Opinion
No. CV03 0283527-S
January 21, 2005
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT #117
I PROCEDURAL HISTORY
On February 13, 2003, the plaintiff, Greg Miller, Jr., filed a two-count complaint against defendants, Karaoke, Inc. and Paul Pavano. The plaintiff's complaint sets forth claims of negligence in connection with injuries he allegedly sustained as a result of falling on February 3, 2001 after exiting the Starstruck Cafe, an establishment located at 290 Farmington Avenue in Plainville, Connecticut. Specifically, the plaintiff alleges that the defendants were negligent because they failed to adequately remove ice and snow from outside the cafe, failed to sand and/or salt the area adequately and failed to warn pedestrians of the hazards presented by the ice and snow. On September 29, 2003, the defendants filed an answer and special defenses in which they asserted, inter alia, a special defense of comparative negligence. On January 9, 2004, the plaintiff withdrew his claims against defendant Pavano. Karaoke, Inc. remains the sole defendant in this action.
Karaoke, Inc. operates the Starstruck Cafe, an establishment which provides entertainment and serves alcohol to patrons. Paul Pavano is the owner of real property and buildings located at 290 Farmington Avenue in Plainville, Connecticut.
The plaintiff's action with respect to Karaoke, Inc. commenced via service of process on January 31, 2004. The plaintiff's action with respect to Paul Pavano commenced via service of process on February 7, 2004.
The parties' pleadings, including the motion for summary judgment which is subject of this decision, continue to refer to Pavano, indicating that the parties believe Pavano remains a party to this action. The plaintiff, however, withdrew its claims against Pavano on January 9, 2004. As such the court treats the motion for summary judgment as though it were filed by the remaining defendant, Karaoke, Inc.
On August 25, 2004, the plaintiff, with permission of the court, amended his complaint to add counts three and four against Karaoke, Inc. in which he alleges that Karaoke, Inc., acting through its agents, servants and employees, negligently and recklessly served him alcohol and caused him to become intoxicated. The defendant thereafter amended its answer to add an additional special defense of statute of limitations.
On October 14, 2004, the defendant moved for summary judgment with respect to counts three and four on the ground that the counts are barred by the applicable statute of limitations. On October 29, 2004, the plaintiff filed a memorandum of law in opposition, arguing that the defendant is estopped from relying on the statute of limitations as the basis for their motion because the defendant introduced the facts underlying counts thee and four when it asserted the special defense of comparative negligence. The court heard oral argument on the defendant's motion at short calendar on November 1, 2004.
The court notes that the defendant's motion is procedurally irregular in that the defendant has moved for summary judgment with respect to its special defense of statute of limitations. The court will treat the defendant's motion as a motion for summary judgment as to counts three and four of the plaintiff's amended complaint.
The court understands the plaintiff's argument to be that counts three and four relate back to the allegations of the original complaint because the defendant raised the facts underlying those counts when it asserted the special defense of comparative negligence and that therefore the counts are not barred by the statute of limitations.
II DISCUSSION
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 . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him 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." (Citations omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791-92, 849 A.2d 839 (2004). "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); and is appropriate where 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).
In its motion, the defendant argues that counts three and four are untimely because they constitute new causes of action which were added to the amended complaint after the expiration of the two-year statute of limitations set forth in General Statutes § 52-584. The defendant contends that counts three and four, comprised respectively of negligent and reckless service of alcohol, allege new facts that were not raised in the plaintiff's original complaint. As such, the counts do not relate back to the original allegations of negligence, which involved the defendant's failure to adequately remove snow and ice from outside the premises. Accordingly, the defendant maintains that counts three and four "[speak] as of the date [they] w[ere] filed," August 25, 2004, and as such, are barred by the statute of limitations. At oral argument, the defendant further argued that the original complaint did not fairly place it on notice of the claims of negligent and reckless service of alcohol. As such, it contends that permitting those claims to stand would undermine the objectives underlying the statute of limitations.
Section 52-584 provides in relevant 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 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 . . ."
The plaintiff does not dispute the defendant's contention that the statute of limitations expired on February 3, 2003. Rather, in opposition, the plaintiff contends that the defendant is estopped from claiming that counts three and four are untimely because it introduced facts into the pleadings from which the new claims arise when it asserted comparative negligence as a special defense in its answer to the plaintiff's original complaint. In short, the plaintiff argues that because the defendant asserted in its answer that the plaintiff's intoxication caused his injuries, the plaintiff is entitled to add claims for negligent and reckless serving of alcohol notwithstanding the expiration of the statute of limitations.
In its answer, filed on September 29, 2003, the defendant asserts comparative negligence as a special defense, alleging that, to the extent that the plaintiff sustained any injuries or damages claimed in his complaint, such injuries and damages were due to his own negligence. Specifically, the defendant contends that the plaintiff: "a) [f]ailed to keep a proper lookout; b) [f]ailed to maintain a responsible awareness of his own surroundings; c) [f]ailed to walk in a reasonable and prudent manner under the circumstances then and there existing; [and] d) [a]ttempted to traverse the subject property while his faculties and abilities were impaired by alcohol and/or drugs when he knew or should have known that it would be dangerous to do so."
