Truglio v. Hayes Construction Co.

• Decision Date: 06 November 2001
• Docket Number: (AC 20681)
• Citation: 66 Conn. App. 681,785 A.2d 1153
• Court: Connecticut Court of Appeals
• Parties: MARY TRUGLIO ET AL. v. HAYES CONSTRUCTION COMPANY

66 Conn. App. 681

785 A.2d 1153

MARY TRUGLIO ET AL. v. HAYES CONSTRUCTION COMPANY

(AC 20681)

Appellate Court of Connecticut.

Argued June 4, 2001.

Officially released November 6, 2001.

Landau, Spear and Mihalakos, JS. Jonathan N. Perkins, with whom, on the brief, were Joseph Dieso and John C. Mayano, for the appellants (plaintiffs).

Robert L. Cavanaugh, Jr., for the appellee (defendant).

Opinion

MIHALAKOS, J.

In this action, which was commenced pursuant to the Connecticut Product Liability Act (act),¹ the plaintiffs, Mary Truglio and Peter Truglio, appeal from the summary judgment rendered in favor of the defendant, Hayes Construction Company. On appeal, the plaintiffs claim that the trial court improperly (1) permitted the defendant to challenge the legal sufficiency of their complaint in its motion for summary judgment and (2) granted the defendant's motion for summary judgment. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the disposition of the plaintiffs' appeal. On November 23, 1998, the plaintiffs filed an amended complaint in which they alleged that the defendant was liable to them for damages resulting from a fall Mary Truglio had suffered while walking on a sidewalk in 1996. In support of that allegation, the plaintiffs pleaded the following: (1) a defect in the sidewalk caused Mary Truglio to fall; (2) the defendant constructed that sidewalk in a defective manner; (3) that sidewalk was a "product" under the act; (4) the defendant was a "product seller," as defined in the act; and (5) the defendant was liable under the act for damages resulting from the fall.² On December 22, 1999, the defendant filed a motion for summary judgment. In support of its motion, the defendant submitted the affidavit of Stephen D. Hayes, its vice president, who averred, inter alia, that the form and pour method was the only method that the defendant employed to construct sidewalks. On February 1, 2000, the plaintiffs filed a memorandum of law in opposition to the defendant's motion for summary judgment. In support of their opposition to the defendant's motion, the plaintiffs submitted the affidavit of Edward Halprin, who averred that in his expert opinion, the front curbing, the bricks of the planter and the pavers had been delivered to the site of the sidewalk and installed. Halprin, in his affidavit, did not offer an opinion as to how the sidewalk itself had been constructed. On February 28, 2000, the plaintiffs filed a memorandum of law supplementing their opposition to the motion for summary judgment, in which they alleged that Hayes' affidavit was not based on personal knowledge and, therefore, was invalid.

On March 21, 2000, the court granted the defendant's motion for summary judgment, concluding that (1) the sidewalk that the defendant had constructed was not a "product" and (2) therefore, the plaintiffs' claims were beyond the scope of the act. In so doing, the court consulted the Model Uniform Product Liability Act (model act), 44 Fed. Reg. 62,714-50 (1979), because the legislature, in General Statutes § 52-572m et seq., had not defined the word "product." The model act provides in relevant part: "`Product' means any object possessing intrinsic value, capable of delivery either as an assembled whole or as a component part or parts, and produced for introduction into trade or commerce...." 44 Fed. Reg. 62,717. Applying that definition, the court concluded that the on-site construction of a sidewalk using the form and pour method was not a product but a service. After reviewing the parties' affidavits, the court concluded that Hayes' averment that the defendant used only the form and pour method was uncontested. Consequently, because no genuine issue of material fact remained as to whether the sidewalk was a "product," the court concluded that the plaintiffs' claims were beyond the scope of the act. This appeal followed on April 6, 2000. Additional facts and procedural history will be presented as necessary.

INTRODUCTION

For the plaintiffs to succeed ultimately in this product liability action, they must establish that the sidewalk that the defendant constructed was a product. See Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 403, 528 A.2d 805 (1987); see also General Statutes § 52-572n (a). The act does not include a definition for the term "product;" a definition for the term "product seller" is provided, however. General Statutes § 52-572m (a). "`Product seller' means 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." General Statutes § 52-572m (a).

