Marylou Blume v. LLC (2012)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT DATED AUGUST 30, 2011 (# 125.00)

This Motion tests the limits of the “identity of the tortfeasor” tolling provision of the negligence statute of limitations, Gen.Stat. § 52–584.

The defendant, 97 Bruce Park Avenue, LLC, moved for summary judgment as to the Second Count of the plaintiff's August 4, 2011 Second Revised Complaint (# 123.00).   The Second Count is the only count addressed to the defendant, 97 Bruce Park Avenue, LLC. The defendant claims that this count is barred by the statute of limitations, Gen.Stat. § 52–584.   The defendant correctly notes that plaintiff alleges that she fell on the defendant's property on November 2, 2008, and her November 9, 2010 writ, summons and complaint was not served on any of the defendants until November 9, 2010.   See the Return of service on all three named defendants dated November 9, 2010.   The allegations of the Second Count of the plaintiff's August 4, 2011 Second Revised Complaint are identical to the Third Count of the operative complaint, the Third Revised Complaint dated September 22, 2011 (# 128.00).   Neither party objected to the court proceeding on complaint # 123.00. The defendant argues that it was a long-time owner of the real property, and that ownership was a matter of public record.   The defendant claims that the plaintiff or her attorney could easily have determined the defendant's identity from a variety of sources, including the land records and the town assessor's office.   The defendant finally argues that the plaintiff's counsel knew the defendant's identity and sent correspondence to the defendant in December 2008.   The plaintiff counters that argument by the facts alleged in paragraph 24:  “Plaintiff did not discover who owned or controlled the door and stairwell to the basement of the Building until after November 19, 2010, and therefore was unaware who the tortfeasor was until after that date.”   The parties agree that the above date is a typographical error and paragraph 24 should contain the November 19, 2008 date. (# 127.00, page 7), (# 135.00, page 1), (# 137, pages 1–2).

“No action to recover damages for injury to the person, or to real or personal property, caused by the negligence, or reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanitorium, shall brought but within two years from date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any action any time before the pleadings in such action are finally closed.”  Gen.Stat. § 52–584.   The statute is commonly known as a discovery statute.   The corresponding general tort statute of limitations contains no discovery language and is commonly known as an occurrence statute.  “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”  Gen.Stat. § 52–577.

Gen.Stat. § 52–584 contains substantial judicial gloss.  “We have previously held that, as used in § 52–584, the term ‘injury’ is synonymous with ‘legal injury’ or ‘actionable harm.’   Actionable harm occurs when the plaintiff discovers, or in the exercise of reasonable care, should have discovered the essential elements of a cause of action.”  Tarnowski v. Socci, 271 Conn. 284, 288 (2004);  Catz v. Rubenstein, 201 Conn. 39, 44 (1986).   Most of the reported cases discuss the discovery of the plaintiffs' physical injuries.  “In this regard, the harm complained of need not have reached its fullest manifestation in order for the limitation period to have run;  a party need only have suffered some form of ‘actionable harm.’   “ Tarnowski v. Socci, supra, 271 Conn. 288:  Catz v. Rubenstein, supra, 201 Conn. 45;  Lagassey v. State, 268 Conn. 723, 748 (2004).  “A genuine issue of material fact exists, therefore, as to when she discovered or in the exercise of reasonable care should have discovered her ‘injury,’ that is when she discovered she had suffered ‘actionable harm’ and the resolution of that question should be left to the trier of fact.”  Catz v. Rubenstein, supra, 201 Conn. 49.

The concept of actionable harm has also been extended to the causes of the injury.  “Actionable harm occurs when the plaintiff discovers or should discover through the exercise of reasonable care, that he or she has been injured and that the defendant's conduct caused the injury.”  Champagne v. Raybestos–Manhattan, Inc., 212 Conn. 509, 521 (1989).

The Supreme Court extended the “actionable harm” rule to the discovery of the identity of the tortfeasor.  “We conclude that the two year statute of limitations set forth in § 52–584 does not begin to run until a plaintiff knows, or reasonably should have known, the identity of the tortfeasor.   We emphasize that a plaintiff's ignorance of the identity of a tortfeasor will not excuse the plaintiff's failure to bring a negligence action within three years of the date of the act or omission complained of.”  Tarnowski v. Socci, supra, 271 Conn.

