Cooper v. Ketover

• Decision Date: 10 May 1978
• Docket Number: No. 138416,138416
• Citation: 393 A.2d 64,35 Conn.Supp. 38
• Parties: Debra COOPER, Administratrix (Estate of Alan Benjamin Cooper) v. Richard A. KETOVER et al.
• Court: Connecticut Superior Court

Page 64

393 A.2d 64

35 Conn.Supp. 38

Debra COOPER, Administratrix (Estate of Alan Benjamin Cooper) v. Richard A. KETOVER et al.

No. 138416.

Superior Court of Connecticut, New Haven County.

May 10, 1978.

Cohen & Wolf, Bridgeport, for plaintiff.

Reilly, Peck, Raffile & Lasala, New Haven, for defendant Madison Hardware, Inc.

GRILLO, Judge.

This action arises out of the death of the plaintiff's decedent on September 28, 1973, caused by an explosion fire which occurred when the plaintiff's decedent was using a certain chemical product, "Kutzit," purchased by the decedent at the place of business of the defendant Madison Hardware, Inc. (hereinafter called Madison). The cardinal, and only, issue raised by the defendant and on which is predicated its claim for a judgment on the pleadings is the contention that the plaintiff's action is barred by the statute of limitations, General Statutes § 52-555. ¹ More precisely, it is the claim of the defendant that the amendment to the original cause of action so deviated from the latter that it introduced a new cause of action more than two years after September 28, 1973, and that such an action is barred by § 52-555.

Consideration of the motion requires a recital of the pertinent pleadings filed by the parties: The original action was instituted against several defendants, including the Madison Lumber & Supply Company, and was made returnable to the third Tuesday of February, 1974. On March 19, 1974, the plaintiff was granted permission to cite in Madison Hardware, Inc., alleging that in the original complaint Madison was erroneously designated as Madison Lumber & Supply Company and that the defendant refused "to waive this technical defect." The so-called amended complaint really an original complaint insofar as Madison is concerned was served on Madison on April 27, 1974, well within the two-year period of the death of the plaintiff's decedent. The complaint, succinctly stated, alleged that the death of the plaintiff's decedent was caused by a breach of implied warranty of fitness on the part of Madison. It also averred that the "defendants (sic) negligently gave false information to the deceased that the product Kutzit was suitable for the purpose for which required when in fact it was not." Implicit in the complaint is the assertion that the death of the plaintiff's decedent was proximately caused by a breach of implied warranty and by the negligent giving of false information.

Subsequently, on October 27, 1975, and on December 10, 1975 more than two years after the incident alleged in the plaintiff's original complaint, including the death of the plaintiff's decedent amended complaints were filed and, insofar as Madison is concerned, a change in the allegations of negligence was made. (The reference to implied warranty was omitted. The court, therefore, subsequently expunged the allegation pertaining to the giving of notice relative to the breach of warranty.) This change eliminated the verbiage of the previous claim of negligence the giving of false information by the defendant Madison. Those two amendments set forth pleadings to the effect that the death was caused by the negligence of Madison in that it placed on the market the product Kutzit "with inadequate warnings" to the plaintiff's decedent. This allegation was then followed by allegations setting forth several respects in which the alleged warnings were deemed inadequate. The answer of Madison denied those allegations, and Madison, in addition, proffered a special defense to the effect that the claim of inadequate warning was first made in the December 10, 1975, amendment. (The pleadings indicate that the "inadequate warnings" allegation was also included in the October 27, 1975, amendment. The selection of either date, however, is sufficient to determine the basic issue, as will be obvious.) Madison maintains in its special defense that those allegations of inadequate warning are based on different claims of fact than those set forth in the original complaint and that they were advanced more than two years from the date of the death of the deceased and that the cause of action based upon negligence was barred by the provisions of § 52-555. In her reply the plaintiff denied the allegations of the special defense in toto.

At the outset, it is noted that while the giving of false information may not be equated unqualifiedly with giving an inadequate warning, the two allegations are not necessarily incongruous. "Inadequate" is defined as "insufficient, deficient," and "false" is defined as "erroneous, incorrect . . . not well founded." Webster's Third New International Dictionary. Thus, one may give information that is deficient in that it contained false data.

The defendant has provided the court with several citations supportive of its claim that the cause of action asserted in the amendment claimed to be barred is not the same cause of action originally alleged: Keenan v. Yale New Haven Hospital, 167 Conn. 284, 285-86, 355 A.2d 253 (original malpractice complaint alleged negligence; amendment to complaint asserting assault held barred by statute of limitations); Gallo v. G. Fox & Co., 148 Conn. 327, 331-32, 170 A.2d 724 (allegations as to fall from escalator held to state cause of action distinct from allegations as to fall caused by defective floor); Steinecke v. Medalie, 139 Conn. 152, 154-55, 90 A.2d 875 (amendment to complaint asserting broken, crooked passageway held improper where original complaint alleged unsafe passageway by reason of accumulation of hard-packed or frozen snow); Lund v. Trojanski, 29 Conn.Sup. 69, 71-72, 271 A.2d 123 (amendment to complaint held barred by statute of limitations where original complaint stated no cause of action); Beauvillier v. Finn, 25 Conn.Sup. 361, 362-63, 204 A.2d 415 (original complaint sounded in mere negligence; amendment asserting wanton misconduct held barred by statute of limitations); Bransfield v. Goodrich Tire Co., 23 Conn.Sup. 365, 366-67, 183 A.2d 754 (amendment to complaint alleging personal injuries barred by statute of limitations where original complaint asserted automobile property damage only). The attempted "shift" in the allegations in those cases is clearly distinguishable from the change made in the amendment to which Madison objects.

Connecticut courts have been liberal in allowing amendments to a complaint from early days. See Beers v. Woodruff & Beach Iron Works, 30 Conn. 308, where an action for fraud in the manufacture of a steam boiler was allowed to be amended whereby the cause of action was made to be negligence in its manufacture. See also Johnston v. Sikes, 56 Conn. 589, and cases cited therein, relating to this liberal policy. This trend has been continued to the present day: First Federal Savings & Loan Assn. v. Deane, 29 Conn.Sup. 505, 506, 294 A.2d 84 (filing of "Substitute Complaint" containing two counts sounding in contract held to relate back to date of original complaint containing two counts sounding in negligence); Briggs v. Merrell, 27 Conn.Sup. 60, 62 (substituted complaint asserting breach of warranty,...