Notably, the plaintiff frames his argument in terms of estoppel and does not address the relation back doctrine raised by the defendant. Estoppel is a principle of equity. "Under Connecticut law, any claim of estoppel is predicated on proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury." (Internal quotation marks omitted.) Middlesex Mutual Assurance Co. v. Walsh, 218 Conn. 681, 699, 590 A.2d 957 (1991). With respect to statutes of limitations, "the principle of equitable estoppel is ordinarily invoked in cases where the defendant misrepresented the length of the limitations period or in some way lulled the plaintiff into believing that it was not necessary for him to commence litigation." (Internal quotations omitted.) Gallop v. Commercial Painting Co., 42 Conn.Sup. 187, 195 n. 6, 612 A.2d 826 (1992). "Estoppel rests on the misleading conduct which results in prejudice to the other and absent such prejudice an estoppel cannot exist." John F. Epina Realty, Inc. v. Space Realty, Inc., 194 Conn. 71, 85, 480 A.2d 499 (1984). Here, the plaintiff has neither alleged nor provided evidence of misleading conduct by the defendant. The doctrine of equitable estoppel, therefore, is not applicable in this case.
As a general matter, "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, however, 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 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 . . . 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." (Citations omitted; internal quotation marks omitted.) Wagner v. Clark Equipment Co., 259 Conn. 114, 129-30, 788 A.2d 83 (2002).
The relation back doctrine provides "that an amendment relates back [to the date of the original complaint for purposes of statute of limitations analysis] 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 . . ." (Internal quotation marks omitted.) Alswanger v. Smego, 257 Conn. 58, 65, 776 A.2d 444 (2001). Moreover, "[t]he fact that the same defendant is accused of negligence in each complaint and the same injury resulted . . . does not make any and all bases of liability relate back to the original claim of negligence." Grogan v. Spivak, Superior court, judicial district of Fairfield at Bridgeport, Docket No. CV 99 0368340 (February 8, 2003, Doherty, J.).
In Alswanger v. Smego, supra, 257 Conn. 58, the Supreme Court held that the trial court properly granted the defendants' motion for summary judgment as to claims set forth in an amended complaint on the basis of expiration of the statute of limitations. There, the plaintiffs brought a medical malpractice claim against the defendant alleging that the defendants negligently performed a medical procedure and failed to disclose all the material risks involved with the procedure. Subsequently, the plaintiffs amended their complaint to include an allegation that the defendants failed to disclose that a medical resident would participate as a co-operating surgeon. The defendants moved for partial summary judgment on the basis that the amended complaint did not relate back to the original complaint, and therefore, the new claim was barred by the statute of limitations. Affirming the trial court decision, the Supreme Court observed "that the allegations in the plaintiffs' amended complaint alleging lack of informed consent regarding a resident's participation in the surgery arose from a different set of facts than the allegations set forth in the original complaint." Id., 61. The court reasoned that "[a]lthough the focus of the original complaint was on the informed consent as it related to the surgical procedure itself, the amended complaint shifted focus to consent by the patient to the participation of the individuals involved in the surgery." Id., 66. Moreover, the court stated that "[t]he amended complaint, although alleging negligence related to the same surgery as the original complaint, had its basis in a different set of facts from the original complaint. That the injuries alleged and the parties involved in each complaint were identical did not eliminate the fact that the complaints were based on different facts." Id., 68.
The plaintiff, in his original complaint, alleges that the defendant was negligent because it failed to adequately remove ice and snow from outside the Starstruck Cafe premises and failed to adequately sand and/or salt the area such that "the travel portion of the premises was not reasonably safe for pedestrian travel and passage." Counts three and four of the amended complaint allege that Karaoke, Inc. was negligent and reckless in serving the plaintiff alcohol and causing him to become intoxicated. Although the parties and injuries are the same, the claims clearly "involve two different sets of circumstances and depend on different facts to prove or disprove the allegations of a different basis of liability." Sharp v. Mitchell, 209 Conn. 59, 73, 546 A.2d 846 (1988). In addition, because the original, timely complaint did not provide the defendant with fair or adequate notice of the subsequent claims of negligent and reckless service of alcohol, the objectives underlying the relation back doctrine have not been met. The court also notes that the plaintiff has failed to set forth any reason explaining why it did not bring the claims for negligent and reckless service of alcohol in a timely fashion. Counts three and four, therefore, do not relate back to the original complaint. Because these counts were not filed until August 25, 2004, more than two years after the alleged events giving rise to the plaintiff's cause of action occurred, they are barred by the two-year statute of limitations set forth in General Statutes § 52-584.
III CONCLUSION
Because the defendant has sustained its burden of demonstrating that there is no genuine material issue of fact, it is entitled to judgment as a matter of law. Accordingly, the court grants the defendant's motion for summary judgment with respect to counts three and four of the plaintiff's amended complaint on the basis that the counts are barred by the statute of limitations.
So Ordered.
BY THE COURT
Peter Emmett Wiese, Judge