Sandra Koozmitch v. South Kendall Properties (2010)

MEMORANDUM OF DECISION MOTION TO STRIKE # 119

FACTS

On November 16, 2007, the plaintiff, Sandra Koozmitch, brought this action for injuries she allegedly sustained from slipping and falling on ice in the parking lot of a Burger King fast food restaurant.   On November 24, 2009, the plaintiff filed a request to amend and amended complaint, which is the operative complaint pursuant to Practice Book § 10-60(a)(3).   The first and second counts of the amended complaint allege negligence claims against the defendants, South Kendall Properties, Inc. (South Kendall) and Burger King Corporation (Burger King), respectively.   The third and fourth counts of the amended complaint allege spoilation of evidence claims against South Kendall and Burger King, respectively.

On March 25, 2010, the defendants filed this motion to strike the third and fourth counts of the amended complaint.   The plaintiff filed objections to the motion to strike on April 19, 2010 and May 12, 2010.

The plaintiff alleges the following facts in the third and fourth counts of the amended complaint.   On December 22, 2005, the plaintiff was a business invitee at a Burger King fast food restaurant in Norwich, Connecticut.   The Burger King operated on property owned, managed and/or controlled by South Kendall.   The plaintiff parked her car in the parking lot in order to purchase food at the restaurant, and as the plaintiff walked to the rear of her vehicle she slipped on ice.   The plaintiff sustained numerous injuries from the fall.

On or about February 9, 2006, prior to the commencement of this suit, the plaintiff notified Cambridge Integrated Services Group, Inc., the third-party administrator for South Kendall, that she had fallen in the Burger King parking lot.   The plaintiff advised them to preserve the photographs of the area that had been taken by the shift coordinator of Burger King on the date of the incident.   On November 28, 2007, after the lawsuit had been commenced, the plaintiff's attorney advised counsel for the defendants of the plaintiff's intent to hire an expert to inspect the area of the parking lot.   On August 26, 2008, the plaintiff was notified that the parking lot was demolished and renovated, precluding the plaintiff from inspecting the lot.   Additionally, the defendants have destroyed the photographs that were taken of the parking lot immediately after the plaintiff's fall.

DISCUSSION

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”  (Internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).   “If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ․ the complaint is not vulnerable to a motion to strike.”  Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).   The court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).

The defendants argue that the plaintiff fails to allege that any evidence was destroyed in bad faith and with the intent to deprive the plaintiff of a cause of action.   The defendants argue that approximately three years had passed since the incident, and that they were acting in good faith by renovating and repaving the parking lot.   Further, the defendants argue that the plaintiff fails to allege that the destruction of any evidence has rendered the plaintiff unable to establish a prima facie case.   The defendants assert that the plaintiff produced several photographs of the parking lot at her own deposition and that the plaintiff's own testimony can be used to make her prima facie case.   In response, the plaintiff relies on the language in the court's memorandum of decision regarding a previous motion for summary judgment, in which the court stated that “[t]he plaintiff alleges facts to support each of [the elements of a claim for spoliation of evidence] in her amended complaint.” ¹

At the outset, the court notes that it will not consider any materials or facts outside the plaintiff's amended complaint.  “It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents ․ [The court is] limited ․ to a consideration of the facts alleged in the complaint.”  (Internal quotation marks omitted.)   Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005).  “Where the legal grounds for ․ a motion [to strike] are dependent upon underlying facts not alleged in the plaintiff's pleadings, the defendant must await the evidence which may be adduced at trial, and the motion should be denied.”  (Internal quotation marks omitted.)  Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 293, 842 A.2d 1124 (2004).   Thus, any photographs or other evidence allegedly possessed by the plaintiff or submitted by the defendants, are irrelevant to the determination of this motion to strike.