The standards for ruling on motions for summary judgment are both well established and familiar, yet they bear repeating and articulating in each instance where such relief is sought, lest an inference be drawn that such standards were not adhered to in a given case, or a suspicion arises that a different standard of review was followed.  “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.”  Mazurek v. Great American Ins. Co., 284 Conn. 16, 26 (2007).

“In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  Nolan v. Borkowski, 206 Conn. 495, 500 (1988).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.”  Zielinski v. Kotsoris, 279 Conn. 312, 318 (2006).

“The courts hold the movant to a strict standard.   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 ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed 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].”  Id. 318–19.

“A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like.”   Practice Book § 17–45.  [Section 17–46] sets forth three requirements necessary to permit the consideration of material contained in affidavits submitted in a summary judgment proceeding.   The material must:  (1) be based on personal knowledge;  (2) constitute facts that would be admissible at trial;  and (3) affirmatively show that the affiant is competent to testify to the matters stated in the affidavit.”  Barrett v. Danbury Hospital, 232 Conn. 242, 251 (1995).

“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].”  Allstate Ins. Co. v. Barron, 269 Conn. 394, 406 (2004).  “Such assertions are insufficient regardless of whether they are contained in a complaint or a brief.”  New Milford Savings Bank v. Roina, 38 Conn.App. 240, 245, cert. denied, 235 Conn. 915 (1995).  “Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact on a motion for summary judgment.”  Id. 245.   However, the court may consider not only the facts presented by the parties' affidavits and exhibits, but also the “inferences which could be reasonably and logically drawn from them.”  United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381 (1969).

The plaintiff argues that neither she nor her attorney knew of the identity of the tortfeasors on the date of her injuries, November 2, 2008.   The plaintiff claims that the statute of limitations did not begin to run until the identity of the tortfeasors were known.   The plaintiff's complaint alleges that on the evening of November 2, 2008 in the accompaniment of her sister, the plaintiff traveled to the Bruce Park Grill, a restaurant and bar facility located at 99 Bruce Park Avenue, Greenwich, Connecticut.   The Bruce Park Grill is in a large building that contains two businesses on the first floor, the Bruce Park Grill and the House of Fins. The building is located on the corner of Bruce Park Avenue and Davis Avenue in Greenwich, Connecticut.   The plaintiff's sister parked her car on Davis Avenue directly opposite the portion of the building occupied by the House of Fins, around the corner from the Bruce Park Grill.   After picking up the dinner that they ordered at the Bruce Park Grill both returned to the car.   The door to the basement of the building is at street level on Davis Avenue, next to entrance to the House of Fins store.   The door appears to be part of the building structure and has no outward appearance as a door.   Paragraph 10 of the complaint alleges:  “Plaintiff stepped back to permit her sister to open the car door.   Her heel hit the basement door to the Building, which was not properly latched.   The door gave way, causing plaintiff to fall to the bottom of the steep, narrow and dangerous concrete stairwell.”   The plaintiff's complaint named three defendants in four counts:  (1) House of Fins, LLC in the First Count of negligence and the Second Count of recklessness alleging that House of Fins, LLC maintained “exclusive possession and control of the basement area and the door and stairs to the basement area of the Building”;  (2) Jaramillo Brothers Landscaping, LLC in the Fourth Count alleging negligence in failing to secure the door to the basement stairs of the building by fastening a latch when they where cleaning or finishing cleaning out the basement as agents of the two other defendants;  (3) 97 Bruce Park Avenue, LLC as the owner of the Building in the Third Count alleging negligence including but not limited to the negligent design and construction of the door leading to the Building's basement.

