Opinion
No. CV04 0287636-S
May 12, 2005
MEMORANDUM OF DECISION RE REQUEST FOR LEAVE TO AMEND COMPLAINT #114 AND OBJECTION TO REQUEST FOR LEAVE TO AMEND AND MOTION FOR NONSUIT # 115
On April 19, 2004, the plaintiff, Maria Simonow, commenced this negligence action against the defendant, St. Francis Hospital Medical Center, with a one-count complaint sounding in premises liability. The complaint alleges that on April 26, 2002, while the plaintiff was an inpatient at the defendant hospital, she slipped and fell while entering a bathroom. The plaintiff alleges that the defendant was negligent in that it failed to maintain the bathroom floor properly, failed to inspect the bathroom floor reasonably and failed to warn the plaintiff of the dangerous condition the bathroom floor presented.
The civil summons (Form JD-CV-1) identifies the case type as "Major T, Minor 12," "Defective Premises — Public — Other."
The specific allegations are that the defendant was negligent:
a. In that it failed to make available to the plaintiff a safe environment where she could recuperate from her medical procedure;
b. In that it failed to properly maintain the bathroom floor on the premises;
c. In that it failed to properly and reasonably inspect the bathroom floor on the premises;
d. In that it failed to warn individuals, including Maria Simonow, of the dangerous condition that the bathroom floor in the pavement presented;
e. In that it caused or allowed and permitted said bathroom floor to be and become dangerous for use;
f. In that it maintained said bathroom floor in the aforesaid conditions; and
g. In that it failed to make proper and reasonable inspection of the bathroom floor.
On October 20, 2004, the plaintiff filed a request for leave to amend her complaint. The defendant filed a memorandum in opposition to the plaintiff's request to amend.
On June 10, 2004, the defendant filed a request to revise, seeking specification/clarification of the condition in the bathroom floor claimed to be dangerous. The plaintiff filed an objection to the request to revise, which was overruled by the court. (See, Part B of this opinion, infra.)
A. MOTION #114: REQUEST FOR LEAVE TO AMEND COMPLAINT
Practice Book § 10-59 provides that a party may, as a matter of right, amend its complaint within the first thirty days following the return date. Thereafter, a party must file a request with the court for leave to amend his or her complaint pursuant to Practice Book § 10-60.
The proposed amended complaint alleges that on April 26, 2002, after undergoing a medical procedure and while still under the influence of anesthesia, the plaintiff was in the process of entering the bathroom with the aid of an attendant/nurse when the attendant/nurse let go of her arm, causing her to slip and fall and sustain injuries. The plaintiff alleges the defendant was negligent in that it failed to provide adequate training or instruction to its employees, failed to properly supervise its employees, and failed to warn of the dangerous condition that the inadequately trained employees presented.
Specifically, the plaintiff alleges that "[s]aid occurrence was due to the negligence and carelessness of the Defendant, its servants, agents, or employees, in one or more of the following ways, in that it:
a. Failed to make available to the plaintiff a safe environment where she could recuperate from her medical procedure;
b. Failed to provide adequate training or instruction to its employees so as to protect individuals such as the Plaintiff from injury while on the Defendant's premises;
c. Failed to properly and reasonably supervise its employees;
d. Failed to warn individuals, including Maria Simonow, of the dangerous condition that the inadequately trained employees presented."
"Factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment." (Internal quotation marks omitted.) Dow Condon, Inc. v. Brookfield Development Corp., 266 Conn. 572, 583, 833 A.2d 908 (2003). Where the proposed amendment is filed beyond the statute of limitations, the court must also consider whether the same or a new cause of action is alleged in the amended complaint. See Wagner v. Clark Equipment Co., 259 Conn. 114, 129-30, 788 A.2d 83 (2002).
The defendant opposes the request for leave to amend on the ground, inter alia, that the amendment alleges a new cause of action that does not relate back to the original complaint and thus is barred by the statute of limitations.
The defendant also asserts that the plaintiff's proposed amended complaint realleges a claim of negligent supervision, the very same claim set forth in the second revised complaint filed by the plaintiff on August 18, 2004 that was stricken from the docket by order of the court on October 8, 2004. (See, Part B of this opinion, infra.) The defendant further argues in its opposition that the plaintiff's failure to file a revised complaint by November 1, 2004 in accordance with the court's order warrants entry of a judgment of nonsuit. (See, Part B of this opinion, infra.)
The plaintiff's original complaint and her proposed amended complaint both allege negligence on the part of the defendant hospital. The statute of limitations for negligence actions, General Statutes § 52-584, requires that such actions be brought within 2 years from the date when the injury is first sustained or discovered. The plaintiff alleges that she was injured as a result of the defendant's negligence on April 26, 2002. She requested leave to amend her complaint on October 8, 2004, approximately five months after the expiration of the two-year statute of limitations.
