Opinion
No. WWM CV09-6000817S
July 21, 2010
MEMORANDUM OF DECISION RE MOTION TO STRIKE #106
The plaintiff has brought a three-count complaint against the defendants, Nestle Purina Petcare Company (Purina) and Petco Animal Supply Stores, Inc. (Petco) alleging claims in product liability and intentional spoliation of evidence. The defendant has moved to strike count three on the ground that the claim is legally insufficient because the plaintiff has failed to allege any facts which demonstrate that the defendants intentionally spoliated evidence.
On November 5, 2009, the plaintiff, Helen Hollingsworth, filed a three-count complaint against the defendants, Nestle Purina Petcare Company (Purina) and Petco Animal Supplies Stores, Inc. (Petco), alleging claims in product liability and intentional spoliation of evidence. The plaintiff alleges the following facts. Purina was engaged in the business of manufacturing, supplying and/or selling dog food known as "Purina Pro Plan." On November 17, 2008, the plaintiff purchased two packages of Purina Pro Plan from Petco in Dayville. On November 21 and 22, 2008, the plaintiff fed the dog food to her dachshunds. Thereafter, four dachshunds developed peracute hemorrhagic gastroenteritis and one of them, a stud dog, died. As a result, the plaintiff has suffered injuries.
In count one, the plaintiff alleges a claim of product liability against Purina and, in count two, alleges a claim of product liability against Petco. In count three, the plaintiff alleges a claim of intentional spoliation of evidence against Purina. In particular, the plaintiff claims that after her dogs fell ill, she contacted Purina and "advised it of her claim that the defective nature of its dog food was the cause of the peracute hemorrhagic gastroenteritis suffered by her dogs and the death of her stud dog." Purina requested a sample of the dog food eaten by the dogs and the plaintiff complied. "After receiving the dog food sample sent by the plaintiff, and knowing that the plaintiff had a pending or impending civil action against it, [Purina], its agents, servants and/or employees, intentionally and in bad faith destroyed it with the purpose and effect depriving the plaintiff from establishing a prima facie case of product liability against the defendants in the impending case." Moreover, the plaintiff claims that Purina's "spoliation of the dog food renders the plaintiff . . . unable to establish a prima facie case against the [defendants]."
On March 26, 2010, the defendants filed a motion to strike count three of the plaintiff's complaint on the ground that the claim is legally insufficient because the plaintiff has failed to allege any facts which demonstrate that Purina intentionally spoliated evidence. Pursuant to Practice Book § 10-42(a), the defendants filed a memorandum of law in support of their motion. On April 13, 2010, the plaintiff filed an objection to the defendants' motion to strike and memorandum of law in support thereof, pursuant to Practice Book § 10-42(b).
"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). "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). As a result, "[t]he role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "[I]n determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action, . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). Nevertheless, "[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 498.
"Each motion to strike must be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies." Practice Book § 10-42(a). The Supreme Court has held that "[w]e are not required to review issues that have been improperly presented to [the] court through an inadequate brief . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issues properly . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned." (Emphasis added; internal quotation marks omitted.) Connecticut Light Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003). "The design of [our practice book] rules, [however], being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence [to them] will work surprise or injustice." Practice Book § 1-8.
In the present case, the defendants have met the bare requirements of § 10-42(a). They included a citation to the relevant case law outlining the elements of a cause of action for intentional spoliation of evidence; see Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 244-45, 905 A.2d 1165 (2006); and included analysis of two of those elements with respect to the complaint in the present case. It would appear, therefore, that the court should address the issues raised by the defendants.
In their memorandum of law in support of the motion to strike, the defendants argue that the plaintiff has failed to provide factual support for her legal conclusion that (1) Purina knew of a "pending or impending civil action" or that (2) Purina "intentionally and in bad faith destroyed [the sample] with the purpose and effect [of] depriving the plaintiff from establishing a prima facie case of product liability." In particular, the defendants argue that knowledge of a "claim" is not the same as knowledge of an "impending civil action." Moreover, the defendants argue that the plaintiff has not alleged any facts that show that the test results were unfavorable to Purina or that Purina knew that the sample it was provided was all that remained of the dog food.
