Opinion
No. CV06-5000415S
June 4, 2010
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #119
Facts
The ease presently before the court arises out of alleged exposure to toxic mold. The matter was commenced on December 21, 2005 by service of process on the defendant Edward Toohey, the lessor of property located at 92 Howe Avenue in Shelton, Connecticut and was brought by Denise Mollica individually and on behalf of her minor children, Alexa and Daniel Mollica. The original, one-count complaint, dated December 20, 2005, is the operative complaint and essentially alleges that the plaintiff Denise Mollica leased the premises from the defendant in September of 1999, and further alleges that the Mollica's vacated the premises on December 22, 2003. On March 2, 2006. the defendant filed an Answer and Special Defenses, denying the allegations of negligence, and asserting special defenses of comparative negligence on the part of Denise Mollica as well as the statute of limitations.
On November 27, 2009, this court granted the defendant permission to file a motion for summary judgment. On December 29, 2009, the defendant filed his motion for summary judgment, on the basis that the action is time barred by the applicable statute of limitations, C.G.S. § 52-584. In support of his motion, the defendant submitted copies of excerpts of the certified deposition. transcripts of Denise Mollica taken on April 9, 2008 and January 19, 2009. The plaintiffs filed their memorandum in opposition on February 12, 2010, in which they assert that the defendant's failure to remedy the mold problem constituted a continuous cause of tortious conduct such that the statute of limitations was tolled and did not start to run until the plaintiff vacated the premises on December 22, 2003. On March 18, 2010, the defendant filed a reply brief, in which he argues that the continuing cause of conduct doctrine does not apply to the present case, as the plaintiff suffered actionable harm in 2001 when she realized the causal connection between the mold and the plaintiffs' health problems, thus triggering the two-year statute of limitations of § 52-584. The matter was argued on March 19, 2010, at which time the plaintiffs submitted an excerpt from the January 19, 2009 deposition of Denise Mollica as well as a photograph of the residence at issue.
Some of the pages were duplicative of those submitted by the defendants. The excerpt did not contain the court reporter's certificate, and none of the excerpts submitted by the parties included a jurat page or any indication that the testimony was taken under oath. Where the opposing party does not object, a court may, but is not required to, review uncertified deposition transcripts. Barlow v. Palmer, 96 Conn.App. 88, 92 (2006) (holding that trial court did not abuse its discretion in not considering the uncertified deposition testimony by both parties). This court, in the past, has taken into consideration uncertified deposition transcripts and documents, in the absence of any objection from the opposing party. See e.g. Pellegrino v. Jack, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 06 5006035 (December 2, 2008, Bellis, J.) [ 46 Conn. L. Rptr. 736]; Capela v Daddio, Superior Court, judicial district of New Haven at New Haven, Docket No. 06 5007123 (June 12, 2008, BeIlis, J.); Carey v. Geico, Superior Court, judicial district of New Haven at New Haven, Docket No. 06 5003504 (May 23, 2008, Bellis, J.) [ 45 Conn. L. Rptr. 586]. As neither party has raised any objection to the court's considering the excerpts, I will exercise my discretion and take the exhibits into consideration.
Law
"Summary judgment is a method of resolving litigation when 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 . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; internal quotation marks omitted.) Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).
"In any action, except administrative appeals which are not enumerated in Section 14-7 any party may move for summary judgment at any time, except that the party must obtain the judicial authority's permission to file a motion for summary judgment after the case has been assigned for trial." Practice Book § 1744.
"Summary judgment may be granted where the claim is barred by the statute of limitations." Dory v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996). Summary judgment is appropriate on statute of limitation 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). "[Summary judgment is proper where the affidavits do not set forth circumstances which would serve to avoid or impede the normal application of the particular limitations period." (Internal quotation marks omitted.) LaBow v. Rubin, 95 Conn.App. 454, 471, 897 A.2d 136, cert. denied, 280 Conn. 933, 909 A.2d 960 (2006). "In the context of a motion for summary judgment, the court's role is not to decide whether the plaintiff complied with the statute [of limitations] but whether an issue of material fact regarding compliance with the statute exists." Rivera v. Fairbank Management Properties, Inc., 45 Conn.Sup. 154-55 (1997).
