City of Hartford v. Associated Const. Co., 195272
| Citation | 34 Conn.Supp. 204,384 A.2d 390 |
| Decision Date | 09 January 1978 |
| Docket Number | No. 195272,195272 |
| Court | Superior Court of Connecticut |
| Parties | CITY OF HARTFORD v. ASSOCIATED CONSTRUCTION COMPANY et al. |
Gross, Hyde & Williams, Hartford, for plaintiff.
Ribicoff & Kotkin, Hartford, for defendants Skyway All-Weather Crete Co. and Silbrico Corp. BIELUCH, Judge.
The plaintiff brought this action against multiple defendants for property damage resulting from the leaking roof of a school constructed in 1969 and for expenses in repairing and replacing the roof. In the fourth count of the complaint, as amended, the plaintiff alleges the following cause of action against the defendant Silbrico Corporation, hereinafter referred to as Silbrico: (1) "All-Weather Crete" is a registered trademark of the defendant; (2) Silbrico formulated, designed, advertised, manufactured, distributed, sold, nationally promoted, and issued specifications and instructions for the product known as "All-Weather Crete," an insulating base for built-up roofing systems; (3) Silbrico licensed the application and use of its registered trademark "All-Weather Crete" throughout the United States and Canada and made "All-Weather Crete" available through its licensees only; (4) under its licensing agreements, and specifically in the present case under its agreement with Skyway All-Weather Crete Company, hereinafter called Skyway, Silbrico retained and exercised rights of control as to the quality of "All-Weather Crete" as well as the methods and manner of its application; (5) Silbrico derived substantial economic benefit from payments by licensed applicators, including Skyway, under its licensing agreements; (6) Silbrico derived further financial benefit from the sales of perlite ore which it mined and sold to its licensees for use as a necessary component of "All-Weather Crete"; (7) Skyway, as a licensee of Silbrico, purchased perlite ore from Silbrico which it used along with other raw materials to mix and prepare "All-Weather Crete" at the plaintiff's school construction site; (8) Skyway applied the prepared "All-Weather Crete" to the roof deck of the school following the standards and specifications of Silbrico; (9) the "All-Weather Crete" applied to the roof deck of the plaintiff's school was in a condition which conformed to the product formula, specifications and description as provided in the design or product formulation, advertisements, promotional material and trademark licensing agreement of Silbrico; (10) the "All-Weather Crete" so applied was unsafe and in a defective condition unreasonably dangerous to the property of the user or consumer in that moisture would be and was introduced into it and with changes in temperature large cracks and crevices would develop, creating tears in the roofing membrane and causing the roof to leak; (11) numerous leaks and other deterioration of the roofing membrane on the plaintiff's school resulted from the defective design, formulation and specifications for "All-Weather Crete"; and (12) because and as a result of the defects and inadequacies of "All-Weather Crete," the plaintiff has suffered damages for which Silbrico is liable to the plaintiff.
Silbrico has demurred to this cause of action on the ground that it fails to allege a necessary element of a claim for strict liability in tort, namely, "that a defective product was expected to and did reach the plaintiff without substantial change in the condition in which it was sold."
The fourth count of the plaintiff's complaint alleges a cause of action against Silbrico based on strict tort liability. The sole question presented to the court by the defendant's demurrer is whether the cause of action is sufficiently alleged.
