Netherlands Insurance Co. v. Tin Ceiling Xpress, Inc. (2014)

MEMORANDUM (Motion for Summary Judgment, # 114)

On August 20, 2012, the plaintiff, the Netherlands Insurance Company (Netherlands), as subrogee of Paquette Electric Company, Inc. (Paquette), filed a two-count complaint against the defendants, Tin Ceiling Xpress, Inc. (Xpress) and V Hahn Tile (Hahn).   In the complaint, the plaintiff alleges the following facts.   On or before August 16, 2010, Netherlands issued an insurance policy to Paquette, which provided workers' compensation coverage for Paquette's employees.   On or about August 16, 2010, Adam Bellone, an employee of Paquette who was acting within the scope of his employment, was injured due to the negligent design of decorative metal ceiling tiles manufactured, designed, distributed, and sold by Xpress and installed by Hahn at Diva Nails & Spa, located in Dayville, Connecticut.   Bellone made a claim for workers' compensation benefits from Paquette, including medical expenses and lost wages.   Pursuant to the insurance policy, Netherlands paid workers' compensation benefits in excess of $42,160.04 to and on behalf of Bellone for the injuries he sustained as a result of the incident.   Pursuant to General Statutes § 31–293, Netherlands has a workers' compensation lien in the amount of $42,160.04.   In accordance with common-law principles of subrogation and pursuant to § 31–293, Netherlands is subrogated to the rights of Paquette to bring the current action against the defendants.

In count one of the complaint, the plaintiff Netherlands further alleges the following facts.   The defendant Xpress had a duty to design, manufacture, distribute, and sell decorative metal ceiling tiles that were neither defective, nor unreasonably dangerous when used in the manner for which they were designed, manufactured, distributed, and sold.   The tiles were in an unreasonably defective condition at the time the defendant Xpress sold the tiles to Diva Nails & Spa as a result of the sharp edges and insufficient and inadequate instructions and warnings regarding the sharpness of the tiles.   The defective condition of the tiles as designed, directly and proximately caused Bellone's injuries.

The plaintiff further alleges the following facts in count two.   The defendant Hahn's duty was to install the decorative metal ceiling tiles in a reasonably safe manner.   The defendant Hahn breached this duty by failing to properly secure the tiles and inadequately and negligently installing tiles.   The plaintiff contends that Bellone suffered injuries as a result of the defendant Hahn's negligence.

On March 27, 2014, the defendant Xpress filed a motion for summary judgment as to count one and a memorandum in support.   On August 22, 2014, the plaintiff filed its objection and attached the June 13, 2013 deposition of Bellone.   The matter was heard at short calendar on October 6, 2014.

“The judgment sought 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.”  Practice Book § 17–49.  “Summary judgment is a method of resolving litigation when 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 ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried ․ However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ․ the moving party for summary judgment is held to a strict standard ․ of demonstrating his entitlement to summary judgment.”  (Citation omitted;  footnote omitted;  internal quotation marks omitted.)  Grenier v. Commissioner of Transportation, 306 Conn. 523, 534–35, 51 A.3d 367 (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 defendant argues that it is entitled to summary judgment as a matter of law because expert testimony is required to establish the allegedly defective condition of the ceiling tiles pursuant to the Connecticut Products Liability Act and there is no genuine issue of material fact as to the plaintiff's allegations of negligence against the defendant.   The defendant asserts that per the court's August 28, 2013 scheduling order, expert witnesses were to be disclosed by the plaintiff no later than December 31, 2013.   There is no dispute that the plaintiff has not disclosed an expert.   The plaintiff argues that expert testimony is not required in order for the plaintiff to prevail, given the facts and circumstances surrounding Bellone's injuries.

