Nicole Breton et al. v. LLC (2011)

RULING ON DEFENDANT'S OBJECTION TO PLAINTIFFS' REQUEST FOR LEAVE TO FILE AMENDED COMPLAINT (# 121)

In this case, the plaintiff Nicole Breton alleges that she was injured on January 20, 2008 at a Stop & Shop supermarket in Cheshire, Connecticut due to a defective children's shopping cart.   By way of single count complaint dated January 8, 2010, she brought an action under the Connecticut Products Liability Act, General Statutes § 52–572m et seq., against Stop & Shop Supermarket Company, LLC (Stop & Shop) and the McCue Corporation (McCue) in which a derivative claim for loss of consortium was made by the plaintiff Shonn Breton.   On April 13, 2010, in response to requests to revise filed by both defendants, the plaintiff's filed a request for leave to file an amended complaint dated April 12, 2010 which contained the same operative facts as the original complaint but asserted the products liability and loss of consortium claims separately in four counts, counts one and two being directed against Stop & Shop and counts three and four being directed against McCue.   On April 19, 2010, Stop & Shop moved to strike counts one and two against it and the motion was granted by the court (Connors, J.) on June 22, 2011 on the ground that the allegations were insufficient to establish that Stop & Shop was a “product seller” within the meaning of Products Liability Act.¹

On June 30, 2011, the plaintiffs filed a request for leave to file a second amended complaint (entry # # 119, 120) asserting a negligence claim and a derivative consortium claim against Stop & Shop. Stop & Shop filed an objection (# 121) on July 14, 2011 on the ground that the negligence claim is barred by the statute of limitations, General Statutes § 52–584, and the allegations do not relate back to the operative facts contained in the original and first amended complaint.   The court heard argument on December 13, 2011.

Although the court has wide discretion to permit an amendment to a complaint, see Dimmock v. Lawrence & Memorial Hospital, Inc., 286 Conn. 789, 799, 945 A.2d 955 (2008), it cannot be allowed if the amendment asserts an entirely new cause of action that does not relate back to the original complaint and would be barred by the applicable statute of limitations if filed independently.   Miller v. Fishman, 102 Conn.App. 286, 298, 925 A.2d 441 (2007), cert. denied, 285 Conn. 905, 942 A.2d 414 (2008).  “A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief ․ A right of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some delict on the part of the defendant.   The facts which establish the existence of that right and that delict constitute the cause of action ․ It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but where an entirely new and different factual situation is presented, a new and different cause of action is stated.”  (Citation omitted;  quotation marks omitted.)  Alswanger v. Smego, 257 Conn. 58, 64–65, 776 A.2d 444 (2001).

The identity of a cause of action does not necessarily remain substantially the same simply because the new claims are made by the same plaintiff against the same defendant and the alleged injury remains the same.  “If the alternate theory of liability may be supported by the original factual allegations, then the mere fact that the amendment adds a new theory of liability is not a bar to the application of the relation back doctrine ․ If, however, the new theory of liability is not supported by the original factual allegations of the earlier, timely complaint, and would require the presentation of new and different evidence, the amendment does not relate back.”  (Citations omitted.)  Sherman v. Ronco, 294 Conn. 548, 563, 985 A.2d 1042 (2010).   The court must compare the allegations of the original and first amended complaint (original complaint) with those in the proposed second amended complaint.

In the original complaint, the operative factual allegations against Stop & Shop were as follows:  On January 20, 2008 it operated a supermarket in Cheshire, Connecticut where Nicole Breton was shopping with her children who she had placed in a children's shopping cart. (¶¶ 1, 2, 3, 4.) As Nicole Breton walked “sideways past the children's shopping cart” her left knee “was injured by the protruding side arm and securing nut that was below the normal field of vision of intended users.” (¶¶ 5, 6.) The shopping cart was a product that was “designed, manufactured, distributed, sold and/or maintained” and reached users in a unreasonably dangerous condition, specifically with respect to the swing arm, and was not equipped with safety features or devices or adequate warnings, instructions or safety information. (¶¶ 7(a)-(d), 7(g).)  Stop & Shop “designed, manufactured, distributed and/or sold” the shopping cart although it knew or should have known of its dangerous characteristics, made representations that the product was safe “for purchase and use” and breached implied warranties of merchantability and fitness. (¶¶ 7(e), (h), (f).)  Finally, Stop & Shop “failed to maintain the children's shopping cart or to remove it from service when the product deteriorated from overuse.” (¶ 7(i).)

