Joseph Abate, Jr., Administrator of the Estate of Sharon Abate et al. v. AAF (2013)

MEMORANDUM OF DECISION RE MOTION TO REARGUE/RECONSIDER (Motion # 357.00)

BACKGROUND

On January 29, 2013, this court issued a memorandum of decision [55 Conn. L. Rptr. 415] in which it granted a motion for summary judgment filed by the defendants, Stanley Black & Decker and Black & Decker (U.S.).   The plaintiff, Joseph Abate, Jr., surviving spouse and administrator of the estate of his decedent/spouse, Sharon Abate, had brought a four-count complaint against various defendants, including the moving defendants.   Generally, the complaint alleged that the “[t]he plaintiff was exposed to various asbestos containing products through direct and second hand exposure while the spouse of the plaintiff's decedent was working in Connecticut as a professional auto mechanic from 1962–1990.   Decedent was also exposed to asbestos containing products while working alongside her husband at his garage.   Such exposure in Connecticut contributed in part or totally to the plaintiff's decedent's contracting of asbestos related [m]esothelioma and other asbestos-related pathologies.” ¹

On February 17, 2012, the defendants filed a motion for summary judgment as to all four counts of the plaintiff's fifth amended complaint.   The defendants moved on the ground that they were entitled to summary judgment as a matter of law because a manufacturer did not have a duty to warn of dangers associated with products made and distributed by another manufacturer.   The plaintiffs countered that the decedent, Sharon Abate, who had worked in an automotive mechanic shop operated by her spouse, was exposed to asbestos in connection with the defendants' products, including a grinding machine, a bench grinder and a shop vacuum.   The plaintiff emphasized that he was not claiming that the products of these defendants contained asbestos.   Rather, the plaintiff claimed that the defendants' products were defective because, when the products were used for their intended purposes, they emitted hazardous amounts of asbestos dust into the air and exposed both the operator and those in the vicinity to asbestos dust.   Accordingly, the plaintiff had concluded that the defendants' products did not operate in an effective manner to protect workers from the asbestos dust generated through the ordinary and foreseeable use of those products.   In their reply memorandum, the defendants responded that the ultimate legal issue to be decided was whether a manufacturer owed a duty to warn of the dangers of a product it did not manufacture, i.e., the products that actually contained the asbestos.

The court reviewed the case law and the materials submitted by the parties relative to the defendants' summary judgment motion.   Neither the parties nor the court had discovered any Connecticut appellate authority on point.   Accordingly, the court relied upon relevant case law from other jurisdictions;  see O'Neil v. Crane Co., 53 Cal.4th 335, 266 P.3d 987, 135 Cal.Rptr.3d 288 (2012);  Bettencourt v. Hennessy Industries, Inc. 205 Cal.App.4th 1103, 141 Cal.Rptr.3d 167 (2012);  Tellez–Cordova v. Campbell–Hasfeld/Scott Fetzger Co., 129 Cal.App.4th 577, 28 Cal.Rptr.3d 744 (2004).   This court analyzed the aforementioned cases with respect to general legal principles, i.e., “there is no liability imposed outside of a defective product's chain of distribution nor is such a duty imposed upon a manufacturer concerning defects contained in the product of another manufacturer.”  (Docket Item No. # 354:  MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT.)   The California courts, however, had carved out an exception to such general principles.   When a tool was created so that it could be used only in a potentially injury-producing manner, because the sole purpose of the tools was to interact with an asbestos-containing product to produce asbestos dust, for example, a duty could be imposed.   With respect to the present defendants' summary judgment motion, this court determined that the defendants' evidence established that the grinders and shop vacuum at issue were all-purpose products that may have had a variety of uses.   In the absence of countervailing evidence from the plaintiff establishing that a genuine issue of material fact existed as to this matter, the court granted the defendants' motion for summary judgment.

On February 8, 2013, the plaintiff filed a Motion for Reconsideration and Reargument of the court's decision regarding the defendants' motion for summary judgment.   The plaintiff moves on the basis that the court failed to apply the Supreme Court's criteria for determining the existence of a legal duty.   The plaintiff maintains that forseeability is the paramount consideration when determining duty and that the defendants conceded forseeability during oral argument.   Finally, the plaintiff contends that this court improperly determined a question of fact as to whether the defendants' products were defective

The defendants filed a memorandum in opposition on February 28, 2013, arguing that the plaintiff has failed to submit any new law or facts that were not considered previously by the court when adjudicating the defendants' summary judgment motion.   In addition, the defendants counter that foreseeability is not dispositive in determining a legal duty of care and that the court properly decided that the determination of a legal duty is purely a legal issue that does not involve any factual questions.   Further, the defendants emphasize that the court properly held that public policy dictates that manufacturers of multi-purpose tools are not liable for products they did not manufacture, distribute, or sell.

