Opinion
CV166064293S
03-15-2018
Welansa ASRAT v. NIRMALA, LLC et al.
UNPUBLISHED OPINION
Wilson, J.
STATEMENT OF CASE AND PROCEDURAL HISTORY
On August 16, 2016, the plaintiff, Welansa Asrat, filed a three-count complaint (original complaint) against the defendants Nirmala, LLC (Nirmala), Baymont Franchise Systems, Inc. (Baymont), and Wyndham Worldwide Corporation (Wyndham). Counts two and three are directed at the defendants Baymont and Wyndham (defendants). The plaintiff alleges that, while staying as a guest at the Baymont Inn & Suites in Branford (premises), " the plaintiff was caused to walk across a hallway carpet that was soaking wet when she, suddenly and without warning, was caused to fall due to the dangerous condition of the floor, resulting in the injuries and losses hereinafter set forth." Orig. Compl. Count 2 ¶ 4; Count 3 ¶ 5. The original complaint further alleges that the defendants were negligent " [i]n that they failed to keep the premises reasonably safe for persons lawfully using said premises," and makes numerous allegations specific to the hallway carpet and floor. Orig. Compl. Count 2 ¶ 5; Count 3 ¶ 6. The plaintiff alleges that Wyndham is the parent company of Baymont, and that the defendants possessed, controlled, owned, and/or maintained the premises.
On September 12, 2017, the defendants, Baymont and Wyndham filed a motion for summary judgment on counts two and three of the plaintiff’s original complaint. The defendants argued in their motion that they did not owe the plaintiff a duty of care because there is no genuine issue of material fact that neither defendant owned, operated, managed, maintained, possessed, supervised, or had day-to-day control over the premises at the time of the plaintiff’s fall. The plaintiff filed an objection to the defendants’ motion for summary judgment on October 27, 2017, and argued for the first time that the plaintiff in fact fell on a concrete walkway just outside of the hotel, and that the defendants’ " System Standards" contributed to the plaintiff’s fall. Specifically, the plaintiff argued that " the walkway where the plaintiff fell in this case was painted using an exterior paint that contributed to her fall ... Further discovery, including a scheduled site inspection, could reveal that paint was used that was not in accordance with acceptable industry standards. The movants should be estopped from denying control and all responsibility when the impetus for the very defect, which contributed to the plaintiff’s fall began with their directive." Pl.’s Obj. to Mot. Sum. J., p. 9. The motion for summary judgment was heard at short calendar on November 20, 2017, at which time the plaintiff notified the court and defendants’ counsel of her intention to file a request for leave to amend her complaint. On December 4, 2017, the plaintiff filed a request for leave to amend her complaint along with a supporting memorandum of law. The proposed amended complaint adds that the plaintiff was caused to fall " upon exiting the interior of the hotel to the parking lot due to the dangerous and slippery condition of the wet carpet and concrete walkway outside the building ..." and further alleges that the defendants were negligent that they failed to keep all walking surfaces, and in particular the concrete walkway outside the hotel, reasonably safe and slip resistant under foreseeable conditions." Pl.’s Proposed Am. Compl. Count 2 ¶¶ 4-5; Count 3 ¶¶ 5-6. The defendants filed an objection to the request for leave to amend on December 15, 2017. The defendant’s objection to the plaintiff’s request for leave to amend, and the defendants’ motion for summary judgment were heard at short calendar on January 2, 2018.
The court, in a separate Memorandum of Decision dated March 15, 2018, granted the defendant’s motion for summary judgment (#113).