The plaintiff's claims are made pursuant to the Connecticut Products Liability Act (CPLA) (General Statutes § 52–572m et seq.).  “To establish a product liability claim, a plaintiff must prove that:  (1) the defendant was engaged in the business of selling the product;  (2) the product was in a defective condition unreasonably dangerous to the consumer or user;  (3) the defect caused the injury for which compensation was sought;  (4) the defect existed at the time of the sale;  and (5) the product was expected to and did reach the consumer without substantial change in condition.”  (Internal quotation marks omitted.)  White v. Mazda Motor of America, Inc., 313 Conn. 610, 622 A.3d (2014), quoting Metropolitan Property & Casualty Ins. Co. v. Deer & Co., 302 Conn. 123, 131, 25 A.3d 571 (2011).  “For a product to be unreasonably dangerous, it must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.”  (Internal quotation marks omitted.)  Metropolitan Property & Casualty Ins. Co. v. Deer & Co., 302 Conn. 123, 131, 25 A.3d 571 (2011).

“Depending on the type of product at issue—namely, its complexity—expert testimony regarding whether the product was defective and causation may be required in order to make out a prima facie product liability case.   Under the ordinary consumer expectation test, a plaintiff may prove that the product is unreasonably dangerous without presenting expert testimony, but only when the everyday experience of the particular product's users permits the inference that the product did not meet minimum safety expectations ․ Conversely, there may be instances involving complex product designs in which an ordinary consumer may not be able to form expectations of safety ․ In those situations, the modified consumer expectation test applies, and the trier of fact must view a consumer's expectations of the product in light of various factors that balance the utility of the product's design with the magnitude of its risks ․ Expert testimony is generally required in cases in which the modified consumer expectation test applies because, due to the complexity of the product design, the issues involved go beyond the field of the ordinary knowledge and experience of the trier of fact ․ Thus, without expert testimony in such cases, a plaintiff cannot provide sufficient evidence for the case to be submitted to the trier of fact.  [I]t is the function of the trial court to determine whether an instruction based on the ordinary consumer expectation test or the modified consumer expectation test, or both, is appropriate in light of the evidence presented.”  (Citations omitted;  internal quotation marks omitted.)  D'Ascanio v. Toyota Industries Corp., 309 Conn. 663, 674–75, 72 A.3d 1019 (2013), citing Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 219, 220, 222, 694 A.2d 1319 (1997).¹

The modified consumer expectation test does not always require the plaintiff to present evidence relating to the risks and utility of the product.   Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 222, 694 A.2d 1319 (1997).  “As the California Court of Appeals has stated:  ‘There are certain kinds of accidents—even where fairly complex machinery is involved—[that] are so bizarre that the average juror, upon hearing the particulars, might reasonably think:  “Whatever the user may have expected from that contraption, it certainly wasn't that.’  “ ․ Accordingly, the ordinary consumer expectation test is appropriate when the everyday experience of the particular product's users permits the inference that the product did not meet minimum safety expectations.”  Id.

In order for the court to apply the modified consumer expectation test, also known as the malfunction theory, which allows the plaintiff to establish a defect through circumstantial evidence, the theory must be included in the complaint.  White v. Mazda Motor of America, Inc., supra, 313 Conn. 623.   The malfunction theory has two basic elements that must be included in the pleadings:  “that (1) the incident that caused the plaintiff's harm was of a kind that ordinarily does not occur in the absence of a product defect, and (2) any defect most likely existed at the time the product left the manufacturer's or seller's control and was not the result of the reasonably possible causes not attributable to the manufacturer or seller.”  (Internal quotation marks omitted.)  Id. The plaintiff must also claim that the cause of the harm was an unspecified defect.  Id.

In the present case, the plaintiff claimed that specific defects, including the sharpness of the ceiling tiles and the lack of sufficient and adequate instructions and warnings, led to the injuries sustained by the worker.   The plaintiff also did not plead the basic elements of the malfunction theory.   Therefore, this court will apply the consumer expectation test which does not require expert testimony when the “everyday experience of the particular product's users permits the inference that the product did not meet minimum safety expectations.”  (Internal quotation marks omitted.)  D'Ascanio v. Toyota Industries Corp, supra, 309 Conn. 674.  “Whether a product is unreasonably dangerous is a question of fact to be determined by the jury.   As [the Supreme Court previously] stated, ‘[t]his includes those questions arising under [the Restatement (Second) of Torts,] § 402A, and the jury can draw their own reasonable conclusions as to the expectations of the ordinary consumer and the knowledge common in the community at large.’  “ Giglio v. Connecticut Light & Power Co., 180 Conn. 230, 235, 429 A.2d 486 (1980), citing Slepski v. Williams Ford, Inc., 170 Conn. 18, 23, 364 A.2d 175, 178 (1975).   In Giglio v. Connecticut Light & Power Co., the court held that the defendant's “failure to place an adequate warning on the furnace's safety unit, as well as the failure verbally to warn the plaintiff of the possibility of a roll-out, amount[ed] to a defect in the furnace giving rise to an unreasonably dangerous condition.   Upon the evidence presented, the jury could properly conclude that the defendant was strictly liable in tort for the injuries resulting therefrom.”  Id., 237.

