Nicole Breton et al. v. LLC (2011)

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 111

FACTUAL AND PROCEDURAL BACKGROUND

The plaintiffs, Nicole Breton and her husband, Shonn Breton, commenced the instant action against the defendant Stop & Shop Supermarket Company, LLC (Stop & Shop) and McCue Corporation by service of process on January 12, 2010.   The operative complaint was filed on April 13, 2010 (complaint).¹  Count one is brought by the plaintiff Nicole Breton against the defendant and alleges a products liability claim under General Statutes § 52–572m et seq.   Count two is brought by the plaintiff Shonn Breton against the defendant and alleges a loss of consortium claim.

The complaint alleges the following facts.   On or about January 20, 2008, the plaintiff Nicole Breton was shopping at a store owned and operated by the defendant located at 275 Highland Avenue in Cheshire (the premises).   She placed her two children in a “children's shopping cart” (the shopping cart).   The shopping cart was owned, controlled and maintained by the defendant in the use for which it was intended.   As she was walking sideways past the shopping cart her left knee struck the shopping cart causing her injury.

The defendant moved to strike count one for the reason that the allegations are insufficient to state a cause of action against the defendant pursuant to the Connecticut Product Liability Act (Act) because the defendant was not a “product seller” of the shopping cart that allegedly caused the plaintiff Nicole Breton's injuries and its status as a “product seller” is a necessary predicate for a cause of action under the Act. The defendant moved to strike count two on the basis that it is wholly derivative of count one, which fails to state a claim upon which relief may be granted.

The plaintiffs do not contend that the defendant was in the business of selling shopping carts.   Rather, the plaintiffs object to the motion to dismiss arguing that count one is legally sufficient because the allegations contained therein directly or inferentially state that the defendant was a bailor and therefore a “product seller” of the shopping cart.   The plaintiffs further argue that because count one is legally sufficient, the court must therefore conclude that count two is also legally sufficient.

The defendant argues in its reply memoranda that the court must nonetheless strike counts one and two because the allegations contained therein are insufficient to state that the defendant was a bailor, much less a “product seller,” of the shopping cart.

The court heard oral argument on the matter on May 9, 2011.

STANDARD OF REVIEW

“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 must construe the complaint in the light most favorable to the plaintiff.  Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).  “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 ․” Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).   Although, a motion to strike “admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Emphasis in original;  internal quotation marks omitted.)   Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).  “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).

DISCUSSION

It is well established that in order to maintain a product liability cause of action pursuant to General Statute § 52–572m et seq., a plaintiff must establish that the defendant is a “product seller” of the product in question;  Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 403, 528 A.2d 805 (1987);  in this case, the shopping cart.  General Statute § 52–572m(a) expressly provides that a “[p]roduct seller” is defined as 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.   The term product seller also includes lessors or bailors of products who are engaged in the business of leasing or bailment of products.  (Emphasis added.)

Thus, while a “bailor” may constitute a product seller within the meaning of the Act, the express language of General Statute § 52–572m(a) makes it clear that such is the case only where the bailor is in the business of the bailment of products.   Although neither the statute nor our appellate courts have expressly defined what constitutes being in the business of bailment of products, this court is persuaded by the analysis set forth in the Restatement (Third) of Torts:  Products Liability § 20 (1998) (Restatement).   As noted by the defendant in its reply memorandum, our courts have long since adhered to the principles adopted by the American Law Institute in the Restatement with regard to products liability.   See Giglio v. Connecticut Light & Power, 180 Conn. 230, 429 A.2d 292 (1983);  Coe–Park Donuts, Inc. v. Robertshaw Controls, Co., 1 Conn.App. 84, 468 A.2d 292 (1983).   The Restatement sets forth that commercial bailors who furnish products as a convenience for the use by their customers while on the bailor's premises are merely users of the products themselves and are not subject to strict liability.   In addressing this precise issue, whether a shopping cart furnished by a retailer for the purpose of aiding the consumer while shopping on the retailer's premises subjects the retailer to strict liability by virtue of the bailment of the shopping cart, the commentary to the Restatement expressly states that it does not.   Restatement (Third) of Torts:  Prod. Liability § 20 cmt. f (1998).