Section 52-584 provides in relevant part: "No 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 . . . 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 . . ."
For statute of limitations purposes, an amendment to a complaint relates back to the date of the initiation of the lawsuit, unless it alleges a new cause of action; if so, the amendment speaks as of the date it is filed. Sharp v. Mitchell, 209 Conn. 59, 70-75, 546 A.2d 846 (1928). "A right of action at law arises from the existence of a primary right in the plaintiff, and in 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." (Internal quotation marks omitted.) Saphir v. Neustadt, 177 Conn. 191, 207, 413 A.2d 843 (1979).
"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. [W]he[n] an entirely new and different factual situation is presented, a new and different cause of action is stated." (Internal quotation marks omitted.) Wagner v. Clark Equipment Co., supra, 259 Conn. 129-30. Even where the theory of recovery is unchanged, if the new complaint imports new facts and circumstances, it will be disallowed where it is filed after the expiration of the applicable statute of limitations. See Gallo v. G. Fox Co., 148 Conn. 327, 170 A.2d 724 (1961) (holding allegations that plaintiff fell due to the defendant's negligence in failing to remove candy and other sticky substances from floor did not relate back to allegations that plaintiff fell on defendant's escalator due to the defendant's negligent maintenance, operation and control thereof.) See also, Patterson v. Szabo Food Service, 14 Conn.App. 178, 183, 540 A.2d 99 (1988), cert. denied, 208 Conn. 807, 545 A.2d 1104 (1988) (finding that allegations of injuries caused by a slip and fall caused by a highly polished terrazo floor did not relate back to allegations of a slip and fall caused by food deposits or greasy substances.) This is in contrast to proposed amendments which seek to change or add theories of liability which arise from the same group of facts. See Jonap v. Silver, 1 Conn.App. 550, 556, 474 A.2d 800 (1984) (finding that the acts which gave rise to a claim for injurious falsehood were not separate and distinct from the acts which gave rise to the alleged invasion of privacy claims and that because all of the plaintiff's theories of liability arose from a single group of facts, the court did not abuse its discretion in allowing the amendment to the complaint.)
The original complaint herein alleges negligence based on the condition of the bathroom floor and the defendant's delicts with respect to the floor. The proposed complaint alleges negligence based on the conduct of a nurse/aide and the defendant's delicts in supervising, training and instructing its employees. Although the parties are the same, the injuries are the same, and the liability theories are the same, the delicts complained of are not. See Saphir v. Neustadt, supra, 177 Conn. 191, 207. They "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, supra, 209 Conn. 73. Thus, they allege different causes of action.
Because the proposed amended complaint, filed after the statute of limitations had expired, alleges a new cause of action, it is time-barred and the request for leave to amend is denied.
B. MOTION #115: MOTION FOR NONSUIT
The defendant moves the court to enter a judgment of nonsuit against the plaintiff for her failure to comply with an order of the court that she respond to a request to revise by November 1, 2004. By way of background, on June 10, 2004, the defendant filed a request to revise two portions of the complaint. The plaintiff filed an objection to the request to revise, which was overruled by the court. Thereafter, the plaintiff filed a revised complaint, which complied with one of the requested revisions and not the other. In response, the defendant filed a motion for judgment of nonsuit on the ground that the revised complaint was not in compliance with the court's order overruling the plaintiff's objection to the request to revise. The plaintiff then filed a second revised complaint, dated August 17, 2004, which purported to set forth a cause of action based on negligent supervision. The defendant filed a motion for judgment of nonsuit for the failure to comply with the court's order and a motion to strike the plaintiff's second revised complaint from the docket.
On October 8, 2004, the court granted the defendant's motion to strike the second revised complaint and ordered a judgment of nonsuit to enter unless the plaintiff complied with the request to revise within ten days of the court's decision. Simonow v. St. Francis Hospital Medical Center, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 04 02 87636 (October 8, 2004, Wiese, J.). In a supplemental ruling, the court modified its October 8th decision, ordering the plaintiff to file a response to the request to revise on or before November 1, 2004. In response, the plaintiff did not comply with the request to revise, but rather filed a request for leave to amend the complaint. The court will not enter an immediate judgment of nonsuit, a request for leave to amend having only this date been denied by the court. (See, Part A of this opinion, supra.) Rather, it is ordered that judgment of nonsuit shall enter against the plaintiff unless she revises her complaint in accordance with the court's October 8, 2004 order by May 30, 2005.
BY THE COURT
Tanzer, Judge
May 12, 2005