Michael D. Buss et al. v. Joseph Hadder et al. (2013)

DECISION RE MOTION FOR SUMMARY JUDGMENT (# 107)

This action was brought by the plaintiffs Michael Buss and Joyce Buss individually and on behalf of their minor children Michael A. Buss and Makayla Buss as against the landlord defendants alleging negligence for failure to take reasonable steps to remedy toxic mold in the leased premises at 46 Nichols Road, Oxford, Connecticut.   The defendant moves for summary judgment claiming this action is barred by the relevant statute of limitations, and no genuine issues of material fact exist with respect to their timeliness.

The action was commenced upon service upon the defendants on April 9, 2012.   The plaintiffs filed the operative amended complaint on March 13, 2012 and the defendants filed an answer and special defenses denying the allegations of negligence and claimed special defenses of contributory negligence, failure to mitigate damages, and expiry of the statutes of limitations.

On February 28, 2013 the defendants filed a motion for summary judgment and memorandum of law claiming this action is barred by the statute of limitations pursuant to C.G.S. § 52–584.   In support of the motion for summary judgment the defendants rely on the plaintiff's responses to Requests for Admissions.   The plaintiffs filed an objection and accompanying memorandum on May 13, 2013.   The matter was placed on the short calendar on June 10, 2013.

The legal and evidentiary bases for granting summary judgment are well established.

“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.”  (Internal quotation marks omitted.)  Stewart v. Watertown.   303 Conn. 699, 709–10, 38 A.3d 72 (2012).   A party seeking summary judgment initially bears the burden to show that there are no genuine issues of material fact and that it is entitled to summary judgment if it does so, however, the nonmovant must then provide evidence showing that a genuine issue of material fact exists to prevent summary judgment from entering in the movant's favor.  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.   The test is whether a party would be entitled to a directed verdict on the same facts ․ Summary judgment may be granted where the claim is barred by the statute of limitations.”  (Citations omitted;  internal quotation marks omitted.)  Mollica v. Toohey, 134 Conn.App. 607, 610–11, 39 A.3d 1202 (2012).

The parties agree, and are correct, that this is a negligence action and is governed by C.G.S. § 52–584, which provides that “[n]o action to recover damages for injury to the person, or to real or personal property, caused by negligence ․ shall be brought but within two years from the 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 or the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”   Thus, the statute contains a discovery provision imposing a two-year limitation, and a repose provision imposing a three-year limitation.

“The limitation period for action in negligence begins to run on the date when the injury is first discovered or in the exercise of reasonable care should have been discovered ․ In this regard, 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 ․ A breach of duty by the defendant and a causal connection between the defendant's breach of duty and the resulting harm to the plaintiff are essential elements of a cause of action in negligence;  they are therefore necessary ingredients for ‘actionable harm’ ․ Furthermore. ‘actionable harm’ may occur when the plaintiff has knowledge of facts that would put a reasonable person on notice of the nature and extent of an injury, and that the injury was caused by the negligent conduct of another ․ In this regard, the harm complained of need not have reached its fullest manifestation in order for the limitation period to begin a run;  a party need only have suffered some form of ‘actionable harm.’   (Citations omitted;  internal quotation marks omitted.)  Lagassey v. State, 268 Conn. 723, 748–49, 846 A.2d 831 (2004).

“[A]n action is brought once the writ, summons and complaint have been served upon a defendant.”  Rana v. Ritacco, 236 Conn. 330, 337, 672 A.2d 946 (1996), citing General Statutes § 52–45a.   In this case the action was commenced on April 9, 2012.   Pursuant to the relevant statute of limitations it is clear that in order to be within the two-year period, the “actionable harm” suffered by the members of the Buss family must have occurred at some point on or after April 9, 2010.   In support of its motion the defendants refers to the plaintiffs' response to the Request for Admissions, wherein the plaintiffs admit that Michael D. Buss knew of the presence of mold in their home ․ and the possible health problems associated therein ․ prior to March 13, 2010.   Simply stated, the plaintiff's acknowledgment places that knowledge and actionable harm outside the statute of limitations.¹  While neither the spread of the mold nor the symptoms suffered by the plaintiffs may yet have “reached [their] fullest manifestation” as of that date, such knowledge certainly meets the criteria articulated in Lagassey for the discovery of actionable harm.   Therefore, the defendants have successfully demonstrated that there is no genuine issue of material fact as to when the harm was discovered, and there is no issue of material fact as to whether the suit was brought within two years of March 13, 2010.²  Defendants have sufficiently established a prima facie case for summary judgment.

Plaintiffs contend, however, that defendants' repeated and continual failures to remediate the mold infestation constitute a continuing course of conduct, such that the statute of limitations was tolled until the defendants' duty as landlords was completed, the applicable date being when the plaintiffs vacated the premises on July 25, 2011.   This legal theory was addressed and definitively dismissed by the Appellate Court in the case of Mollica v. Toohey, supra, at 613–14, wherein the Court held that, “the continuing course of conduct doctrine has no application after the plaintiff has discovered the ․ Additionally, as we have noted, as a matter of law, the continuing course of conduct doctrine applies only to the repose portion of the statute and not to the discovery portion.   The discovery portion addresses the plaintiff's knowledge of the injury and not the defendant's act or omission.   Once the plaintiff has discovered the injury, the statute begins to run.   Moreover, after the discovery of actionable harm, the policy behind the continuing course of conduct doctrine is no longer served.”  (Citations omitted;  internal quotation marks omitted.)

In response, the plaintiffs attempt to distinguish Mollica based on the fact that the plaintiffs in Mollica had assumed the risk.   While a correct statement of fact, this is a distinction without legal significance.   Neither the trial court ³ nor the Appellate Court made more than a passing reference to Ms. Mollica's foreknowledge of the mold, and the Appellate Court expressly stated that the continuing course of conduct doctrine is inapplicable to the discovery provision as a matter of law and irrespective of any facts peculiar to the case before that court.   Therefore, the continuing course of conduct doctrine does not toll the two-year discovery portion of the statute of limitations.

For the foregoing reasons, the court finds that there is no genuine issue of material fact as to the timeliness of this action and the defendants' motion for summary judgment is granted as a matter of law.

THE COURT

By Denise D. Markle, Judge

FOOTNOTES

FN1. Response to Request for Admissions (Entry # 106), Response # 8..  FN1. Response to Request for Admissions (Entry # 106), Response # 8.

FN2. While there may be a genuine question as to when exactly discovery occurred, it is immaterial provided that discovery had occurred at latest by March 13, 2010.   Plaintiffs' admission is sufficient to exclude all possibility that the discovery date was within two years of the service of complaint upon defendants..  FN2. While there may be a genuine question as to when exactly discovery occurred, it is immaterial provided that discovery had occurred at latest by March 13, 2010.   Plaintiffs' admission is sufficient to exclude all possibility that the discovery date was within two years of the service of complaint upon defendants.

FN3. Mollica v. Toohey, 2010 WL 2926197 (Conn.Super., 2010)..  FN3. Mollica v. Toohey, 2010 WL 2926197 (Conn.Super., 2010).

Markle, Denise D., J.