Opinion
No. FST CV 05 5000357
August 14, 2006
MEMORANDUM OF DECISION RE MOTIONS TO STRIKE
On January 10, 2006, the plaintiff, Douglas Stevenson, filed a revised two-count complaint on behalf of himself and his minor daughter, Kendall Stevenson, against the defendants, Kettler International, Inc. (Kettler) and Patio.com. The action arises out of personal injuries allegedly caused by the dangerous and defective condition of a Ping-Pong table manufactured by Kettler and sold by Patio.com.
The complaint alleges that on or about December 12, 2002, Douglas Stevenson and his wife purchased the Ping-Pong table after receiving assurances from a salesperson at Patio.com that the table would be suitable for use by their nine-year-old daughter, Kendall. The Ping-Pong table was designed such that it could be folded for storage. On or about March 9, 2003, Kendall Stevenson was attempting to unfold the table when the entire table fell down on the left side of her body, resulting in severe, serious and permanent injuries.
Kettler filed its answer along with twelve special defenses and a counterclaim against Douglas Stevenson. Patio.com filed its answer along with three special defenses. The plaintiff filed motion #110 to strike all of Kettler's twelve special defenses and the counterclaim against Stevenson. The plaintiff filed motion #113 to strike Patio.com's three special defenses. The matter was heard on the short calendar of May 1, 2006 (col. 6; pos. 53).
In its answer, Kettler also brought cross claims against the co-defendant Patio.com for indemnity and contribution.
Practice Book § 10-39(a) provides that "[w]henever any party wishes to contest . . . the legal sufficiency of any answer to any complaint . . . or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof." In ruling on a motion to strike special defenses, "the trial court [is obligated] to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992). When ruling on a motion to strike "legal conclusions or opinions stated in the special defense are not deemed admitted, but rather must flow from the subordinate facts provided." County Federal Savings Loan Ass'n. v. Eastern Associates, 3 Conn.App. 582, 588, 491 A.2d 401 (1985).
"The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway . . . Practice Book § 10-1 requires that [e]ach pleading shall contain a plain and concise statement of the material facts on which the pleader relies . . . Furthermore, Practice Book § 10-50 provides that [f]acts which are consistent with [the plaintiff's statement of fact] but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged." (Citation omitted; internal quotation marks omitted.) Abrams v. Jones, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV04 4001003 (May 11, 2005).
The plaintiff moves to strike all twelve special defenses asserted by Kettler along with the three special defenses asserted by Patio.com. Since the filing of the plaintiff's motion to strike, Kettler has withdrawn five of its special defenses. Only the remaining seven special defenses asserted by Kettler are addressed. Furthermore, as the three special defenses raised by Patio.com mirror those raised by Kettler, those special defenses will be considered together.
Kettler has withdrawn its fifth, sixth-eighth, tenth and eleventh special defenses.
On April 6, 2006, Kettler filed a request for leave to amend its answer, special defenses, cross claims and counterclaim. Pursuant to Practice Book § 10-60 "a party may amend his or her pleadings . . . at any time . . . [b]y filing a request for leave to file such amendment . . . If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party." The plaintiffs have not filed an objection to Kettler's amended answer, such that the answer is deemed to have been filed by consent.
I — Misuse
The first special defense asserted by both defendants is that any alleged injury suffered by Kendall Stevenson was caused or contributed to by her misuse of the product. The plaintiff moves to strike this special defense on the grounds that the defendants have failed to allege any facts that would establish that the table was misused by Kendall Stevenson or that such misuse was not foreseeable.
In opposition, Patio.com argues that it has alleged facts sufficient to support this special defense. Patio.com argues that this special defense relies on facts already set forth by the plaintiff in his complaint. More specifically, Patio.com contends that in his complaint, the plaintiff alleges that proper instructions were not provided by the defendants. Patio.com argues that the basis of this special defense is that Kendall Stevenson disregarded whatever written instructions or warnings were provided to the plaintiff. Rather than set forth an argument in opposition, Kettler has amended its first special defense to include an allegation that Kendall Stevenson's injuries were caused by an unforeseeable misuse of the table.
Patio.com has alleged that "[i]f the plaintiff Kendall Stevenson sustained the injuries and damages alleged in the revised complaint, those injuries and damages were caused or contributed to by the plaintiffs' misuse of the products at issue."
Patio.com has incorrectly stated the allegations found in the plaintiff's revised complaint. The plaintiff has not alleged a failure to provide proper instructions, rather, the plaintiff has alleged that the defendants failed to provide any instructions. Paragraph 12(g) of the revised complaint alleges that Patio.com "failed to provide instructions concerning how to fold and unfold the table."
