September 1, 2005
MEMORANDUM OF DECISION
The plaintiff, DeJuan Ward, a minor, by his mother and next friend Gabriella Forbes, commenced this action against the defendants, the housing authority of the city of New Haven, eighteen of its agents or employees, and Amelia Aleman, seeking damages for personal injuries. The defendants have moved for summary judgment.
The following employees of the housing authority are named in the summons and complaint as individual defendants: Robert A. Solomon, Alexander M. Johnston, Frank Ponteau, Gerald S. Jackson, Michael J. Antollino, Vincent N. Cirillo, Kenneth S. Gelband, Al Bell, Ronald E. Sims, Floyd Langley, John Hogan, Hank Warner, William DeMayo, Stephen Mednick, Abdias Rodriguez, Hope Wallace-Howard, Ida Wells and Stephen Yandle.
The operative revised complaint alleges the following facts. The housing authority rented an apartment in New Haven to Aleman. The plaintiff's father resided in the apartment with Aleman. On December 5, 2000, while he was visiting the apartment and under Aleman's care, the plaintiff suffered serious and permanent injuries due to the scalding temperature of water in the shower. The plaintiff alleges that the defendants were negligent in failing to comply with the proper safety standards concerning the temperature of the hot water in the apartment. In counts one through fifteen, counts eighteen through thirty and counts thirty-two and thirty-three, the plaintiff alleges negligence claims against the individual housing authority defendants. In counts sixteen, seventeen and thirty-four, the plaintiff alleges negligence claims against the housing authority. In count thirty-one, the plaintiff alleges a claim of negligence against Aleman.
The housing authority and the individual housing authority defendants have filed an answer and two special defenses. In their answer, they admit that the housing authority owned and managed the apartment in question and rented it to Aleman, and that the authority owned the hot water heater and shower unit that provided hot water to the apartment. In addition, they admit that the housing authority has a statutory obligation to manage and operate its properties in a manner consistent with its providing safe accommodations and to comply with state and local building codes. They deny the remaining material allegations of the complaint.
In their first special defense, the defendants allege that all of the plaintiff's claims against them are barred due to the plaintiff's failure to comply with the notice provisions of General Statutes § 8-67. In their second special defense, the defendants allege that their conduct was not the proximate cause of the plaintiff's injuries and that Aleman's conduct was the superceding cause thereof.
The housing authority and the individual housing authority defendants have filed a motion for summary judgment as to all the claims against them on the ground that the plaintiff failed to give them notice of his intent to bring this action as required by General Statutes § 8-67. They also move for summary judgment as to the claims against the individual defendants on the ground that the plaintiff has failed to raise a genuine issue of material fact that his injuries were foreseeable to them. Finally, they maintain that they are entitled to summary judgment as to the claims against the individual defendants because Aleman's conduct was the superceding cause of the plaintiff's injuries. The plaintiff has filed an opposing memorandum in which he argues that summary judgment should be denied as to the claims against the defendants because they had actual notice of his injuries. The plaintiff also argues that summary judgment should be denied as to his claims against the individual defendants because genuine issues of material fact exist as to whether the plaintiff's injuries were foreseeable to them and whether Aleman's conduct was a superceding cause of his injuries.
Aleman has not moved for summary judgment, nor has she responded to her codefendants' motion. Accordingly the term "defendants" as used herein refers to the housing authority and the individual housing authority defendants and the term "individual defendants" refers to the individual housing authority defendants.
"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. Practice Book [§ 17-46]." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 399-400, 876 A.2d 522 (2005).
Section 8-67 provides that, "[a]ny person injured in person or property within boundaries of property owned or controlled by an authority, for which injury such authority is or may be liable, may bring an action within two years after the cause of action therefor arose to recover damages from such authority, provided written notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the chairman or secretary of the authority within six months after the cause of action therefor arose." The plaintiff does not contend that he complied with the statute. Rather, he argues that the defendants' motion should not be granted because that they have admitted that they had actual notice of his injuries.
