Aletha Stone v. Antoine Damas et al. (2013)

MEMORANDUM OF DECISION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (# 116)

BACKGROUND

The plaintiff, Aletha Stone, initiated this action on January 10, 2012, by service on the defendants of a complaint.   The complaint was duly filed with the court January 20, 2012.   In two counts which are identical except for their titles,¹ that complaint alleged the following facts.   Defendants Antoine Damas (named in the title to count one) and Idalia Damas (count two) owned, possessed and controlled property at 48 Second Street in the town of Norwich, Connecticut.   On the afternoon of July 19, 2010, at those premises of the defendants, the plaintiff stepped off a stone wall or border from which a stone fell and hit her foot, causing her to fall and be injured.   The defendants' negligence in one or more of ten respects caused injuries and losses to the plaintiff.

On August 23, 2012, at her deposition, the plaintiff testified that the incident took place at 200 Central Avenue in Norwich, not at 48 Second Street.   On August 24, 2013, the next day, the plaintiff's attorney filed a request for leave to amend her complaint “to correct a scrivener's error with respect to the location of the subject fall.”   The request stated, “defendants will not be prejudiced with this amendment.”   The amended complaint correcting the address of the alleged fall to 198–200 Central Avenue was deemed filed by consent because the defendants did not object to the request to amend.   See Practice Book § 10–60(a)(3).   The defendants answered the amended complaint and claimed a special defense that the plaintiff's claims are barred by the applicable statute of limitation on actions for negligence, General Statutes § 52–584.²

The defendants moved for summary judgment on February 13, 2013, on the basis 1) that the plaintiff's claims against both defendants are barred by General Statutes § 52–584, and 2) that defendant Idalia Damas lacks any actionable connection to 198–200 Central Avenue.   On May 6, 2013, the plaintiff filed a brief objecting to motion for summary judgment as to the defendant Antoine Damas and conceding the second ground of the motion, as to Idalia Damas.³  The motion was argued June 3, 2013.

DISCUSSION

A motion for summary judgment should be granted “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.”  Practice Book § 17–49.  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of 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.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).   Summary judgment is appropriate when the “material facts concerning the statute of limitations [are] not in dispute ․” Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984);  see Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996).

As stated above, count two is identical to count one, except for its title.   The texts of both counts purport to be against both defendants.   Based on their titles, the court deems count one to be against Antoine Damas and count two against Idalia Damas.   The interpretation of pleadings is always a question of law for the court.  Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005).

To address count two first will simplify discussion of count one.   The defendant Idalia Damas's motion for summary judgment is granted, there being no objection to it.   Lest any confusion arise from the fact that Idalia Damas is named as a defendant in count one, except in the title, summary judgment is granted in favor of Idalia Damas on the complaint as a whole.

What remains is count one against Antoine Damas (defendant) only.   Mindful that, in ruling on a motion for summary judgment, the evidence must be viewed in the light most favorable to the opponent;  Ramirez v. Health Net of the Northeast, Inc., supra;  the court finds the following facts on count one.   Antoine Damas owned, possessed and controlled property at 198–200 Central Avenue in Norwich.   On July 19, 2010, while lawfully at that place, the plaintiff stepped off a stone wall or border from which a stone fell and hit her foot, causing her to fall and be injured.   The defendants' negligence in one or more of ten alleged respects caused injuries and losses to the plaintiff.   The plaintiff initiated this action for damages on January 10, 2012.   On August 24, 2012, five weeks after the second anniversary of the July 19, 2010, incident, the plaintiff, without objection, filed an amended complaint changing the location of the incident from 48 Second Street, Norwich, which was the defendant's home address,⁴ to 198–200 Central Avenue, Norwich.

The defendant claims that count one—the entire suit as to him—is barred by the applicable statute of limitations, General Statutes § 52–584.   He argues that the two-year limitation in § 52–584 bars any action initiated after July 19, 2012, the second anniversary of the plaintiff's fall, and that the amended complaint is not saved from that bar by relating back to when the original complaint was initiated.

“An amended complaint will be treated as filed at the time of the original complaint if it relates back to the original complaint ․ Our relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims.”  (Citation omitted;  internal quotation marks omitted.)  Palazzo v. Delrose, 91 Conn.App. 222, 225–26, 880 A.2d 169 (2005).   The question is framed with extraordinary simplicity in this case because the only change made in the amended complaint to count one of the original complaint is the substitution of one address for another.  “Amendments relate back to the date of the complaint unless they allege a new cause of action.”  Keenan v. Yale New Haven Hospital, 167 Conn. 284, 285, 355 A.2d 253 (1974).

The defendant has cited no decisions from the appellate courts, and the court has found none, that address this specific issue.   In Elhage v. King Conn. Enterprises, Superior Court, judicial district of Danbury, Docket No. 320137 (April 26, 1996, Stodolink, J.) (16 Conn. L. Rptr. 639), the plaintiff requested leave to amend his complaint to change the location of a fall from one Burger King restaurant location to another.   The defendant objected.   The court found the amendment constituted a new cause of action and denied leave to amend.   The court stated, “there is no reason to believe that the defendant should have been able to anticipate or expect that the plaintiff would make an amendment claiming injury in an entirely different restaurant than he had claimed originally.”  Id., 16 Conn. L. Rptr. 639–40, citing Marciano v. Vega Enterprises, Inc., Superior Court, judicial district of New Haven, Docket No. CV93 0354446S (January 29, 1996, Corradino, J.) (16 Conn. L. Rptr. 133).