DISCUSSION
I
REQUEST FOR LEAVE TO AMEND
" Practice Book § 10-60(a) provides that a party may amend his or her pleadings in three ways: by order of the judicial authority, by written consent of the adverse party, or by filing a request for leave to file such amendment, with the amendment appended. If no party files an objection, the amendment is deemed to have been filed by consent, but if an objection is filed, the matter is placed upon the next short calendar for consideration of the court." GMAC Mortgage, LLC v. Ford, 144 Conn.App. 165, 184, 73 A.3d 742 (2013). " While our courts have been liberal in permitting amendments ... this liberality has limitations. Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment ... The motion to amend is addressed to the trial court’s discretion which may be exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial ... Whether to allow an amendment is a matter left to the sound discretion of the trial court. [The reviewing court] will not disturb a trial court’s ruling on a proposed amendment unless there has been a clear abuse of that discretion." (Internal quotation marks omitted.) Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 255, 905 A.2d 1165 (2006). " [A]mendments relate back to the date of the complaint unless they allege a new cause of action." (Internal quotation marks omitted.) Giglio v. Connecticut Light & Power Co., 180 Conn. 230, 239, 429 A.2d 486 (1980). " If a new cause of action is alleged in an amended complaint, however, it will [speak] as of the date when it was filed." (Internal quotation marks omitted.) Wagner v. Clark Equipment Co., 259 Conn. 114, 129, 788 A.2d 83 (2002) ... Accordingly, " [t]he court must first determine whether the new allegations ‘relate back’ to the original complaint." Labutis v. Meriden/Meriden Public Library, Superior Court, judicial district of New Haven, Docket No. CV-16-6059852-S (April 20, 2017, Wilson, J.).
A
The Relation Back Doctrine
In support of her request for leave to amend the complaint, the plaintiff argues that she is only expanding upon and clarifying facts already alleged in the original complaint. The plaintiff argues that she is specifying the location of her fall as just outside the doorway at the end of the carpeted hallway floor, which was already identified in the complaint. She further argues that the defendants are not prejudiced because no new issues or theories of liability are being alleged, and the defendants have been on notice of the exact location where the plaintiff claims to have fallen since the plaintiff’s deposition. In their objection to the request for leave to amend, the defendants argue that the proposed amendment does not relate back to the original complaint because the plaintiff seeks to add a new cause of action and a new defective condition. The defendants further argue that the original complaint did not give the defendants notice that the area outside of the hotel was allegedly defective, and that this new claim would require the defendants to research, test, and discover whether the walkway was reasonably safe and slip resistant nearly three years ago.
" The relation back doctrine has been well established by this court." Alswanger v. Smego, 257 Conn. 58, 64, 776 A.2d 444 (2001). " Our relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims ... To relate back to an earlier complaint, the amendment must arise from a single group of facts." (Citation omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 559-60, 51 A.3d 367 (2012). " Under the relation back doctrine, a party properly may amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same ... If a new cause of action is alleged in an amended complaint ... it will [speak] as of the date when it was filed ... A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief ... It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but [when] an entirely new and different factual situation is presented, a new and different cause of action is started." (Internal quotation marks omitted.) Austin-Casares v. Safeco Ins. Co. of America, 310 Conn. 640, 656, 81 A.3d 200 (2013).
" In determining whether an amendment relates back to an earlier pleading, we construe pleadings broadly and realistically, rather than narrowly and technically ... [T]he complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties ... Our reading of pleadings in a manner that advances substantial justice means that a pleading must be construed reasonably, to contain all that it fairly means, but carries with it the related proposition that it must not be contorted in such a way so as to strain the bounds of rational comprehension ... Finally, in the cases in which we have determined that an amendment does not relate back to an earlier pleading, the amendment presented different issues or depended on different factual circumstances rather than merely amplifying or expanding upon previous allegations." (Citation omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, supra, 306 Conn. 560.
" If new allegations state a set of facts that contradict the original cause of action, which is the transaction or occurrence underpinning the plaintiff’s legal claim against the defendant, then it is clear that the new allegations do not fall within the scope of the original cause of action and, therefore, do not relate back to the original pleading. But an absence of a direct contradiction must not end the trial court’s inquiry. The trial court must still determine whether the new allegations support and amplify the original cause of action or state a new cause of action entirely. Relevant factors for this inquiry include, but are not limited to, whether the original and the new allegations involve the same actor or actors, allege events that occurred during the same period of time, occurred at the same location, resulted in the same injury, allege substantially similar types of behavior, and require the same types of evidence and experts." Briere v. Greater Hartford Orthopedic Group, P.C., 325 Conn. 198, 211, 157 A.3d 70 (2017). An amendment may properly be denied if it will require the defendant " to gather different facts, evidence and witnesses to defend the amended claim." See Gurliacci v. Mayer, 218 Conn. 531, 549, 590 A.2d 914 (1991).