The second amended complaint contains the following operative factual allegations against Stop & Shop:  On January 20, 2008 it operated a supermarket in Cheshire, Connecticut where Nicole Breton was shopping with her children who she had placed in a children's shopping cart. (¶ [¶ 1, 2, 3.) On that date, as she walked “sideways past the children's shopping cart her left knee was caused to strike” it. (¶ 4.)   Stop & Shop was negligent with respect to the shopping cart because it failed “to make a reasonable and proper inspection,” to keep and maintain it in a “reasonably safe condition” for persons present on their premises, “to warn or otherwise advise the plaintiff,” “to adhere to a program of routine maintenance” and it allowed “its patrons to us [sic] an unsafe and/or defective shopping cart” when it knew or should have known of its condition. (¶ 6.)

The plaintiffs do not dispute that the second amended complaint alleging negligence presents a different theory of liability from the strict liability statutory claim that the court struck nor that the second amended complaint was filed more than two years after Nicole Breton alleges she was injured.   The plaintiffs maintain, however, that the “single set of facts which give rise to the plaintiffs injuries has not changed” and thus Stop & Shop has received fair notice sufficient to allow it to defend itself against the negligence claim.   Plaintiffs' Memorandum of Law in Response to Objection to Amend Complaint, entry # 124.   Stop & Shop maintains, however, that the allegations of negligence in the second amended complaint differ substantially from the stricken products liability claim in its requisite elements, proof and witnesses and that its late injection into this case is prejudicial.

In the original complaint, the actionable occurrence was placing a defectively designed product into the stream of commerce and the factual allegations supported that claim.²  “The doctrine of strict liability in tort is concerned with the character of the product injected into the stream of commerce, not with the specific conduct of the defendant.”  Giglio v. Connecticut Light & Power Co., 180 Conn. 230, 234, 429 A.2d 486 (1980).   The elements of a cause of action sounding in products liability are:  “(1) the defendant was engaged in the business of selling the product;  (2) the product was in a defective condition unreasonably dangerous to the consumer or user;  (3) the defect caused the injury for which compensation was sought;  (4) the defect existed at the time of the sale;  and (5) the product was expected to and did reach the consumer without substantial change in condition.”   (Citations omitted.)  Metropolitan Property & Casualty Insurance Co. v. Deere & Co., 302 Conn. 123, 131, 25 A.3d 571 (2011).   Stop & Shop was able to successfully defend against this claim by establishing to the court's satisfaction that the complaint insufficiently alleged the first requisite element.

By comparison, the second amended complaint alleges acts or failures to act on the part of Stop & Shop and “its agents, servants or employees” specifically with respect to inspecting and maintaining the shopping cart for its patrons, allowing its patrons to use an unsafe shopping cart and failing to warn its patrons that it was unsafe or defective. (¶ 6.)   Unlike the stricken products liability claim, the negligence claim focuses on the specific conduct of Stop & Shop in breaching a duty of care owed to the plaintiff, a business invitee.³  The negligence claim requires Stop & Shop to examine its conduct, and that of its agents or employees, at or about the time that Nicole Breton alleges she was injured rather than focusing on the condition of the shopping cart at the time of its sale and the other elements of a products liability claim.

When a proposed amendment to a complaint involves “different sets of circumstances and depend[s] on different facts to prove or disprove the allegations of a different basis of liability,” Sharp v. Mitchell, 209 Conn. 59, 73, 546 A.2d 846 (1988), it does not relate back.   In Sharp, the court concluded that even though the same defendant was accused of negligence resulting in the same injury in both the original and amended complaints, the original complaint did not provide the defendant with fair notice of the amended complaint's new claim of liability based on negligent design.   Consequently, the defendant would have “to gather different facts, evidence and witnesses to defend the amended complaint.”  Gurliacci v. Mayer, 218 Conn. 531, 549, 590 A.2d 914 (1991).   Similarly, an amended complaint does not relate back when a different factual predicate is required to prove or disprove a new liability theory.   See e.g., Alswanger v. Smego, supra, 257 Conn. 66–67 (focus of the original claim of informed consent involved patient's consent to the surgical procedure itself while amended complaint focused on unrelated facts regarding a resident's involvement in the surgery);  Sandvig v. A. Dubreuil & Sons, Inc., 68 Conn.App. 79, 789 A.2d 1012 (2002) appeal dismissed, 270 Conn. 90, 851 A.2d 290 (2004);  (New claim that defendant actively damaged floor tiles required a different factual predicate from claim that defendant failed to repair already damaged or exposed floor tiles and did not relate back);  Patterson v. Szabo Food Service of New York, Inc., 14 Conn.App. 178, 540 A.2d 99, cert. denied, 208 Conn. 807, 545 A.2d 1104 (1988) (New claim that defendant negligently installed or maintained a slippery floor required different factual predicate from claim that defendant failed to keep the floor clean and did not relate back).