Kettler had failed to allege unforeseeable misuse of the product in its original special defense.
"Misuse occurs when a product is not used in a manner which should have been foreseen by the defendant." (Internal quotation marks omitted.) Norrie v. Heil Co., 203 Conn. 594, 600, 525 A.2d 1332 (1987). "To prevail on the defense of product misuse, [the defendants must] establish that [the product] was misused, that the misuse was not foreseeable and that the misuse was the proximate cause of the plaintiff's injuries." (Internal quotation marks omitted.) Kuzoian v. Saybrook Country Barn, Inc., Superior Court, judicial district of New Britain, Docket No. CV 000501052 (January 22, 2001). In the present action, although both defendants have alleged all elements necessary to support the special defense of misuse, they have failed to plead any facts to support those conclusions. "A motion to strike is not properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). Therefore, the plaintiff's motion to strike the defendants' first special defense is granted.
II — Contributory Negligence
In its second special defense, Kettler asserts that "[i]f the plaintiff Kendall Stevenson sustained the injuries and damages alleged, those injuries and damages were caused in whole or in part by plaintiff's negligence, comparative negligence, assumption of the risk or culpable conduct." Patio.com's second special defense similarly alleges that "[i]f the plaintiff Kendall Stevenson sustained the injuries and damages alleged, those injuries and damages were caused in whole or in part by the plaintiff's own negligence." The plaintiff moves to strike the second special defense, asserted by both defendants, on the grounds that the defendants have failed to show that the plaintiffs have no cause of action because comparative and contributory negligence can only diminish, and not bar, a plaintiff's recovery. In the alternative the plaintiff moves to strike on the grounds that this special defense is not consistent with the allegations set forth in the plaintiff's revised complaint.
In opposition, Kettler argues that comparative negligence is a viable defense to a products liability claim because the goal of comparative negligence is to apportion liability to all causes of the injury. Patio.com also advances the argument that if a jury were to find Kendall Stevenson completely at fault for her own injuries, then her comparative liability would act as a complete bar to her recovery. Patio.com further contends that raising comparative negligence as a special defense is the equivalent of raising contributory negligence, which the Practice Book requires be specially pleaded, as a special defense.
Practice Book § 10-53 provides: "If contributory negligence is relied upon as a defense, it shall be affirmatively pleaded by the defendant and the defendant shall specify the negligent acts or omissions on which the defendant relies."
Our Supreme Court in Norrie v. Heil Co., supra, 203 Conn. 594, held that the passage of General Statutes § 52-572l eliminated the use of contributory negligence as a defense in a strict products liability cause of action. Id., 599-600. Several Superior Courts have since held that because "General Statutes § 52-572o is the applicable comparative negligence statute in a product liability case and under the statute a plaintiff's damages are only diminished in proportion to the plaintiff's own contributory negligence and the statute does not bar recovery, comparative negligence cannot be specially pled in a product liability action because this special defense does not demonstrate that the plaintiff has no cause of action." (Internal quotation marks omitted.) Abrams v. Jones, supra, Superior Court, Docket No. CV04 4001003.
General Statutes § 52-572l, in relevant part, provides: "In causes of action based on strict tort liability, contributory negligence or comparative negligence shall not be a bar to recovery . . . Nothing in this section shall be construed as barring the defense of misuse of the product or the defense of knowingly using the product in a defective condition in an action based on strict tort liability."
General Statutes § 52-572o, in relevant part, provides that "the comparative responsibility of, or attributed to, the claimant, shall not bar recovery but shall diminish the award of compensatory damages proportionately, according to the measure of responsibility attributed to the claimant."
See also Lemaire v. Farmington Ready Mix, Inc., Superior Court, judicial district of Litchfield, Docket No. CV04 4000443 (January 30, 2006); Greenwood v. Eastman-Kodak Co., Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. CV92 0452919 (March 25, 1994) ( 11 Conn. L. Rptr. 309).
To plead a special defense, the defendants must "allege facts [that are] consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." (Emphasis added; internal quotation marks omitted.) Crutchfield v. Stanley Works, Superior Court, judicial district of Hartford, Docket No. CV05 4022228 (April 27, 2006). While Patio.com's contention that a jury could bar Kendall Stevenson's recovery by finding her completely at fault for her injuries is accurate, "[i]t is not . . . equivalent to a claim that the plaintiff has no cause of action." (Internal quotation marks omitted.) Abrams v. Jones, supra, Superior Court, Docket No. CV04 4001003. Therefore, the plaintiff's motion to strike Patio.com's second special defense on the ground that the defense of contributory negligence in a product liability action fails to demonstrate that the plaintiff has no cause of action is granted.