The Supreme Court recently addressed the issue of the relation back doctrine in Briere v. Greater Hartford Orthopedic Group, P.C., supra, 325 Conn. 198. The factual allegations in Briere involved an allegedly negligently performed spinal surgery, which resulted in the plaintiff suffering quadriparesis. Id., 200. The original complaint in Briere contained general allegations that the defendant surgeon " failed to perform a safe and effective operation" ; id., 211; and that the plaintiff’s " injuries were caused by an instrumentality solely within the defendants’ control" ; id., 212; but also contained more specific allegations concerning the surgeon’s use of a skull clamp during surgery. Id., 211-12. In the plaintiff’s amended complaint, " the plaintiff removed the allegations related to the skull clamp and added allegations that [the surgeon] had failed to properly apply a retractor blade during surgery." Id., 203. The Supreme Court held that, " [i]n construing the original complaint ... the plaintiff’s cause of action is that [the surgeon] negligently performed spinal surgery on the plaintiff, resulting in the plaintiff’s injuries. While count one of the original complaint does focus on improper use of the skull clamp, read as a whole it includes more general allegations that [the surgeon] failed to properly perform the surgery." Id., 213. The court also noted that the plaintiff’s original complaint contained an allegation that the plaintiff’s " injuries were caused by an instrumentality solely in [the surgeon’s] control ... At the very least, this additional count put the defendants on notice that the plaintiff’s claim was not limited to the skull clamp allegations. Reading the two counts together, the transaction or occurrence that formed the basis of the plaintiff’s claim was that [the surgeon] improperly used medical instruments during the plaintiff’s spinal surgery, resulting in his injury." Id., 213-14. Accordingly, the Supreme Court affirmed the lower court’s holding that the amended complaint related back to the original complaint. Id., 214.
In the present matter, reading the plaintiff’s original complaint quite broadly, there is some support in Briere that the plaintiff’s proposed amended complaint relates back to the original complaint. Just as the Supreme Court in Briere found that the original complaint contained " general allegations that [the surgeon] failed to properly perform the surgery" ; id., 213; this court could credit the plaintiff’s original, general allegations that the defendants failed to keep the premises reasonably safe, and find that the proposed amendment expands upon and amplifies this original allegation. However, a close reading of the Supreme Court’s analysis and reasoning in Briere, along with other relevant case law, supports this court’s denial of the plaintiff’s request for leave to amend.
Preliminarily, the decision in Briere turned on the court’s characterization of the plaintiff’s " original cause of action, which is the transaction or occurrence underpinning the plaintiff’s legal claim against the defendant." Id., 210. In the present matter, although the plaintiff’s original complaint does contain a broad statement about the unsafe condition of the premises, the original cause of action stems specifically from the defective condition of the hallway floor. Particularly in the context of premises liability cases, the plaintiff must identify the specific defect that caused the alleged injury. See e.g., DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 117, 49 A.3d 951 (2012) (" notice [of the defective condition], whether actual or constructive, must be notice of the very defect which occasioned the injury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it" [internal quotation marks omitted] ); Riccio v. Harbour Village Condominium Ass’n, Inc., 281 Conn. 160, 164, 914 A.2d 529 (2007) (" the burden rests upon the plaintiff, first, to offer evidence sufficiently describing the condition of the [property] so as to afford a reasonable basis in the evidence for the jury to find that a defective condition in fact existed" [internal quotation marks omitted] ). Unlike Briere, where the plaintiff’s general allegations " put the defendants on notice that the plaintiff’s claim was not limited to the skull clamp allegations" ; Briere v. Greater Hartford Orthopedic Group, P.C., supra, 325 Conn. 213; neither the plaintiff’s general reference to the defendants’ failure to keep the premises reasonably safe, nor the more specific reference to the defective carpet and hallway floor, would fairly put the defendants on notice that the walkway outside of the hotel was also defective. Accordingly, the additional language in the amended complaint referring to the slippery condition of the concrete walkway outside of the hotel does not merely expand upon the original complaint, but changes the cause of action entirely.
