JEZEK v. OG INDUSTRIES, INC.

Full title: SCOTT JEZEK, EXECUTOR OF THE ESTATE OF ELIZABETH REEDY v. OG INDUSTRIES…

Court: Connecticut Superior Court Judicial District of Middlesex at Middletown

Date published: Mar 23, 2006

2006 Ct. Sup. 7957 (Conn. Super. Ct. 2006)

Opinion

No. CV 04-5000017S

March 23, 2006

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT

JULIA L. AURIGEMMA, JUDGE.

The defendant, OG Industries, Inc. ("OG"), has moved for summary judgment on the grounds that 1) all counts of the complaint are barred by the applicable statute of limitations; 2) the defendant did not have possession or control over the site of the accident; and 3) the Fifth Count fails to allege the necessary elements of a CUTPA claim.

Facts

The complaint alleges that on June 19, 1990, OG entered into a written contract with Windham Community Memorial Hospital (the "Hospital") to build and renovate portions of the Hospital, including the construction of a new surgery unit, women's center, intensive care unit, and medical nursing unit. The complaint further alleges that the plaintiff's decedent, Elizabeth Reedy, fell in the handicapped restroom at the Hospital on September 26, 2001 and sustained injuries.

The affidavit of Paul Patch, assistant secretary of OG, states that OG completed construction of the handicapped restroom at the Hospital in 1993, and performed no work in that restroom after 1993. That affidavit further states that OG did not have possession or control of the handicapped restroom at the Hospital on September 26, 2001.

The plaintiff has not proffered any evidence contrary to that provided by OG. Thus, there is no contested issue of fact with respect to the last date on which OG performed work in the restroom in question.

Discussion of the Law and Ruling Practice Book § 17-49 (formerly § 384) 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. Fojtik v. Hunter, 265 Conn. 385, 389, 828 A.2d 596 (2003); Mytych v. May Dept. Stores Co., 260 Conn. 152, 158-59, 793 A.2d 1068 (2002); Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact, together with the evidence disclosing the existence of such an issue. Practice Book §§ 17-45, 17-46; Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Town Bank Trust Co. v. Benson, 176 Conn. 304, 309, 407 A.2d 971 (1978); Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). The test is whether a party would be entitled to a directed verdict on the same facts. Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982); New Milford Savings Bank v. Roina, 38 Conn.App. 240, 243-44, 659 A.2d 1226 (1995). Summary judgment should only be granted if the pleadings, affidavits and other proof submitted demonstrate that there is no genuine issue as to any material fact. Scinto v. Stam, 224 Conn. 524, 530, cert. denied, 114 S.Ct. 176, 126 L.Ed.2d 136 (1993); Connell v. Colwell, 214 Conn. 242, 246, 571 A.2d 116 (1991). Summary judgment is "designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. City of New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).

The first two counts of the complaint sound in negligence and are governed by Connecticut General Statutes § 52-584, which provides:

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, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.

The plaintiff has relied incorrectly on the case of Tarnowsky v. Socci, 271 Conn. 284, 856 A.2d 408 (2004). In Tarnowsky, the injury to the plaintiff occurred more than two years but less than three years before he commenced his action. The Supreme Court held that the two years did not begin to run until the plaintiff knew or should have known the identity of the tortfeasor. The Court in Tarnowsky specifically held that lack of knowledge of the identity of the tortfeasor would not extend the three-year bar date:

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, supra, at p. 297.

This case is clearly different from Tarnowsky. The "act or omission complained of" here occurred no later than 1993. The suit was commenced on September 17, 2004. Even if the plaintiff had first learned the defendant's identity the very day before he commenced suit, Counts One and Two would be barred under § 52-584 because they were brought more than three years after the act or omission complained of.

The Third Count of the complaint alleges that the plaintiff was a third-party beneficiary to the contract between OG and the Hospital. The Fourth Count alleges an implied warranty based upon the contract between OG and the Hospital.