The transcripts from the deposition testimony of the plaintiff Denise Mollica include the following testimony. Before the plaintiffs moved in, Ms. Mollica noticed black mold and paint chipping off the ceiling in a hallway, black mold around the tub and tiles, no ventilation in the bathroom, linoleum curling up a little bit around a tub, and tile pieces coming off the wall with the back of the wall getting damp. She was told that everything was going to be repaired and repainted. In August or September of 2000, within the first month the plaintiffs were there, the defendant sent people out to do the work, although Ms. Mollica did not know what work might have been done. One of the workers told her that the wood around the bathtub was rotted through and needed to be torn up, but that he was told to tack the tile back on instead. Every time the tile came down again, Ms. Mollica would call. In November or December of 2000, the defendant sent two repairmen to address the problems in the bathroom; a few days later, another repairman pulled up tile in the bathroom around the toilet and some other areas, replacing some wood and replacing parts of the toilet. That repairman told Ms. Mollica that more work was needed, but that "Ed" (the defendant) would not pay for it. Additionally, Ms. MoHica's testimony referenced leaking faucets in the kitchen. Ms. Mollica also testified that a carpenter refused to do any work, because "he wouldn't have been able to do it properly for the price that [the defendant] wanted to pay him . . ." She testified that the defendant just wanted the tile replaced and nothing more. According to the evidence submitted, sometime in 2000, Ms. Mollica realized that the defendant wasn't fixing the problems, although, according to Ms. Mollica, the defendant thought he was.
The transcript was initially unclear as to whether the latter references were to the same upstairs bathroom, or to another bathroom. Later in the transcript, Ms. Mollica testified that there was only one bathroom, so the bathroom repairs referred to involve that one bathroom, which was upstairs.
Ms. MoIlica testified that in 2000 or 2001, she, the kids, and the dog started getting sick. At some point, she, researched the issue and suspecting it might be from the mold, she called the defendant to make the repairs. Her testimony indicates that he said he would come out and do them, but never did. In 2001, when her doctor asked her if she was around mold, she assumed that the mold was causing some illness. Sometime in 2001, following a biopsy and bloodwork, she learned that she had a toxic mold count in her body that was contracted indoors through sheetrock. Also, sometime around August of 2001, someone told Ms. Mollica that mold played a role in a bacterial viral infection. Additionally, when she told a doctor at that time that she was having problems, that her daughter was having bloody noses, and that her son was having problems with breathing and anxiety, she was asked whether she smoked, drank, or was around mold.
It is difficult to tell from the transcript, but it appears that this illness may have involved the minor plaintiff, Daniel Mollica.
At some point, because she didn't believe the defendant would do it, she had her boyfriend change the faucets, and she also had a carpenter determine what repairs were needed. She testified that she told the defendant what repairs were needed, and that the defendant retaliated in August of 2002 by sending her a letter indicating that he would be raising her rent by $400 (apparently per month) to cover the needed cost of repairs. After she received that letter, she told him that she thought the mold was causing health problems and that the repairs needed to be made.
Ms. Mollica testified at her deposition that in June or July of 2003, she noticed that the concrete had rotted all the way through the foundation in the basement.
Ms. Mollica testified that she left in December 2003, "[o]ne month after [the defendant] didn't do anything," apparently referring to the period of time following a notice from the health department regarding twelve violations. She stated that when she left, water was dripping into buckets in the basement; her testimony was unclear as to whether the water was from a break in a pipe or from something "in the bathroom that was going along with the pipe."
