Albert Shaw, Jr. v. Southern Connecticut Gas Co. (2014)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 102)

FACTS

The present case comes before the court by way of a three-count complaint served by the plaintiff, Albert Shaw, Jr., on the defendant, Southern Connecticut Gas Company, on May 22, 2013.   In his complaint, the plaintiff alleges the following facts.

On or about September 9, 2010, the plaintiff stepped in an uncapped pipe located in the sidewalk at Ray Road and Judwin Street in New Haven.   The uncapped pipe was controlled, possessed, managed, and maintained by the defendant.   The plaintiff fell, heard a “pop” in his ankle, and experienced a sharp pain.   Subsequently, the plaintiff experienced swelling and continuing pain in his ankle, and began utilizing crutches.   In late September or early October 2010, a physician determined that the plaintiff had torn his Achilles tendon and would require surgery.   The plaintiff underwent surgery to repair the tear in his Achilles tendon in October 2010.

The plaintiff's claims sound in negligence (counts one and two) and nuisance (count three) and allege, inter alia, that the defendant failed to maintain the pipe in a safe condition and failed to warn pedestrians of the hazardous condition posed by the pipe.   The plaintiff seeks compensatory damages, expenses, and costs.

The defendant moved for summary judgment on July 31, 2013, arguing that the plaintiff's claims were barred by the statute of limitations.   With its motion, the defendant filed a memorandum of law and, as exhibits, copies of motions for summary judgment filed by South Central Connecticut Regional Water Authority and Greater New Haven Water Pollution Control Authority in Shaw v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV–12–6033803–S.   That case was commenced on September 6, 2012, by the plaintiff against the city of New Haven, South Central Connecticut Regional Water Authority, and Greater New Haven Water Pollution Control Authority, and in it, the plaintiff brought claims nearly identical to those of the present case.¹

The plaintiff objected to the defendant's motion for summary judgment on September 26, 2013, and, with his objection, submitted an affidavit executed by Joseph Rini, his attorney.   The matter was argued at short calendar on October 28, 2013.

DISCUSSION

“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).

“[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ․ [A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party ․ [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).

The sole ground on which the defendant moves for summary judgment is that the plaintiff commenced the present case outside of the two-year limitation period set forth in General Statutes § 52–584.²  Specifically, the defendant asserts that the plaintiff was injured sometime between September 9, 2010, and early October 2010, and that he did not commence the present case until May 16, 2013.   Accordingly, the defendant argues, the present case is barred by § 52–584, and no recognized exception applies to save his claims.

The plaintiff responds that the defendant's statute of limitations defense must fail for three reasons.   First, the evidence submitted in support of the defendant's motion for summary judgment is not admissible under §§ 7–1,³ 8–1,⁴ 8–2,⁵ and 8–3 6 of the Connecticut Code of Evidence because it has not been properly authenticated.   Second, because the present case arose only after the plaintiff mistakenly named the wrong parties in his previous action seeking relief for his injuries, it is saved under both General Statutes §§ 52–592 ⁷ and 52–593.⁸  And third, the statute of limitations was tolled pursuant to the continuing course of conduct doctrine.

As the movant on the present motion, the defendant bears the burden of making an initial showing that the plaintiff commenced his suit outside of the applicable limitation period.  “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.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).  “[I]n the context of a motion for summary judgment based on a statute of limitations special defense, a defendant typically meets its initial burden of showing the absence of a genuine issue of material fact by demonstrating that the action had commenced outside of the statutory limitation period.”   Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 321, 77 A.3d 726 (2013).

The relevant limitation period is set forth in § 52–584, which provides in relevant part:  “No 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 ․” Accordingly, to prevail on its statute of limitations defense, the defendant must establish both the date on which the plaintiff first sustained or discovered his injury, and the date on which he commenced this action.   Because neither party disputes that the plaintiff commenced this action on May 22, 2013, by service of process on the defendant's senior counsel,⁹ the court's inquiry is limited to determining whether the defendant has demonstrated that no genuine issue of material fact exists that the plaintiff first sustained his “injury,” as that term is used in § 52–584, more than two years before that date.

The defendant relies on the allegations in the complaint in seeking to establish that the plaintiff's injury occurred more than two years before the commencement of the present case.   Those allegations approximate the time that the plaintiff became aware of the damage to his Achilles tendon to a period beginning September 9, 2010—the date he fell after stepping in the uncapped pipe—and ending in late September or early October of the same year, when the plaintiff received a diagnosis and treatment for his torn Achilles tendon.   Thus, the defendant argues, the plaintiff was injured, at the latest, in October 2010, and had until October 2012, to commence his action.