Furthermore, this same issue was also previously addressed in Peloquin v. Stop & Shop Holdings, Inc., Superior Court, judicial district of Middlesex, Docket No. CV 97 0082759 (May 27, 1998, Hodgson, J.) [22 Conn. L. Rptr. 245].   In Peloquin, the plaintiff sought damages for injuries allegedly sustained by her minor child when the child safety seat in the shopping cart furnished by Stop & Shop collapsed.   In granting the defendant's motion to strike, the court rejected the plaintiff's argument that Stop & Shop was a bailor of the shopping cart.   The court noted that although the definition of a product seller includes “lessors or bailors” it does so only insofar as they are engaged in the business of leasing or bailment of products.   While the court recognized that the furnishing of a shopping cart on an implied promise to return it after use may constitute a bailment,² it went on to note that the issue for purposes of the Act was whether Stop & Shop was “engaged in the business of bailment ․ of products.”  Id.

In Peloquin, as in the present case, the business of Stop & Shop was not alleged to be the furnishing of shopping carts.   Rather, the court noted that it is a seller of groceries and household items.   Although the plaintiff asserted that because Stop & Shop furnishes shopping carts without charge to its customers in order to facilitate their making of purchases, the bailment of shopping carts is part of its business, the court reasoned that “[at] most, that bailment is incidental to the business of selling other products.   The language of the statute does not broadly cover all bailments by business entities but only those by entities whose business consists of bailment of products.”  Id.

Although Peloquin is not binding on this court, this court is persuaded by its reasoning, as well as that of the Restatement, and adopts it in granting the present motion.   Here, the plaintiffs have not alleged, nor can it be inferred, that the defendant was in the business of bailment of shopping carts.   To the contrary, the only allegation made with respect to the defendant's business is that it conducts business in the state and operates the premises where the plaintiff Nicole Breton was injured.   Moreover, the only allegations made with respect to the defendant's relationship to the shopping cart are legal conclusions that it “owned, controlled and maintained” the shopping cart.

Thus, the plaintiffs' allegations, even when taken as admitted and viewed in the light most favorable to sustaining their legal sufficiency, cannot be read to directly or inferentially state that the defendant's business consists of the bailment of shopping carts, so as to render it a bailor and therefore “product seller” of the allegedly defective shopping cart within the purview of the Act. Nor are they sufficient to state that the defendant was a manufacturer, wholesaler, distributor or retailer engaged in the business of selling shopping carts.   Likewise, the allegations are insufficient to support a claim that the defendant was a lessor engaged in the business of leasing shopping carts, such that the defendant would nonetheless qualify as a “product seller” under the Act. Absent such an allegation that the defendant was a “product seller,” the plaintiffs' claims against the defendant must fail.

CONCLUSION

For the foregoing reasons, the defendant's motion to strike counts one and two of the Amended Complaint is granted.

SO ORDERED.

SUSAN A. CONNORS, JUDGE

FOOTNOTES

FN1. The court will hereinafter refer to Stop & Shop Supermarket Co., LLC as the defendant because it is the only defendant involved in the present motion..  FN1. The court will hereinafter refer to Stop & Shop Supermarket Co., LLC as the defendant because it is the only defendant involved in the present motion.

FN2. A bailment is defined as “a delivery of goods in trust, upon a contract, express or implied, that the trust shall be faithfully executed on the part of the bailee.”  Id. quoting B.A. Ballou & Co. v. Citytrust, 218 Conn. 749, 753 n.2 (1991)..  FN2. A bailment is defined as “a delivery of goods in trust, upon a contract, express or implied, that the trust shall be faithfully executed on the part of the bailee.”  Id. quoting B.A. Ballou & Co. v. Citytrust, 218 Conn. 749, 753 n.2 (1991).

Connors, Susan A., J.