Catherine Strother v. Mall, Inc. (2012)

MEMORANDUM OF DECISION RE MOTIONS TO STRIKE [# 114 & # 119]

FACTS

On March 23, 2012, the plaintiff, Catherine Strother,¹ filed a two-count amended complaint against the defendant, Mall, Inc., for personal injuries that resulted from two slip and falls.   In her amended complaint, the plaintiff alleges the following facts.   The defendant “owned, maintained, inspected and controlled the premises located at 84 Plaza Court, Groton, Connecticut” (the premises).   The defendant was responsible for the general maintenance and inspection of the premises, including snow plowing and removal of snow and ice.   On December 29, 2009, the plaintiff, as a lawful invitee on the premises, slipped and fell on ice and slippery conditions.   The plaintiff fell while walking toward the entrance door of the Bailey Agency, where she works.   The plaintiff suffered various injuries as a result of her fall.   The ice and slippery conditions resulted in the premises being in a defective condition.   The defendant's agents, servants and/or employees were negligent and careless in the following ways because they:  “failed to apply sand, salt, or other abrasive material to the pavement whereon the plaintiff fell;  failed to inspect the pavement for ice and slippery conditions thereon;  failed to warn the plaintiff of the dangerous and defective condition of the pavement;  [and/or] failed to rope off or otherwise close off the pavement so that lawful users of the property, such as the plaintiff, would not be exposed to the dangerous and defective condition thereon.”

In the second count, the plaintiff further alleges that she slipped and fell on ice and slippery conditions on the defendant's premises on January 20, 2012.   The plaintiff fell as she was walking in the area around the entrance door to her work at the Bailey Agency.   The plaintiff suffered various injuries as a result of the January 20, 2012 slip and fall.   The injuries included aggravating a preexisting condition of her lumbar spine from the December 29, 2009 slip and fall.   The plaintiff alleges that the defendant's agents, servants and/or employees were negligent or careless in the same manner as alleged in the first count.

The defendant filed a motion to strike count two on the ground that “it joins two or more causes of action which cannot properly be united in one complaint.” ²  The motion to strike was accompanied by a memorandum of law in support.   The plaintiff filed a memorandum of law in opposition.

DISCUSSION

“Practice Book § 10–39(a) provides:  ‘Whenever any party wishes to contest ․ the joining of two or more causes of action which cannot properly be united in one complaint, whether the same be stated in one or more counts ․ that party may do so by filing a motion to strike the contested pleading or part thereof.’  “ Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 256 n.20, 905 A.2d 1165 (2006).   The 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.)  New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012).

The defendant argues that count two of the amended complaint should be stricken pursuant to Practice Book § 11–3.   The plaintiff counters that there is no misjoinder of parties because in the present action there is only one defendant.   As the defendant notes:  “The exclusive remedy for misjoinder of parties is by motion to strike.”  Practice Book § 11–3.   Here, the defendant has provided no analysis as to why it is an improper party to the present lawsuit;  rather, the defendant focuses its arguments on the asserted misjoinder of the plaintiff's claims in a single complaint.   It is well-established that the court is “not required to review issues that have been improperly presented to [the] court through an inadequate brief ․ Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.”  (Internal quotation marks omitted.)   Pacific Ins. Co., Ltd. v. Smith, Superior Court, judicial district of Hartford, Docket No. CV 11 6021109 (October 19, 2011, Robaina, J.).   Accordingly, the court will address the defendant's argument regarding the misjoinder of the plaintiff's claims in a single complaint.

With respect to the asserted misjoinder of claims, the defendant argues that the plaintiff's claims are based on separate incidents of alleged negligence that occurred over two years apart in the same location.   The defendant argues therefore that the incidents are different transactions or occurrences and cannot be properly alleged in the same complaint pursuant to Practice Book § 10–21(7).   The plaintiff counters that she has made allegations in both counts against the same defendant that arise out of the same relevant set of facts.   The plaintiff argues that both slip and falls occurred on the same property and both were caused by the defendant's “same negligent maintenance and inspection practices.”

