commodity which, upon acquiring its physical existence and identity, through the process of manufacture or otherwise, is put in the stream of commerce either by sale, for use, consumption or resale, or by lease or bailment." Bobryk v. Lincoln Amusements, Inc., Superior Court, judicial district of Hartford, Docket No. CV-95-0547084-S (January 5, 1996, Sheldon, J.) ; see also Estrella v. Sodexho, Inc., Superior Court, judicial district of Stamford, Docket No. CV-04-0200833-S, (October 6, 2004, Hiller, J.) (same); Williams v. McDonald's of Torrington, Superior Court, judicial district of Hartford, Docket No. CV-96-0562657-S (May 8, 1997, Hale, J.) (" [T]he definition of what is a product has been developed entirely by case law").
As evidenced in our General Statutes, the General Assembly has offered some guidance on whether a health club, is, in essence, selling a product or furnishing a professional skill or services in its general course of business. Connecticut's consumer protection statutes regulating health clubs are codified at title 21a, chapter 420 of the General Statutes. General Statutes § 21a-216 provides, in relevant part, " (1) 'Health club' means any corporation, partnership, unincorporated association or other business enterprise offering facilities for the preservation, maintenance, encouragement or development of physical fitness or well-being in return for the payment of a fee entitling the buyer to the use of such facilities . . ." Multiple sections of this chapter contemplate that a health club is in the business of selling contracts for services. See, e.g., General Statutes § 21a-221 (" A health club which intends to commence the sale of health club contracts, shall, prior to commencing sale, compile a written list of the equipment and each service which it intends to have available for use by buyers at the time of commencing such sale . . ." (Emphasis added.)); General Statutes § 21a-217 (" Every contract for health club services shall provide . . . Such contract for health club services shall also contain . . ." (Emphasis added.)).
In addition to those who sell products, § 52-572m includes those engaged in the business of leasing and the bailment of products as product sellers. " A lease is a contract under which the lessor, for a fee or other valuable consideration, transfers an interest or estate in real or personal property to the lessee for a stated period of time, with a reversion in the owner after the expiration of the lease. Jo-Mark Sand & Gravel Co. v. Pantanella, 139 Conn. 598, 601[, 96 A.2d 217] (1953). A lease is distinguishable from a license. While the former confers a right, during the term of the lease, to exercise exclusive possession of and control over the property in question, assertable even against the lessor, Carroll v. Cooney, 116 Conn. 112, 115[, 163 A. 599] (1933), the latter extends but a '[privilege] to enter or remain upon land by virtue of the possessor's consent, whether given by invitation or permission.' Laube v. Stevenson, 137 Conn. 469, 473[, 78 A.2d 693] (1951) (quoting [2 Restatement, Torts § 332 (1934)]). A licensor, unlike a lessor, remains in possession and control of his property for the duration of the license." Bobryk v. Lincoln Amusements, Inc., supra .
Under Connecticut law, " [a] bailment involves a delivery of the thing bailed into the possession of the bailee, under a contract to return it to the owner according to the terms of the agreement . . . A relationship of bailor-bailee arises when the owner, while retaining general title, delivers personal property to another for some particular purpose upon an express or implied contract to redeliver the goods when the purpose has been fulfilled, or to otherwise deal with the goods according to the bailor's directions . . . In a bailment, the owner or bailor has a general property [interest] in the goods bailed . . . The bailee, on the other hand, has mere possession of items left in its care pursuant to the bailment." (Citation omitted; footnote omitted; internal quotation marks omitted.) B.A. Ballou & Co. v. Citytrust, 218 Conn. 749, 753, 591 A.2d 126 (1991). " The essential element of bailment is the express or implied assumption of control over the property by the bailee." (Internal quotation marks omitted.) Hartmann v. Black & Decker Manufacturing Co., 16 Conn.App. 1, 6, 547 A.2d 38 (1988).
While it appears Connecticut courts have not had occasion to examine whether a health club is a product seller, one trial court's examination whether an amusement company providing carnival rides was a product seller is instructive. In Bobryk v. Lincoln Amusements, Inc., supra, the court on a motion to strike found that an amusement company was not a product seller under § 52-572m based on the plaintiff's allegations. The plaintiff did not allege that the amusement apparatus was sold to her. Id. Additionally, the court determined that the minor plaintiff in alleging the purchase of a ticket to ride a flying chair apparatus, had not alleged facts that she acquired an estate or interest in the apparatus sufficient to conclude that she had leased it for the duration of her ride. Id. Nor had she alleged facts that the defendant relinquished control of the amusement to her to conclude that the defendant bailed it to her. Id. All that the plaintiff had was a license to ride the amusement. Id. Accordingly, the court granted the motion to strike on the ground that the plaintiff had not alleged facts upon which one could conclude that the defendant sold, leased, or bailed any product under the Product Liability Act. Id. This count concludes likewise in the instant case.
Other states have determined that a health club is not a product seller under their product liability statutes. In Grebing v. 24 Hour Fitness U.S.A., Inc., 234 Cal.App.4th 631, 640 184 Cal.Rptr.3d 155 (2015), the court held undisputed evidence demonstrated that the defendant health club made exercise equipment available, including the equipment causing injury, for a member's use and provided a variety of other fitness services and, therefore, the dominant purpose of the health club's membership agreement was providing fitness services rather than supplying a product. Additionally, in Watford v. Jack LaLanne Long Island, Inc., 151 A.D.2d 742, 542 N.Y.S.2d 765, 767 (1989), the court held that the health club was not liable for breach of warranty or products liability because deposition testimony established a health club was not in the manufacturing, selling, or distributive chain of the exercise equipment. Finally, the court in Garrison v. Combined Fitness Centre, Ltd., 201 Ill.App.3d 581, 586, 559 N.E.2d 187, 147 Ill.Dec. 187 (1990), explained, in dicta, that a health club is not a seller within the meaning of the Illinois product liability statute.
Similarly, in the instant case, where it is alleged that the equipment causing injury remained in the health club's possession and control, this court concludes that the health club is not a product seller under our product liability act. The relationship alleged between a health club and its member in such a circumstance is for provision of services with a license to use certain equipment and not that of a sale, lease, or bailment of such equipment. In this light, the plaintiff's complaint does not contain allegations of fact necessary to maintain a cause of action under the Connecticut Product Liability Act.
IV
For all of the foregoing reasons, the defendants' motion to strike is granted as to Counts Three and Four of the plaintiff's complaint.