Ellen Hill v. Barry T. Bellavance (2010)

MEMORANDUM OF DECISION REQUEST TO FILE AMENDED ANSWER # 123 OBJECTION TO REQUEST FOR LEAVE TO FILE AMENDED ANSWER AND SPECIAL DEFENSES # 124

The issue before the court is as to whether or not the defendant's request for leave to file an amended answer should be granted.

The plaintiff, Ellen J. Hill, alleges the following facts in the three-count complaint.   On February 28, 2007, the defendants, Barry T. Bellavance and Bellavance & King CPAS, LLC (Bellavance & King) and/or Bellavance & King CPAS, LLC, doing business as D.W. King & Co., were the owner and lessor, respectively, of a commercial office building in Putnam, Connecticut, that was leased to the Center for Interpersonal Relations (Center).¹  The defendants' customers and members of the public used the parking lot that is adjacent to the building, and the defendants had a duty to exercise reasonable care to maintain the parking lot in a reasonable safe condition.

The plaintiff further alleges the following.   On February 28, 2007, the plaintiff, who was a patient and customer of the Center, was injured when she slipped and fell in the parking lot due to the icy and dangerous condition of thereof.   The defendants knew, or with the exercise of reasonable care, should have known, of the dangerous condition at issue and were negligent in that they did not use reasonable care to keep the lot safe, failed to correct, remedy or guard against injury from the condition, failed to inspect the lot, failed to warn the plaintiff and the public of the condition of the lot or the risk involved and allowed the plaintiff and the public to enter and remain on the premises without using reasonable care to remedy the condition or warn them.

The plaintiff alleges a cause of action for negligence against Bellavance in count one, and a cause of action for negligence against the limited liability defendants in count two.   On May 13, 2009, the defendants filed an answer and special defense in which they admit their interests in the building, that they had a duty to maintain the parking lot in a reasonably safe condition and deny the remaining material allegations of the complaint.   In their special defense, the defendants allege that the plaintiff's own negligence was the proximate cause of her injuries.   The plaintiff filed a reply in which she denies the allegations of the special defense.

On January 15, 2010, the defendants filed a motion to modify the scheduling order to allow them to file an amended answer and special defense.   The court, Riley, J., granted the motion on February 11, 2010.   On February 4, 2010, the defendants filed a request for leave to file an amended answer and special defenses for the purpose of adding, as a second special defense, that the plaintiff cannot recover damages from them because her injuries, if any, were caused by her own wilful, wanton and reckless conduct.   The defendants attached their proposed amended pleading to their request.   On February 17, 2010, the plaintiff filed an objection to the defendants' request on the ground that the proposed second special defense is “a factually and legally insufficient special defense.”   The defendants filed a reply to the plaintiff's objection on February 23, 2010, in which they raise procedural and substantive issues regarding the plaintiff's objection.   The court heard the matter on the short calendar on March 1, 2010.

The procedural issue that the defendants raise in their reply is that the plaintiff's objection to the defendants' request to amend is procedurally improper in that the ground that the plaintiff relies on, i.e., that the second special defense is factually and legally insufficient, should be raised in a motion to strike, and not in an objection to a request to amend.   The defendants are correct.   Our Supreme Court has plainly stated and applied the law on the issue as follows:  “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 ․ The motion to amend is addressed to the trial court's discretion which may be exercised to prevent unreasonable delay of the trial.²

“The proper procedural vehicle to challenge the legal sufficiency of a proposed pleading is a motion to strike, rather than an objection to a motion to amend.   See Practice Book § 10-39.³  Thus, even if a proposed pleading is alleged to be insufficient, a ‘[party] should be permitted to file [the amended pleading], so that the issues arising under it may be determined in proceedings properly adapted to that end.’  Newman v. Golden, 108 Conn. 676, 680, 144 A. 467 (1929) (trial court improperly denied plaintiff's motion to file substitute pleading on ground that proposed pleading failed to state claim);  see also Smith v. Furness, 117 Conn. 97, 100, 166 A. 759 (1933) ( ‘[w]e go no farther ․ than to point out that it was error for the trial court to refuse to permit [the amended pleading] to be filed upon the ground that the facts stated in it would not legally constitute a defense’).   Accordingly, we conclude that the trial court abused its discretion by denying the plaintiff's request to file an amended complaint of the ground that the proposed ․ claim was unsupported by factual allegations.”  (Citation omitted;  internal quotation marks omitted.)  Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 255-57, 905 A.2d 1165 (2006).

In the present case, the plaintiff's objection to the defendants' request for leave to amend is procedurally improper in that it is solely premised on her argument that the proposed special defense is legally and factually insufficient.   For this reason, the court hereby GRANTS the defendant's request to file an amended answer and special defenses (# 123) and OVERRULES the plaintiff's objection thereto.

THE COURT

Riley, J.

FOOTNOTES

FN1. The plaintiff listed the Center as a defendant in the summons and alleged a negligence claim against it in count three of the complaint.   On July 20, 2009, the court, Riley, J., granted the Center's motion for summary judgment, which was premised on its contention that there was no issue as to the material fact that the Center did not own or control the parking lot where the plaintiff allegedly sustained her injuries..  FN1. The plaintiff listed the Center as a defendant in the summons and alleged a negligence claim against it in count three of the complaint.   On July 20, 2009, the court, Riley, J., granted the Center's motion for summary judgment, which was premised on its contention that there was no issue as to the material fact that the Center did not own or control the parking lot where the plaintiff allegedly sustained her injuries.

FN2. Practice Book § 10-60 provides in relevant part:  “(a) ․ a party may amend his or her pleadings ․ at any time subsequent to that stated in the preceding section in the following manner ․ (3) by filing a request for leave to file such amendment, with the amendment appended ․”“(b) The judicial authority may restrain such amendments so far as may be necessary to compel the parties to join issue in a reasonable time for trial ․”.  FN2. Practice Book § 10-60 provides in relevant part:  “(a) ․ a party may amend his or her pleadings ․ at any time subsequent to that stated in the preceding section in the following manner ․ (3) by filing a request for leave to file such amendment, with the amendment appended ․”“(b) The judicial authority may restrain such amendments so far as may be necessary to compel the parties to join issue in a reasonable time for trial ․”

FN3. Practice Book § 10-39(a) provides in relevant part:  “Whenever any party wishes to contest ․ (5) 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.”.  FN3. Practice Book § 10-39(a) provides in relevant part:  “Whenever any party wishes to contest ․ (5) 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.”

Riley, Michael E., J.