L. Z. v. BigAirBag B.V.

691 F.Supp.3d 451

L. Z.¹ PPA Kim Zern, Plaintiff, v. BIGAIRBAG B.V., Defendant.

3:22-CV-665 (SVN)

United States District Court, D. Connecticut

Signed May 3, 2023

Timothy E. Fitzpatrick, Fitzpatrick Mariano Santos Sousa P.C., Naugatuck, CT, for Plaintiff.

David Norman-Schiff, Kevin M. Smith, Wiggin & Dana, New Haven, CT, for Defendant.

RULING AND ORDER ON DEFENDANT'S MOTION TO DISMISS

Sarala V. Nagala, United States District Judge.

Minor Plaintiff L.Z., through her next friend and mother Kim Zern, brought this product liability action in state court against Defendant, BigAirBag B.V., claiming that she suffered injury from a defect in a product Defendant supplied to an adventure park. Defendant removed the case to federal court and then filed the present motion to dismiss, claiming that Plaintiff fails to state a plausible product liability claim. For the reasons described below, the Court GRANTS IN PART and DENIES IN PART Defendant's motion.

I. FACTUAL & PROCEDURAL BACKGROUND

The complaint contains the following allegations, which are accepted as true for the purpose of the present motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). On April 17, 2019, Plaintiff went to Thrillz Adventure Park in Danbury, Connecticut. Compl., ECF No. 1-2, ¶ 9. She jumped off a trampoline launch pad onto an improperly inflated airbag that was manufactured by Defendant. Id. ¶¶ 6, 9. Plaintiff sustained injuries to her legs, hips, and back, and her mother incurred expenses for medical care and treatment. Id. ¶¶ 13, 15.

Thereafter, Plaintiff initiated a negligence action in Connecticut state trial court against several corporations who together owned and operated the park.² Civ. No. FST-CV-20-6047552-S; see generally ECF No. 17 at 11-53 (state court complaint against the Thrillz defendants).

In April of 2022, while the state court case was in discovery, Plaintiff filed the present action against Defendant in Connecticut Superior Court, claiming that Defendant violated the Connecticut Product Liability Act ("CPLA"), Conn. Gen. Stat. § 52-572m et seq. Specifically, Plaintiff asserts seven theories of product liability: manufacturing defect, Compl. ¶¶ 12(a), 12(o); design defect, id. ¶¶ 12(a), 12(j), 12(n); malfunction, id. ¶ 10; failure to warn, id. ¶ 12(e); breach of the implied warranty of merchantability, id. ¶ 12(h); negligence, id. ¶ 12(i); and fraudulent misrepresentation, id. ¶¶ 12(f), 12(g). Defendant subsequently removed the matter to federal court, invoking this Court's diversity jurisdiction. ECF No. 1. Plaintiff filed a motion to remand the case back to Connecticut Superior Court, which the Court denied. ECF No. 23; Zern v. Big Air Bag B.V., No. 3:22-CV-665 (SVN), 2022 WL 17829030, at *1 (D. Conn. Dec. 21, 2022).

Defendant has now moved to dismiss the complaint in its entirety, contending that Plaintiff fails to plausibly state a product liability claim under any theory of liability.³

II. LEGAL STANDARD

A. Federal Rule of Civil Procedure 12(b)(6)

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a case or cause of action for failure to state a claim upon which relief can be granted. When determining whether a complaint states a claim upon which relief can be granted, highly detailed allegations are not required, but the complaint must "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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." Id. This plausibility standard is not a "probability requirement," but imposes a standard higher than "a sheer possibility that a defendant has acted unlawfully." Id. In undertaking this analysis, the Court must "draw all reasonable inferences in [the plaintiff's] favor, assume all well-pleaded factual allegations to be true, and determine whether they plausibly give rise to an entitlement to relief." Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks omitted).

However, the Court is not "bound to accept conclusory allegations or legal conclusions masquerading as factual conclusions," id., and "a formulaic recitation of the elements of a cause of action will not do," Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Consequently, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). Ultimately, "[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679, 129 S.Ct. 1937.