The defendant's motion contains no supporting affidavit or documentary evidence and instead relies on its argument that because the plaintiff alleges that harm resulted from the defective condition of the ceiling tiles, an expert is required to establish the defective condition.   The plaintiff argues that the ceiling tile is not complex and that a reasonable consumer would consider the design of the tiles to be unreasonably dangerous.   The plaintiff failed to submit a counter affidavit but supports its argument with the deposition of Bellone, who was injured by the tiles, and contends that his testimony is sufficient circumstantial evidence that demonstrates the defective nature of the tiles, without the need for expert testimony.  “A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like.”  Practice Book § 17–45.   This court must view the evidence in the light most favorable to the nonmoving party.  Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 313, 87 A.3d 546 (2014).   Therefore, the defendant has not met its burden because a genuine issue of material fact exists as to the complexity of the product and whether the ordinary consumer would be able to determine that the product was unreasonably dangerous.

Furthermore, the plaintiff alleged in count one of its complaint that the ceiling tiles were unreasonably dangerous and defective as a result of the lack of sufficient and adequate instructions and warnings regarding the use of the tiles and the sharpness of the edges, including inherent hazards to the end user.   The defendant did not address the plaintiff's claim in its motion.

In Nichols v. Three Bond of America, Inc., Superior Court, judicial district of Litchfield, Docket No. CV–99–0079127–S (July 10, 2001, DiPentima, J.), the defendants moved for summary judgment on the ground that the plaintiff failed to disclose an expert, which was necessary for her to prevail on her products liability claim.   The defendants argued that an expert needed to testify as to the “harmful propensities” of the chemical product from which the plaintiff claimed she suffered an allergic reaction.  Id. The defendant did not submit supporting affidavits or documentary evidence and failed to address the plaintiff's claim that the defendants failed to adequately warn users, a claim which the plaintiff argued did not require expert testimony.  Id. The court denied the defendants' motion because the defendants failed to meet their burden and an issue of fact existed as to the plaintiff's failure to warn claim and the need for expert testimony.  Id.

The defendant in the present case has not submitted supporting affidavits or evidence regarding the unreasonably dangerous condition of the product as to the alleged failure to include sufficient and adequate instructions and warnings.   Instead, the defendant focused its argument on the plaintiff's allegations that the defendant “inadequately manufactured, designed, distributed and sold the tiles with unreasonably dangerous and hazardous sharp edges,” and “wrongfully and defectively designed, manufactured, distributed and sold the tiles ․” Therefore, a genuine issue of material fact remains as to the plaintiff's allegations that the defendant failed to include sufficient instructions and warnings.

In light of the evidence presented at this time, the court denies the defendant's motion for summary judgment.

THE COURT

CALMAR, J.

FOOTNOTES

FN1. In D'Ascanio v. Toyota Industries Corp., supra, 309 Conn. 666, the plaintiff suffered injuries while operating a stand-up forklift, which the plaintiff alleged was defective and had been designed, manufactured, and distributed by the defendants.   There was an “implicit understanding between the parties and the court, prior to and during trial, that expert testimony regarding the defendants' liability was necessary in order for the plaintiffs to make out a prima facie case.”  Id., 675..  FN1. In D'Ascanio v. Toyota Industries Corp., supra, 309 Conn. 666, the plaintiff suffered injuries while operating a stand-up forklift, which the plaintiff alleged was defective and had been designed, manufactured, and distributed by the defendants.   There was an “implicit understanding between the parties and the court, prior to and during trial, that expert testimony regarding the defendants' liability was necessary in order for the plaintiffs to make out a prima facie case.”  Id., 675.

Calmar, Harry E., J.