In McGinnis v. Yale University, Superior Court, judicial district of New Haven, Docket No. CV–94–0361530–S (November 5, 1996, McMahon, J.) [18 Conn. L. Rptr. 139], the court found that an amendment that changed the location of the incident was not a new cause of action, but instead related back to the original complaint.   Therefore, the statute of limitations did not bar the action, even though the amended complaint was filed more than two years after the incident.  Id. The court in McGinnis distinguished Elhage by stating, “[i]n Elhage v. King Conn. Enterprises, unlike the present situation, there was no evidence that the defendant knew of the correct location of the accident and, therefore, the defendant could not have anticipated the amendment.”   McGinnis v. Yale University, n.3. In Smith v. City of Waterbury, Superior Court, judicial district of Waterbury, Docket No. CV–96–013367–S (May 14, 1999, Leheny, J.), as in the present case, deposition testimony revealed the place of the alleged incident was not correct in the complaint.   Finding “no prejudice or surprise to the defendant to have to defend this action as to the proper place of the alleged accident,” ⁵ the court denied summary judgment based on the statute of limitations even though the plaintiff's request to amend her complaint to correct the time and place of the incident had been denied by another judge.  Id.

Fair notice of the cause of action has been given if the defendant has actual notice of, or could reasonably be expected to discern, the essence of the plaintiff's claim.   See McGinnis v. Yale University, supra, citing generally Kelcey v. Tankers Co., 217 F.2d 541 (2d Cir.1954).   For present purposes, the court finds that the defendant knew or should have known that the plaintiff's original complaint concerned an incident at the address in the amended complaint, not at the address in the original complaint.   Based on the plaintiff's presently uncontroverted testimony, she was the defendant's tenant at 200 Central Avenue in Norwich.   At the time of the incident described in the amended complaint, she had received the key to an apartment there and was at that location preparing to move there.   See plaintiff's affidavit, Exhibit G to objection to the present motion;  deposition transcript excerpts, Exhibit D to said objection and also Exhibit B to defendant's brief in support of motion for summary judgment.   The defendant is presumed to have known when he received the complaint that the plaintiff had been his tenant ⁶ at 200 Central Avenue.   The address stated in the original complaint was the defendant's home—which lacks a stone border such as the one at 200 Central Avenue from which a stone is alleged to have fallen.   See plaintiff's opposition to the present motion, Exhibit G (affidavit) and Exhibits E and F (photographs).   Absent contradictory affidavits, deposition testimony is sufficient to support a decision on summary judgment.   See Collum v. Chapin, 40 Conn.App. 449, 450 n.2, 671 A.2d 1329 (1996).

Court decisions relating to whether or not a cause of action relates back to a prior pleading turn, in general, on whether the essence of the cause of action has changed from what was previously alleged.   See McGinnis v. Yale University, supra.   Considering the evidence in the light most favorable to the non-moving party, this court finds that the original complaint gave the defendant reasonable notice of the plaintiff's cause of action ⁷ and the amended complaint did not assert any different cause of action.   The amended complaint relates back to the original complaint for statute of limitations purposes.   The amended complaint is not barred by General Statutes § 52–584.

The defendant Antoine Damas's motion for summary judgment as to count one is denied.   The defendant Idalia Damas's motion for summary judgment is granted.

Cole–Chu, J.

FOOTNOTES

FN1. Both defendants are alleged in each count to have been responsible for the subject premises:  which defendant is being sued in which count can be told only from the title.   The court doubts that identical allegations as to two defendants comply with Practice Book § 10–1, but the present ruling makes the point moot..  FN1. Both defendants are alleged in each count to have been responsible for the subject premises:  which defendant is being sued in which count can be told only from the title.   The court doubts that identical allegations as to two defendants comply with Practice Book § 10–1, but the present ruling makes the point moot.

FN2. General Statutes § 52–584 provides:  “No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, 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 of 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.”.  FN2. General Statutes § 52–584 provides:  “No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, 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 of 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.”

FN3. The plaintiff asked to be allowed to withdraw this suit as to Idalia Damas.   Such a withdrawal would have made the present motion moot as to her, but it has not been filed..  FN3. The plaintiff asked to be allowed to withdraw this suit as to Idalia Damas.   Such a withdrawal would have made the present motion moot as to her, but it has not been filed.

FN4. At the time of, and according to, the marshal's return of service of the original process in this case, 48 Second Street, Norwich, was the defendant's abode..  FN4. At the time of, and according to, the marshal's return of service of the original process in this case, 48 Second Street, Norwich, was the defendant's abode.

FN5. In Smith v. City of Waterbury, supra, the described finding was based partly on what the defendant should have inferred from the denial of its motion for dismissal based on insufficiency of notice of the plaintiff's claim..  FN5. In Smith v. City of Waterbury, supra, the described finding was based partly on what the defendant should have inferred from the denial of its motion for dismissal based on insufficiency of notice of the plaintiff's claim.

FN6. When this case began, the plaintiff's address was no longer 200 Central Avenue, according to the summons on file..  FN6. When this case began, the plaintiff's address was no longer 200 Central Avenue, according to the summons on file.

FN7. The court has not been provided evidence concerning any pre-lawsuit claim, settlement discussion or other communication providing additional notice to the defendant, or any attorney, agent or insurer of the defendant, of the correct location of the alleged incident..  FN7. The court has not been provided evidence concerning any pre-lawsuit claim, settlement discussion or other communication providing additional notice to the defendant, or any attorney, agent or insurer of the defendant, of the correct location of the alleged incident.

Cole–Chu, Leeland J., J.