A flaw in the defendant's argument, however, is that the term “injury,” as used in § 52–584, encompasses more than the mere awareness of some physical or economic harm.  “[A]s 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.”  (Emphasis added;  internal quotation marks omitted.)  Tarnowsky v. Socci, 271 Conn. 284, 288, 856 A.2d 408 (2004).   Consequently, the defendant does not meet its initial burden in seeking summary judgment by merely identifying the date on which the plaintiff became aware of the physical injury to his Achilles tendon.   Rather, the defendant must demonstrate that no genuine issue of material fact exists as to the date on which the plaintiff discovered all of the essential elements of his cause of action.   As discussed below, the defendant has failed to make such a showing with respect to at least one of these essential elements.

In Tarnowsky v. Socci, supra, 271 Conn. 291, our Supreme Court concluded that knowledge of the tortfeasor's identity is an essential element of a cause of action in negligence:  “[T]here is no principled reason to distinguish between, on the one hand, the discovery of a breach of duty or the discovery of a causal connection between the breach of duty and the injury and, on the other hand, the discovery of the identity of the tortfeasor, for purposes of the actionable harm doctrine ․ [T]he very phrase ‘actionable harm’ suggests that knowledge of the identity of the tortfeasor is one of its elements.”   Accordingly, the court held 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.”  Id., 297.

The import of the holding in Tarnowsky to the present matter is clear.   Because establishing when the statute of limitations began to run is a necessary predicate to effectively asserting the defense in a motion for summary judgment, the defendant has the burden of demonstrating, inter alia, that there is no genuine issue of material fact as to the date on which the plaintiff knew, or reasonably should have known, the defendant's identity.   To that end, the defendant cannot rely solely on the allegations in the plaintiff's complaint, since those allegations, although clear that the defendant was the owner of the uncapped pipe, are silent as to when the plaintiff actually discovered that fact.   The defendant must instead produce actual evidence removing the date on which the plaintiff actually or constructively discovered the defendant's identity as a triable issue.   Because it has failed to meet that initial evidentiary burden, its motion for summary judgment must be denied.

Assuming, however, that the defendant had provided evidence establishing the date on which the plaintiff discovered or should have discovered the defendant's identity, summary judgment remains inappropriate because the plaintiff's evidentiary submissions sufficiently place that issue in dispute.¹⁰  Specifically, the plaintiff has submitted an affidavit executed by his attorney, Joseph Rini, in which Attorney Rini attests that after agreeing to represent the plaintiff in the present case, he contacted the city of New Haven “and others” to ascertain the identity of the party responsible for the uncapped pipe.   Attorney Rini avers that despite his efforts, he was wrongly led to believe by the parties contacted that the pipe was maintained by the South Central Connecticut Regional Water Authority, Greater New Haven Water Pollution Control Authority, or the city of New Haven.   It was only in or about November 2012, that the South Central Connecticut Regional Water Authority and Greater New Haven Water Pollution Control Authority contacted him and identified the defendant as the owner of the pipe.

“The sole inquiry, in this context, is whether, in light of all relevant circumstances, the plaintiff exercised reasonable care in the discovery of [his] injury.”  Jackson v. Tohan, 113 Conn.App. 782, 790, 967 A.2d 634, cert. denied, 292 Conn. 908, 973 A.2d 104 (2009).   Our appellate courts have been clear that when the material facts regarding this issue are in dispute, the inquiry into when a plaintiff should have discovered actionable harm remains one for the jury.   See Tarnowski v. Socci, supra, 271 Conn. 297 (“[w]hen the plaintiff ․ knew or should have known the defendant's identity is a question to be determined by the fact finder”);  Lagassey v. State, 268 Conn. 723, 749, 846 A.2d 831 (2004) (“the determination of when a plaintiff in the exercise of reasonable care should have discovered ‘actionable harm’ is ordinarily a question reserved for the trier of fact”);  Jackson v. Tohan, supra, 790 (“[t]he 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” [internal quotation marks omitted] ).   Accordingly, the date on which the plaintiff discovered, or should have discovered, the identity of the defendant remains a factual issue properly resolved by the jury.

CONCLUSION

For the foregoing reasons, the defendant's motion for summary judgment is denied.

Wilson, J.

FOOTNOTES

FN1. On November 7, 2013, the court, Robinson, J., consolidated the present case with Shaw v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV–12–6033803–S..  FN1. On November 7, 2013, the court, Robinson, J., consolidated the present case with Shaw v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV–12–6033803–S.