III — Assumption of Risk
Kettler's second special defense also alleges that Kendall Stevenson's injuries resulted from her assumption of the risk. The plaintiff moves to strike this special defense on the ground that it is not consistent with the allegations set forth in his revised complaint. In opposition, Kettler argues that it may properly raise the defense of assumption of the risk because Kendall Stevenson knew or should have known of the dangers inherent in unfolding a table, such as the one at issue in this case, without the supervision of a parent.
As previously discussed, the Supreme Court in Norrie v. Heil Co., supra, 203 Conn. 594, held that General Statutes § 52-572l eliminated contributory negligence as a defense to product liability cases. In Norrie, the court also "expressly [allowed] the defenses of misuse of the product and knowingly using the product in a defective condition . . . The [Supreme Court stated] that the defense of knowingly using the product in a defective condition is narrower than the common-law defense of assumption of the risk, which bars recovery when a person knows or as a reasonable person should know that in pursuing a certain course he will expose himself to the risk of injury, comprehends or ought as a reasonable person to comprehend the nature and extent of the risk and voluntarily subjects himself to it . . . In other words, the risk must be assumed knowingly and voluntarily. Mere negligence will not be sufficient for recovery." (Citation omitted; emphasis in original; internal quotation marks omitted.) Danielson v. Cummings Insulation Co., Superior Court, judicial district of Fairfield, Docket No. CV00 0375887 (November 15, 2000). In the present case, Kettler has failed to set forth facts that would support its argument that Kendall Stevenson knowingly and voluntarily assumed the risk. Thus, the plaintiff's motion to strike Kettler's second special defense based on assumption of the risk is granted.
IV — Failure to Mitigate
Kettler's third special defense alleges that Kendall Stevenson's recovery is barred by her failure to mitigate damages. The plaintiff moves to strike on the basis that Kettler has failed to allege facts to sufficiently support this special defense. In the alternative, the plaintiff argues that despite a split in authority among the Superior Courts as to whether failure to mitigate damages may be pleaded as a special defense, the better reasoned line of cases are those which hold that mitigation of damages is an inappropriate special defense. In opposition, Kettler argues that a special defense based on a plaintiff's failure to mitigate damages is a recognized special defense in Connecticut and should not be stricken because it notifies the plaintiff of an issue that will be presented in the case.
"The doctrine of mitigation of damages contemplates that one who has been injured by the negligence of another must use reasonable care to promote recovery and prevent any aggravation or increase of the injuries." (Internal quotation marks omitted.) Pinho v. Daly, Superior Court, judicial district of New Britain, Docket No. CV00 0500895 (May 3, 2001). "To claim successfully that the plaintiff failed to mitigate damages, the defendant must show that the injured party failed to take reasonable action to lessen the damages; that the damages were in fact enhanced by such failure; and that the damages which could have been avoided can be measured with reasonable certainty." (Internal quotation marks omitted.) Preston v. Keith, 217 Conn. 12, 22, 584 A.2d 439 (1991).
There exists a split of authority within the Superior Court as to whether a defendant may plead failure to mitigate damages as a special defense. Those cases prohibiting mitigation of damages from being raised as a special defense base their decisions on the fact that mitigation of damages is not among those special defenses listed in Practice Book § 10-50 and on the ground that mitigation of damages fails to show that the plaintiff has no cause of action. On the other hand, those decisions permitting mitigation of damages to be pleaded as a special defense reason that it should be allowed because it puts the plaintiff on notice that failure to mitigate will be an issue at trial.
Practice Book § 10-50 provides: "No facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged. Thus, accord and satisfaction, arbitration and award, coverture, duress, fraud, illegality not apparent on the face of the pleadings, infancy, that the defendant was non compos mentis, payment (even though nonpayment is alleged by the plaintiff), release, the statute of limitations and res judicata must be specially pleaded, while advantage may be taken, under a simple denial, of such matters as the statute of frauds, or title in a third person to what the plaintiff sues upon or alleges to be the plaintiff's own."
See, e.g., Zahner v. Schiano, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV94 0137212 (June 15, 1995); Union Savings Bank of Danbury v. Barry, Superior Court, judicial district of Danbury, Docket No. 320962 (March 14, 1996).