The rule of strict tort liability has been codified as § 402 A of volume 2 of the Restatement (Second) of Torts, entitled "Special Liability of Seller of Product for Physical Harm to User or Consumer," which reads as follows:
The law of strict tort liability as defined in § 402 A has been expressly approved in Connecticut in Garthwait v. Burgio, 153 Conn. 284, 289-90, 216 A.2d 189. The minimum essential affirmative allegations of a cause of action based on this theory of the strict liability of a manufacturer or seller of a product to an ultimate user or consumer were subsequently defined in Rossignol v. Danbury School of Aeronautics, Inc., 154 Conn. 549, 561-62, 227 A.2d 418, as consisting of the several conditions precedent to liability specified in § 402 A. The court there observed that the seller's liability is not absolute and concluded (p. 562, 227 A.2d p. 424) that "(s)ince the present complaint contains no allegation that the product . . . was expected to and did reach the plaintiff without substantial change in the condition in which it was sold . . . it lacks an allegation which is essential to the statement of a good cause of action based on strict tort product liability." In a later case the court affirmed that a plaintiff cannot prevail in strict tort liability without alleging and proving this and all other essential elements of the cause of action. Guglielmo v. Klausner Supply Co., 158 Conn. 308, 316, 259 A.2d 608.
Silbrico has relied upon Rossignol and Guglielmo for support of its demurrer. The defendant maintains that the allegation that it furnished a raw material, namely perlite ore, which was not in itself defective, to its licensee as a necessary component of "All-Weather Crete" did not save the complaint from attack by demurrer. Furthermore, the defendant argues that "a product design is not a 'product' within the meaning of the strict liability in tort doctrine."
The plaintiff counters that sufficient allegations for strict tort liability are contained in the count: the product involved in this claim was initially developed and thereafter promoted by Silbrico under a registered trademark, "All-Weather Crete"; the specifications for the composition of "All-Weather Crete" and the instructions for its use were promulgated by Silbrico to its licensees; "All-Weather Crete" was available only through such licensed applicators as Skyway, over whom Silbrico retained and exercised rights of control as to the quality and the methods and manner of application of the product; Silbrico furnished a component material necessary under its licensed formula; Silbrico's licensing agreements constituted all-extensive involvement with its trademark-registered product, "All-Weather Crete," even to the actual final mixture and site installation of it by the licensee under Silbrico's specifications and control; and finally, by Silbrico's licensing agreement with Skyway, its trademark-registered product, "All-Weather Crete," entered the stream of commerce and flowed ultimately onto the plaintiff's school roof, to the physical harm and loss of the plaintiff and to the two-fold financial benefit of Silbrico with income accruing to it both from its licensing arrangement and from the sale of a necessary ingredient to Skyway as its licensee.
The plaintiff, in substance, seeks to impose strict liability upon the owner of a registered trademark who has licensed its composition and use by a franchise agreement with another and thereby caused harm to the property of the ultimate user or consumer of the trademarked product. The claim is unique. It is without precedent or parallel. The issue is, however, of great importance to the commercial marketplace in the light of the contemporary popularity of franchise agreements for the manufacture and sale by licensees of trademarked products in designated territories in substitution for the traditional direct marketing of goods by the trademark owners. It was inevitable that the continuous growth of franchised businesses should present this question for judicial determination. The marketplace is the common denominator of franchising as a fact and strict tort liability as a law, and the two were bound to join in issue for resolution by the court.
A single reported case, while not matching the facts here before the court, is of relevance because it does approach the issue raised by the plaintiff. It is the decision rendered in 1972 by an intermediate appellate court in California in Kasel v. Remington Arms Co., 24 Cal.App.3d 711, 101 Cal.Rptr. 314. There a California hunter sued for personal injuries caused by the explosion of a shotgun shell during a hunting trip in Mexico. The action was based on strict liability under § 402 A and was brought against Remington Arms Company, Inc., a Delaware corporation having its home office in Connecticut, for a defective shell manufactured by CDM, its trademark licensee in Mexico. Remington had caused CDM to be created, owned 40 percent of its outstanding stock, and had interlocking or common directors and officers. Also, in furtherance of its plans for CDM, Remington had entered into three agreements with CEM relating to the manufacture and marketing of ammunition under Remington's trademarks: (1) a trademark license agreement, (2) a contract for the sale of technical information, and (3) a technical services contract. Under the trademark license agreement Remington retained the right to inspect and control the quality of all ammunition on which its trademarks were used. The other two...
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