Paul Constantinople v. LLC (2010)

MEMORANDUM OF DECISION

On July 28, 2008, the plaintiff, Paul Constantinople, commenced the present action by service of process on the defendant, Seema Donuts, LLC. In the complaint the plaintiff makes the following allegations.   The defendant owns, controls and maintains a Dunkin Donuts restaurant, located at 50 Union Avenue, New Haven, Connecticut.   On July 12, 2006, the plaintiff entered the Dunkin Donuts and purchased a large Tropicana Coolatta.   The plaintiff exited the store and began to drink the beverage.   Shortly thereafter, the plaintiff noticed a foul taste from the beverage and began to violently and uncontrollably vomit.

The plaintiff alleges that the illness was a result of the defendant's negligence, based on the following:  failing to supervise and train their employees to prepare and inspect all products to ensure for the safety of the customers, failing to serve the plaintiff a beverage that was safe for consumption, failing to serve a beverage free of foreign and dangerous substances, failing to take reasonable precautions to ensure the beverage was safe for consumption and knowing or in the exercise of reasonable care should have known that the beverage would cause injury to the plaintiff.   As a result of the negligence, the plaintiff suffered nausea, dizziness, vomiting and experienced a burning sensation in his mouth and throat.   The plaintiff incurred expenses for medical care and also endured substantial pain and suffering, loss of sleep, severe anxiety and continual discomfort.   The plaintiff's injuries also diminished his physical activities and leisure time pursuits.   The plaintiff seeks monetary damages greater than fifteen thousand dollars.

The defendant filed the present motion for summary judgment on July 16, 2010, along with a memorandum of law.   On September 13, 2010, the plaintiff filed an objection to the motion.   The court heard arguments on the motion at short calendar on October 4, 2010.

DISCUSSION

“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 moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.”  (Internal quotation marks omitted.)  Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193, 198-99, 931 A.2d 916 (2007).  “To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45].”  (Internal quotation marks omitted.)   Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).

In the memorandum in support of the motion for summary judgment, the defendant argues that there are no genuine issues of material fact, as the plaintiff's cause of action for negligence is barred by the exclusivity provisions of the Connecticut Product Liability Act (CPLA).  General Statutes § 52-572n, provides in relevant part:  “(a) A product liability claim ¹ 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,² including actions of negligence, strict liability and warranty, for harm ³ caused by a product.”  “The exclusivity provision makes the product liability act the exclusive means by which a party may secure a remedy for an injury caused by a defective product.   The legislature stated that a product liability claim, as defined by the product liability act, ‘shall be in lieu of all other claims against product sellers ... for harm caused by a product.’   “ Gerrity v. R.J. Reynolds Tobacco Co., 263 Conn. 120, 126, 818 A.2d 769 (2003).

Specifically, the defendant argues that the current claim falls under the CPLA exclusivity provision, as it involves a company in the restaurant business selling a product from which the alleged injury occurred.   The plaintiff objects, arguing that the defendant should have brought a request to revise and that the products liability statute allows negligence claims under its “umbrella.”   The plaintiff argues that the failure to plead the CPLA statute in the complaint is not dispositive as Practice Book § 10-3 is directory not mandatory.

“Practice Book § 10-3(a) provides that, [w]hen any claim made in a complaint, cross complaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number.   We have held that [a]s long as the defendant is sufficiently apprised of the nature of the action ․ the failure to comply with the directive of Practice Book § 10-3(a) will not bar recovery ․ We also have held, however, that the trial court is not obligated to substitute a cognizable legal theory that the facts, as pleaded, might conceivably support for the noncognizable theory that was actually pleaded.”  (Citation omitted;  internal quotation marks omitted.)   Mazurek v. Great American Ins. Co., 284 Conn. 16, 28-29, 930 A.2d 682 (2007).

The plaintiff in Mazurek alleged that the defendant was negligent, in a case where the defendant was a product seller and the exclusive remedy was the CPLA statute.  Id. The court held that “the elements of a negligence claim are not the same as the elements of a product liability claim, and the defenses to the two types of claims are different.”  Id. As a result, the Supreme Court held that the trial court properly rendered summary judgment on the claim.  Id.

