Summary
dismissing common law negligence claim because CPLA provides exclusive remedy for claims falling within its scope
Summary of this case from Adkins v. Nestle Purina Petcare Co.Opinion
No. CV10-6006342
February 23, 2011
Memorandum of Decision on Defendants' Motions to Strike (Nos. 103 105)
Plaintiff claims that she purchased a container of crasins (being dried cranberries produced by the defendant Ocean Spray Cranberries, Inc.) at the Costco store in Norwalk operated by the defendant Cosco, Inc. a/k/a Costco Wholesale Corporation. Plaintiff alleges that she broke a tooth and suffered injuries when she bit into a craisin which had a piece of metal attached to it. The claims against both defendants are pleaded in a single-count complaint. The defendants have separately moved to dismiss the complaint under the exclusive remedy provision of the Connecticut Product Liability Act. Because the allegations against each defendant differ, the motions will be separately discussed.
All factual allegations (but not legal conclusions) of the complaint will be treated as admitted for purposes of determining the sufficiency of the complaint. Mingachos v. CBS, Inc., 224 Conn. 210, 215 (1992).
A. Motion to Strike of the Defendant Ocean Spray Cranberries, Inc. (No. 103)
The allegations against Ocean Spray are that "the existence of the metal attached to the crasin was due to negligence in the processing or packaging of the item by the defendant Ocean Spray Cranberries, Inc." (Complaint, ¶ 8). Ocean spray seeks to strike on the ground that this is a product liability claim for which the exclusive remedy is a claim under the Connecticut Product Liability Act, Conn. Gen. Stat. §§ 52-672m- 52-572w (The "Act"). Section 52-572n(a) of the Act provides:
A product liability claim as provided in sections 52-240a, 52-240b, 52-572m to 52-572q, inclusive, and 52-577a may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability and warranty for harm caused by a product.
It has been held that § 52-572n(a), despite the provision that a product liability claim "may be asserted" under the Act, establishes that the product liability act is the exclusive remedy for claims falling within its scope, and that common-law theories of liability such as negligence are not available for a products liability claim and are subject to being stricken. Winslow v. Lewis-Shepard, Inc., 212 Conn. 462 (1989).
The court holds that the plaintiff's claim against Ocean Spray is a product liability claim. Plaintiff alleges that her injuries were caused by Ocean Spray's processing or packaging of the crasins. Under the Act a "product seller" is defined to include a "manufacturer" (§ 52-572m(a)) and manufacturer includes "product sellers who design, assemble, fabricate, construct, process, package, or otherwise prepare a product" (§ 52-572m(e)). The term "product" is not defined in the Act, but it is well established that food items are products under the Act. See Williams v. McDonald's of Torrington, No. CV96-0562657S, Superior Court, Judicial District of Hartford (May 8, 1997, Hale, J.T.R), 1997 Conn.Super LEXIS 1281 [ 19 Conn. L. Rptr. 427] (a hamburger); Nocera v. Howley Bread Group, No.CV09-5013050S, Superior Court, Judicial District of New Britain (July 23, 2009, Pittman, J.), 2009 Conn.Super LEXIS 2057 (coffee); and Bacci v. Sunrise Produce Co., No. 0120544, Superior Court, Judicial District of Waterbury (December 8, 1995, Flynn, J.), 1995 Conn.Super LEXIS 3417 [ 15 Conn. L. Rptr. 482] (eggs). Since the claim against Ocean Spray is within the scope of the Act, the exclusivity provision bars a negligence action. The motion of Ocean Spray to strike the complaint is therefore granted.
B. Motion to Strike of the Defendant Costco, Inc. (Costco Wholesale Corporation) (No. 105)
The only liability allegation against Costco is that "The Defendant Costco, Inc. is responsible as the seller of the defective food product." (Complaint, ¶ 9.) This is not a negligence or other common-law claim. It is a product liability claim against a product seller under the Act. It does not run afoul of the exclusive remedy provision of the Act. The motion of the defendant Costco to strike the complaint is therefore denied.
Order
Motion to Strike No. 103 is granted. Motion to strike No. 105 is denied. The plaintiff shall file a substituted complaint removing all allegations against defendant Ocean Spray Cranberries, Inc.