See, e.g., Lemaire v. Farmington Ready Mix, Inc., supra, Superior Court, Docket No. CV04 4000443; Barfield v. Gasparri, Superior Court, judicial district of Waterbury, Docket No. 111081 (October 12, 1993) ( 10 Conn. L. Rptr. 243, 8 C.S.C.R. 1132).
The better reasoned authority is that "mitigation of damages is not a valid special defense because, one, it is not among those listed in the Practice Book [§ 10-50], and two, it does not allege that a plaintiff has no cause of action . . . but only that the damages, if any, should be decreased . . . [T]he intended purpose of a special defense is to make the argument that, even if proven, the facts in the [plaintiffs'] complaint do not support a cause of action. It is not the purpose of a special defense to determine the size or amount of the award or whether there should even be one." (Citation omitted; internal quotation marks omitted.) Medico v. Fitzburgh, Superior Court, judicial district of Fairfield, Docket No. CV03 0403104 (April 1, 2004) ( 36 Conn. L. Rptr. 743). The plaintiff's motion to strike Kettler's third special defense is granted.
V — Alteration of Product
The fourth special defense raised by Kettler, and the third special defense raised by Patio.com, alleges that recovery for any injuries or damages Kendall Stevenson sustained from her use of the product is barred because the product was altered, changed or modified after it left the defendants' custody, possession and control. The plaintiff moves to strike this special defense on the grounds that it contradicts the allegations of the plaintiff's revised complaint that the table was defective at the time of sale. In opposition, the defendants argue that a special defense based on § 52-572p may properly be pleaded as a special defense in a product liability action.
General Statutes § 52-572p provides, in relevant part "(a) A product seller shall not be liable for harm that would not have occurred but for the fact that his product was altered or modified by a third party unless: (1) The alteration or modification was in accordance with the instructions or specifications of the product seller; (2) the alteration or modification was made with the consent of the product seller; or (3) the alteration or modification was the result of conduct that reasonably should have been anticipated by the product seller. (b) For the purposes of this section, alteration or modification includes changes in the design, formula, function or use of the product from that originally designed, tested or intended by the product seller."
"Section 52-572p provides that a manufacturer is not liable for harm that would not have occurred but for a third party's alteration or modification of the product in question." Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 229, 694 A.2d 1319 (1997). "By its own terms, § 52-572p limits its application to alterations and modifications made by a `third party' . . . The dictionary definition of a `third party' is `[o]ne not a party . . . to . . . an action . . .'" (Citations omitted; internal quotation marks omitted.) Elliot v. Sears, Roebuck Co., 229 Conn. 500, 508, 642 A.2d 709 (1994). "The legislature drafted § 52-572p based upon § 110 of the Draft Uniform Product Liability Law . . . The commentary [to § 110] provides that [t]his section deals with the situation where a third party — one other than the product seller or the claimant — has altered or modified the product and this has led to [the] claimant's harm . . . In looking at both the plain language of . . . § 52-572p and the commentary, it is clear that § 52-572p applies only where the plaintiff's injuries arise out of modifications made by someone other than the plaintiff and the product seller." (Citations omitted; internal quotation marks omitted.) Spencer v. Star Steel Structures, Inc., Superior Court, judicial district of Windham, Docket No. CV0164902 (May 23, 2002).
In the present action, the plaintiff's revised complaint is devoid of any allegations that a third party altered or modified the Ping-Pong table. Furthermore, both defendants fail to allege any additional facts showing that a third party, other than themselves or the plaintiff, made changes to the Ping-Pong table. The plaintiff's motion to strike Patio.com's third and Kettler's fourth special defense is granted.
VI — Warning
Both the seventh and ninth special defenses raised by Kettler deal with its duty to warn. The plaintiff moves to strike both defenses on the grounds that they are not consistent with the plaintiff's statement of the facts, in that the plaintiff has not alleged a breach of duty to warn. In opposition, Kettler argues that the plaintiff's allegations that Kettler failed to provide instructions concerning how to fold and unfold the table amounts to a failure to warn, so that these special defenses are consistent with the facts alleged by the plaintiff in his revised complaint.
