Zane Megos v. LLC (2016)

RULING ON MOTION FOR SUMMARY JUDGMENT FILED BY THE DEFENDANT RADLO FOODS, LLC (Doc. No. 115.00)

This case is an action brought by the plaintiff, Zane Megos, under the Connecticut Product Liability Act. Count One is against the defendant, The Stop & Shop Supermarket Company, LLC (“Stop & Shop”).  Count Two is against the defendant, Radlo Foods, LLC (“Radlo”).  Pending before the court is Radlo's motion for summary judgment.  Doc. No. 115.00, For the following reasons, the court finds that the material facts are not in dispute and the defendant, Radlo, is entitled to judgment as a matter of law.  Therefore, the defendant's motion for summary judgment is granted and judgment enters in favor of the defendant, Radlo, as to Count Two of the plaintiff's complaint only.  The case remains pending as to the remaining parties.

I

The law governing summary judgment is well-settled.  As our Appellate Court has summarized:

Practice Book § [17–49] requires that 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.  A material fact is a fact that will make a difference in the result of the case ․ The facts at issue are those alleged in the pleadings.  (Citation omitted;  internal quotation marks omitted.)  Gohel v. Allstate Ins. Co., 61 Conn.App. 806, 809, 768 A.2d 950 (2001).

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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.  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 ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent.  (Citations omitted;  internal quotation marks omitted.)  Allstate Ins. Co. v. Barron, 269 Conn. 394, 405, 848 A.2d 1165 (2004).

It is frequently stated in Connecticut's case law that, pursuant to Practice Book §§ 17–45 and 17–46, a party opposing a summary judgment motion “must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact:” Harvey v. Boehringer Ingelheim Corp., 52 Conn.App. 1, 4, 724 A.2d 1143 (1999).  As noted by the trial court in this case, typically “[d]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred.”  (Internal quotation marks omitted.)  New Milford Savings Bank v. Roina, 38 Conn.App. 240, 244, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995).  Moreover, “[t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue ․ Such assertions are insufficient regardless of whether they are contained in a complaint or a brief ․ Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact.  (Citations omitted;  internal quotation marks omitted.)  Id., 244–45.

Rockwell v. Quintner, 96 Conn.App. 221, 227–29, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).

The Practice Book further mandates that “[a]ny adverse party shall at least five days before the date the motion is to be considered on short calendar file opposing affidavits and other available documentary evidence.  Affidavits, and other documentary proof not already part of the file, shall be filed and served as are pleadings.”  Practice Book § 17–45.  “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.  Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto.”  Practice Book § 17–46.

II

In this case the plaintiff alleges, inter alia, that on or about October 16, 2011, he purchased some Natures Promise Cage Free Organic Eggs from Stop & Shop's grocery store located at 70 Town Street in Norwich, CT. After consuming some of the eggs, he became seriously ill and needed to be hospitalized from October 25 to November 5, 2011.  He alleges that the eggs were adulterated and/or contaminated with Salmonella bacteria, making them defective and unreasonably dangerous.  He alleges that as a result of consuming the eggs, he has been required, and in the future may be required, to expend sums of money for medical care, treatment, and medications and that he was unable to pursue his regular activities, including missing time from work, to his loss and detriment.  In Count One of the Complaint, he seeks damages from Stop & Shop as the seller.  In Count Two of the Complaint, he seeks damages from Radlo as the supplier.

In connection with its motion for summary judgment, the defendant, Radlo, filed a copy of the co-defendant, Stop & Shop's, responses to certain requests for admissions, propounded by Radlo.  Stop & Shop's responses are dated September 18, 2015.  In its responses, Stop & Shop admitted that in October 2011, it sold Nature's Promise Cage Free Organic Eggs from its grocery store located at 70 Town Street in Norwich, CT. It admitted that Radlo was one of multiple suppliers of Nature's Promise Cage Free Organic Eggs to Stop & Shop at that time;  but it explained that its records indicate that there was only one supplier for the store at 70 Town Street, Norwich at that time, and it was not Radlo.  This is evidence that Radlo did not supply the eggs that allegedly caused the plaintiff to become ill.  The point is fatal to plaintiff's claim against Radlo because the Connecticut Product Liability Act is asserted against a “product seller.”  General Statutes § 52–572n.  A “product seller” is defined as “any person or entity, including a manufacturer, wholesaler, distributor or retailer who is engaged in the business of selling such products whether the sale is for resale or for use or consumption.  The term ‘product seller’ also includes lessors or bailors of products who are engaged in the business of leasing or bailment of products.”  General Statutes § 52–572m(a).  Since Radlo did not supply the eggs in issue in this case, it is not the “product seller.”

In an effort to create a material issue of fact as to whether the eggs came from Radlo, the plaintiff offered an affidavit of Attorney Drzislav Coric, excerpts from the deposition of Zane Megos, a copy of plaintiff's grocery store receipt, and a letter from Marvin Brown, a Technical Specialist for Radlo's insurance carrier, admitting that “Radlo Foods produces Natures Promise products,” but denying liability for the incident.  The letter stated, in pertinent part, as follows:  “No clear evidence has been presented linking your client's unfortunate illness to the Natures Promise eggs he purchased.  None of the medical records specifically indicate the source of the salmonella ․ Given the above, we must deny your claim for damages against Radlo Foods, LLC. We reserve the right to assert further defenses if necessary.”

Plaintiff argues that, since the denial letter from Radlo's insurance carrier did not claim that Radlo did not supply the eggs that plaintiff purchased, it creates a genuine issue of fact on the point.  The court is not persuaded.  The letter did not admit that Radlo supplied the eggs to the store where the plaintiff purchased the eggs.  The letter specifically denied liability based on lack of medical evidence of causation, and it reserved the right to assert denials on other grounds.  The reservation precludes any adverse inference regarding subjects not addressed in the letter.  Absent any other proof that Radlo was the “product seller” of the eggs that the plaintiff consumed, the claim against Radlo fails, and the defendant, Radlo, is entitled to judgment as a matter of law.

III

For all of the foregoing reasons, the court finds that the material facts are not in dispute and the defendant, Radlo Foods, LLC, is entitled to judgment as a matter of law.  Therefore, the defendant's motion for summary judgment is granted and judgment enters in favor of the defendant, Radlo Foods, LLC, as to Count Two of the plaintiff's complaint only.  The case remains pending as to the remaining parties.

Robert F. Vacchelli

Judge, Superior Court

Vacchelli, Robert F., J.