FN2. General Statutes § 52–584 provides in relevant part:  “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 ․ 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 in relevant part:  “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 ․ 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. Section 7–1 of the Connecticut Code of Evidence provides:  “If a witness is not testifying as an expert, the witness may not testify in the form of an opinion, unless the opinion is rationally based on the perception of the witness and is helpful to a clear understanding of the testimony of the witness or the determination of a fact in issue.”.  FN3. Section 7–1 of the Connecticut Code of Evidence provides:  “If a witness is not testifying as an expert, the witness may not testify in the form of an opinion, unless the opinion is rationally based on the perception of the witness and is helpful to a clear understanding of the testimony of the witness or the determination of a fact in issue.”

FN4. Section 8–1 of the Connecticut Code of Evidence provides:  “As used in this Article:  (1) ‘Statement’ means (A) an oral or written assertion or (B) nonverbal conduct of a person, if it is intended by the person as an assertion.  (2) ‘Declarant’ means a person who makes a statement.  (3) ‘Hearsay’ means a statement, other than one made by the declarant while testifying at the proceeding, offered in evidence to establish the truth of the matter asserted.”.  FN4. Section 8–1 of the Connecticut Code of Evidence provides:  “As used in this Article:  (1) ‘Statement’ means (A) an oral or written assertion or (B) nonverbal conduct of a person, if it is intended by the person as an assertion.  (2) ‘Declarant’ means a person who makes a statement.  (3) ‘Hearsay’ means a statement, other than one made by the declarant while testifying at the proceeding, offered in evidence to establish the truth of the matter asserted.”

FN5. Section 8–2 of the Connecticut Code of Evidence provides:  “Hearsay is inadmissible, except as provided in the Code, the General Statutes or the Practice Book.”.  FN5. Section 8–2 of the Connecticut Code of Evidence provides:  “Hearsay is inadmissible, except as provided in the Code, the General Statutes or the Practice Book.”

FN6. Section 8–3 of the Connecticut Code of Evidence provides:  “The following are not excluded by the hearsay rule, even though the declarant is available as a witness:  (1) Statement by a party opponent.   A statement that is being offered against a party and is (A) the party's own statement, in either an individual or a representative capacity, (B) a statement that the party has adopted or approved, (C) a statement by a person authorized by the party to make a statement concerning the subject, (D) a statement by a coconspirator of a party while the conspiracy is ongoing and in furtherance of the conspiracy, (E) in an action for a debt for which the party was surety, a statement by the party's principal relating to the principal's obligations, or (F) a statement made by a predecessor in title of the party, provided the declarant and the party are sufficiently in privity that the statement of the declarant would affect the party's interest in the property in question.  (2) Spontaneous utterance.   A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.  (3) Statement of then-existing physical condition.   A statement of the declarant's then existing physical condition, provided that the statement is a natural expression of the condition and is not a statement of memory or belief to prove the fact remembered or believed.  (4) Statement of then-existing mental or emotional condition.   A statement of the declarant's then-existing mental or emotional condition, including a statement indicating a present intention to do a particular act in the immediate future, provided that the statement is a natural expression of the condition and is not a statement of memory or belief to prove the fact remembered or believed.  (5) Statement for purposes of obtaining medical diagnosis or treatment.   A statement made for purposes of obtaining a medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof, insofar as reasonably pertinent to the medical diagnosis or treatment.  (6) Recorded recollection.   A memorandum or record concerning an event about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness at or about the time of the event recorded and to reflect that knowledge correctly.  (7) Public records and reports.   Records, reports, statements or data compilations, in any form, of public offices or agencies, provided (A) the record, report, statement or data compilation was made by a public official under a duty to make it, (B) the record, report, statement or data compilation was made in the course of his or her official duties, and (C) the official or someone with a duty to transmit information to the official had personal knowledge of the matters contained in the record, report, statement or data compilation.  (8) Statement in learned treatises.   To the extent called to the attention of an expert witness on cross-examination or relied on by the expert witness in direct examination, a statement contained in a published treatise, periodical or pamphlet on a subject of history, medicine, or other science or art, recognized as a standard authority in the field by the witness, other expert witness or judicial notice.  (9) Statement in ancient documents.   A statement in a document in existence for more than thirty years if it is produced from proper custody and otherwise free from suspicion.  (10) Published compilations.   Market quotations, tabulations, lists, directories or other published compilations, that are recognized authority on the subject, or are otherwise trustworthy.  (11) Statement in family bible.   A statement of fact concerning personal or family history contained in a family bible.  (12) Personal identification.   Testimony by a witness of his or her own name or age.”.  FN6. Section 8–3 of the Connecticut Code of Evidence provides:  “The following are not excluded by the hearsay rule, even though the declarant is available as a witness:  (1) Statement by a party opponent.   A statement that is being offered against a party and is (A) the party's own statement, in either an individual or a representative capacity, (B) a statement that the party has adopted or approved, (C) a statement by a person authorized by the party to make a statement concerning the subject, (D) a statement by a coconspirator of a party while the conspiracy is ongoing and in furtherance of the conspiracy, (E) in an action for a debt for which the party was surety, a statement by the party's principal relating to the principal's obligations, or (F) a statement made by a predecessor in title of the party, provided the declarant and the party are sufficiently in privity that the statement of the declarant would affect the party's interest in the property in question.  (2) Spontaneous utterance.   A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.  (3) Statement of then-existing physical condition.   A statement of the declarant's then existing physical condition, provided that the statement is a natural expression of the condition and is not a statement of memory or belief to prove the fact remembered or believed.  (4) Statement of then-existing mental or emotional condition.   A statement of the declarant's then-existing mental or emotional condition, including a statement indicating a present intention to do a particular act in the immediate future, provided that the statement is a natural expression of the condition and is not a statement of memory or belief to prove the fact remembered or believed.  (5) Statement for purposes of obtaining medical diagnosis or treatment.   A statement made for purposes of obtaining a medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof, insofar as reasonably pertinent to the medical diagnosis or treatment.  (6) Recorded recollection.   A memorandum or record concerning an event about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness at or about the time of the event recorded and to reflect that knowledge correctly.  (7) Public records and reports.   Records, reports, statements or data compilations, in any form, of public offices or agencies, provided (A) the record, report, statement or data compilation was made by a public official under a duty to make it, (B) the record, report, statement or data compilation was made in the course of his or her official duties, and (C) the official or someone with a duty to transmit information to the official had personal knowledge of the matters contained in the record, report, statement or data compilation.  (8) Statement in learned treatises.   To the extent called to the attention of an expert witness on cross-examination or relied on by the expert witness in direct examination, a statement contained in a published treatise, periodical or pamphlet on a subject of history, medicine, or other science or art, recognized as a standard authority in the field by the witness, other expert witness or judicial notice.  (9) Statement in ancient documents.   A statement in a document in existence for more than thirty years if it is produced from proper custody and otherwise free from suspicion.  (10) Published compilations.   Market quotations, tabulations, lists, directories or other published compilations, that are recognized authority on the subject, or are otherwise trustworthy.  (11) Statement in family bible.   A statement of fact concerning personal or family history contained in a family bible.  (12) Personal identification.   Testimony by a witness of his or her own name or age.”