B. The CPLA

The CPLA provides the exclusive remedy in Connecticut for all claims against a product seller for harm caused by the product. Conn. Gen. Stat. §§ 52-572m(b), 52-572n(a); Gerrity v. R.J. Reynolds Tobacco Co., 263 Conn. 120, 128, 818 A.2d 769 (2003). Specifically, the CPLA allows a plaintiff to bring a single product liability claim arising from theories of strict liability, negligence, failure to warn, breach of express or implied warranty, and misrepresentation, allowing for simplified pleading. Conn. Gen. Stat. § 52-572m(b); LaMontagne v. E.I. Du Pont de Nemours & Co., 41 F.3d 846, 855 (2d Cir. 1994) (citing Winslow v. Lewis-Shepard, Inc., 212 Conn. 462, 470-71, 562 A.2d 517 (1989)); Moss v. Wyeth Inc., 872 F. Supp. 2d 162, 165 (D. Conn. 2012). Because the CPLA was not intended to alter the substantive product liability rights that have existed at common law, the court should look to the common law requirements of each theory of liability asserted in the single CPLA claim. LaMontagne, 41 F.3d at 855-56.

III. DISCUSSION

Defendant has moved to dismiss Plaintiff's complaint in its entirety, arguing that Plaintiff fails to state any claims upon which relief can be granted. The Court first addresses Plaintiff's strict liability theories, followed by her other theories of Defendant's potential liability.

A. Strict Liability Theories

Product liability law holds manufacturers "strictly liable for unreasonably dangerous products that cause injury to ultimate users." Potter v. Chi. Pneumatic Tool Co., 241 Conn. 199, 210, 694 A.2d 1319 (1997). Several of Plaintiff's CPLA theories—manufacturing defect, design defect, malfunction, and failure to warn—sound in strict liability. Strict tort liability "relieves the plaintiff from proving that the manufacturer was negligent and allows the plaintiff to establish instead the defective condition of the product as the principal basis of liability." Id. at 211, 694 A.2d 1319. "To recover under the doctrine of strict liability in tort, a 'plaintiff must prove that: (1) the defendant was engaged in the business of selling the product; (2) the product was in a defective condition unreasonably dangerous to the consumer or user; (3) the defect caused the injury for which compensation was sought; (4) the defect existed at the time of the sale; and (5) the product was expected to and did reach the consumer without substantial change in condition.' " Metro. Prop. & Cas. Ins. Co. v. Deere & Co., 302 Conn. 123, 131, 25 A.3d 571 (2011) (quoting Potter, 241 Conn. at 214, 694 A.2d 1319); accord Bifolck v. Philip Morris, Inc., 324 Conn. 402, 434, 152 A.3d 1183 (2016) (quoting the Restatement (Second) of Torts § 402A (1965)). See also Hunte v. Abbott Labs., Inc., 556 F. Supp. 3d 70, 82 (D. Conn. 2021) (explaining that all strict liability claims under the CPLA are governed by the same five elements).

Most of Defendant's arguments for dismissal of Plaintiff's strict liability theories turn on the second element, the defective and dangerous condition of the product. A product "may be defective due to a flaw in the manufacturing process, a design defect or because of inadequate warnings or instructions." Vitanza v. Upjohn Co., 257 Conn. 365, 373, 778 A.2d 829 (2001). In addition, "[f]or a product to be 'unreasonably dangerous,' it 'must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.' " Metro. Prop. & Cas. Ins. Co., 302 Conn. at 131, 25 A.3d 571 (quoting Potter, 241 Conn. at 214-15, 694 A.2d 1319). The Court considers each theory of strict liability in turn.

1. Manufacturing Defect

"A manufacturing defect is a flaw in the manufacturing process which causes the product to deviate from the design standards and intended specifications." McConologue v. Smith & Nephew, Inc., 8 F. Supp. 3d 93, 109 (D. Conn. 2014) (citing Miller v. United Techs. Corp., 233 Conn. 732, 779, 660 A.2d 810 (1995)); see also Moss, 872 F. Supp. 2d at 166 ("Generally speaking, a manufacturing defect is a mistake in the assembly process, which results in a product that differs from the manufacturer's intended result." (citing Miller, 233 Conn. at 779, 660 A.2d 810)). "To plausibly state a manufacturing defect claim, [a plaintiff] 'must plead factual content showing the plausibility' that the [product] deviated from 'the intended design and specifications in some way.' " Leonard v. Gen. Motors, L.L.C., 504 F. Supp. 3d 73, 94-95 (D. Conn. 2020) (quoting Karazin v. Wright Med. Tech., Inc., No. 3:17-cv-823 (JBA), 2018 WL 4398250, at *3 (D. Conn. Sept. 14, 2018)). But the Court cannot require the plaintiff to possess "technical or scientific knowledge about the inner workings of the product, which would contravene the notice pleading requirement of Federal Rule of Civil Procedure 8, even under the Iqbal-Twombly standard." Mals v. Smith & Nephew, Inc., No. 3:19-cv-1770 (VLB), 2020 WL 3270835, at *3 (D. Conn....