Further, as noted in Briere, the court may consider several factors when determining whether the new complaint relates back to the original complaint. Briere v. Greater Hartford Orthopedic Group, P.C., supra, 325 Conn. 211. Of the factors specifically enumerated in Briere, the plaintiff’s proposed amended complaint makes allegations against the same actors, during the same period of time, resulting in the same alleged injury. These factors alone, however, are not sufficient to grant the plaintiff’s request for leave to amend. See Alswanger v. Smego, supra, 257 Conn. 68 (" The amended complaint, although alleging negligence related to the same surgery as the original complaint, had its basis in a different set of facts from the original complaint. That the injuries alleged and the parties involved in each complaint were identical did not eliminate the fact that the complaints were based on different facts" ). Moreover, the proposed amended complaint implicates a new location of the injury, different types of behavior, and different evidence and experts. As previously stated, in a premises liability case, the plaintiff must identify the specific defect that caused the alleged injury. Here, the specific defect identified in the original complaint was the soaking wet carpet and the hallway floor, not the condition of the concrete walkway outside of the hotel. The behavior at issue is also entirely different. In the original complaint, the plaintiff’s allegations included the defendants’ failure to remove water from the carpet or warn the plaintiff of the dangerous condition. The proposed amended complaint changes the behavior at issue to include the defendants’ alleged failure to keep the concrete walkways outside of the hotel " slip resistant." See Pl.’s’ Proposed Am. Compl. Count 2 ¶ 5; Count 3 ¶ 6. Although perhaps not directly contradictory, the plaintiff’s new allegation effectively argues that, regardless of the wet carpet, the plaintiff would not have fallen but for the defendants’ failure to keep the concrete surface outside of the building " reasonably safe and slip resistant." See Pl.’s Proposed Am. Compl. Count 2 ¶ 5; Count 3 ¶ 6. Finally, the proposed amended complaint implicates new evidence and experts. As the defendants note in their objection, the average juror would not know whether a concrete surface is slip resistant, thus requiring additional discovery, testing, and an expert witness to determine whether the ground outside of the hotel had a slip resistant surface. Taken together, these three factors weigh against granting the request for leave to amend.
Finally, the Appellate Court’s decision in Patterson v. Szabo Food Service, Inc., 14 Conn.App. 178, 540 A.2d 99, cert. denied, 208 Conn. 807, 545 A.2d 1104 (1988), as well as this court’s decision in Labutis v. Meriden/Meriden Public Library, supra, Superior Court, Docket No. CV-16-6059852-S, support a denial of the request for leave to amend. The plaintiff in Patterson sustained injuries when he slipped and fell on a floor operated by the defendant. Patterson v. Szabo Food Service, Inc., supra, 179. The original complaint alleged that the plaintiff " slipped on a greasy substance on the tile floor" ; id., 180; and that the defendant was negligent in failing to properly clean or otherwise warn the plaintiff " of the dangerous and defective condition of the floor." See id., 181. Thereafter, the plaintiff filed a substitute complaint in which he alleged, inter alia, that the defendant " had installed or maintained a highly polished and slippery terrazzo floor ..." Id. The Appellate Court noted that " the substitute complaint presents a new and different factual situation from that stated in the original complaint and ... it therefore states a new and different cause of action. Although both complaints sound in negligence, the substitute complaint does not merely expand and amplify the allegations made in support of his cause of action. The original cause of action was based upon a claim that the defendant failed to clean the floor and keep it free of food deposits. The new cause of action is based upon a claim that the defendant installed or maintained a highly polished and slippery terrazzo floor and employed a method of food distribution which created a dangerous condition on the slippery floor." Id., 183. Accordingly, the substitute complaint did not relate back to the original complaint, and " the trial court ought to have granted the [defendant’s] motion for summary judgment." Id. ; see also Sandvig v. A. Dubreuil & Sons, Inc., 68 Conn.App. 79, 86, 789 A.2d 1012 (2002) (" The original complaint alleged that the defendant negligently failed to finish the floor in the area by the ramp. The proposed amended complaint alleged that the defendant negligently damaged the tiles when it installed the ramp. To prove that the defendant actively damaged the tiles requires a different factual predicate than to prove that the defendant failed to repair already damaged or exposed tiles. Because the plaintiff must prove a different set of facts, the amendments constitute new and different causes of action, and, therefore, do not relate back to the original complaint." [Emphasis added.] )
Similarly, the plaintiff in Labutis v. Meriden/Meriden Public Library, supra, Superior Court, Docket No. CV-16-6059852-S, also sustained injuries when she slipped and fell on the defendant’s premises. Unlike Patterson, however, the plaintiff in Labutis made allegations in her original complaint that the defendant " failed to use an anti-slip surface on the threshold and floor inside the door in the vicinity of the plaintiff’s fall." Id. The proposed amendment repeated the initial allegations of the original complaint, but added violations of applicable building and safety codes. Id. This court granted the plaintiff’s request for leave to amend, stating that " [t]he new allegations set forth in the plaintiff’s proposed amendment ... support and amplify those allegations of negligence contained in the original complaint ... The allegations of slippery, wet and unsafe conditions and the lack of a non-skid surface at the library entrance are contained in the original complaint." Id. Citing to Briere, this court observed that " the proposed new and changed allegations provide fair notice to the defendants because said allegations fall [squarely] within the scope of the original cause of action ... namely, allegations of a slippery, wet and unsafe condition and the lack of a non-skid surface at the library entrance where the plaintiff fell; which is the transaction or occurrence underpinning the plaintiff’s legal claim against the defendant[s]." (Citation omitted; internal quotation marks omitted). Id.