On November 19, 2008 the plaintiff's counsel of record wrote a letter to “Mr. Scott Bray, Bruce Park Bar & Grill, LLC, 231 Bruce Park Avenue, Greenwich, CT 06830” notifying it that a personal injury claim is going to be made on behalf of Marylou Blume for “a fall the occurred on your premises on November 2, 2008.”   The letter requested that the insurance carrier be notified of this claim.   On December 29, 2008 the plaintiff's counsel of record wrote a letter to “Mr. Robert Bray, House of Fins, LLC, 99 Bruce Park Avenue, Greenwich, CT 06830” notifying it that a personal injury claim is going to be made on behalf of Marylou Blume for “a fall that occurred on your premises on November 2, 2008.”   The letter requested that the insurance carrier for House of Fins, LLC be notified.   On December 29, 2008 the plaintiff's counsel of record wrote a letter to “Mr. Robert Bray, 97 Bruce Park Avenue, LLC, 97 Bruce Park Avenue, Greenwich, CT 06830” notifying it that a personal injury claim is going to be made on behalf of Marylou Blume for “a fall that occurred on your premises on November 2, 2008.”   The letter requested that the insurance company for 97 Bruce Park Avenue, LLC be notified.   The plaintiff has been continuously represented by that same counsel.

Sometime after December 29, 2008 counsel for the plaintiff was able to accurately determine the identity of the defendant, House of Fins, LLC, and that it was in fact not the building owner but a tenant of the building.   Sometime after November 19, 2008 counsel for the plaintiff was able to accurately determine the identity of the defendant, 97 Bruce Park Avenue, LLC and that the owner of the building was the defendant, 97 Bruce Park Avenue, LLC. At sometime after November 19, 2008 counsel for the plaintiff was able to accurately determine that the entity that owned the Bruce Park Grill was Bruce Park Bar & Grill, Inc. and that Bruce Park Bar & Grill, Inc. was not responsible for the plaintiff's injuries and was not the owner of the building.

The defendant claims that since the plaintiff knew of the correct identity of the owner of the building well before November 2, 2010, the lawsuit should have commenced on or before November 2, 2010.   It argues that the plaintiff had plenty of time to commence the lawsuit within the required two-year statute of limitations and did not need to avail herself of the discovery tolling provision.   Under these circumstances the defendant argues that the statute of limitations ran November 2, 2010.   The defendant argues that the plaintiff had plenty of opportunity to search the public records, the town assessor's records, the land records and produce copies of those documents at oral argument on the motion for summary judgment.

The parties' respective positions are based on the following hypothetical facts:  Assume that March 1, 2008 is the date of the negligent act, on June 1, 2008 plaintiff discovered the injury, and on April 1, 2010 the lawsuit commenced.   The defendant claims that the plaintiff under these hypothetical set of facts, knew of the injury within the two-year period on June 1, 2008 and thus had to file the lawsuit by March 1, 2010.   The plaintiff claims that the two years begins to run from the day of discovery, June 1, 2008, provided the three-year repose limit had not expired and a lawsuit up to May 31, 2010 would be timely.   The court disagrees with the defendant's position.   Under Gen.Stat. § 52–584 the statute of limitations commences when “actionable harm” is discovered or reasonably should have been discussed by the plaintiff.  Tarnowski v. Socci, supra, 271 Conn. 288.   It is the date the plaintiff discovers the “actionable harm” that commences the statute of limitations.

The defendant claims that the underlying facts of Tarnowski v. Socci are not similar with the facts before this court.  Tarnowski was an ice and snow sidewalk fall case originally brought by the plaintiff against the property owner and the tenant of the property.   The plaintiff then learned through discovery that Peter Socci was responsible for removing ice and snow from the property and was sued by the plaintiff beyond the two years but within the three years repose period.   Peter Socci then sought apportionment against Leggat McCall Properties Management of Connecticut, Inc. who was also claimed to have ice and snow removal responsibility.   The plaintiff timely sued Leggat pursuant to Gen Stat. § 52–102b.   Each of these two defendants filed motions for summary judgment claiming that the plaintiff's claims were barred under Gen.Stat. § 52–584.   The trial court denied Peter Socci's motion concluding that there existed “a genuine issue of material fact as to when the plaintiff discovered or reasonably should have discovered the existence of the defendant, Peter Socci, as a viable defendant.”   Another trial court granted Legatt's motion for summary judgment, which was reversed by the Appellate Court.   Tarnowski v. Socci, 75 Conn.App. 560, 569 (2003).   That reversal was appealed and led to the current rule applied by this court.  Tarnowski v. Socci, supra, 271 Conn. 288.

