DocketNumber: No. CV97 0161060 S
Citation Numbers: 1998 Conn. Super. Ct. 10954
Judges: KARAZIN, J.
Filed Date: 9/29/1998
Status: Non-Precedential
Modified Date: 7/5/2016
On January 21, 1998, Sylvan Knoll filed a one count apportionment complaint against Creative Playthings, LTD (Creative Playthings). The following facts are alleged in the apportionment complaint: Creative Playthings manufactured and sold the playground equipment to Sylvan Knoll that caused Plateroti's injuries. The injuries that Plateroti received were due in whole or in part by Creative Plaything's negligence in that it failed to warn potential users of latent defects, failed to test the swing chain in question, and designed and manufactured the swing set in such a way as to create a defect. Sylvan Knoll claims an apportionment of liability against Creative Playthings pursuant to General Statutes §§
On April 3, 1998, Creative Playthings filed the present motion to strike Sylvan Knoll's apportionment complaint, motion #107 with a supporting memorandum of law. Creative Playthings moves to strike Sylvan Knoll's apportionment complaint on the ground that it improperly seeks apportionment of liability based upon product liability claims.
On May 5, 1998, Sylvan Knoll filed a memorandum of law in opposition to Creative Playthings motion to strike. Sylvan Knoll argues that the apportionment complaint is not based upon a product liability claim, rather it is based upon Creative Playthings negligence and carelessness which are not subsumed by the Product Liability Act, General Statutes §
"The proper method to challenge the legal sufficiency of a complaint is to make a motion to strike prior to trial." Gulackv. Gulack,
General Statutes §
In Paul v. McPhee Electrical Contractors,
Although Sylvan Knoll claims that its apportionment complaint alleges that Creative Playthings is liable pursuant to §
Products liability claims, "[include] all claims or actions brought for personal injury, death or property damage caused by CT Page 10957 the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product. `Product liability claim' shall include, but is not limited to, all actions based on the following theories: Strict liability in tort; negligence; breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent; misrepresentation or nondisclosure, whether negligent or innocent." General Statutes §
Sylvan Knoll's claims in its apportionment complaint that Creative Playthings failed to warn potential users of latent defects, failed to test and inspect the swing set, and designed and manufactured the swing set in such a way as to create a defect are all product liability claims.
Accordingly, Sylvan Knoll may not implead Creative Playthings as an apportionment defendant pursuant to §
KARAZIN, J.