Patricia Higdon v. Railroad Salvage of Connecticut, Inc. (2011)

MEMORANDUM OF DECISION

On April 26, 2011, the plaintiff, Patricia Higdon, filed a three-count complaint against the defendants, Railroad Salvage of Connecticut, Inc. and World Imports, Ltd.¹ In the complaint, the plaintiff alleges the following facts.   On June 20, 2009, the plaintiff was a “customer, patron and/or business invitee” at the defendant's retail store located in West Haven, Connecticut.   She was contemplating purchasing bar stools from the defendant and sat on a display stool located in the store.   When the plaintiff sat on the stool, the stool collapsed.   As a result of the collapsed stool, the plaintiff fell to the floor and suffered various physical injuries, including her right ring finger being crushed.   In count one, the plaintiff claims that the defendant was negligent and that the “defective bar stool constituted an unreasonably hazardous condition of said premises that had been created by the defendant.”   Specifically, the defendant was careless and negligent in “one or more of the following respects:  (a) In that it failed to adequately inspect said stool;  (b) In that it selected a stool to be displayed to its customers, patrons and business invitees that was of improper construction, assembly and/or inadequate strength;  (c) In that it failed to establish procedures for periodic inspections of the furniture on display on the premises;  (d) In that it allowed its customers, patrons and business invitees to sit on an improperly assembled, broken and/or defective stool;  (e) In that it failed to ascertain the existence of the defective and dangerous condition of the stool and repair or replace said stool, although the hazard existed for a sufficient length of time such that in the exercise of reasonable and proper care and inspection said hazard should have been discovered and remedied;  (f) In that it failed to warn the plaintiff as to the unreasonably hazardous condition of said premises;  (g) In that it failed to maintain said premises in a reasonably safe condition for those lawfully thereon;  (h) In that it permitted its customers, patrons, and business invitees to sit on a stool that was of inadequate or improper construction, assembly and/or strength for the use to which the defendant employed it;  (i) In that it failed to adequately train its employees to properly inspect said stool;  (j) In that it failed to properly assemble said stool;  (k) In that it failed to adequately train its employees to properly assemble said bar stool.”   In count two, the plaintiff claims that the defendant is liable and legally responsible under the doctrine of products liability, General Statutes § 52–572m et seq., for the harm caused by the defective bar stool.

On June 6, 2011, the defendant filed a motion to strike count one of the plaintiff's complaint on the ground that the negligence claim is barred by the exclusive remedy provision of the products liability statute.   The defendant submitted a memorandum of law in support of its motion to strike.   The plaintiff filed a memorandum in opposition to the motion to strike on June 22, 2011, after requesting additional time to respond to the defendant's motion on June 9, 2011.   The matter was heard at short calendar on August 29, 2011.

“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.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252–53, 990 A.2d 206 (2010).   This court takes “the facts to be those alleged in the complaint ․ and ․ construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  Id., 252.

In its memorandum of law in support of the motion to strike, the defendant argues that count one of the plaintiff's complaint sounds in negligence and that count two is based upon the doctrine of products liability.   The defendant argues that General Statutes § 52–572n(a) provides for the exclusive remedy for damages in claims alleging products liability.   The plaintiff opposes the motion to strike on the grounds that counts one and two are pleaded in the alternative and that the plaintiff may be successful on count one without proving the stool was a defective product.   Furthermore, the plaintiff argues that the allegations in count one pertain to a duty to an invitee of a party in possession of the premises to render the premises reasonably safe and that the allegations are separate from a products liability claim because it is the defendant's use of the stool in the display that caused the premises to be unreasonably dangerous, regardless of whether the stool was a defective product.

General Statutes § 52–572n(a) provides:  “A products liability claim 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, including actions of negligence, strict liability and warranty, for harm caused by a product.” ²  “[T]he products liability statute provides an exclusive remedy and the plaintiffs cannot bring a common law cause of action for a claim within the scope of the statute.”  Daily v. New Britain Machine Co., 200 Conn. 562, 571, 512 A.2d 893 (1986).  “If the legislature intended to allow a party to plead common law theories, it would not have used the mandatory language ‘shall be in lieu of.’   In construing a statute, the intent of the legislature is to be found not in what it meant to say, but in what it did say.”  Id. “It seems clear then that the plaintiffs must select the statutory remedy, as it was intended by the legislature to be exclusive.”  Id., 572.   When discussing the products liability statute, as a proposed act, Senator Salvatore C. DePiano commented:  “This section is intended to cut down on the number of counts in a complaint for injuries caused by a product ․ For example, the theory of strict liability, warranty, negligence and contract ․ would all be now merged into one cause of action which has been created by statute ․ [I]t's definitely the intention to create a products liability cause of action and ․ to abolish all the various other types of actions that we've been using to date and that's what we referred to in my statement that we're doing away with the multiple count [complaint] that usually takes place in this kind of a law suit.   That is counts dealing with negligence, with breach of contract, with warranty and with strict liability.”  (Citations omitted;  internal quotation marks omitted.)   Winslow v. Lewis–Shepard, Inc., 212 Conn. 462, 470–71, 562 A.2d 517 (1989).