Pursuant to General Statutes § 52-572q(a) "[a] product seller may be subject to liability for harm caused to a claimant who proves by a fair preponderance of the evidence that the product was defective in that adequate warnings or instructions were not provided." The plaintiff alleges, in paragraph 12(g) of his complaint, that Kettler "failed to provide instructions concerning how to fold and unfold the table." Kettler asserts, in its seventh special defense, that "[a]ny duty to warn on the part of defendant was discharged by providing its customers with information regarding the means to safely use its products and the potential hazards, if any, associated with their use." Although the technical difference, if any, between a duty to warn and failure to provide instructions is minimal, Kettler's seventh special defense contradicts the allegations of paragraph 12(g) of the plaintiff's revised complaint. The plaintiff alleges that Kettler failed to provide any instructions, while Kettler's special defense asserts that such instructions were provided. The seventh special defense, therefore, fails to allege facts consistent with the allegations of the complaint and is not properly raised as a special defense.
Kettler's ninth special defense alleges that the "[d]efendant had no duty to warn the plaintiffs of the alleged hazards of its products as same were open and obvious." The purpose of a special defense is to plead facts which "are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005). "[T]he fact that in a special defense one must plead facts which are consistent with the allegations of the complaint does not relieve the (defendant) of the duty of providing the plaintiff[s] with a plain and concise statement of the material facts on which they rely. It does not enable the [defendant] to incorporate the factual claims of the plaintiff[s] without stating them . . ." (Internal quotation marks omitted.) Lamothe v. Midstate Medical Center, Superior Court, judicial district of New Haven at Meriden, Docket No. CV05 4002893 (April 10, 2006). In the present case, Kettler has failed to allege any facts which would support its allegation that any hazard the Ping-Pong table posed was open and obvious. The plaintiff's motion to strike Kettler's ninth special defense is granted.
Practice Book § 10-1 requires that "[e]ach pleading . . . contain a plain and concise statement of the material facts on which the pleader relies, but not of the evidence by which they are to be proved . . ."
VII — Comparative Negligence
In its twelfth and final special defense, Kettler asserts that any injuries or damages it may be found liable for must be proportionate to its share of liability, in accordance with § 52-572h. The plaintiff moves to strike this special defense on the ground that § 52-572h is applicable only to negligence, not product liability, causes of actions because it acts as modified form of comparative negligence. In opposition, Kettler argues that based on the facts, as alleged by the plaintiff in his revised complaint, § 52-572h is appropriate because Patio.com may also be found liable.
General Statutes § 52-572h, in relevant part, provides: "In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property . . . if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for such party's proportionate share of the recoverable economic damages and the recoverable noneconomic damages . . ."
The plaintiff's cause of action against Kettler is brought under the Connecticut Products Liability Act. Pursuant to § 52-572n(a) "[a] product liability claim as provided in sections 52-240a, 52-240b, 52-572m to 52-572q, inclusive, and 52-577a may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability and warranty, for harm caused by a product." Our Supreme Court has held that "[i]t is now beyond dispute that [§ 52-572n(a)] provides the exclusive remedy for a claim falling within its scope, thereby denying a claimant the option of bringing common law causes of action for the same claim." (Internal quotation marks omitted.) Allard v. Liberty Oil Equipment Co., 253 Conn. 787, 800, 756 A.2d 237 (2000). Therefore, the plaintiff's motion to strike Kettler's twelfth special defense is granted on the grounds that "[a] product liability claim is exclusively controlled by § 52-572m et seq., and thus can never be a claim arising under § 52-572h." Paul v. McPhee Electrical Contractors, 46 Conn.App. 18, 21, 698 A.2d 354 (1997).
The Connecticut Products Liability Act is codified as §§ 52-572m to 52-572q, inclusive.
VIII — Indemnification/Contribution
The plaintiff also moves to strike Kettler's counterclaim seeking indemnification and/or contribution from Douglas Stevenson for negligent supervision of his minor child. The plaintiff argues that the counterclaim should be stricken on the grounds that it is barred by the doctrine of parental immunity. The plaintiff claims that in Crotta v. Home Depot, Inc., 249 Conn. 634, 732 A.2d 767 (1999), our Supreme Court held that the doctrine of parental immunity precluded a parent of a minor plaintiff from being joined as a third-party defendant for purposes of apportionment of liability, contribution or indemnification for a claim alleging negligent supervision of the minor plaintiff. In opposition, Kettler argues that the facts in the present case do not warrant application of the parental immunity doctrine because Douglas Stevenson has already made himself a party in the present action.