The instant case involves almost an identical set of parties for the plaintiff to sift through and determine identity, corporate name and responsibility for plaintiff's injuries.   The property owner was determined to be the moving defendant, 97 Bruce Park Avenue, LLC. The tenant in possession was determined to be the moving co-defendant, House of Fins, LLC. The party responsible for the property maintenance (cleaning of basement and securing the basement door as opposed to cleaning a sidewalk of ice and snow) was determined to be Jaramillo Brothers Landscaping, LLC. House of Fins, LLC has moved for summary judgment by a motion dated September 20, 2011 (# 122.00), which is the subject of a separate Memorandum of Decision issued of even date herewith.

Thus the court determines that the facts of Tarnowski v. Socci bear a remarkable resemblance to the facts of this case.   The court finds Tarnowski v. Socci, supra, 271 Conn. 288 controlling.

The plaintiff is entitled to a fresh two years from the date that the plaintiff knew or reasonably should have known of the identity of the tortfeasor.  Novak v. Goodrich, 132 Conn.App. 452, 457 (2001).  Novak involved in a similar discovery statute of limitations, Gen.Stat. § 52–577c, (b), which relates to personal injury caused by hazardous substances.   The statute requires that the action “shall be brought but within two years from the date when the injury or damage complained of is discovered or in the exercise of reasonable care should have been discovered.”  Gen.Stat. § 52–577c is a discovery statute of limitations.  “Pursuant to § 52–577c, the two year limitation period begins to run on the date that the plaintiff discovers or should have discovered the injury or damage, not the date the injury was sustained or the negligent act occurred.”  Id. 457;  Piwoko v. Lacava Construction Company, Superior Court, judicial district of Hartford at Hartford, Docket Number CV 08–5018235 S (July 13, 2011, Sheldon, J.) (Citing Tarnowski v. Socci, the court ruled:  “The actionable harm doctrine thus defeats the defendant's instant motion for summary judgment because, notwithstanding the earlier date of the plaintiff's injury, there is at least a genuine issue of material fact as to whether the plaintiff first discovered Automatic TLC's identity and role in causing that injury less than two years before filing suit against it.   Accordingly, Automatic TLC's motion for summary judgment under Section 52–584 must be denied”).

It appears to this court that it would be well nigh impossible for any plaintiff injured in a fall to know the identity including the exact corporate name of the owner of the premises on the date of the fall.   A reasonable time must elapse for such information to be obtained from various sources including public records.   In this case the fall took place on November 2, 2008.   This lawsuit was commenced only seven days after two-year anniversary.  Gen Stat. § 52–584 also contains a three-year statute of repose.   This lawsuit was commenced within three years from November 2, 2008.   The evidence discloses that the plaintiff eventually discovered with her counsel's assistance the proper corporate name of all of the defendants about a month after the November 2, 2008 fall.

The court finds that the issue of whether the plaintiff and/or her counsel knew or should have known of the exact corporate name of the owner of the building where the fall took place is a material issue of fact.   When the plaintiff in the exercise reasonable care should have discovered “actionable harm” is a question of fact to be decided by the trier of fact.  Taylor v. Winsted Memorial Hospital, 262 Conn. 797, 810 (2003);  Jackson v. Tohan, 113 Conn.App. 782, 790, cert. denied, 292 Conn. 908 (2009).

The court has difficulty in envisioning this issue being tried before a jury since it may require evidence from the town clerk's office and the town assessor's office.   Plaintiff's counsel and/or the title searcher she may have hired may have to testify as to the efforts made to obtain the actual title and corporate identity information.   Such result may be unfortunate.   This unusual result is consistent with the discovery of actionable harm rule of Tarnowski v. Socci.  “The plaintiff is entitled to his day in court for a factual determination of what he should have known and when he should have known it.”   Jackson v. Tohan, supra, 113 Conn.App. 790.

The defendant's, 97 Bruce Park Avenue, LLC, August 30, 2011 Motion for Summary Judgment (# 125.00) is denied.

THE COURT

Hon. Kevin Tierney

Judge Trial Referee

Tierney, Kevin, J.T.R.