The definition of "product seller" provided by § 52-572m (a) is identical to the definition provided by § 102 (1) of the Draft Uniform Product Liability Law (draft act), 44 Fed. Reg. 2996, 2997-98 (1979). Also, the draft act, like § 52-572m et seq., does not include a definition for the term "product." See id., 2996-3019. Those are not mere coincidences, for, as our Supreme Court previously has stated, the legislature based § 52-572m et seq. on the draft act (not on the model act). See, e.g., Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 230, 694 A.2d 1319 (1997); Elliot v. Sears, Roebuck & Co., 229 Conn. 500, 505-506, 642 A.2d 709 (1994). Because the legislature, in § 52-572m (a), adopted verbatim the language of § 102 (1), we look to the commentary to § 102 (1) of the draft act for guidance. See Potter v. Chicago Pneumatic Tool Co., supra, 230-31 ("[b]ecause § 52-572p adopted the language of § 110 of the draft act nearly verbatim, we look to the commentary to the draft act for guidance").

The commentary to § 102 (1) of the draft act provides in relevant part: "The Act does not address several definitional problems of `product seller.' First, it does not address the problem of the product seller engaged in a service. See `Newmark v. Gimbel's Inc.,' 54 N.J. 585, 258 A.2d 697 (1969). It is suggested that a party be considered a product seller where a sale of a product is a principal part of the transaction and where the essence of the relationship between the buyer and seller is not the furnishing of professional skill or services. See Annot., 29 `A.L.R.' 3d 1425 (1970)." (Emphasis in original.) 44 Fed. Reg. 3003.

As we conclude in this opinion, the affidavits and other evidence in the present case disclose that the defendant constructed the sidewalk using the form and pour method. See part II. The essence of the relationship between the defendant and the buyer was the furnishing of a service, not the sale of a product, because the sidewalk was composed of concrete that was transported in liquid form to the site and then used by the defendant to pour the sidewalk. See footnote 6. With that conclusion in mind, we now consider the plaintiffs' procedural claim and, thereafter, explain the basis for our conclusion that the defendant constructed the sidewalk using the form and pour method.

I

First, the plaintiffs claim that the court improperly permitted the defendant to challenge the legal sufficiency of their complaint in its motion for summary judgment. Specifically, the plaintiffs claim that the defendant, in failing to file a motion to strike the operative complaint, waived its right to challenge the legal sufficiency of that complaint. We reject the plaintiffs' claim.

The following procedural history is relevant to the plaintiffs' claim. In their operative complaint, the plaintiffs alleged, inter alia, that "the defendant ... caused to be designed, constructed, manufactured and installed the sidewalk-in-issue which is a product pursuant to [General Statutes] § 52-572m." The defendant did not file a request to revise the amended complaint; see Practice Book § 10-35;³ or a motion to strike the amended complaint. See Practice Book § 10-39.⁴ On December 27, 1999, approximately one year after the plaintiffs filed their amended complaint, the defendant filed a motion for permission to file a motion for summary judgment pursuant to Practice Book § 17-44. The court granted that motion and, thereafter, considered the motion for summary judgment, which the defendant had filed five days earlier.

In its motion for summary judgment, the defendant raised the following three part argument: (1) a sidewalk is not necessarily a "product," i.e., a sidewalk constructed using the form and pour method is not a "product"; (2) even when viewed in the light most favorable to the plaintiffs, the pleadings and the affidavits establish that the defendant used only the form and pour method when it constructed sidewalks; and (3) for the foregoing reasons, the court should render summary judgment in its favor. On February 1, 2000, the plaintiffs filed a memorandum of law in opposition to the defendant's motion for summary judgment. In their memorandum, the plaintiffs argued that (1) the defendant, in its motion for summary judgment, was challenging the legal sufficiency of their complaint and (2) the use of that motion for that purpose was improper. Nonetheless, the plaintiffs never indicated to the court that they required additional time to obtain affidavits or other evidence to contradict the defendant's averment that it used only the form and pour method when constructing sidewalks. The court, despite the plaintiffs' opposition, elected to consider the defendant's three part argument and, as previously discussed, granted the defendant's motion for summary judgment.

The plaintiffs claim that they were prejudiced by the court's decision to consider, and later credit, the defendant's three part argument in favor of summary judgment. Specifically, the plaintiffs maintain that they were prejudiced when the court...