The plaintiff also filed a supplemental motion for reconsideration and reargument on April 8, 2013.   He argues that the court's public policy analysis does not apply to the plaintiff's “strict products liability claim because Connecticut's adoption of strict products liability established the duty to not sell a defective product.”   He argues that whether or not the defendants' products are defective, and whether those defects caused the injury, are questions of fact for the trier of fact and that the court improperly withheld this threshold issue of fact from the jury in holding that Black & Decker's products were not defective.   In response, on May 22, 2013, the defendants filed both a reply memorandum in opposition and a motion to strike.   In their reply memorandum, the defendants observe that, in Connecticut, “strict liability as a general tort principle neither transforms manufacturers into insurers or imposes absolute liability upon manufacturers,” and they emphasize that the plaintiff acknowledges that his strict liability theory is based upon an alleged failure to warn on the part of the defendants.   In their motion to strike the plaintiff's supplemental motion to reconsider/reargue, which the defendants characterize as a “third bite at the apple,” the defendants argue that the plaintiff has advanced a “newly-minted legal theory,” that is, “merely by pleading a claim under the CPLA, [p]laintiffs have as a matter of law established Stanley Black & Decker's duty to [p]laintiffs.”

DISCUSSION

Practice Book § 11–12 expressly governs motions to reargue, but also has been interpreted to apply to motions for reconsideration.   See, e.g., Aaron Manor, Inc. v. Irving, 307 Conn. 608, 613, 57 A.3d 342 (2013) (“the plaintiff filed a motion for reargument and reconsideration pursuant to Practice Book § 11–12, which the court granted but denied the relief requested”).   Nevertheless, these two motions are generally treated as separate and distinct.   See, e.g., PIC Associates, LLC v. Greenwich Place GL Acquisition, LLC, 128 Conn.App. 151, 155, 17 A.2d 93 (2011) (“The plaintiff filed a motion for reargument and reconsideration.   The court granted the motion for reargument, but following the reargument ․ denied the motion for reconsideration”).   Further, the trier also has “the power to undertake reconsideration that the trier believes to be warranted on equitable grounds.”  Mangiante v. Niemiec, 98 Conn.App. 567, 577, 910 A.2d 235 (2006).

“[T]he purpose of filing a motion to reargue is to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts ․ It also may be used to address ․ claims of law that the [movant] claimed were not addressed by the court.”  (Internal quotation marks omitted.)  Nelson v. Dettmer, 305 Conn. 654, 674–75, 46 A.3d 916 (2012).  “[A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple ․” (Internal quotation marks omitted.)  Hudson Valley Bank v. Kissel, 303 Conn. 614, 624, 35 A.3d 260 (2012).  “A motion to reargue is not a device to ․ present additional cases or briefs which could have been presented at the time of the original argument.”  (Internal quotation marks omitted.)  C.R. Klewin Northeast, LLC v. Bridgeport, 282 Conn. 54, 101 n.39, 919 A.2d 1002 (2007).  “[A] motion to reargue cannot be used to correct the deficiencies in a prior motion ․” Opoku v. Grant, 63 Conn.App. 686, 692, 778 A.2d 981 (2001).

This court granted the plaintiff's “Motion for Reconsideration and Reargument” on April 12, 2013, without written decision.   The plaintiff had not bifurcated his motion into separate motions, i.e., a Motion to Reconsider and a Motion to Reargue.   Accordingly, the court considered the motion as it was presented to the court—as a single motion requesting the following relief:  “the [plaintiff] respectfully request[s] that the Court reconsider its Memorandum of Decision and deny the defendant's motion for summary judgment.”

This court has heard reargument and reconsidered its decision with respect to the defendants' motion for summary judgment.   It is convinced that it has not overlooked any controlling law, nor misapprehended the relevant facts as presented by the parties pursuant to the defendants' summary judgment motion.   Accordingly, the court denies the relief sought by the plaintiff in his Motion for Reconsideration and Reargument.

BELLIS, J.

FOOTNOTES

FN1. Specifically, count one alleged a violation of the Connecticut Product Liability Act, General Statutes § 52–572m et seq., and count two asserted a wrongful death claim under General Statutes § 52–555.   The third count alleged that all of the defendants' conduct was grossly negligent, wilful and wanton, malicious and outrageous because, since 1929, the defendants allegedly possessed medical and scientific data, as well as studies and reports, indicating that asbestos-containing products were hazardous to the health and safety of the plaintiff and to all humans who were exposed.   Count four alleged loss of consortium on behalf of Joseph Abate..  FN1. Specifically, count one alleged a violation of the Connecticut Product Liability Act, General Statutes § 52–572m et seq., and count two asserted a wrongful death claim under General Statutes § 52–555.   The third count alleged that all of the defendants' conduct was grossly negligent, wilful and wanton, malicious and outrageous because, since 1929, the defendants allegedly possessed medical and scientific data, as well as studies and reports, indicating that asbestos-containing products were hazardous to the health and safety of the plaintiff and to all humans who were exposed.   Count four alleged loss of consortium on behalf of Joseph Abate.

Bellis, Barbara N., J.