Opinion
CV146047894S
02-03-2016
Gerard Burkett v. Yale-New Haven Hospital, Inc
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#110)
Robin L. Wilson, J.
FACTS
On June 18, 2014, the plaintiff, Gerard Burkett, filed a two-count complaint against the defendant, Yale New Haven Hospital, Inc. alleging negligence and general allegations under the theory of res ipsa loquitur. In count two of the complaint, which is titled res ipsa loquitur and is at issue in the present motion, the plaintiff alleges the following facts. On or about July 5, 2012, and for a long time prior thereto, the defendant through its agents, servants and/or employees, owned, managed, controlled, maintained and possessed land and buildings called Yale New Haven Hospital located at 20 York Street, New Haven, Connecticut.
On July 12, 2012, at approximately 2:30 p.m., the plaintiff was seated in a wheelchair in the waiting room at the Emergency Department at Yale New Haven Hospital awaiting medical attention for his ankle which had been injured at work that morning. The plaintiff went to use the bathroom located in the waiting area. Inside the bathroom, he reached out to hold onto the handicap rail and as he did so, the rail became dislodged from the wall causing him to fall on the floor resulting in injuries and damages. The area occupied by the Emergency Room Department and the bathroom where the plaintiff fell were under the control of the defendant. The plaintiff alleges that the incident was due to the negligence and carelessness of the defendant in that the defendant: failed to make a proper and reasonable inspection of the handicap rail; the handicap rail was not properly attached to the wall so as to support the weight of patients who need to use it; the defendant maintained the handicap railing in a dangerous and unsafe condition; the defendant knew or in the exercise of reasonable care and inspection should have known of the dangerous condition and should have taken measures to remedy and correct it. The plaintiff further alleges in paragraph six of count two that " [i]n the ordinary course of events, no injury would have occurred to the plaintiff by holding onto the handicap rail except for the lack of ordinary care by the Defendant."
The defendant argues that count two is legally insufficient to state a claim upon which relief can be granted because res ipsa loquitur is a doctrine of evidence and not a cause of action separate and distinct from a claim of negligence. The plaintiff objects to the motion to strike on grounds that res ipsa loquitur is pled here as an alternative theory of negligence based on circumstantial evidence, and as such, the pleading is sufficient and proper to give notice to the defendant that the plaintiff intends to rely on the doctrine. The court heard oral argument on the motion at short calendar on February 1, 2016.
DISCUSSION
" The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). " The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011). " In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
" Res ipsa loquitur certainly is not an independent cause of action but only a doctrine of evidence and thus not separate from a negligence claim. But certainly a claim of negligence can be based on a statement of facts and circumstances giving rise to the application of res ipsa loquitur. In fact, if a plaintiff is relying on a negligence claim framed in this way, because we are a fact pleading state, the plaintiff must set forth factual allegations raising this doctrine." (Citations omitted; internal quotation marks omitted.) Benoit v. Athanasiadis, Superior Court, judicial district of New London, Docket No. CV-1206013227, (November 16, 2012, Martin, J.) .
Our Appellate Court in Gilbert v. Middlesex Hospital, 58 Conn.App. 731, 755 A.2d 903 (2000), has clearly stated that in order for the theory of res ipsa loquitur to be raised at trial, the complaint must contain allegations of negligence based upon the theory. The court in Gilbert noted: " A complaint must fairly put the defendant on notice of the claims of negligence against him . . . The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise . . . Only those issues raised by the plaintiffs in the latest complaint can be tried before the jury . . ." (Citations omitted; internal quotation marks omitted.) Id., 734.
" Although generally accepted that res ipsa loquitur is not a separate cause of action; see Gilbert v. Middlesex Hospital, supra, 58 Conn.App. at 734; our trial courts have preserved separate claims based on res ipsa loquitur to permit plaintiff's to later assert these claims at trial. 'The case law does suggest that the doctrine of res ipsa loquitur is properly plead as a separate cause of action where the plaintiff intends to rely upon the general cause of the injury without alleging specific acts of negligence.' Gilliam v. Thomas, Superior Court, judicial district of Fairfield, Docket No. CV 95 0324686 (November 20, 1997, Melville, J.) . " 'While this court recognizes that the plaintiff's second count fails to state an independent cause of action, it nevertheless states a cause of action. If the motion to strike were to be granted, there would be no allegations in the complaint supporting a res ipsa loquitur claim, possibly precluding the plaintiff from pursuing such a claim at trial. The court does not perceive that the defendant will suffer any harm if the second count is not stricken.' Goldblatt v. TJX Companies, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 09 5011719 (October 18, 2010, Tobin, J.). 'The plaintiffs are entitled to plead in the alternative and present in their complaints both claims of specific acts of negligence and circumstantial claims of negligence, such as res ipsa loquitur.' James v. Kinder-Garden Learning Center, Superior Court, judicial district of New Haven Docket No. CV 09 6003352, (October 21, 2009, Alander, J.). 'A plaintiff may be permitted to allege a situation where the doctrine of res ipsa loquitur might be applicable as an alternative theory of negligence, as a separate count in his or her complaint.' Kohlberg v. St. Francis Hospital, Superior Court, judicial district of Hartford, Docket No. CV 04 0834211, (January 23, 2006, Miller, J.)." Benoit v. Athanasiadis, supra, Superior Court, Docket No. CV-1206013227.
It is clear that " res ipsa loquitur is not a separate cause of action. Our courts are also generally in agreement as to this part of the issue. See Gilbert v. Middlesex Hospital, supra, 58 Conn.App. 734; Goldblatt v. TJX Companies, Inc., supra, Superior Court, Docket No. CV 09 5011719; Kohlberg v. St. Francis Hospital, supra, Superior Court, Docket No. CV 04 0834211. There is little appellate authority with regard to whether a count based on res ipsa loquitur survives a motion to strike. Pursuant to the case law cited above, the Superior Court, however, on multiple occasions, has reasoned that a separate count sounding in negligence but predicated on the theory of res ipsa loquitur can survive a motion to strike. See, e.g. Gilliam v. Thomas, supra, Superior Court, Docket No. CV 95 0324686, (where the court reasoned that res ipsa loquitur is properly pleaded as a separate cause of action). This approach is consistent with the outcome in Gilbert v. Middlesex Hospital, supra, 58 Conn.App. 734, where the Appellate Court required a plaintiff to set forth factual allegations raising this doctrine. Moreover, the plaintiff may be precluded from pursuing a claim based on res ipsa loquitur if the motion to strike [the res ipsa count] is granted. Goldblatt v. TJX Companies, Inc., supra, Superior Court, Docket No. CV 095011719." Benoit v. Athanasiadis, supra, Superior Court, Docket No. CV-1206013227. Thus, although res ipsa loquitur is not a separate cause of action, the plaintiff's claim must be set forth in order for him to raise this theory at trial. As a result, the defendant's motion to strike must be denied.
CONCLUSION
For the foregoing reasons, the defendant's motion to strike count two is denied.