“It is now an established principle in our law of civil procedure that two suits shall not be brought for the determination of matters in controversy between the same parties, whether relating to legal or equitable rights, or to both, when such determination can be had as effectually and properly in one suit.”  (Internal quotation marks omitted.)  Veits v. Hartford, 134 Conn. 428, 436, 58 A.2d 389 (1948).  Practice Book § 10–21 provides in relevant part:  “In any civil action the plaintiff may include in the complaint both legal and equitable rights and causes of action, and demand both legal and equitable remedies;  but if several causes of action are united in the same complaint, they shall all be brought to recover, either ․ (2) for injuries, with or without force, to person and property, or either ․ or (7) upon claims, whether in contract or tort or both, arising out of the same transaction or transactions connected with the same subject of action.   The several causes of action so united shall all belong to one of these classes, and ․ shall affect all the parties to the action, and not require different places of trial, and shall be separately stated ․” See also General Statutes § 52–97 (nearly identical language with only minor differences, which are not dispositive).  “Section 10–21 allows a plaintiff to include multiple claims in a civil action if all of the claims belong to one of the classes enumerated in the section, affect all of the parties to the action, do not require different places of trial and are separately stated.”   St. Germain v. Ross, Superior Court, judicial district of New London, Docket No. CV 09 5010223 (December 15, 2010, Cosgrove, J.).

In the present case, the plaintiff seeks recovery for injuries to her person in both counts of her amended complaint.   The plaintiff claims that her personal injuries were caused by the negligence of the defendant.   Although both parties focus on subdivision (7), each count of the plaintiff's amended complaint falls within subdivision (2) because the plaintiff is seeking to recover for injuries to her person.   See Practice Book § 10–21(2).   Pursuant to the rule of practice regarding joinder, as referenced above, both claims may be united properly in one complaint because both claims involve personal injuries and both claims affect the plaintiff and the defendant, who are the only parties to the present action.   The claims do not require different places of trial.   Also, the claims are stated separately in two counts.   Therefore, the case law relied upon by the defendant is inapplicable to the present action because those cases involved subdivision (7).   Accordingly, the plaintiff has not improperly joined two causes of action that cannot be united in one complaint, and the defendant's motion to strike must be denied.

CONCLUSION

Based on the foregoing reasons, the defendant's motions to strike number 114 and number 119 are denied.

Martin, J.

FOOTNOTES

FN1. On March 23, 2012, the plaintiff filed a request for leave to amend her complaint and her amended complaint.   As part of the plaintiff's request, she sought to correct the spelling of her name from “Strothers” to “Strother.”   Pursuant to Practice Book § 10–60(a)(3), the plaintiff's request is deemed to have been granted by consent because the defendant did not object within fifteen days from the filing of the request.   Accordingly, the court will address the plaintiff as “Strother.”.  FN1. On March 23, 2012, the plaintiff filed a request for leave to amend her complaint and her amended complaint.   As part of the plaintiff's request, she sought to correct the spelling of her name from “Strothers” to “Strother.”   Pursuant to Practice Book § 10–60(a)(3), the plaintiff's request is deemed to have been granted by consent because the defendant did not object within fifteen days from the filing of the request.   Accordingly, the court will address the plaintiff as “Strother.”

FN2. On behalf of the defendant, Attorney Brock Dubin filed an appearance on April 5, 2012, and Attorney Christopher Connelly filed an appearance in addition to Attorney Dubin's appearance on April 12, 2012.   On April 26, 2012, the defendant filed its motion to strike number 114.   On May 8, 2012, the defendant filed its motion to strike number 119.   The ground in the motions to strike and the arguments in the memoranda of law in support are nearly identical.   For the purposes of clarity in the body of this memorandum, the court will address the defendant's arguments as if made in one motion to strike..  FN2. On behalf of the defendant, Attorney Brock Dubin filed an appearance on April 5, 2012, and Attorney Christopher Connelly filed an appearance in addition to Attorney Dubin's appearance on April 12, 2012.   On April 26, 2012, the defendant filed its motion to strike number 114.   On May 8, 2012, the defendant filed its motion to strike number 119.   The ground in the motions to strike and the arguments in the memoranda of law in support are nearly identical.   For the purposes of clarity in the body of this memorandum, the court will address the defendant's arguments as if made in one motion to strike.

Martin, Robert A., J.