Edward Lanouette v. Hospital of St. Raphael (2010)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 101)

FACTS

This case arises out of alleged medical malpractice.   The plaintiff, Edward Lanouette, alleges that the defendant, Hospital of St. Raphael, was negligent in providing medical care.   Specifically, the plaintiff claims he was admitted to the defendant hospital on March 23, 2007, with a diagnosis of depression with suicidal ideation, and was placed on constant observation, as well as risk of fall precautions due to recent recovery from back surgery.   The plaintiff alleges that on March 24, 2007, while still in the care of the defendant, he was found on the hospital's bathroom floor on his hands and knees, and a subsequent CT scan showed a new compression fracture to the lumbar region of his spine.   The plaintiff claims that as a result of the defendant's negligence, he has sustained injuries causing him pain, suffering, and financial loss.

The plaintiff, on March 11, 2009, filed a petition with the clerk of the court for an automatic ninety-day extension of the statute of limitations per General Statutes § 52-190a(b).  On June 22, 2010, the plaintiff served a single-count complaint on the defendant.   The defendant filed a motion to strike on August 18, 2010, accompanied by a memorandum of law in support of the motion.   The defendant moves to strike the complaint on the grounds that the action is “barred by the two year statute of limitations period, as well as the three year statute of repose period, as set forth in § 52-584.”   The plaintiff, on October 7, 2010, filed a memorandum of law in opposition to the motion to strike in which he counters that the filing was timely under both the statute of limitations and statute of repose, and that the defendant's motion to strike based upon the statute of limitations is procedurally improper.   The defendant subsequently filed a reply memorandum on October 28, 2010, in which the defendant concedes that a motion to strike is generally not the appropriate vehicle in which to assert a statute of limitations defense, but argues an exception applies in this case because there are no disputed facts which the court needs to resolve relevant to the question of whether this action is time-barred.   The motion was heard by the court at short calendar on November 15, 2010.

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).  “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.”   (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).   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).

“[O]rdinarily, [a] claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense, not raised by a motion to strike.”  (Internal quotation marks omitted.)  Greco v. United Technologies Corp., 277 Conn. 337, 344 n.12, 890 A.2d 1269 (2006).  “In two limited situations, however, [the court] will allow the use of a motion to strike to raise the defense of the statute of limitations.   The first is when [t]he parties agree that the complaint sets forth all the facts pertinent to the question [of] whether the action is barred by the [s]tatute of [l]imitations and that, therefore, it is proper to raise that question by [a motion to strike] instead of by answer ․ The second is where a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right-it is a limitation of the liability itself as created, and not of the remedy alone.”  (Citation omitted;  internal quotation marks omitted.)   Forbes v. Ballaro, 31 Conn.App. 235, 239-40, 624 A.2d 389 (1993).

In the present case, neither exception applies which would properly allow the defendant's motion to strike asserting a statute of limitations defense.   The second exception is inapplicable because “[§ ]52-584 sets forth the limitation period for negligence actions, but does not create the negligence cause of action itself, which has always existed at common law.”   Talnose v. Wolcott, Superior Court, judicial district of Waterbury, Docket No. CV 07 5003539 (November 9, 2007, Agati, J.).   Nor does the first exception apply because the parties expressly do not agree that the complaint sets forth all the facts pertinent to the question of whether the action is barred by the statute of limitations.   Specifically, the plaintiff's complaint alleges that the injury occurred on March 24, 2007, but as the plaintiff argues, there are no facts pleaded as to when the plaintiff may have reasonably been put on notice regarding the actionable harm.   The plaintiff was not required to plead such facts because “matters in avoidance of the [s]tatute of [l]imitations need not be pleaded in the complaint but only in response to such a defense properly raised.”  Ross Realty Corp. v. Surkis, 163 Conn. 388, 392, 311 A.2d 74 (1972).

In such circumstances, a statute of limitations defense is improper to advance in a motion to strike “because the facts in a plaintiff's complaint must be taken as true for purposes of the motion, without considering contrary facts proffered by a defendant to show that the action is time barred and because until the pleadings are closed the plaintiff has not had an opportunity to plead in avoidance of the statute.” ¹  Girard v. Weiss, 43 Conn.App. 397, 416, 682 A.2d 1078, cert. denied, 239 Conn. 946, 686 A.2d 121 (1996).   Thus, one cannot say that the parties agree to all the pertinent facts relating to the issues of the statute of limitations and statute of repose, when not all facts have been pleaded that would be relevant to determining the applicable statute of limitations period.

CONCLUSION

Accordingly, the defendant's motion to strike is not the appropriate procedural vehicle to raise the statute of limitations defense, and therefore the court denies the defendant's motion to strike.

Wilson, J.

FOOTNOTES

FN1. Furthermore, the defendant has not filed an answer in the present case, so it cannot be said to have formally admitted or denied the truth of any alleged facts.   It is for this reason that the issue as to “[w]hether or not the statute of limitations would be applicable to negate a cause of action is normally raised by way of motion for summary judgment at which time the court can determine whether there are no genuine issues of fact and then whether judgment shall enter as a matter of law ․ The court would then consider all pleadings, the complaint and special defenses, to reach its conclusion.”   Talnose v. Wolcott, Superior Court, supra, Docket No. CV 07 5003539..  FN1. Furthermore, the defendant has not filed an answer in the present case, so it cannot be said to have formally admitted or denied the truth of any alleged facts.   It is for this reason that the issue as to “[w]hether or not the statute of limitations would be applicable to negate a cause of action is normally raised by way of motion for summary judgment at which time the court can determine whether there are no genuine issues of fact and then whether judgment shall enter as a matter of law ․ The court would then consider all pleadings, the complaint and special defenses, to reach its conclusion.”   Talnose v. Wolcott, Superior Court, supra, Docket No. CV 07 5003539.

Wilson, Robin L., J.