K-Mart Corp. v. Midcon Realty Group of Conn.

Decision Date07 May 1980
Docket NumberCiv. No. H 79-496.
Citation489 F. Supp. 813
CourtU.S. District Court — District of Connecticut

Robert Louis Genuario, Norwalk, Conn. (Keogh, Candee & Burkhart), for plaintiffs.

Richard C. Robinson, Hartford, Conn. (Sorokin, Sorokin, Hurwitz, Wetstone, Rabinovitz & Gasser), for defendant Lawrence H. Furman.


JOSE A. CABRANES, District Judge:

This case has its origin in the collapse of part of the roof of a retail store in Manchester, Connecticut in January 1978. Plaintiffs K-Mart Corporation and K-Mart Apparel Corporation (collectively "K-Mart"), which operated the store on premises owned by Midcon Realty Group of Connecticut, Ltd. ("Midcon"), brought this action against three defendants—Midcon, which built the store and leased it to K-Mart; Peter J. Saker, Inc. ("Saker"), the general contractor for the construction of the store; and Lawrence H. Furman, the architect who designed the building.

In its complaint, K-Mart asserts two claims against Furman. In Count VIII, K-Mart alleges that Furman, who was retained by Midcon to design the building, negligently drafted plans for a structure which was incapable of surviving anticipated weather conditions and was unsafe for its intended uses, and failed to take reasonable steps to warn K-Mart of the dangers caused by his designs. In Count IX, which is the subject of the motion now before the court, K-Mart alleges that, as a result of Furman's sale to Midcon of "working drawings, plans and specifications" which were unreasonably dangerous to users of the building, Furman is accountable, under the doctrine of strict tort liability, for property damage sustained by K-Mart when the roof collapsed.

Furman has moved, pursuant to Rule 12(b)(6), Fed.R.Civ.P., for an order dismissing Count IX for failure to state a claim upon which relief can be granted. The court finds that under the law of Connecticut, which governs this case, the theory of strict liability in tort does not extend so far as to include the claim of a building's user that the architect of the building is liable, without proof of negligence, as a consequence of his sale of allegedly "defective" designs to the persons who constructed the building. Accordingly, Furman's motion to dismiss Count IX of the complaint is granted.

The Allegations of Count IX

For the purposes of a motion to dismiss for failure to state a claim, the wellpleaded factual allegations of the complaint are taken to be true. See Miree v. DeKalb County, 433 U.S. 25, 27 n.2, 97 S.Ct. 2490, 2492 n.2, 53 L.Ed.2d 557 (1977); California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 515, 92 S.Ct. 609, 614, 30 L.Ed.2d 642 (1972). However, the court need not accept averments which are legal conclusions unsupported by the facts alleged elsewhere in the complaint. See Mitchell v. Archibald & Kendall, 573 F.2d 429, 432 (7th Cir. 1978); Associated Builders, Inc. v. Alabama Power Co., 505 F.2d 97, 100 (5th Cir. 1974); Pauling v. McElroy, 278 F.2d 252, 253-54 (D.C. Cir.) (per curiam), cert. denied, 364 U.S. 835, 81 S.Ct. 61, 5 L.Ed.2d 60 (1960); Abruscato v. Local 199, Industrial Workers of Allied Trades, 297 F.Supp. 481, 483 (S.D.N.Y.1969); 2A Moore's Federal Practice ¶ 12.08 at 2265-69 & n.4 (2d ed. 1979). The allegations relevant to this motion are summarized below.

According to K-Mart's complaint, Midcon and Furman entered into an agreement which required Furman to provide the "working drawings, plans and specifications" for the Manchester K-Mart store (Complaint, Count IX, ¶ 12). Furman is "engaged in the business of preparing working drawings, plans and specifications for buildings such as" that store. (Id. ¶ 15). K-Mart alleges that Furman's designs for the building were "defective, and unreasonably dangerous to the user of the building"; that "the building constructed in accordance with Furman's working drawings, plans and specifications was such that it would not withstand expected weather conditions"; and that "the roof of the building had a natural tendency to collapse." (Id. ¶ 14). Shortly after Furman completed his "working drawings, plans and specifications," defendants Midcon and Saker used them, "without substantial change as far as the design of the building is concerned," to construct the building. (Id. ¶ 16). In 1972, the K-Mart store "was completed substantially in accordance with Furman's working drawings, plans and specifications" (Id. ¶ 16). From 1972 to 1978, K-Mart operated a store in the building, where it kept a substantial amount of inventory, stock, trade fixtures, merchandise and personal property. (Id. ¶¶ 8-9). As a result of the defective designs prepared by Furman, two portions of the roof of the store collapsed during the period January 18-20, 1978, destroying K-Mart's property. (Id. ¶¶ 10, 18).

Jurisdiction and Governing Law

Federal jurisdiction over this action is founded upon diversity of citizenship, pursuant to 28 U.S.C. § 1332(a)(1).1 Accordingly, this court must apply Connecticut conflict of laws rules to determine what law governs the case. See Day & Zimmermann, Inc. v. Challoner, 423 U.S. 3, 96 S.Ct. 167, 46 L.Ed.2d 3 (1975); Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). In tort actions, Connecticut courts follow the rule of lex loci delicti — i. e., "the creation and extent of liability in tort are fixed by the law of the state in which the tort is committed." Bissonnette v. Bissonnette, 145 Conn. 733, 734, 142 A.2d 527, 528 (1958). See also Gibson v. Fullin, 172 Conn. 407, 411, 374 A.2d 1061, 1064 (1977).2 Because, for choice of law purposes, Connecticut law deems a tort to have been committed in the state where the injury occurred, Patch v. Stanley Works, 448 F.2d 483, 491 (2d Cir. 1971); Landers v. Landers, 153 Conn. 303, 304-05, 216 A.2d 183, 184 (1966), the products liability law of Connecticut — the state in which the property damage is alleged to have occurred — controls, even if Furman prepared the allegedly defective designs in another state.