[A]n action is brought once the writ, summons and complaint have been served upon a defendant." Rana v. Ritacco, 236 Conn. 330, 337, 672 A.2d 946 (1996), citing General Statutes § 52-45a. In the present case, the action was commenced when service was made on the defendant on December 21, 2005. The parties agree, and are correct, that this negligence action is governed by C.G.S. § 52-584, which provides that "[n]o 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, pediatrist, 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 or 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." Thus, the statute contains a discovery provision and a repose provision.
In 2004, the Connecticut Supreme court clarified the legal standard that applies to the discovery provision as follows: "The limitation period for action in negligence begins to run on the date when the injury is first discovered or in the exercise of reasonable care should have been discovered . . . In this regard, the term `injury' is synonymous with `legal injury' or `actionable harm.' `Actionable harm' occurs when the plaintiff discovers, or in the exercise of reasonable care, should have discovered the essential elements of a cause of action . . . A breach of duty by the defendant and a causal connection between the defendant's breach of duty and the resulting harm to the plaintiff are essential elements of a cause of action in negligence; they are therefore necessary ingredients for `actionable harm.' . . . Furthermore, `actionable harm' may occur when the plaintiff has knowledge of facts that would put a reasonable person on notice of the nature and extent of an injury, and that the injury was caused by the negligent conduct of another. . . . In this regard, the harm complained of need not have reached its fullest manifestation in order for the limitation period to begin a run; a party need only have suffered some form of `actionable harm.' . . . Finally, the determination of when a plaintiff in the exercise of reasonable care should have discovered `actionable harm' is ordinarily a question reserved for the trier of fact." (Citations omitted; internal quotation marks omitted.) Lagassey v. State, 268 Conn. 723, 748-49, 846 A.2d 831 (2004).
Regarding the repose provision of § 52-584, which provides in relevant part that "[n]o action . . . caused by negligence . . . may be brought more than three years from the date of the act or omission complained of," the Connecticut Supreme Court has stated that "[i]t is well established that the relevant date of the act or omission complained of, as that phrase is used in § 52-584, is the date when the negligent conduct of the defendant occurs . . . not the date when the plaintiff first sustains damage . . . Therefore, an action commenced more than three years from the date of the negligent act or omission complained of is barred by the statute of limitations contained in § 52-584, regardless of whether the plaintiff had not, or in the exercise of [reasonable] care, could not reasonably have discovered the nature of the injuries within that time period?' (Internal quotation marks omitted). "The statutory clock on this three-year time limit begins running when the negligent 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." Nardi v. AA Electronic Security Engineering, 32 Conn.App. 205, 210-11 (1993) (citations omitted).
The Connecticut Supreme Court has also determined that "[t]he repose section of the statute of limitations found in § 52-584 may be tolled under the . . . continuing course of conduct doctrine, thereby allowing a plaintiff to commence his or her lawsuit at a later date." (Internal quotation marks omitted.) Neuhaus v. DeCholnoky, 280 Conn. 190, 201, 905 A.2d 1135 (2006). "[I]n order [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 [the Connecticut 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 some later wrongful conduct of a defendant related to the prior act." (Emphasis in original; internal quotation marks omitted.) Id., 201. "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." (Internal quotation marks omitted.) Id., 201-01.
A "special relationship" in the context of the continuing course of conduct doctrine, has been defined as a. "fiduciary or confidential relationship . . . 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 . . ." DeMunnik v. Danbury, Superior Court, judicial district of Waterbury, C.L.D. at Waterbury, Docket No. X10UWY CVO7-4018804 (June 1, 2009, Scholl, J.).
The continuing course of conduct doctrine focuses on the negligent conduct itself, as referenced by the "act or omission" language, and applies to the three-year repose provision, not to the two-year discovery provision. "The continuing course of conduct doctrine is not applicable [to the two-year limitation section] because the triggering event for the two-year limitation section] is no longer the defendant's act or omission but the plaintiff's knowledge of the injury . . . Upon discovery of actionable harm, the policy behind the continuing course of conduct doctrine, to preserve the ongoing relationship with the hope that any potential harm from a negligent act or omission may yet be remedied, no longer has any force." Rivera v. Fairbank Management Properties, Inc., supra, at 159-60. See e.g. Anderson v. Wasing, LLC, Superior Court, judicial district of Hartford at Hartford, Docket No. 07-5013021 (December 17, 2007, Bentivegna, J.).