“The products liability act, however, was not designed to eliminate claims that previously were understood to be outside the traditional scope of a claim for liability based on a defective product.   Given this contextual framework, we conclude that a products liability claim under the act is one that seeks to recover damages for personal injuries, including wrongful death, or for property damages, including damage to the product itself, caused by the defective product.”  Gerrity v. R.J. Reynolds Tobacco Co., 263 Conn. 120, 128, 818 A.2d 769 (2003).

The plaintiff argues that count one of her complaint, based on premises liability, is outside the scope of the products liability statute.  “A possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe ․ In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover ․ Invitees fall into certain general categories ․ A business invitee is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.”  (Citations omitted;  internal quotation marks omitted.)  Sevigny v. Dibble Hollow Condominium Ass'n., Inc., 76 Conn.App. 306, 320, 819 A.2d 844 (2003).  “To hold the defendant liable for her personal injuries, the plaintiff must prove (1) the existence of a defect, (2) that the defendant knew or in the exercise of reasonable care should have known about the defect and (3) that such defect had existed for such a length of time that the [defendant] should, in the exercise of reasonable care, have discovered it in time to remedy it.”  (Internal quotation marks omitted.)  Martin v. Stop & Shop Supermarket Cos., 70 Conn.App. 250, 251, 796 A.2d 1277 (2002).   “Therefore, both premises liability and products liability claims require that a plaintiff identify the specific defect that caused his or her injuries.”   Paranto v. Piotrkowski, Superior Court, judicial district of New Haven, Docket No. CV 07 5013627 (September 22, 2010, Zoarksi, J.).

In other superior court cases, where the motion to strike was denied, the court could not determine as a matter of law whether the defendant was a “product seller” or whether the injuries were sustained because of a “product.”   For example in Travelers Property & Casualty Ins. Corp. v. Yankee Gas Services Co., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 99 0266606 (May 19, 2000, Robinson, J.), “Travelers argue[d] in opposition that pursuant to Practice Book § 10–25, it [was] entitled to plead its claims in the alternative under the common law and under the CPLA, [Connecticut Products liability Act].” The court stated, however, that “[t]he ․ present case is distinguishable from Winslow [v. Lewis–Shepard, Inc., supra, 212 Conn. 464], wherein the defective ‘order picker’ was a product within the scope of the CPLA as a matter of law, or at the very least there was no dispute that the ‘order picker’ was a product ․ At this stage of the proceeding, this court cannot decide as a matter of law, whether the gas distribution system is a product within the meaning of the CPLA. Because this court cannot decide as a matter of law that the gas distribution system is a product, it cannot decide that the CPLA provides the exclusive remedy for Travelers' claims.”  (Citation omitted.)  Id.;  see also Fusaro v. Waldbaum, Inc., Superior Court, judicial district of Middlesex at Middletown, Docket No. 74280 (August 2, 1995, Arena, J.) (insufficient facts to determine conclusively whether Clearly Canadian is a “product seller” as defined in the Act, and whether the plaintiff's alleged injuries were caused by a “product”).

In the present case, the plaintiff alleges her injuries were caused when she sat on a bar stool that collapsed on the defendant's property.   Similar to an “order picker,” a bar stool is a product.   In both counts one and two of her complaint, the plaintiff is seeking damages for personal injury caused by the collapse of the bar stool.   Although, generally, plaintiffs may plead in the alternative, here the legislature has made it clear that the exclusive remedy for personal injuries resulting from a defective product is found in the products liability statute.   The plaintiff argues that her premises liability cause of action is supported in this case because the use of the bar stool rendered the defendant's premises unreasonably dangerous, but without a defect in the bar stool that the defendant was aware of or should have been aware of, the plaintiff cannot succeed under premises liability.   As such, the defective nature of the stool is necessary to prove both counts one and two.   Since the case involves a defective product, the products liability statute provides the exclusive remedy for damages for personal injuries.

For the foregoing reasons, the defendant's motion to strike count one of the plaintiff's complaint is granted.

Howard F. Zoarski

Judge Trial Referee

FOOTNOTES

FN1. For the purposes of this memorandum, Railroad Salvage of Connecticut, Inc. will be referred to as “the defendant.”   The complaint also contained a third count against World Imports, Ltd. under the doctrine of products liability, which is not relevant to the motion to strike..  FN1. For the purposes of this memorandum, Railroad Salvage of Connecticut, Inc. will be referred to as “the defendant.”   The complaint also contained a third count against World Imports, Ltd. under the doctrine of products liability, which is not relevant to the motion to strike.

FN2. General Statutes § 52–572m(b) provides:  “ ‘Products liability claim’ includes 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.  ‘Products 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.”.  FN2. General Statutes § 52–572m(b) provides:  “ ‘Products liability claim’ includes 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.  ‘Products 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.”

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