In Fields v. Housing Authority, 63 Conn.App. 617, 621-22, 777 A.2d 752, cert. denied, 257 Conn. 910, 782 A.2d 133 (2001), the court explained that "the notice provision of § 8-67 operates as a condition subsequent to liability rather than a condition precedent . . . Compliance with the statute is a condition subsequent such that noncompliance, when specially pleaded, concerns only whether the plaintiff has taken the proper steps to warrant recovery." Where, as in the present case, it is undisputed that the plaintiff failed to provide the required notice and "the defendant specially pleaded that the plaintiff had not complied with the statute, the plaintiff is barred from recovering." Id., 622. Moreover, in Fields, the court specifically decided that the defendant's actual notice that the plaintiff intended to bring the action was not sufficient to satisfy the statute. Id. Based on Fields, the defendants' motion for summary judgment is granted as to the plaintiff's claims against the housing authority (counts sixteen, seventeen and thirty-four) for failure of the plaintiff to give the authority notice required by § 8-67.
However, the defendants' claim that the individual defendants are entitled to summary judgment as to the plaintiff's claims against them based on the failure of the plaintiff to give the notice required by § 8-67 is without merit. At common law, "as a general rule governmental officers and employees were personally liable for their torts, more or less without exception, even where the governmental unit itself was protected by an immunity." (Internal quotation marks omitted.) Gordon v. Housing Authority, 208 Conn. 161, 165, 544 A.2d 1185 (1988). "It is axiomatic that statutes in derogation of common law should receive a strict construction and [should not] be extended, modified, repealed or enlarged in [their] scope by the mechanics of construction." (Internal quotation marks omitted.) Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 37, 848 A.2d 418 (2004). The scope of § 8-67 is limited in that it requires a plaintiff to provide a housing authority with notice of an action "to recover damages from such authority." (Emphasis added.) Moreover, in discussing a similar statutory notice provision, our Supreme Court has held that "the liability of the municipality, but not that of the municipal employee, is dependent upon the giving of proper statutory notice . . . [A]n injured party may maintain a common-law action against a municipal employee covered by the statute, thereby avoiding those requirements which are unique to recovery under the indemnification statute." Perodeau v. Hartford, 259 Conn. 729, 747-48, n. 20, 792 A.2d 752 (2002). For this reason, the defendants' motion for summary judgment, based on the plaintiff's failure to give the required statutory notice, is denied as to the individual defendants.
II. CT Page 12134
The individual defendants argue that they are entitled to summary judgment because they did not have a "responsibility for anticipating defendant Aleman's deliberate and criminal misuse of the shower."
As has often been said, "[t]o state the question is to answer it." Zweifel v. Ahland, 718 S.W.2d 660, 663 (Mo.App. 1986) (Crow, J. concurring). "[A]nswers are not obtained by putting the wrong question and thereby begging the real one." Priebe Sons v. United States, 332 U.S. 407, 420, 68 S.Ct. 123, 92 L.Ed.2d 32 (1947) (Frankfurter, J. dissenting). "In law . . . the right answer usually depends on putting the right question." Estate of Rogers v. Helvering, 320 U.S. 410, 413, 64 S.Ct. 172, 88 L.Ed.2d 134 (1943). The real question is whether the defendants owed a duty to the plaintiff to do those things enumerated in the plaintiff's specifications of negligence, which may be roughly summarized as preventing water that was excessively hot from coming out of faucets in housing authority apartments, and whether there is a genuine issue of material fact as to whether a breach of such a duty was a proximate cause of the plaintiff's injuries.
Preliminarily, the court addresses the factual predicate of the defendants' claim that Aleman engaged in "deliberate and criminal misuse of the shower."
