Wachtel v. Rosol
| Decision Date | 16 June 1970 |
| Citation | 271 A.2d 84,159 Conn. 496 |
| Court | Connecticut Supreme Court |
| Parties | , 7 UCC Rep.Serv. 1004 Jack WACHTEL v. Dorothy ROSOL. |
Lee G. Kuckro, Hartford, with whom, on the brief, were Leon RisCassi and William R. Davis, Hartford, for appellant (plaintiff).
A. Ned Rogin, Hartford, with whom, on the brief, was Jerome E. Caplan, Hartford, for appellee (defendant).
Before ALCORN, C.J., and HOUSE, THIM, RYAN and SHAPIRO, JJ.
The only issue on this appeal is the correctness of the trial court's action in sustaining a demurrer to the second count of the plaintiff's complaint.
The plaintiff, alleging that he had been made violently ill by eating an egg salad sandwich which was contaminated by salmonella bacteria and which he had purchased and eaten in the defendant's restaurant, sought damages in a complaint containing two counts. The first count sounds in breach of implied warranty of merchantability. In the second count, which is entitled 'Strict Liability', the plaintiff alleges that, at about noon on a specified date, he entered a restaurant owned and operated by the defendant and ordered an egg salad sandwich for immediate consumption; that the sandwich was served to him by an employee of the defendant; that he ate it and, as a result, became violently ill with attendant physical consequences requiring extended hospitalization because the sandwich was contaminated with salmonella bacteria. It is then alleged that '(t)he defendant was engaged in the business of selling such sandwiches 1 and said sandwich reached the plaintiff without change in the condition in which it was sold' and that '(s)aid sandwich was in a defective condition and was unreasonably dangerous to the plaintiff consumer.' Finally, it is alleged that '(a)s a further result of the carelessness and negligence of the defendant' the plaintiff incurred expense and that he was, and will be, unable to pursue his normal course of employment, thereby sustaining further financial loss.
The defendant demurred to the second count of the complaint 'because it fails to sate a cause of action upon which relief can be granted.' The court sustained the demurrer on the ground that the case law in Connecticut does not, at this time, extend the rule in § 402 A of the Restatement (Second) of Torts, volume 2, to food served under the circumstances alleged. The plaintiff failed to plead over, and has appealed from the judgment rendered for the defendant on the second count.
The demurrer is defective under General Statutes § 52-92 and Practice Book § 107 in that it fails to specify the reason or reasons why the second count is insufficient.
The complaint, also, is not carefully drawn. The allegation is that the plaintiff's illness with its physical consequences resulted from eating the contaminated sandwich sold to him under the circumstances described but that his further financial loss was a result of the carelessness and negligence of the defendant. Claims for damages based upon both negligence and strict liability would appear to be ineptly conjoined. If a count in a complaint purports to set out more than one cause of action, a demurrer addressed to the entire count fails if it does not reach all of the causes of action pleaded. Practice Book § 106; Folwell v. Howell, 117 Conn. 565, 568, 169 A. 199. The parties and the trial court have, however, treated the demurrer as a valid attack on a count intended to set forth a cause of action based on the doctrine of strict tort products liability, and we have decided to consider the issue as argued and briefed.
In two recent cases, we have approved the rule of strict products liability in tort as set forth in § 402 A of volume 2 of the Restatement (Second) of Torts. Rossignol v. Danbury School of Aeronautics, Inc., 154 Conn. 549, 559, 227 A.2d 418; Garthwait v. Burgio, 153 Conn. 284, 289, 216 A.2d 789. The rule as set forth in the Restatement and in those cases is as follows:
In testing the second count of the complaint on this demurrer, we are concerned with the allegations necessary to state a cause of action under the rule. Rossignol v. Danbury School of Aeronautics, Inc., supra, 154 Conn. 561, 227 A.2d 418. In the Rossignol case (p. 562, 227 A.2d 418), and in Guglielmo v. Klausner Supply Co., 158 Conn. 308, 316, 259 A.2d 608, we stated that the plaintiff must allege and prove 'that the product was expected to and did reach the user or consumer without substantial change in the condition in which it was sold.' In the present case, however, the allegation is that the 'sandwich reached the plaintiff without change in the condition in which it was sold.'
Under our practice the complaint must allege facts which constitute a recognizable cause of action. The complaint is tested on demurrer by the facts provable under its allegations. Benson v. Housing Authority, 145 Conn. 196, 199, 140 A.2d 320. The demurrer admits all facts well pleaded, including facts necessarily implied from the other averments. Wexler Construction Co. v. Housing Authority, 144 Conn. 187, 193, 128 A.2d 540; Hardy v. Scott, 127 Conn. 722, 723, 19 A.2d 420; Lord v. Russell, 64 Conn. 86, 87, 29 A. 242. The question, then, is whether the plaintiff has alleged facts from which it can be inferred that the sandwich 'was expected to' reach the plaintiff without 'substantial' change in the condition in which it was sold. The sale of a sandwich, by a restaurateur, on the premises, to a customer, for immediate consumption, which is the substance of the allegations made, carries the necessary implication that the sandwich was expected to...
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