Connecticut General Statutes § 52-576 sets forth the applicable statute of limitations for a breach of a written contract. It provides:

No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues . . .

Where the plaintiff's claim of injury arises due to work performed pursuant to a contract, as in this case, the right of action accrues when the work is performed under the contract. Amoco Oil Co. v. Liberty Auto Electric Co., 262 Conn. 142, 154, 810 A.2d 259 (2002). The complaint alleges a contract dated June 19, 1990. It fails to allege when the work was performed. The affidavit of Paul Patch states that the work was completed in 1993. Even if we assume that OG last performed on December 31, 1993, the plaintiff still failed to bring the action within six years of that date. The Third and Fourth Counts of the complaint are barred by the statute of limitations.

In the Fifth Count of the complaint the plaintiff alleges a violation of Connecticut General Statutes § 42-110a, et seq., the Connecticut Unfair Trade Practices Act ("CUTPA"). Section 42-110g(f) provides that "an action under this section may not be brought more than three years after the occurrence of a violation of this chapter." The alleged violation, the failure to properly install the handicapped rail, occurred no later than December 31, 1993.

The plaintiff concedes that the statute of limitations for a CUTPA action is three years, but contends that an issue of fact remains with respect to the "continuing course of conduct" exception noted in Fichera v. Mine Hill Corp., 207 Conn. 204, 541 A.2d 472 (1988). In Fichera the Court stated:

To support a finding of a "continuing course of conduct" that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto.

207 Conn. at p. 209.

The complaint does not allege a continuing course of conduct, and the plaintiff has provided no facts which would give rise to OG's duty to continue to act after December 31, 1993. The Fifth Count is barred by the applicable statute of limitations.

The defendant has argued that as an additional ground for summary judgment, it cannot be liable under a negligence theory because it was not in possession or control of the premises. The legal responsibility for maintaining premises in a reasonably safe condition depends on who has possession and control of those premises. Mozeleski v. Thomas, 76 Conn.App. 287, 294 (2003). In this case OG was not in possession or control of the area where Elizabeth Reedy allegedly sustained her injury.

The final grounds for the summary judgment as to the Fifth Count is that it fails to contain the necessary elements of a CUTPA claim. Connecticut General Statutes § 42-110(b)(a), provides: "No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." General Statutes § 42-110a(4) defines "trade" and "commerce" as "the advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal or mixed, and other article, commodity, or thing of value in this state."

In determining whether certain acts constitute a violation of CUTPA, courts "have adopted certain criteria set out in the cigarette rule by the federal trade commission . . . (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [(competitors or other businessmen)]." Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 591, 657 A.2d 212 (1995). "All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one criteria or because to a lesser extent it meets all three . . . Thus a violation of CUTPA may be established by showing either an actual deceptive practice or a practice amounting to a violation of public policy." Associated Investment Co. Ltd. Partnership v. Williams Associates IV, 230 Conn. 148, 156, 645 A.2d 505 (1994).

Acts of negligence can be the basis of a legitimate CUTPA claim. However, those negligent acts must still satisfy the criteria set forth in the "cigarette rule." A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 217, 579 A.2d 69 (1990). The Connecticut Supreme Court has held that the first prong, by itself, is insufficient to support a CUTPA violation, at least when the underlying claim is grounded solely in negligence. Id. Negligent acts, in general, are not inherently immoral, unethical, oppressive, or unscrupulous. CUTPA deals with actions that cause unjustified consumer injury rather than a personal injury based upon negligence. A-G Foods, Inc. v. Pepperidge Farm, Inc., supra, 216 Conn. 217.

Negligently installing a handicapped railing cannot be characterized as being unethical, oppressive or unscrupulous. Moreover, the plaintiff did not suffer a financial injury as a consumer, rather, she suffered a personal injury. CUTPA deals with actions that cause unjustified consumer injury rather than a personal injury based upon negligence. A-G Foods, Inc. v. Pepperidge Farm, Inc., supra.

For the reasons set forth above, summary judgment may enter in favor of the defendant on all counts of the complaint.