The documents submitted by the defendants in support and by the plaintiff in response to the motion for summary judgment, viewed in the light most favorable to the plaintiff; Larobina v. McDonald, 274 Conn. 399; reflect the following: The defendant Aleman was the fiancé of the plaintiff's father. The plaintiff, who was three years and eight months old at the time, lived with Aleman and Aleman's two children, her daughter Millenium, age six months, and her son, Daykwion, in an apartment Aleman leased from the housing authority. On December 5, 2000, Aleman was in her apartment with the plaintiff and Millenium. At about 10:00 A.M., she turned the shower on warm for the plaintiff and told him to wash himself. Aleman knew that the water to the apartment could become hot if someone flushed the toilet or used the faucet. After turning the shower on, Aleman went to her kitchen and began making brownies for Daykwion's birthday party, which was to take place at his school that day. Aleman went back and forth between the kitchen and the shower, and the longest period of time she was away from the shower was three to four minutes. After the plaintiff was in the shower for ten minutes, Aleman heard him screaming and "slipping and sliding like he got busted in the tub." When she went to him, she found him on the bathroom floor, shaking, unresponsive and badly scalded. The skin was peeling off on his back, left shoulder, neck and jaw line. In fact, he had sustained second- and third-degree burns over 20 percent of his body that would soon impair his cardiac and, especially his kidney function to the extent that he would require dialysis and skin grafts.
Few of the documents submitted in support of or in opposition to the motion are properly authenticated. See Practice Book §§ 17-45, 17-46. Since neither side has made an issue of this deficiency, the court does not do so either.
Aleman applied cream to the plaintiff's body, but instead of bringing him to the hospital, she proceeded to Daykwion's school where she delivered the brownies she had baked and attended Daykwion's birthday party. She arrived there at about 12:15 P.M., and remained there for approximately thirty minutes. Following the party, Aleman drove to her grandmother's house to drop off Millenium. She then called the plaintiff's father and drove to East Haven to pick him up. Only then, at about 1:23 P.M., nearly three and a half hours after the plaintiff had entered the shower, did she bring him to the hospital.
On December 18, 2000, New Haven police officers checked the temperature of hot water coming out of Aleman's shower and found that it reached temperatures between 140 and 143 degrees Fahrenheit. On December 20, 2000, a New Haven police officer and a representative of the housing authority gained access to the basement, where the water heater unit for Aleman's apartment was located. The main heating unit was a gas-fired water heater, which was connected to a storage tank. The thermostat for the hot water heater read 143 degrees Fahrenheit. The storage tank thermostat read 140 degrees Fahrenheit.
The defendants have submitted an affidavit by one of the individual defendants, Alex Johnston, who is currently director of operations of the housing authority and was asset manager for the housing authority when the plaintiff was injured. He attests that, as asset manager, he was directly responsible for the maintenance of Aleman's apartment. In his affidavit, Johnston states:
6. In response to this lawsuit, I have overseen the review of files maintained by the Housing Authority with respect to maintenance, repairs and refurbishing of the thermostat mechanisms, water heating mechanisms and shower devices and mechanisms servicing and located in [Aleman's apartment].
7. There are no incident reports containing a complaint from Amelia "Destiny" Aleman regarding the temperature of the water in her shower during her tenancy at [her apartment].
8. Routine inspections of [Aleman's apartment] were conducted during Ms. Aleman's tenancy, from which were generated no incident reports detailing abnormalities in connection with the thermostat mechanisms, water heating mechanisms and shower devices and mechanisms servicing and located in [her apartment], including the temperature of the subject unit's shower water.
9. There are no incident reports or complaints of abnormalities similar to the claim made by [the plaintiff] for the facilities, devices and mechanisms servicing and located in [Aleman's apartment] for the period of Ms. Aleman's tenancy.
The plaintiff has submitted an affidavit by Russell R. Fote, a licensed professional engineer. According to Fote, the plaintiff's burns were caused by the failure of the housing authority and its employees to follow specific safety practices regarding the Delta Scald-Guard on the shower head mechanism set out in the 1993 BOCA National Plumbing code and by the failure of the housing authority and its employees to adhere to the water heater's installation instructions.
As observed supra, the individual defendants argue that they did not have a "responsibility for anticipating defendant Aleman's deliberate and criminal misuse of the shower." The general rule at common law is that "absent a special relationship of custody or control, there is no duty to protect a third person from the conduct of another." (Internal quotation marks omitted.) Fraser v. United States, 236 Conn. 625, 632, 674 A.2d 811 (1996). "One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm." (Internal quotation marks omitted.) Kaminski v. Fairfield, 216 Conn. 29, 33, 578 A.2d 1048 (1990).