The factual allegations in the present case are analogous to those at issue in Patterson, and the court therefore denies the plaintiff’s request for leave to amend on grounds similar to those set forth in Patterson . Here, although the original complaint sounded in the defendants’ failure to remedy the condition of the wet carpet and floor, the new cause of action is based upon the claim that the defendants failed to keep the outside concrete walkway in a slip resistant condition. As in Patterson, the amended complaint " presents a new and different factual situation from that stated in the original complaint and ... it therefore states a new and different cause of action." Patterson v. Szabo Food Service, Inc., supra, 14 Conn.App. 183. This court’s outcome was different in Labutis, in part because the plaintiff’s original complaint contained allegations about the lack of a non-skid surface. Labutis v. Meriden/Meriden Public Library, supra, Superior Court, Docket No. CV-16-6059852-S. No such allegations exist in the present matter. Finally, although the Supreme Court in Briere held that the plaintiff’s amended complaint related back to the original complaint on the basis of " general allegations" of negligence; Briere v. Greater Hartford Orthopedic Group, P.C., supra, 325 Conn. 213; here, the plaintiff’s allegations about the wet carpet, the hazardous hallway floor, and the defendants’ failure " to keep the premises reasonably safe" did not put the defendants on notice that the concrete walkway outside of the hotel was also defective.
B
Injustice to the Parties or Delay of the Trial
In her request for leave to amend the complaint, the plaintiff argues that her request has been timely made, and that denying the request to amend would work a greater injustice to her than to the defendants. The plaintiff argues that the defendants deposed the plaintiff and have been on notice of the exact area where she claims to have fallen; therefore, the proposed amendment does not prejudice the defendants. The plaintiff also argues that denying the request for leave to amend would extinguish her claims against the defendants. In their objection to the request for leave to amend, the defendants argue that the plaintiff’s new claim would require new analysis and expert testimony to determine whether the ground outside was reasonably safe and slip resistant nearly three years ago, beyond the statute of limitations. The defendants further argue that allowing the request to amend would unduly delay the trial, which had been scheduled for January 9, 2018. Finally, the defendants argue in the alternative that the plaintiff’s request to amend should be denied because it was filed in response to the defendants’ motion for summary judgment.
" It is well settled that whether to allow an amendment to the pleadings rests within the discretion of the trial court ... The essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay a trial ... The trial court is in the best position to assess the burden which an amendment would impose on the opposing party in light of the facts of the particular case." (Citation omitted; internal quotation marks omitted.) Summitwood Development, LLC v. Roberts, 130 Conn.App. 792, 800, 25 A.3d 721 (2011), cert. denied, 565 U.S. 1260, 132 S.Ct. 1745, 182 L.Ed.2d 530 (2012).