Importantly, and as pointed out by Judge Lager in the Rivera case, courts have only applied the continuing course conduct doctrine to conduct of the defendant prior to the discovery of injury. "Cases rejecting the [continuing course] doctrine have done so on the basis that the defendant's duty ends when the course of action accrues." Id., at 158-159 (citations omitted).
Here, the complaint alleges that the defendant was negligent in his ownership and maintenance of the premises, in one or more of the following ways:
"a. in that [the defendant] failed to repair any and all water leaks thereby causing interior water damage and eventual contamination of indoor air quality and a hazardous condition to exist;
b. in that [the defendant] failed to replace the areas of ceiling tiles, bathroom fixtures, floor tiles, areas of indoor carpet, basement walls and floor, kitchen fixtures that had been over a period of time subject to continuous leaking water thereby allowing the development of bacteria and/or toxic mold to contaminate indoor air quality;
c. in that [the defendant] knew or should have known of the presence of leaking water and subsequent contamination of air quality at the aforesaid premises and remedied the same, yet failed to do so;
d. in that [the defendant] failed to maintain a reasonable and safe premises for the plaintiffs when he knew or should have known of the hazards posed by continuous leaking water and subsequent contamination of air quality."
The complaint does not allege that the defendant made subsequent repairs or took any remedial measures and did so in a negligent manner.
The plaintiff takes the position that the statute of limitations was tolled, and did not start to run until the plaintiff vacated the premises on December 22, 2003, as, according to the plaintiff, the defendant's failure to remedy the continuing mold problem constituted a continuing course of conduct.
An examination of the evidence submitted reveals that there is no genuine issue of material fact as to when Ms. Mollica discovered or should have discovered that she and her children had suffered actionable harm. Here, the evidence is undisputed that after the plaintiffs started getting sick in 2000 or 2001, her research led her to suspicions that the illnesses were from the mold; in 2001 she assumed that the mold was causing illness after her doctor asked her if she was around mold; she learned in 2001 following a biopsy and bloodwork that she had a toxic mold count in her body contracted from indoor exposure to sheetrock, and that mold played a role in a bacterial viral infection apparently suffered by her son; and she was questioned by a doctor around that time with regard to mold exposure when she told the doctor of the health problems she and her son and daughter were facing. The evidence also reveals that Ms. Mollica knew of the mold problem before the plaintiffs even moved in. The evidence is therefore undisputed that the plaintiffs knew that there was mold on the premises, and that they had suffered physical injury as a result, in 2001.
As the evidence is uncontrovered that the cause of action accrued in 2001, and the action was commenced in 2005, the applicable two-year statute of limitations as set forth in § 52-584 bars the action. Although the evidence submitted indicates that the defendant engaged in additional omissions with respect to the repairs after the accrual date, the entire cause of action arises out of the defendant's alleged failure to make the repairs necessary to remedy the mold problem, and does not change the fact that the accrual date occurred in 2001 — when Ms. Mollica knew that she and her children had suffered physical injury as a result of exposure to mold that she knew was on the premises. The continuing course of conduct doctrine does not apply in this case where the plaintiffs suffered actionable harm in 2001, as the doctrine only applies to conduct of the defendant occuring before injury is discovered.
Furthermore, and as mentioned previously, the complaint does not allege that the defendant made subsequent repairs or took steps to remediate the mold problems, and that those subsequent actions of the defendant were done negligently. See e.g. Naples v. Keystone Bldgs. and Dev. Corp., Superior Court, judicial district of Hartford at Hartford, Docket No-06 5007487 (January 15, 2008, Stengel, J.).
For the foregoing reasons, the defendant's motion for summary judgment is granted.