"Contribution is a payment made by each, or by any, of several having a common interest or liability of his share in the loss suffered, or in the money necessarily paid by one of the parties in behalf of the others . . . As a general proposition, [however] a tortfeasor compelled to discharge a liability for a tort cannot recover contribution from a joint tortfeasor whose participation therein gave the injured person no cause of action against him, since the element of common liability of both tortfeasors to the injured person, essential to the right of contribution, is lacking in such cases . . . The contribution defendant must be a tortfeasor, and originally liable to the plaintiff. If there was never any such liability, as where the contribution defendant has the defense of family immunity . . . then there is no liability for contribution." (Citations omitted; emphasis in original; internal quotation marks omitted.) Crotta v. Home Depot, Inc., supra, 249 Conn. 639-40. In Crotta, the seminal case on the issue of parental immunity, our Supreme Court concluded that, since the doctrine of parental immunity "bars an unemancipated child from suing his or her parents for personal injuries"; id., 638; a defendant has "no basis upon which to assert a common-law claim for contribution against [the parent] on the basis of his allegedly negligent supervision of [the minor child]." Id., 640-41.
The court in Crotta also considered whether a defendant could join the parent of a minor child, as a third-party defendant, for indemnification based on the parent's negligent supervision. The court explained that "[i]n an action for indemnity, as distinguished from an action for contribution, one tortfeasor seeks to impose total liability upon another [tortfeasor] . . . [I]ndemnity involves a claim for reimbursement in full from one on whom a primary liability is claimed to rest . . ." (Internal quotation marks omitted.) Id., 641. The court concluded that "the common-law doctrine of indemnification permits a tortfeasor to assert a claim only against another liable tortfeasor. As in the case of contribution, indemnity is not allowed against one who `has a defense, such as [parental immunity] against the original plaintiff." (Emphasis in original; internal quotation marks omitted.) Id., 642.
Kettler contends that despite the holding in Crotta, its counterclaim should survive the motion to strike because Douglas Stevenson has already made himself a party to the action. The Supreme Court in Crotta refused, however, to draw this distinction, holding that "[i]t is artificial to separate the parent and child as economic entities by the assertion that the recovery of the nonparent defendant from the negligent parent does not technically diminish the injured child's recovery. The reality of the family is that . . . it is a single economic unit and recovery by a third party against the parent ultimately diminishes the value of the child's recovery." (Internal quotation marks omitted.) Crotta v. Home Depot, Inc., supra, 249 Conn. 644.
In the present case, Kettler seeks contribution and/or indemnification from Douglas Stevenson, a plaintiff to this action and the father of the minor plaintiff Kendall Stevenson. The decision of our Supreme Court in Crotta v. Home Depot, Inc., supra, 249 Conn. 634, is binding and therefore the plaintiff's motion to strike Kettler's counterclaim seeking contribution and indemnification on the grounds that it is barred by the doctrine of parental immunity is granted.
VIII — Prayer for Relief CT Page 14399
The final issue left to resolve is whether to grant the plaintiff's motion to strike Kettler's prayer for relief. Kettler, in its prayer for relief "demands judgment against Douglas Stevenson for indemnity and contribution, together with costs and reasonable attorneys fees . . ." The plaintiff moves to strike the prayer for relief on the ground that Kettler does not have a valid counterclaim upon which to make such a demand.Practice Book § 10-54, in relevant part, provides that "[i]n any case in which the defendant has either in law or in equity or in both a counterclaim . . . against the plaintiff's demand, the defendant may have the benefit of any such . . . counterclaim by pleading the same as such in the answer, and demanding judgment accordingly . . ." As discussed previously in section VIII, Kettler's counterclaim against the plaintiffs is barred by the doctrine of parental immunity. Kettler is, therefore, not entitled to demand judgment from Douglas Stevenson for indemnity or contribution in its prayer for relief.
In its prayer for relief, Kettler also seeks to recover reasonable attorneys fees from the plaintiffs. "In the United States, [however] the general rule of law known as the American Rule is that a prevailing litigant ordinarily is not entitled to collect a reasonable attorneys fee from the opposing party as part of his or her damages or costs . . . There are certain exceptions to this rule . . . In the main, exceptions are based upon statutory or contract provisions authorizing the recovery of attorneys fees by a prevailing litigant." (Citations omitted; internal quotation marks omitted.) Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 14-15, 513 A.2d 1218 (1986). Kettler has failed to allege that any statutory or contract provision would permit it to recover reasonable attorneys fees. Therefore, the plaintiff's motion to strike Kettler's prayer for relief is granted.
In conclusion, the plaintiff's motion to strike all special defenses asserted by both defendants, Kettler and Patio.com, is granted. The counterclaim that Kettler asserts against the plaintiff Douglas Stevenson is also stricken. Furthermore, the plaintiff's motion to strike Kettler's prayer for relief is granted.
So Ordered. CT Page 14400