United States District Court, D. Connecticut
RULING ON MOTION TO DISMISS
MICHAEL P. SHEA, U.S.D.J.
case arises out of injuries incurred by the plaintiff while
using playground equipment provided and installed by the
defendants. The plaintiff, Syr'eye Jefferies-by next
friend Melissa Santos-Jefferies, his mother-, brings claims
of product liability under Conn. Gen. Statute § 52-572m,
et seq. against the defendants, BCI Burke Company,
LLC (“BCI”), and Design Built, LLC
(“Design”). Design moves to dismiss the count
against it. (See ECF No. 28). For the following
reasons, the motion to dismiss is hereby DENIED.
plaintiff makes the following allegations, which I assume to
Design “is in the business of planning, designing,
constructing and maintaining playgrounds for schools,
daycare, childcare and parks and recreation.” (ECF No.
26 at ¶ 7). It is also “in the business of
distributing, installing, maintaining and selling commercial
outdoor playground equipment for the playgrounds it plans,
designs and/or maintains.” (Id. at ¶ 8).
At all times relevant to this case, Design was a
“product seller” as that term is defined under
Conn. Gen. Stat. § 52-572, et seq.
(Id. at ¶ 10). At some point in 2010,
“the Town of Hamden, Connecticut, began the process of
planning, designing and building a playground . . . called
Josh's Jungle.” (Id. at ¶ 11). One of
the products planned for the playground included “the
Cruiser, ” a playground installation marketed by
Defendant BCI Burke. (Id. at ¶¶ 6, 13).
“On or about February 25, 2013, Town of Hamden hired
[Design] to plan, design and construct Josh's Jungle. . .
.” (Id. at ¶ 12). Design constructed the
playground thereafter-including installation of “the
Cruiser”-, and Josh's Jungle opened to the public
sometime around July 22, 2013. (Id. at ¶¶
April of 2013, “while the minor Plaintiff was playing
on the Cruiser at Josh's Jungle in Hamden, he was injured
as a result of a defect in the Cruiser that exposed the
mechanism upon which it moves or rocks thereby creating a
high risk of pinch or crush type injuries.”
(Id. at ¶ 15). As a result of these injuries,
the plaintiff sustained: “(a) a close displaced
comminuted fracture of the left femur requiring surgery; (b)
a risk of problematic growth arrest; (c) need for additional
surgery(ies); (d) mental anguish; and (e) anxiety and
apprehension about his mental and physical conditions.”
(Id. at ¶ 16). “Some or all of [these]
injuries and damages have affected the Plaintiff's
ability to engage in, and enjoy, his activities of daily
living and have prevented him from resuming his pre-incident
lifestyle.” (Id.). The plaintiff has also
“incurred expenses for his medical care and treatment
and will likely continue to do so in the future.”
(Id. at ¶ 17).
reviewing a complaint under Fed.R.Civ.P. 12(b)(6), a court
must “accept as true all allegations in the complaint
and draw all reasonable inferences in favor of the non-moving
party.” E & L Consulting, Ltd. v. Doman
Indus., 472 F.3d 23, 28 (2d Cir. 2006). “To
survive a [Rule 12(b)(6)] motion, the complaint must plead
‘enough facts to state a claim to relief that is
plausible on its face.'” Morales v. Weiss,
569 Fed.Appx. 36, 37 (2d Cir. 2014), quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A
claim has “facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). A claim lacks facial plausibility when
it offers mere “labels and conclusions, ”
“a formulaic recitation of the elements of a cause of
action, ” or “naked assertion[s] devoid of
further factual enhancement.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
makes three arguments in its motion to dismiss the
plaintiff's product liability claim against it, all of
which center on the plaintiff's decision to amend his
complaint. The plaintiff's original complaint alleged a
negligence claim against Design. (ECF No. 1-1 at 4). On July
13, 2017, Design filed a motion to dismiss the claim. (ECF
No. 18). Upon Design's filing of the motion to dismiss,
the Court issued the following order on July 14, 2017:
[Design] has filed a . . . motion to dismiss
Plaintiff[‘]s complaint in part for failure to state a
claim. On or before August 4, 2017, Plaintiff shall either
file a response to the motion or file an amended complaint in
which Plaintiff pleads as many facts as possible, consistent
with Rule 11, to address the alleged defects discussed in
[Design's] memorandum of law. The Court will not allow
further amendments after August 4, 2017. If Plaintiff chooses
to amend and if [Design] renews its motion to dismiss,
[Design] may incorporate by reference any prior briefing.
(ECF No. 19 (emphases omitted)). The plaintiff then filed a
timely amended complaint on August 3, 2017, which replaced
the negligence claim with a product liability claim against
Design. (See ECF No. 26 at 5). Design contends that
the plaintiff's addition of the new product liability
claim defied the Court's order recounted above. (ECF No.
28-1 at 4-5). It also contends that the new claim is barred
by the applicable three-year statute of limitations.
(Id. at 5-7). Finally, it avers that the
plaintiff‘s product liability claim does not relate
back to the filing of the original complaint, thereby making
it time barred. (Id. at 7-8).
former two arguments are nonstarters. There is nothing in the
Court's July 14, 2017 order that prohibited the plaintiff
from amending his complaint to include a new claim. Rather,
the Court's order notified the plaintiff that he had a
onetime opportunity to amend his claim as he saw fit in
response to Design's motion to dismiss-an opportunity
afforded him by Fed.R.Civ.P. 15(a)(1)(B). Design's second
argument concerning the applicability of the statute of
limitations for the plaintiff's product liability claim
lacks any force absent its third argument that the
plaintiff's claim does not relate back to his original
complaint. The statute of limitations for a product liability
claim under Connecticut law extends “three years from
the date when the injury, death or property damage” at
issue was “first sustained or discovered or in the
exercise of reasonable care should have been discovered,
” save for certain exceptions inapplicable in this
case. Conn. Gen. Stat. § 52-577a(a). The plaintiff's
accident took place “on or about April 11, 2014,
” (see ECF No. 26 at ¶ 15), and the
plaintiff filed his original complaint on April 10, 2017.
(See ECF No. 1-1 at 6). He filed his amended
complaint on August 3, 2017. (See ECF No. 26 at 1).
Thus, whether the plaintiff's product liability claim
against Design is time barred hinges on whether the claim
relates back to his original complaint.
Fed.R.Civ.P. 15(c)(1), an “amendment to a pleading
relates back to the date of the original pleading when . . .
the law that provides the applicable statute of limitations
allows relation back” or “the amendment asserts a
claim or defense that arose out of the conduct, transaction,
or occurrence set out-or attempted to be set out-in the
original pleading. . . .” Fed.R.Civ.P. 15(c)(1)(A-B).
The “central inquiry” in determining whether an
amendment setting out a new claim may relate back to the
original complaint “is whether adequate notice of the
matters raised in the amended pleading has been given to the
opposing party within the statute of limitations ‘by
the general fact situation alleged in the original
pleading.'” Stevelman v. Alias Research
Inc., 174 F.3d 79, 86 (2d Cir. 1999) (quoting
Rosenberg v. Martin, 478 F.2d 520, 526 (2d Cir.
1973) (citation omitted)). In determining “whether
adequate notice has been given, ‘the test is not
contemporaneity'”; “in other words, the test
is not simply whether the events giving rise to the different
complaints occurred at the same time.” McCarthy v.
Associated Clearing Bureau, Inc., No. 3:97CV1969, 1999