DocketNumber: No. CV94 0317314S
Citation Numbers: 1995 Conn. Super. Ct. 1358
Judges: MAIOCCO, J.
Filed Date: 2/10/1995
Status: Non-Precedential
Modified Date: 7/5/2016
In the first count of the complaint, the plaintiffs assert a common law negligence claim based on allegations that the defendant failed to properly perform an oil change, failed to properly install the oil filter, and failed to properly train its employees. In the second count, the plaintiffs assert a claim pursuant to the Product Liability Act, General Statutes §
On January 6, 1995, the defendant filed a motion to strike the first and third counts of the complaint on the ground that they are precluded by the Product Liability Act, which is claimed by the plaintiffs as a ground for recovery in the second count of their complaint. On January 17, 1995, the plaintiffs filed a memorandum in opposition.
"Whenever any party wishes to contest the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief may be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 152(1); Ferryman v. Groton,
The Product Liability Act, General Statutes §
In the present case, the plaintiffs' common law negligence claim is based upon allegations that the defendant was negligent in performing a service (performing an oil change). This count does not allege that the defendant was a product seller who sold the plaintiffs a defective product. Therefore, since the first count is not dependent upon allegations of "harm caused by a product," the plaintiffs' common law negligence claim is not precluded by the Product Liability Act.
Likewise, a fair reading of the third count reveals that it is not based on the alleged sale of a defective product or "harm caused by a product." Rather, the plaintiffs' allege a breach of an express promise by the defendant's agent to reimburse them for their expenses in renting a replacement vehicle. As such, this claim is not per se within the scope of the Product Liability Act, because the plaintiffs' additional damages might have been caused by the defendant's negligence in providing a service to the plaintiffs (i.e., performing an oil change), rather than by the defendant's sale of a defective product to the plaintiffs.
Accordingly, the defendant's motion to strike the first and third counts is denied.
MAIOCCO, J.