FN7. General Statutes § 52–592 provides in relevant part:  “If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form;  or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.”.  FN7. General Statutes § 52–592 provides in relevant part:  “If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form;  or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.”

FN8. General Statutes § 52–593 provides:  “When a plaintiff in any civil action has failed to obtain judgment by reason of failure to name the right person as defendant therein, the plaintiff may bring a new action and the statute of limitations shall not be a bar thereto if service of process in the new action is made within one year after the termination of the original action.   If service of process in the original action has been made upon an agent of the defendant named in the new action, or if the defendant in the new action is a corporation and service in the original action has been made upon an officer or agent of the corporation, notice of any claim for damage shall be sufficient if given in the original action, pursuant to statutory provisions, to any officer or agent of the defendant in the new action.”.  FN8. General Statutes § 52–593 provides:  “When a plaintiff in any civil action has failed to obtain judgment by reason of failure to name the right person as defendant therein, the plaintiff may bring a new action and the statute of limitations shall not be a bar thereto if service of process in the new action is made within one year after the termination of the original action.   If service of process in the original action has been made upon an agent of the defendant named in the new action, or if the defendant in the new action is a corporation and service in the original action has been made upon an officer or agent of the corporation, notice of any claim for damage shall be sufficient if given in the original action, pursuant to statutory provisions, to any officer or agent of the defendant in the new action.”

FN9. See Dkt. No. 3 (marshal's return of service);  Hillman v. Greenwich, 217 Conn. 520, 527, 587 A.2d 99 (1991) (“[i]n Connecticut, an action is commenced on the date of service of the writ upon the defendant” [internal quotation marks omitted] )..  FN9. See Dkt. No. 3 (marshal's return of service);  Hillman v. Greenwich, 217 Conn. 520, 527, 587 A.2d 99 (1991) (“[i]n Connecticut, an action is commenced on the date of service of the writ upon the defendant” [internal quotation marks omitted] ).

FN10. It must be noted, however, that the plaintiff is under no obligation at this point to come forward with any evidence.   See Mott v. Wal–Mart Stores East, LP, 139 Conn.App. 618, 626, 57 A.3d 391 (2012) (“it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial” [internal quotation marks omitted] )..  FN10. It must be noted, however, that the plaintiff is under no obligation at this point to come forward with any evidence.   See Mott v. Wal–Mart Stores East, LP, 139 Conn.App. 618, 626, 57 A.3d 391 (2012) (“it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial” [internal quotation marks omitted] ).

Wilson, Robin L., J.