However, these rules, on which the defendants impliedly rely, are inapposite here. The specifications of the individual defendants' negligence alleged in the plaintiff's complaint are not premised on allegations that the defendants had a special relationship of custody and control with either Aleman or the plaintiff, nor that the defendants were negligent in failing to reasonably control Aleman. The plaintiff's specifications of negligence are not dependent for their validity even on the concurrent negligence of a third person. Rather, the plaintiff alleges that the housing authority and its employees, servants and agents were negligent in failing to comply with all applicable state and municipal building, repair and housing codes concerning health and safety. In particular, the plaintiff alleges that the scalding temperature of the water was caused by the negligence of the housing authority and its employees in that they failed to maintain a safe and reasonable temperature for the water that came out of the shower-head.
"Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual . . . Although it has been said that no universal test for [duty] ever has been formulated . . . our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised . . . By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result? . . . A simple conclusion that the harm to the plaintiff was foreseeable, however, cannot by itself mandate a determination that a legal duty exists. Many hams are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed . . . A further inquiry must be made, for we recognize that duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection . . . While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world . . . The problem for the law is to limit the legal consequences of wrongs to a controllable degree . . . [T]he test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendants responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case." (Citations omitted; internal quotation marks omitted.) Gomes v. Commercial Union Ins. Co., 258 Conn. 603, 615-16, 783 A.2d 462 (2002). Since the defendants do not provide any public policy analysis — indeed the words public policy nowhere appear in their memoranda — the court limits its consideration to the first tier of the test for the existence of a legal duty.
"In order to assess the [specific] duty owed to the plaintiff, it is first necessary to establish the point from which that duty flows." LaFlamme v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63 (2002). "The general rule is that a landlord has a duty reasonably to maintain property over which he exercises control." Stokes v. Lyddy, 75 Conn.App. 252, 260, 815 A.2d 263 (2003). That is, he has a duty to be in the "exercise of reasonable care to have and keep the premises reasonably safe for the reasonably to be anticipated uses which [occupants] would make of them." Lowthert v. Loyal Order of Moose of Stamford, Lodge 940, Inc., 147 Conn. 529, 533, 163 A.2d 106 (1960). "That duty serves to protect entrants (invitees, licensees, trespassers) and tenants. The degree of care owed to an entrant depends on the entrant's status." Stokes v. Lyddy, supra, 75 Conn.App. 260. Here, there is evidence that the minor plaintiff was a social invitee, to whom the same duty is owed as a business invitee. "[T]he standard of care owed to a social invitee shall be the same as the standard of care owed to a business invitee . . ." Sevigny v. Dibble Hollow Condominium Assn., Inc., 76 Conn.App. 306, 320, 819 A.2d 844 (2003). The term "reasonably to be anticipated uses," connotes foreseeability. See Mitchell v. Miller, 26 Conn.Sup. 142, 150, 214 A.2d 694 (1965) ("Foreseeable or reasonable anticipation of injury from the defect is becoming the test.").
As observed supra, the factual basis for the defendants' motion is that Aleman committed a "deliberate and criminal misuse of the shower." Indeed, the defendants suggest that Aleman deliberately injured the plaintiff. Viewed in a light most favorable to the plaintiff, the facts do not support such a scenario. To the contrary, the evidence is susceptible of innocent or at most negligent behavior by Aleman prior to her becoming aware of the plaintiff's injuries. There is evidence that Aleman turned the shower on warm for the plaintiff and told him to wash himself that she went back and forth between the shower and the kitchen, never leaving the plaintiff alone for more than three minutes, and that after the plaintiff was in the shower for ten minutes, she heard him scream and went to him.
Subsequent to the events giving rise to this action, Aleman was charged by the State with the crime of Risk of Injury to a Minor. At her sentencing, a transcript of which has been submitted by the defendants, the court, Iannotti, J., addressed her behavior and stressed that he did not believe that Aleman turned the water to a high temperature in order to intentionally burn the plaintiff. According to Fote, the plaintiff's expert, the burns were caused by the failure of the housing authority and its employees to follow specific safety practices regarding the Delta Scald-Guard on the shower head mechanism under the 1993 BOCA National Plumbing Code and by the defendants' failure to adhere to the water heater's installation instructions. At the time of the hearing on the defendants' motion, the defendants had not yet deposed Fote and examined him on his opinions. Viewing the evidence in a light most favorable to the plaintiff, there is a genuine issue of material fact as to whether an ordinary person in the defendants' position, knowing what the defendants knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result.