In Rizzuto v. Davidson Ladders, Inc., supra, 280 Conn. 252, the plaintiff claimed on appeal that the trial court improperly denied his request to file an amended complaint to add that the defendant’s intentional destruction of evidence violated CUTPA on the ground that the proposed amendment was untimely. The court noted that " [t]he plaintiff discovered Home Depot’s destruction of evidence in 1999, but did not seek to allege a violation of CUTPA until November 2002, at which point the trial was only four months away. The proposed amendment would have injected new and complex legal issues into the litigation concerning the scope and applicability of CUTPA and, moreover, would have required additional discovery concerning Home Depot’s alleged ‘pattern [and] practice’ of destroying evidence in other cases. Moreover, the trial date had been continued repeatedly for approximately two years, and the plaintiff himself had objected to any further delays. Because the trial court reasonably could have concluded that granting the plaintiff’s request to file a second amended complaint would have delayed the trial and prejudiced the defendants, the trial court did not abuse its discretion by denying the plaintiff’s request." (Footnotes omitted; internal quotation marks omitted.) Id., 257-58.
In Burton v. Stamford, 115 Conn.App. 47, 57, 971 A.2d 739, aff’d in part, rev’d in part on other grounds, cert. denied, 293 Conn. 912, 978 A.2d 1108 (2009), the trial court had permitted the plaintiff to amend his complaint after it had directed a verdict in its favor. The defendant argued on appeal that the trial court abused its discretion in permitting the plaintiff to amend his complaint, but the Appellate Court was unconvinced. Id., 58. " In passing on a motion to amend, a court must consider the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment." (Internal quotation marks omitted.) Id., 61. The trial court concluded that " the plaintiff’s counsel were negligent in not requesting the amendment prior to the granting of a directed verdict ... The resolution of the amendment issue therefore depends on whether ... the other relevant factors outweigh that negligence. In considering those other factors, the court found that the requested amendment would not have caused any substantial delay in the trial, noting that the defendant’s counsel opined at argument on the motion that no significant delay was likely. The court further found that the denial of the amendment caused more unfairness and prejudice to the plaintiff than the granting of the amendment would have caused to the defendant ... [T]he denial [of the motion to amend] turned a plaintiff claiming serious injuries out of court without a decision on the merits of his claim. Permitting the amendment would have caused the defendant only to have to reframe its request to charge and final arguments to the jury in terms of one statute rather than another. The key liability issues would be the same under either statute ..." (Internal quotation marks omitted.) Id. Thus, the Appellate Court found no abuse of discretion by the trial court in granting the plaintiff’s request to amend. Id., 62.
In Miller v. Fishman, 102 Conn.App. 286, 293, 925 A.2d 441 (2007), cert. denied, 285 Conn. 905, 942 A.2d 414 (2008), the plaintiffs claimed on appeal " that the [trial] court abused its discretion in refusing to permit an amendment to their operative complaint to conform to allegations that were broadly stated in their original complaint and that had surfaced during litigation." The allegations in the plaintiff’s original complaint " arose from the defendant’s allegedly negligent treatment of the plaintiff mother and failure to obtain her informed consent" and " encompassed the defendant’s alleged negligence in managing the delivery of the minor plaintiff ..." Id., 299-300. The plaintiffs’ proposed amended complaint sought to add additional medical malpractice allegations against the defendant. See id., 289-90. The Appellate Court reversed the trial court’s decision, stating that it did " not agree that under the circumstances of this case, granting the amendment would have unduly delayed trial or unfairly prejudiced the defendant. The plaintiffs’ request to amend was filed approximately one month prior to the date jury selection was scheduled to begin and did not set forth new theories of liability. Rather, the proposed amendment merely enumerated the specific facts supporting the plaintiffs’ claims that had been revealed through discovery." Id., 295. This discovery included opinions from the plaintiffs’ expert witnesses that the defendant obstetrician’s conduct had fallen below the standard of care. See id., 296-97. The court held that the defendant " had been apprised of the actual bases of the plaintiffs’ claims through the course of the litigation" and that " the proposed amendment did not alter the substance of the plaintiffs’ claims, and, therefore, the preparation of a defense would not have required significant additional time and resources, resulting in delay and prejudicing the defendant." Id., 297. Moreover, the court held that the proposed amended complaint related back to the plaintiff’s original complaint. Id., 297-98. Accordingly, the Appellate Court held that the trial court’s denial of the plaintiffs’ request to amend constituted an abuse of discretion. Id., 300.