In the present case, the defendant, pursuant to § 52-572m(a), is a product seller because the defendant is engaged in the business of selling food.⁴  This is undisputed.   The plaintiff failed to frame his allegation as a product liability claim.   As the court noted in Mazurek, the elements for a claim of negligence differ from the elements of negligence.   The court cannot substitute a theory of product liability, that was not pleaded, for a noncognizable theory, negligence, that was actually pleaded.   The CPLA statute is the exclusive means by which a party may secure a remedy for an injury caused by a defective product.   The court need not address the defendant's additional arguments.   The motion for summary judgment is granted for the foregoing reasons.

Howard F. Zoarski

Judge Trial Referee

FOOTNOTES

FN1. A “product liability claim” is defined to include “all claims or actions brought for personal injury, death or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product.  ‘Product liability claim’ shall include, but is not limited to, all actions based on the following theories:  Strict liability in tort;  negligence;  breach of warranty, express or implied;  breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent;  misrepresentation or nondisclosure, whether negligent or innocent.”  General Statutes § 52-572m(b)..  FN1. A “product liability claim” is defined to include “all claims or actions brought for personal injury, death or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product.  ‘Product liability claim’ shall include, but is not limited to, all actions based on the following theories:  Strict liability in tort;  negligence;  breach of warranty, express or implied;  breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent;  misrepresentation or nondisclosure, whether negligent or innocent.”  General Statutes § 52-572m(b).

FN2. A “product seller” is defined to mean, in part, “any person or entity, including a manufacturer, wholesaler, distributor or retailer who is engaged in the business of selling such products whether the sale is for resale or for use or consumption.”  General Statutes § 52-572m(a)..  FN2. A “product seller” is defined to mean, in part, “any person or entity, including a manufacturer, wholesaler, distributor or retailer who is engaged in the business of selling such products whether the sale is for resale or for use or consumption.”  General Statutes § 52-572m(a).

FN3. “Harm” is defined to include “damage to property, including the product itself and personal injuries including wrongful death.”  General Statutes § 52-572m(d)..  FN3. “Harm” is defined to include “damage to property, including the product itself and personal injuries including wrongful death.”  General Statutes § 52-572m(d).

FN4. Prior to the enactment of the product liability statute, the Supreme Court held that for purposes of common-law product liability, a restaurant is in the business of selling products.  Wachtel v. Rosol, 159 Conn. 496, 501, 271 A.2d 84 (1970).   The court stated that product liability “applies to any product in a defective condition unreasonably dangerous to the user or consumer or to his property.   We believe that the sandwich in this case falls within the meaning of ‘any product,’ and we note that comment d under § 402A declares that ‘[t]he rule stated in this Section is not limited to the sale of food for human consumption, or other products for intimate bodily use, although it would obviously include them.’   “ Id. Since enactment of the statute, courts have continued to recognize restaurants as product sellers.   See e.g. Wallerstein v. Stew Leonard's Dairy, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 96 0151020 (March 9, 2004, Tobin, J.);   Williams v. McDonald's of Torrington, Superior Court, judicial district of Hartford, Docket No. CV 96 0562657 (May 18, 1997, Hale, J.) (19 Conn. L. Rptr. 427)..  FN4. Prior to the enactment of the product liability statute, the Supreme Court held that for purposes of common-law product liability, a restaurant is in the business of selling products.  Wachtel v. Rosol, 159 Conn. 496, 501, 271 A.2d 84 (1970).   The court stated that product liability “applies to any product in a defective condition unreasonably dangerous to the user or consumer or to his property.   We believe that the sandwich in this case falls within the meaning of ‘any product,’ and we note that comment d under § 402A declares that ‘[t]he rule stated in this Section is not limited to the sale of food for human consumption, or other products for intimate bodily use, although it would obviously include them.’   “ Id. Since enactment of the statute, courts have continued to recognize restaurants as product sellers.   See e.g. Wallerstein v. Stew Leonard's Dairy, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 96 0151020 (March 9, 2004, Tobin, J.);   Williams v. McDonald's of Torrington, Superior Court, judicial district of Hartford, Docket No. CV 96 0562657 (May 18, 1997, Hale, J.) (19 Conn. L. Rptr. 427).

Zoarski, Howard F., J.T.R.