With the factual predicate of the individual defendants' motion removed, the cases cited by the defendants in support of their motion, Baptiste v. Better Val-U Supermarkets, Inc., 262 Conn. 135, 811 A.2d 687 (2002), Noebel v. Housing Authority, 146 Conn. 197, 148 A.2d 766 (1959), and Botticelli v. Winters, 125 Conn. 537, 7 A.2d 443 (1939), become inapposite.
In Baptiste, the plaintiff sought damages from the defendant supermarket alleging that it was responsible for the theft of the cash that he had placed on the store counter while he completed the necessary paperwork to conduct a monetary wire transfer at the store. Id., 138. He claimed, inter alia, that the defendant was negligent in failing to provide a safe and secure area for facilitating the transaction. Id., 140. The Supreme Court stated that it was unforeseeable to the defendant that someone would leave his cash unattended on the countertop, and also that there was no evidence that the defendant should have foreseen a theft, given that there was no evidence that the store was located in a high crime area. Id., 140-42. Here, by comparison, viewing the evidence in a light most favorable to the plaintiff, it was foreseeable that young children would be using the shower and, according to Fote, foreseeable that the defendants' failure to follow specific safety practices and adhere to the water heater installation instructions would result in injury.
In Noebel, the plaintiff; a tenant in a housing development maintained by the defendant landlord, was injured when he fell over a wire barrier in an area in a backyard that was under the landlord's control. Noebel v. Housing Authority, supra, 146 Conn. 200. The barrier had been erected by another tenant with the landlord's permission along a common-walk. Id. The plaintiff was well aware of the barrier but attempted to jump over it in her haste to reach her son, who was reportedly being "beaten up" by some older boys. Id. The Supreme Court held that the landlord could not be liable for the plaintiffs' injuries since it was not chargeable with the anticipatory likelihood that, if the barrier remained, someone would try to jump over it, misjudge its height or his or her own agility, and fall. Id., 200.
Noebel is distinguishable from the facts in this case on several grounds, most notably that in Noebel, it was the plaintiff who deliberately chose to encounter a known risk, jumping over a wire barrier, and misjudged its height and her own ability to clear it. Id., 201. Here, by comparison, a reasonable trier could find that the plaintiff was blameless. Moreover, in Noebel, there is no suggestion that the wire barrier was defective in any way. Here, in light of Fote's affidavit, there is a genuine issue of material fact as to whether the water heating system functioned properly.
In Botticelli, a metal barrel was placed between two tenement houses by the janitor of one tenement, with the consent of the janitor of the other tenement, which was owned by the defendant. Botticelli v. Winters, supra, 125 Conn. 538. The barrel, though deteriorated, perforated and without a bottom, was used by both janitors and by the occupants of both buildings to burn refuse. Id. Children in the neighborhood were known to play with fire in the barrel. Id., 539. The plaintiff, a six-year-old, was standing near the barrel while it had a fire in it. Id. His companion threw some papers into the barrel and a flame came through holes in the barrel's bottom, igniting the plaintiff's clothing. Id. The action was tried to the court, which found for the plaintiff. Id. The Supreme Court reversed and ordered a new trial because (1) the fire was not a "bonfire," which was prohibited by a city ordinance, (2) the defendant was not liable in nuisance because the plaintiff was a trespasser, and (3) the defendant was not liable in negligence because the trial court's finding that the defendant's janitor built the fire was not supported by the evidence. Id., 540-43. The court then stated in dicta: "we would hesitate to hold that one in control of a building was liable for such an injury as occurred in this case merely because he maintained an incinerator in an open yard of the premises, even though it was in such a condition that flames from refuse burning in it would come through its sides and the owner knew that children played about the yard, where the injury was due to an intermeddler, who, without right, set fire to refuse in the incinerator. In such a condition it would be difficult to see how the landowner could be charged with that reasonable anticipation of harm which lies at the root of liability in negligence in such a situation . . . It is true that [the defendant's janitor] knew that [the janitor of the other tenement], the storekeepers and tenants in the buildings and also children at times set fire to refuse in the barrel. This would not in itself be a sufficient basis for imposing liability on the defendant. An owner of a tenement house may properly permit the occupants to use a rubbish burner he places in a yard on the premises even tough to his knowledge children are accustomed to play there, if reasonable means to safeguard them from harm are provided . . ." (Citations omitted.) Id., 542. The defendants seek to analogize Aleman to the intermeddler, the wrongdoer in Botticelli. Since there is a genuine issue of material fact as to whether Aleman was negligent the analogy fails for purposes of this motion.
