James E. Hull v. LLC (2014)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 129)

I. Background

In the original complaint filed in this matter, the plaintiff, James E. Hull, claims that on January 20, 2011, he slipped and fell on ice on property owned by Avon Properties, LLC and leased to Max's Restaurant Group, LLC in Avon, Connecticut, while he was making a delivery at the rear door of the property.   The plaintiff named as defendants Avon Properties, LLC and Max's Restaurant Group, LLC.

During discovery, the defendant, Avon Properties, initially failed to identify “the person(s) responsible for the maintenance and inspection of the premises at the time and place where the plaintiff claims to have been injured.”   On March 18, 2013, Avon Properties amended its response to identify D.W. Burr Landscaping and Design as one of the entities responsible.   On May 23, 2013, the court granted the plaintiff's motion to cite in D.W. Burr. An Amended Complaint was served on D.W. Burr on June 3, 2013, alleging negligence.   D.W. Burr has moved for summary judgment on the basis that the claims against it are barred by the statute of limitations.

The parties have filed briefs, affidavits, and documentation in support of and in opposition to the motion and the court heard oral argument on November 25, 2013.

II. 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 ․ The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.   In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact ․ but rather to determine whether any such issues exist ․ The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ Once the moving party has met its burden [of production] ․ the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ [I]t [is] incumbent [on] the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists ․ The presence ․ of an alleged adverse claim is not sufficient to defeat a motion for summary judgment.”  (Citation and internal quotation marks omitted.)   The Episcopal Church v. Gauss, 302 Conn. 408, 421–2 (2011).   Summary judgment may be granted where the claim is barred by the statute of limitations.  (Citation and internal quotation marks omitted.)  Torringford Farms Association, Inc. v. Torrington, 75 Conn.App. 570, cert. denied, 263 Conn. 924 (2003).

The summary judgment motion here challenges the timeliness of the inclusion of D.W. Burr in this lawsuit.  Conn. Gen.Stat. § 52–584 governs the statute of limitations for an action in negligence resulting in personal injuries.   It states, in relevant part, that:  “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, and except that no such action may be brought more than three years from the date of the act or omission complained of ․”

In Tarnowsky v. Socci the Supreme Court stated that:  “We conclude 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.   We emphasize that a plaintiff's ignorance of the identity of a tortfeasor will not excuse the plaintiff's failure to bring a negligence action within three years of the date of the act or omission complained of.”   Tarnowsky v. Socci, 271 Conn. 284, 297 (2004).   Since D.W. Burr was served two years and six months after the incident, the argument here rests on the question:  When did the plaintiff, James Hull, know or should he have known, the identity of D.W. Burr as a tortfeasor?

The seminal case construing § 52–584 is Tarnowsky, and its facts are remarkably similar to those here.   The plaintiff in Tarnowsky slipped and fell on ice outside a bank.   While the plaintiff filed timely suit against the property owner and the business tenant, the plaintiff did not sue the contractor responsible for clearing the snow and ice.   The plaintiff sued the contractor only after learning of the contractor's identity through discovery.   Because the contractor was sued before the three-year absolute bar, the Supreme Court held that the question of whether the victim knew or should have known the defendant's identity was an issue of fact.  271 Conn. at 297.

D.W. Burr claims that the plaintiff was aware of its existence at least as far back as May of 2011.   It cites communications between the plaintiff's attorney and CNA, D.W. Burr's insurance carrier, regarding the plaintiff's claim.   The plaintiff argues that it was not until March 18, 2013, when D.W. Burr was disclosed as the entity responsible for the maintenance and inspection of the premises where the plaintiff claims to have been injured, that the plaintiff became aware that that D.W. Burr might be liable to him for actionable harm.

The plaintiff argues that while D.W. Burr's insurance company, CNA, identified its policyholder as D.W. Burr in certain communications, there is no evidence that prior to March 2013, the plaintiff knew that D.W. Burr owed any duty to the plaintiff or had any responsibility for the area where he fell.   The plaintiff claims that he understood, based on the same communications, that CNA provided additional insurance coverage for Avon Properties.   Indeed all communications sent by the plaintiff to the insurers identified the insureds as Avon Properties and Max Restaurant Group, not D.W. Burr.

III. Conclusion

After a careful review of the record, the court concludes that genuine issues as to material facts exist in this case as to when the plaintiff, James Hull, knew or should have known, of the identity of D.W. Burr as a tortfeasor, and therefore the motion for summary judgment is denied.

Jane S. Scholl, J.

Scholl, Jane S., J.