“[T]he tort of intentional spoliation of evidence consists of the following essential elements:  (1) the defendant's knowledge of a pending or impending civil action involving the plaintiff;  (2) the defendant's destruction of evidence;  (3) in bad faith, that is, with intent to deprive the plaintiff of his cause of action;  (4) the plaintiff's inability to establish a prima facie case without the spoliated evidence;  and (5) damages.”  Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 244-45, 905 A.2d 1165 (2006).   In Rizzuto v. Davidson Ladders, Inc., the plaintiff was climbing a ladder at a Home Depot store when the ladder collapsed.  Id., 227.   The plaintiff fell to the floor and sustained serious injuries.  Id. The defendants subsequently destroyed the ladder before the plaintiff had an opportunity to inspect it.  Id., 227-28.   The Connecticut Supreme Court recognized the tort of intentional spoliation of evidence for the first time, and determined that the trial court had erred in striking the spoliation of evidence count from the plaintiff's complaint.  Id., 252.

The court noted that “[t]he plaintiff's complaint does not allege explicitly either that the defendants destroyed the ladder in bad faith, or that the plaintiff was unable to satisfy his burden of production without the ladder.   The plaintiff's complaint does allege, however, that the defendants destroyed the ladder ‘intentionally’ and, as a result, ‘the plaintiff may not be able to prove his case, and his interest in the [product liability cause] of action ․ will forever be lost.’   Further, in his memorandum in opposition to the defendants' motion to strike, the plaintiff claimed that the defendants had destroyed the ladder in bad faith, and that the plaintiff likely would be unable to make out a prima facie case of product liability without the ladder.   Accordingly, construing the complaint broadly and consistent with the general theory pursued in the trial court, we conclude that the complaint sufficiently alleges that the defendants destroyed the ladder in bad faith with the purpose and effect of preventing the plaintiff from establishing a prima facie case of product liability.”   Id., 238 n.7.

In the present case, the plaintiff alleges that she notified the third-party administrator for South Kendall that she had fallen in the Burger King parking lot and advised them to preserve the photographs taken on the date of the incident for use at trial.   Further, the plaintiff alleges that after the commencement of the action she informed defense counsel of her intent to hire an expert to inspect the parking lot.   The plaintiff alleges that the defendants subsequently demolished the parking lot and destroyed the photographs.   Finally, the plaintiff alleges that “[t]he unavailability of the dangerous and defective parking lot and photographs taken of the dangerous and defective parking lot under the circumstances of this case may prevent the plaintiff ․ from proving the cause of action [for negligence].”   Third and Fourth Counts, ¶ 20.

Construing the allegations broadly and in the manner most favorable to sustaining their legal sufficiency, the plaintiff alleges that the defendants knew of the pending lawsuit involving the plaintiff when they destroyed the parking lot and the photos.   While the plaintiff does not use the words “bad faith,” the court can imply from the allegations that the defendants destroyed the evidence to “preclud[e] the plaintiff from inspecting the Burger King parking lot which caused [the plaintiff's] injuries.”   Third and Fourth Counts, ¶ 14.   The plaintiff utilizes language almost identical to that in Rizzuto to allege that she will be unable to establish a prima facie case without the evidence.   Additionally, the plaintiff has sufficiently alleged damages.   Thus, the court finds that the plaintiff has alleged sufficient facts to state a claim for intentional spoliation of evidence, particularly in light of the similarities between the allegations in the present case and the allegations in Rizzuto.

CONCLUSION

Based on the foregoing, the defendants' motion to strike is denied.

Martin, J.

FOOTNOTES

FN1. The court previously discussed the third and fourth counts of the amended complaint in the defendants' previous motion for summary judgment.   The amended complaint, which became the operative complaint subsequent to the defendants filing their motion for summary judgment, added the third and fourth counts for spoliation of evidence.   The defendants did not file an amended motion for summary judgment to address the new counts of the complaint and, thus, the court determined that the defendants were not entitled to summary judgment on those counts.   The court will consider the sufficiency of the third and fourth counts on this motion..  FN1. The court previously discussed the third and fourth counts of the amended complaint in the defendants' previous motion for summary judgment.   The amended complaint, which became the operative complaint subsequent to the defendants filing their motion for summary judgment, added the third and fourth counts for spoliation of evidence.   The defendants did not file an amended motion for summary judgment to address the new counts of the complaint and, thus, the court determined that the defendants were not entitled to summary judgment on those counts.   The court will consider the sufficiency of the third and fourth counts on this motion.

Martin, Robert A., J.