The court added: "[T]he basis of liability in such a case is a failure to have such safeguards. If the owner knew or should have known, not only that others were accustomed to use the burner, but that they did not adopt reasonable means to safeguard children who were in the habit of playing about the yard, and one of them was injured by the lack of such safeguards, he might be liable." Botticelli v. Winters, supra. 125 Conn. 542-43 (1939).
As to the individual defendants' claim that Aleman's conduct was the superceding cause of the plaintiff's injuries, the "relevant question is whether, assuming a breach of duty on the part of the defendants, a fact finder reasonably could find that the defendants' conduct was a proximate cause of the [plaintiff's injuries] . . . [P]roximate cause [is] defined as an actual cause that is substantial factor in the resulting harm . . . [T]he inquiry fundamental to all proximate cause questions . . . [is] whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence . . . Additionally, we note that a negligent defendant whose conduct creates or increases the risk of a particular harm and is a substantial factor in causing that harm, is not relieved from liability by the intervention of another person, except where the harm is intentionally caused by the third person and is not within the scope of the risk created by the defendant's conduct." Monk v. Temple George Associates, LLC, 273 Conn. 108, 124, 869 A.2d 179 (2005).
"Therefore, the liability of the defendants depends on the foreseeability of the [circumstances in which the plaintiff was injured], as well as the extent to which the defendants' alleged negligence was a substantial factor in causing the plaintiff's injuries." Id., 125.
Because there is a genuine issue of material fact as to whether Aleman's acts were wrongful and, in light of the Fote affidavit, There are genuine issues of material fact as to whether the plaintiff's injuries were foreseeable and whether the defendants' conduct was a substantial factor in causing the plaintiff's injuries, the motion for summary judgment as to the individual defendants is denied.
Finally, the court observes that the plaintiff's revised complaint consists of thirty-four counts and consumes over eighty-three pages. This is unnecessary and will render the work of the trial judge unnecessarily complicated and burdensome. "The use of unnecessary counts is clearly contrary to the spirit of the Practice Act, and has at all times met with the disapproval of [the courts]." Brown v. Wilcox, 73 Conn. 100, 105, 46 A. 827 (1900). Separate counts should be employed only where separate and distinct causes of action are stated. Practice Book § 10-26. "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." Gallo v. G. Fox Co., 148 Conn. 327, 330, 170 A.2d 724 (1961). The Supreme Court has "uniformly approved the use of a single count to set forth the basis of a plaintiff's claims for relief where they grow out of a single occurrence or transaction or closely related occurrences or transactions, and it does not matter that the claims for relief do not have the same legal basis." Veits v. Hartford, 134 Conn. 428, 438-39, 58 A.2d 389 (1948). Statutory and common law claims may be joined in the same count. Burgess v. Vanguard Ins. Co., 192 Conn. 124, 470 A.2d 244 (1984). And, of particular relevance here, "[m]ore than one defendant may be named in the same count to the extent the alleged cause of action is common to the named defendants." Dreary v. Raheb, Superior Court, complex litigation docket at Tolland, Docket, No. X07 CV 99 0072055 S (March 27, 2000, Bishop, J.). The plaintiff is ordered to file an amended complaint in accordance with the court's disposition of this motion.
The motion for summary judgment is granted as to the defendant Housing Authority of the city of New Haven. The motion is otherwise denied.
BY THE COURT
Bruce L. Levin
Judge of the Superior Court.