Opinion
No. CV-09-6000802-S
January 21, 2010
RULING ON DEFENDANT'S MOTION TO STRIKE
I. INTRODUCTION
The defendant, Big Y Foods, Inc. ("Big Y") has moved to strike the plaintiff's one-count complaint that alleges a claim under Connecticut's Product Liability Act, Conn. Gen. Stat. § 52-572m et seq. (the "CPLA"). In the complaint, the plaintiff alleges that while walking through the doors of the defendant's premises in Manchester, CT on November 3, 2006 "the electric sliding door slammed shut on the Plaintiff's ankle." Compliant, ¶¶ 2, 4. She further alleges that the defendant had the responsibility of "maintaining, testing, and warning patrons about all defects in the electric sliding door on its premises." Complaint, ¶ 3. She alleges that the defendant is liable under the CPLA for injuries she received as a result of the door closing on her ankle because: a) the door was defective and in an unreasonably dangerous condition; b) the defendant failed to warn or instruct the plaintiff of the danger; c) the defendant failed to disclose the dangerous propensities of the door; d) the defendant failed to adequately test the door before placing it in use; and e) the defendant allowed customers to walk through the door despite knowing of its dangerous propensities. Complaint, ¶ 7.
The defendant has moved to strike the complaint arguing that the CPLA only applies to "product sellers" as defined in Conn. Gen. Stat. § 52-572m(a), and nowhere in the complaint does the plaintiff allege that the defendant is a product seller. The plaintiff filed an opposition focusing on Conn. Gen. Stat. § 52-572m(b), arguing that section defines a "product liability claim" as including those based on a failure to properly test a product or a failure to properly warn or instruct customers. According to the plaintiff, Big Y "was in the business of testing, warning and instructing customers of the use and defects of the electric sliding door." Plaintiff's Objection p. 3.
The court notes that the plaintiff's Objection was filed on January 15, 2010. The matter was scheduled to be considered on the January 19, 2010 short calendar. Thus, the Objection was not filed at least five days before the short calendar as required by Practice Book § 10-42(b). While the court could disregard the Objection for this reason, it has the discretion to consider it, particularly where, as here, the defendant has not objected to the tardy filing. See Scelfo v. Town of Brooklyn, 2009 Ct.Sup. (LOIS) 14628, 48 CLR 432 (Conn.Sup.Ct. August 31, 2009) (Riley, J.). Given that the Objection was filed only one day late, it is based solely on the language of the statute in question, and there is no objection from the defendant to the late filing, the court has in fact considered the argument set forth by the plaintiff in the Objection.
II. LEGAL STANDARD
The standard for ruling on a motion to strike is well established. "We take the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in 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 . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Citations omitted; internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 317-18, 907 A.2d 1188 (2006).
III. LEGAL ANALYSIS
Accepting the allegations in the complaint as true and viewing them in a light most favorable to the plaintiff, the question is whether the plaintiff has alleged sufficient facts to state a claim against the defendant under the CLPA. Conn. Gen Stat. § 52-572n is clear that product liability claims may be asserted against "product sellers." Nothing in the CPLA provides for claims against those who are not product sellers. Conn. Gen. Stat. § 52-572m(a) defines "product seller" as "any person or entity, including a manufacturer, wholesaler, distributor or retailer who is engaged in the business of selling such products whether the sale is for resale or for use or consumption. The term "product seller" also includes lessors or bailors of products who are engaged in the business of leasing or bailment of products. (Emphasis added.)
The complaint does not allege, either explicitly or by inference, that the defendant is a product seller. In particular, the complaint does not allege or suggest that the defendant was in the business of selling, leasing or bailment of electric sliding doors.
The plaintiff has not argued otherwise in her Objection. In fact, she ignores the "product seller" requirement of the statute. She instead focuses on the nature of her claim — that the defendant did not properly test, warn or instruct on the use and defects of the door. She goes so far as to argue that the defendant was in the business of such testing, warning and instructing. While such allegations might support a common-law negligence claim against the defendant, they cannot support a claim under the CPLA.
Without an allegation that the defendant is a "product seller" the plaintiff's claim under the CPLA is legally insufficient. The defendant's motion to strike is GRANTED.