Strict Tort Liability Under Connecticut Law

In cases involving personal injury or property damage allegedly caused by defective products, the Connecticut Supreme Court has consistently followed the rule of strict liability set forth in Restatement (Second) of Torts § 402A (1965). See, e. g., Hoelter v. Mohawk Services, Inc., 170 Conn. 495, 500-01, 365 A.2d 1064, 1066 (1976); Marko v. Stop & Shop, Inc., 169 Conn. 550, 553, 364 A.2d 217, 219 (1975); Wachtel v. Rosol, 159 Conn. 496, 499-500, 271 A.2d 84, 85-86 (1970); Rossignol v. Danbury School of Aeronautics, Inc., 154 Conn. 549, 559-60, 227 A.2d 418, 423 (1967); Garthwait v. Burgio, 153 Conn. 284, 289, 216 A.2d 189, 192 (1966).3 The relevant section of the Restatement provides:

§ 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
The Inapplicability of the Strict Tort Liability Doctrine to the Facts Pleaded in Count IX

In support of this motion, Furman argues that he provided professional services, rather than "products," to Midcon, so that the doctrine of strict tort liability arising out of the sale of a defective "product" may not be applied to this case. See Gibson v. Sonstrom, 2 Conn.L.Trib.No. 103, p. 3 (Super.Ct.Hartford Cty. Nov. 3, 1976) (construction company which installed a driveway provided a service, not a "product"; plaintiff's personal injury claim against the company did not state a cause of action under strict tort liability theory). In opposition to the motion to dismiss Count IX, K-Mart, relying upon its allegation that Furman sold "working drawings, plans and specifications" for the K-Mart store, insists that this case concerns tangible "products" sold by an architect whose business is the sale of such products. See Vincenzo v. Trus Wall Systems, Inc., 5 Conn.L.Trib.No. 34, p. 19 (Super.Ct.New Haven Cty. July 26, 1979) ("defective design" of wood trusses supporting a roof constituted a "product" for purposes of a strict tort liability claim).

Whether Furman provided Midcon with professional "services" or tangible "products" is an open question, both as a matter of semantics and as a matter of Connecticut tort law. Either term describes reasonably well what Midcon purchased from Furman, and, as the conflicting approaches in recent Superior Court cases show, it is not clear whether the law of this state would deem Furman to have sold "products," rather than "services," for the purposes of section 402A. Compare Gibson v. Sonstrom, supra (the "concept of product has not yet been sufficiently broadened to include work rendered under individually-tailored service and construction contracts") with Vincenzo v. Trus Wall Systems, Inc., supra ("the definition of `product' should not be so narrow as to exclude a design"). See generally Sales, The Service-Sale Transaction: A Citadel Under Assault, 10 St. Mary's L.J. 13 (1978); Note, Products and the Professional: Strict Liability in the Sale-Service Hybrid Transaction, 24 Hastings L.J. 111 (1972); Note, The Application of Implied Warranties to Predominately "Service" Transactions, 31 Ohio St.L.J....

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8 cases
  • Wilson v. Midway Games, Inc.
    • United States
    • U.S. District Court — District of Connecticut
    • 27 de março de 2002
    ... ... alleged elsewhere in the complaint." K-Mart Corp. v. Midcon Realty Group of ... Page 171 ... Conn., Ltd., 489 F.Supp. 813, 814 (D.Conn. 1980) ... ...
  • Halstead v. United States
    • United States
    • U.S. District Court — District of Connecticut
    • 10 de março de 1982
    ...court finds most instructive on this point Judge Cabranes' exhaustive consideration of the issue in K-Mart et al. v. Midcon Realty Group of Conn., et al., 489 F.Supp. 813 (D.Conn.1980). In K-Mart, the defendant, an architect, agreed to provide drawings, plans and specifications for a buildi......
  • Mueller by Mueller v. Parke Davis, a Div. of Warner-Lambert Co.
    • United States
    • New Jersey Superior Court — Appellate Division
    • 12 de dezembro de 1991
    ... ... See Conn.Gen.Stat.Ann. § 52-577a. Applying the law of ... Rimrock Corp., 207 Conn. 599, 610, 542 A.2d 720, 725 (1988); ... See K-Mart Corp v. Midcon Realty Group of ... Conn., 489 ... ...
  • Saloomey v. Jeppesen & Co.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 10 de maio de 1983
    ...that are proximately caused by defects in the charts. See Halstead II, supra, 535 F.Supp. at 791; K-Mart Corp. v. Midcon Realty Group, 489 F.Supp. 813, 816-19 & 818 n. 7 (D.Conn.1980); Restatement (Second) of Torts Sec. 402A comments c, f Jeppesen also levies an assault on the jury's findin......
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2 books & journal articles
  • 3d Printing and Why Lawyers Should Care
    • United States
    • Kansas Bar Association KBA Bar Journal No. 88-2, February 2019
    • Invalid date
    ...games are not "products" as contemplated by strict liability doctrine). [91] See K-Mart Corp. v. Midcon Realty Grp. of Conn., Ltd., 489 F. Supp. 813 (D. Conn. 1980) (architect's design not subject to product liability law because the design was substantially transformed into physical plant)......
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    • United States
    • Kansas Bar Association KBA Bar Journal No. 88-2, February 2019
    • Invalid date
    ...games are not “products” as contemplated by strict liability doctrine). [91] See K-Mart Corp. v. Midcon Realty Grp. of Conn., Ltd., 489 F.Supp. 813 (D. Conn. 1980) (architect’s design not subject to product liability law because the design was substantially transformed into physical plant).......

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