DocketNumber: No. CV99 0065340S
Citation Numbers: 2000 Conn. Super. Ct. 3018
Judges: NADEAU, JUDGE.
Filed Date: 3/22/2000
Status: Non-Precedential
Modified Date: 4/17/2021
Before the court are the seller — installer's motion to strike the apportionment complaint and also a motion to dismiss the plaintiffs' cross-complaint. Manufacturer Landscape has also filed a motion to dismiss the plaintiffs' cross — complaint. Since the parties agree that a decision on the seller — installer's motion to strike may be dispositive of CT Page 3019 the dual motions to dismiss, the court will address the motion to strike first.
The claim of the seller's strike motion is that the apportionment complaint of the Ansonia defendants states a products liability claim and, for that reason, is improper because apportionment pleading is to be restricted to negligence claims. The Ansonia defendants argue that their apportionment complaint sounds in negligence and not product liability and therefore is proper.
It is true that a defendant in a negligence claim may not implead apportionment defendants on the basis of a product liability theory. Paul v. McPhee Electrical Contractors,
The Ansonia defendants' apportionment complaint contains an allegation that seller-installer O'Brien "was and is in the business of selling and installing playground equipment and surfacing and is a "product seller' within the definitions provided by . . . §
For the reasons set forth below, the defendants' argument is not persuasive.
As already mentioned, the apportionment complaint unabashedly sets forth a product liability cause of action. Therefore, such a claim is deemed to include all actions brought for "personal injury, death or property damage caused by the manufacture, construction, design, formula, preparation, assembly,installation, testing, warnings, instructions, marketing,
packaging or labeling of any product." §
The Ansonia defendants' allegations of negligence against O'Brien include the failure to provide warnings or instructions and failure to properly design the equipment — allegations which place the apportionment complaint squarely into the zone encompassed by product liability actions. Mallookis v. AutototeEnterprises, Inc., Superior Court, judicial district of New Britain, Docket No. 484655 (July 8, 1999, Graham, J.). Thus, though the complaint may contain some allegations of negligence that could potentially be thought outside the scope of a products liability action, it is clear that the defendants' complaint certainly sets out a products liability claim, inter alia, and is in violation of the rule of Paul v. McPhee ElectricalContractors, supra,
Since the Ansonia defendants' apportionment complaint is stricken, it follows that the plaintiffs' cross-complaint, which incorporates the apportionment complaint, must fail as well. Plaintiff's complaint against the apportionment defendant is dismissed.
The Court
Nadeau, J. CT Page 3021
[EDITORS' NOTE: The case once located on this page is now located on CT Page 4864-by] CT Page 3022