In the present case, the plaintiff argues that the Appellate Court’s decision in Miller is directly on point. As in Miller, the plaintiff here had filed her request for leave to amend one month before the trial. The court’s analysis in Miller, however, is distinguishable. Preliminarily, the court in Miller held that the plaintiff’s proposed amended complaint related back to the plaintiff’s original complaint. Miller v. Fishman, supra, 102 Conn.App. 297-98. As discussed previously in this opinion, the plaintiff’s proposed amended complaint in the present case does not merely expand or amplify her original complaint, but states a new cause of action.
The court in Miller also held that the proposed amended complaint did not assert new theories of liability; see Miller v. Fishman, supra, 102 Conn.App. 295; or require significant additional time and resources to defend. Id., 297; see also Burton v. Stamford, supra, 115 Conn.App. 61 (" [t]he key liability issues would be the same" ). In the present case, although the plaintiff continues to allege negligent conduct by the defendants, the plaintiff’s proposed amendment regarding the concrete surface would present new issues, namely, whether the concrete walkway was not slip resistant and caused the plaintiff’s fall outside of the hotel. See Alswanger v. Smego, supra, 257 Conn. 68 (denying plaintiff’s request for leave to amend where " [t]he amended complaint, although alleging negligence related to the same surgery as the original complaint, had its basis in a different set of facts from the original complaint" ); see also Sandvig v. A. Dubreuil & Sons, Inc., supra, 68 Conn.App. 84-85 (denying plaintiff’s request to amend because, although original and proposed complaint both sounded in negligence, plaintiff’s amended negligence claims stated new causes of action). The defendants in the present case would require additional discovery and expert testimony, including analysis of the concrete surface from nearly three years ago, to defend the plaintiff’s new claim. Accordingly, unlike Miller, defending the proposed amended complaint in the present case would require " significant additional time and resources, resulting in delay and prejudicing the defendant." Miller v. Fishman, supra, 102 Conn.App. 297. See also Daly v. Quinnipiac University, Superior Court, judicial district of New Haven, Docket No. CV-10-6015076-S (February 7, 2013, Lager, J.) (denying plaintiff’s request for leave to amend because defendant " will have ‘to gather different facts, evidence and witnesses to defend the amended complaint,’ Gurliacci v. Mayer, [ 218 Conn. 531, 549, 590 A.2d 914 (1991) ]" ).
Furthermore, the court in Miller observed that the defendant obstetrician was on notice of the actual bases of the plaintiff’s claims through the course of the litigation. Miller v. Fishman, supra, 102 Conn.App. 297. In the present case, knowledge that the plaintiff had fallen outside would not adequately put the defendants on notice that the alleged defect was outside; rather, as stated in the original complaint, the alleged defect consisted of a " soaking wet" hallway floor and the defendants’ failure to remedy or warn of such condition.
Instead, the present matter is more closely analogous to Rizzuto v. Davidson Ladders, Inc., supra, 280 Conn. 225. In Rizzuto, the Supreme Court denied the plaintiff’s request for leave to amend in part because the plaintiff had knowledge regarding the destruction of evidence, but did not seek to amend the complaint until three years later. Id., 257. Further, allowing the amendment in Rizzuto " would have required additional discovery" on a new legal issue. See id. Similarly, in the present case, the plaintiff was aware of the fact that she had fallen outside of the hotel in April of 2015, but did not allege any defect with the concrete or outside walkway until over two years later, weeks before the scheduled trial date. As in Rizzuto, defending this claim would require additional discovery and further delay the start of trial.
Finally, although the plaintiff argues that denying the request for leave to amend would extinguish her claims against the defendants, the plaintiff will still have her day in court against Nirmala, who has conceded possession and control over the premises. See Defs.’ Mot. Sum. J., Ex. A. Denying the request for leave to amend will not, therefore, " [turn] a plaintiff claiming serious injuries out of court without a decision on the merits of [her] claim." Burton v. Stamford, 115 Conn.App. 61.
Accordingly, the court therefore exercises its discretion and denies the plaintiff’s request for leave to amend because such amendment does not relate back to the original complaint and would unfairly prejudice the defendant and unduly delay the trial.
CONCLUSION
For the foregoing reasons, the defendant’s objection to the plaintiff’s request for leave to amend the complaint is sustained.