Douglas Cummins v. LLC (2014)

MEMORANDUM OF DECISION RE MOTION TO STRIKE NO. 117.00

FACTS

In this action the plaintiff, Douglas Cummins, claims that on January 31, 2011 he slipped and fell on premises owned by defendant Stampar Energy, LLC (“Stampar”) located at 58–106 Commerce Road, Stamford.   Mr. Cummins alleges that on said date he sustained injuries on the defendant's property because of a dangerous accumulation of snow and ice that the defendant failed to remedy and/or adequately warn the plaintiff against.   The plaintiff initially brought suit in January 2013, only against defendant Stampar, the owner of the premises.   Then, in May of 2013, the plaintiff filed a motion to cite Sempra Energy Trading, LLC (“Sempra”) as an additional defendant.   The plaintiff alleges that Sempra shared responsibility with Stampar for the portion of the premises where he fell, and is, therefore, also liable for his injuries.   Sempra has moved to strike the third count of the plaintiff's amended complaint dated June 18, 2013 on the grounds that it is legally insufficient.   Specifically, Sempra claims that the third count of the plaintiff's amended complaint sets forth a cause of action for “negligence and carelessness” more than two years after the date of injury set forth in the amended complaint.   Therefore, Sempra argues, the cause of action is barred by General Statutes § 52–584 and by its own terms fails to set forth a legally sufficient cause of action.¹

DISCUSSION

The law on motions to strike made pursuant to Practice Book §§ 10–39 et seq. is well-settled.  “The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).   “A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court ․ We take the facts to be those alleged in the complaint ․ and we construe the complaint in the manner most favorable to sustaining its legal sufficiency ․ Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ It is fundamental that in determining the sufficiency of a complaint challenged by the defendant's motion to strike, all well-pleaded facts and those necessarily implied from the allegations are taken as admitted.”  (Citation omitted;  internal quotation marks omitted.)  Doe v. Board of Education, 76 Conn.App. 296, 299–300, 819 A.2d 289 (2003).  “The role of the trial court [on ruling on a motion to strike] [is] to examine the [complaint], construed in favor of the plaintiff, to determine whether the [pleading party] has stated a legally sufficient cause of action.”  (Internal quotation marks omitted.)  Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).

In the present case, the third count of the plaintiff's amended complaint alleges that he sustained his injuries due to the “negligence and carelessness” of defendant Sempra regarding the ice and snow on January 31, 2011.   Defendant Sempra was not served with the plaintiff's amended complaint until June 24, 2013, or more than two years after the date of injury.

Customarily, statutes of limitation are specially pleaded and asserted by motions for summary judgment.  Greco v. United Technologies Corp., 277 Conn. 337, 344 n.12, 890 A.2d 1269 (2006).   However, there are two situations where a statute of limitations defense can be raised by a motion to strike.   The first situation occurs when the parties agree that the complaint sets forth all of the facts from which the court can determine whether the action is barred by the statute of limitations.  Forbes v. Ballaro, 31 Conn.App. 235, 239, 624 A.2d 389 (1993);  Vilcincskas v. Sears, Roebuck & Co., 144 Conn. 170, 171–72, 127 A.2d 814 (1956).   The second occurs where a statute gives a right of action which did not exist at common law and fixes the time within which the right must be enforced.  Greco v. United Technologies Corp., supra, 277 Conn. 344–45 n.12.

The superior court case of Green v. Habitat for Humanity, Superior Court, judicial district of New Haven, Docket No. CV–00–0434513–S, (January 12, 2001, Devlin, J.), is directly on point.   In Green, the plaintiff alleged that she sustained her injuries on or about February 1, 1997, but failed to commence her action until January 13, 2000, more than two years from the date of her injury.  Id. The defendant moved to strike the count of the complaint sounding in recklessness, rather than plead the statute of limitations as a special defense and move for summary judgment.  Id. Applying the limitation of § 52–584, the court granted the motion to strike.  Id.

The plaintiff in the present case argues in opposition to the defendant's motion to strike that there is no agreement as to all the facts in the case, and the motion to strike is therefore not appropriate.   Specifically, the plaintiff argues that Stampar's responses to interrogatories raise questions of fact with respect to whether an employer-employee relationship exists between Stampar and Sempra, or whether either defendant can be charged with fraudulent concealment.   Further discovery is required before these issues can be determined, according to the plaintiff, and therefore the motion to strike is not the proper procedure for the defendant to assert that the claims against it are time-barred.

The court disagrees.   Regardless of a lack of agreement between the parties on facts gleaned from interrogatories as to a possible employment or contractual relationship between the two defendants, the plaintiff and Sempra do not dispute the facts in the complaint regarding when the accident occurred or when the plaintiff commenced suit against Sempra.   Nor has the plaintiff pleaded fraudulent concealment that might toll the running of the statute.   The third count sets forth the date of injury as January 31, 2011, which Sempra does not dispute, and Sempra was not served until June 24, 2013, which is beyond the two-year statute of limitations set forth in § 52–585.   Further, the plaintiff has not proffered any grounds for extension of the statute of limitations.   The present motion to strike, therefore, meets the criteria of the first situation where a court can grant a motion to strike on statute of limitations grounds.   Accordingly, the third count of the amended complaint does not set forth a legally sufficient cause of action against defendant Sempra, and the motion to strike is properly granted.   The plaintiff will have an opportunity to plead avoidance of the statute of limitations by filing a substituted complaint in accordance with Practice Book § 10–44.

CONCLUSION

For the foregoing reasons, defendant Sempra's motion to strike the third count of the plaintiff's amended complaint is granted.

By the Court,

Anthony D. Truglia, Jr., J.

FOOTNOTES

FN1. Section 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 ․”.  FN1. Section 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 ․”

Truglia, Anthony D., J.