In response, the plaintiff counters that her claim for damages with Purina put it "on notice for the potential for litigation." Furthermore, the plaintiff argues that she need not allege that the test results were unfavorable to Purina because if she could establish this fact then she would possess sufficient evidence to satisfy her burden of production in the underlying litigation, rendering the tort of intentional spoliation of evidence unnecessary. Moreover, the plaintiff argues that there is no prima facie element of the tort that the defendant knew that the spoliated evidence was all that remained.
"Intentional spoliation of evidence is defined as the intentional destruction, mutilation, or significant alteration of potential evidence for the purpose of defeating another person's recovery in a civil action." (Internal quotation marks omitted.) Rizzuto v. Davidson Ladders, Inc., supra, 280 Conn. 243. "[T]he tort of intentional spoliation of evidence consists of the following essential elements: (1) the defendant's knowledge of a pending or impending civil action involving the plaintiff; (2) the defendant's destruction of evidence; (3) in bad faith, that is, with intent to deprive the plaintiff of his cause of action; (4) the plaintiff's inability to establish a prima facie case without the spoliated evidence; and (5) damages." Id., 244-45.
In the present case, the defendants argue that the plaintiff has failed to comply with elements one and three of the tort. In particular, the defendants argue that knowledge of the claim does not impute knowledge of a pending or impending civil action. There is no appellate authority on this issue, however, the Superior Court has concluded that "knowledge of a pending or impending civil action," includes "knowledge that the [p]laintiff was injured . . . and that a civil action might result from the incident." (Emphasis added; internal quotation marks omitted.) Diana v. NetJets Services, Inc., 50 Conn.Sup. 655, 676, 974 A.2d 841 [ 44 Conn. L. Rptr. 696] (2007). The reasoning in Diana is persuasive. The plaintiff has sufficiently pleaded the first element of the cause of action because she has alleged that she informed Purina of her "claim" and, therefore, it knew "that the plaintiff had a pending or impending civil action against it."
The defendants further argue that the plaintiff failed to allege that Purina destroyed the sample intentionally and in bad faith because the plaintiff has not alleged any facts that show that Purina knew of an impending civil action, that Purina knew the test results were unfavorable or that Purina knew that the sample it was provided was all that remained of the dog food. As mentioned above, Purina could be imputed with knowledge of an impending civil action because the plaintiff alleged that it had knowledge of the plaintiff's claim. Moreover, while knowledge of unfavorable test results about the sample of dog food and knowledge that the sample was all that remained of the evidence would tend to show that Purina knew that it would benefit from the spoliation and, therefore, destroyed the evidence intentionally and in bad faith, "[t]here is no requirement in Rizzuto that the spoliator victim must allege that the spoliator defendant must benefit from the spoliation." Diana v. NetJets Services, Inc., supra, 50 Conn.Sup. 677. Indeed, "[i]f the plaintiff could establish precisely what the spoliated evidence would have shown, the tort would be unnecessary because the plaintiff would possess sufficient evidence to satisfy his burden of production in the underlying litigation." Rizzuto v. Davidson Ladders, Inc., supra, 280 Conn. 245.
Rather, " Rizzuto narrows the class of potential spoliation defendants to those who knowingly and wilfully destroy evidence with an eye to affecting the outcome of litigation." Diana v. NetJets Services, Inc., supra, 50 Conn.Sup. 672. Tracking the language for the bad faith element of the tort outlined in Rizzuto, the plaintiff alleges that Purina "intentionally and in bad faith destroyed [the evidence] with the purpose and effect depriving the plaintiff from establishing a prima facie case of product liability against the defendants in the impending case." This allegation, together with Purina's knowledge of the claim, is sufficient to allege that Purina acted intentionally and in bad faith in destroying the dog food. See Rizzuto v. Davidson Ladders, Inc., supra, 280 Conn. 238 n. 7 (mere allegation that defendant destroyed evidence "intentionally" and that "plaintiff may not be able to prove his case" was sufficient to allege that defendants destroyed evidence "in bad faith with the purpose and effect of preventing the plaintiff from establishing a prima facie case").
For the foregoing reasons, the defendants' motion to strike the third count of the plaintiff's complaint is DENIED.