In this case, the second amended complaint does not expand on or amplify the original stricken claim of products liability but instead states a new theory of negligence liability based on a different factual predicate which requires proof of different elements and the development of different evidence in defense.   One of the underlying policy reasons for the relation back doctrine is the provision of fair notice to protect against the defense of a stale claim.   See Sherman v. Ronco, supra, 294 Conn. 556.   The new claim of negligence which the plaintiffs seek to bring more than three years after Nicole Breton allegedly was injured does not relate back to the original claim and is barred by the two-year statute of limitations set forth in General Statutes §§ 52–584, as is Shonn Breton's derivative claim of loss of consortium.   Accordingly, the request for leave to file the second amended complaint is denied.

LINDA K. LAGER, JUDGE

FOOTNOTES

FN1. The court determined there were no factual allegations that established Stop & Shop was a product seller of shopping carts or in the business of bailment of shopping carts and that the alleged legal conclusion that Stop & Shop “owned, controlled and maintained” the shopping cart was insufficient.   Memorandum of Decision (entry # 112.20), p. 5..  FN1. The court determined there were no factual allegations that established Stop & Shop was a product seller of shopping carts or in the business of bailment of shopping carts and that the alleged legal conclusion that Stop & Shop “owned, controlled and maintained” the shopping cart was insufficient.   Memorandum of Decision (entry # 112.20), p. 5.

FN2. In this case, as in most products liability cases, the gravamen of the factual allegations of the original complaint focused on a specific design defect.   Nicole Breton alleged her left knee was injured “by the protruding side arm and securing nut that was below the normal field of vision of intended users” of a children's shopping cart that she had used at the defendant Stop & Shop's supermarket in Cheshire, Connecticut on January 20, 2008. (¶¶ 1–6.)   The original complaint also alleged that the shopping cart was defective because it was not equipped with safety features or devices or adequate warnings, instructions or safety information. (¶¶ 7(c), 7(g).).  FN2. In this case, as in most products liability cases, the gravamen of the factual allegations of the original complaint focused on a specific design defect.   Nicole Breton alleged her left knee was injured “by the protruding side arm and securing nut that was below the normal field of vision of intended users” of a children's shopping cart that she had used at the defendant Stop & Shop's supermarket in Cheshire, Connecticut on January 20, 2008. (¶¶ 1–6.)   The original complaint also alleged that the shopping cart was defective because it was not equipped with safety features or devices or adequate warnings, instructions or safety information. (¶¶ 7(c), 7(g).)

FN3. Although not specifically alleged, the court presumes the negligence claim rests on the rules of law applicable under a premises liability theory where the law imposes the duty of care, including “keeping and maintaining the premises in a reasonably safe condition, reasonably inspecting the premises, and warning the invitee of dangers that the invitee could not reasonably be expected to discover.”  DiPietro v. Farmington Sports Arena, LLC, 123 Conn.App. 583, 602, 2 A.3d 583, cert. granted on other grounds, 299 Conn. 920, 10 A.3d 1053 (2010).   A common-law negligence claim based on a theory that the shopping cart was a defective product would not be actionable under General Statutes § 52–572n.  Allard v. Liberty Oil Equipment Co., Inc., 253 Conn. 787, 800, 756 A.2d 237 (2000)..  FN3. Although not specifically alleged, the court presumes the negligence claim rests on the rules of law applicable under a premises liability theory where the law imposes the duty of care, including “keeping and maintaining the premises in a reasonably safe condition, reasonably inspecting the premises, and warning the invitee of dangers that the invitee could not reasonably be expected to discover.”  DiPietro v. Farmington Sports Arena, LLC, 123 Conn.App. 583, 602, 2 A.3d 583, cert. granted on other grounds, 299 Conn. 920, 10 A.3d 1053 (2010).   A common-law negligence claim based on a theory that the shopping cart was a defective product would not be actionable under General Statutes § 52–572n.  Allard v. Liberty Oil Equipment Co., Inc., 253 Conn. 787, 800, 756 A.2d 237 (2000).

Lager, Linda K., J.