Monaco v. AFR Enterprises, Inc.

Kyle MONACO, THROUGH his parent Catia MONACO, et al. v. AFR ENTERPRISES, INC.

No. FSTCV166029103S

Superior Court of Connecticut, Judicial District of Stamford-Norwalk, Stamford

August 8, 2018

UNPUBLISHED OPINION

Jacobs, J.

BACKGROUND

The subject matter of this action is the sale of an ATV, or all-terrain vehicle, which was subsequently involved in an incident in which the minor plaintiff, a passenger, was injured. The minor plaintiff, Kyle Monaco, through his parent Catia Monaco, and Catia Monaco, individually, brought this action against AFR Enterprises, Inc., the seller of the ATV. The four counts of the amended complaint [# 121] are titled "negligence" (first count); "violation of C.G.S. § 14-390f" (second count); "violation of CUTPA" (third count); and "violation of 15 U.S.C. § 2072" (fourth count). In the first count of the amended complaint, the plaintiffs allege the following facts. In or about March 2014, Edward DeNicolais, accompanied by his minor son, Anthony DeNicolais, and the minor plaintiff, Kyle Monaco, visited the defendant’s store to purchase an ATV. Prior to visiting the store, Edward DeNicolais looked up the Yamaha Raptor 700 ATV (Yamaha) on the defendant’s website. Although the Yamaha is advertised as having a large 686 cubic centimeter (cc) engine, there was no statement, warning, or instruction on the website affirmatively representing that all ATVs within engine sizes of more than 90 cubic centimeters shall be used only by persons sixteen years of age or older. While at the store, one of the defendant’s salespersons showed the Yamaha to Edward DeNicolais and the two minors, collectively. During the entire interaction, it was clear that the purchase of the ATV was intended for the minor Anthony DeNicolais. Despite this, neither the salesperson nor any other employee of the defendant made any affirmative representations that ATVs with "engine sizes of more than ninety cubic centimeters shall be used only by persons sixteen years of age or older," or made any inquiry regarding the age of either of the minors present. The salesperson also failed to display the required safety poster; failed to offer to make available for viewing the required safety video; and failed to orally inform either Edward DeNicolais or the minors about any free training courses.

The plaintiffs allege that, "as a direct and immediate consequence of [d]efendant’s failure to properly and affirmatively represent the statutory warnings and limitations on the sale and use of ATVs with engines larger than 90 cc," the defendant "proceeded to sell [the Yamaha] to Edward DeNicolais who was thus allowed and permitted to purchase it for his 14-year-old son to use" in violation of the intent of General Statutes § 14-390f. On or about June 18, 2014, while attempting to operate and control the Yamaha, the minor Anthony DeNicolais lost control and crashed, causing the minor plaintiff Kyle Monaco to sustain numerous injuries.

On December 15, 2017, the defendant filed the present motion for summary judgment as to counts one, three, and four of the plaintiffs’ amended complaint.^[1] The defendant filed numerous exhibits in support of its motion^[2] [# 127]. On March 14, 2018, the plaintiffs filed an objection with exhibits^[3] [# 133], and on March 16, 2018, an additional exhibit^[4] [# 134]. The defendant filed a reply on March 28, 2018 [# 135]. The court heard oral argument at short calendar on April 16, 2018. In arriving at its decision, the court considered the pleadings, the motion, the objection, the reply, the exhibits, the case law, and the arguments of counsel.

DISCUSSION

"[S]ummary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Cefaratti v. Aranow, 321 Conn. 637 (2016). "The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried ... However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ... the moving party for summary judgment is held to a strict standard ... of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523 (2012).

First Count

The Connecticut Products Liability Act, General Statutes § 52-572m et seq., governs all products liability claims. Pursuant to General Statutes § 52-572m(b), a product liability claim "includes all claims or 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. ‘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 § 52-572n(a) states in relevant part: "A product liability claim ... may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability and warranty, for harm caused by a product." A product seller includes "any person or entity, including a manufacturer, wholesaler, distributor or retailer who is engaged in the business of selling such products whether the sale is for resale or for use or consumption." General Statutes § 52-572m(a). A product seller may be deemed liable "for harm caused to a claimant who proves by a fair preponderance of the evidence that the product was defective in that adequate warnings or instructions were not provided." General Statutes § 52-572q(a). "It is the established rule in Connecticut that [a] product may be defective because a manufacturer or seller failed to warn of the product’s unreasonably dangerous propensities ... Under such circumstances, the failure to warn, by itself, constitutes a defect." [Citations omitted; internal quotation marks omitted.]. Haesche v. Kissner, 229 Conn. 213 (1994).

In the first count, the plaintiffs allege that the defendant "is a ‘product seller’ within the meaning of Connecticut’s Products Liability Act, Connecticut General Statutes § § 52-572m et seq." The plaintiffs allege injuries as a direct and immediate consequence of the defendant’s conduct, namely, the defendant’s "failure to properly and affirmatively represent the statutory warnings and limitations on the sale and use of ATVs with engines larger than 90 cc" and "failure to display, to offer, to make available or to even mention any of the required safety warnings, posters, and training." The plaintiffs allege that the defendant’s conduct, "in selling an excessively powerful ATV which it knew or should have known was intended to be used by a fourteen-year-old, and without providing any warnings, instructions or safety materials or education ... was negligent and careless and in disregard of [d]efendant’s duty of care to foreseeable users of the ATV." The substance of the plaintiffs’ allegations is that the defendant, as the product seller, failed to warn of the dangers and safety precautions associated with the Yamaha, including that ATVs with engines larger than 90 cc should not be used by minors under the age of sixteen years old, and further failed to provide any instructions or training as to its appropriate use.

"[T]he statutory definition of products liability claim include claims that necessarily involve conduct on behalf of the product seller. For example, product liability claims in § 52-572m include allegations that the product seller expressly or impliedly warranted that the product could be used for a particular purpose, made negligent or innocent misrepresentations regarding the product, and failed to warn or instruct regarding the product. These types of product liability claims necessarily involve the conduct (or lack thereof) of the product seller and may exist even if the underlying product is not per se defective." Martir v. Town & Country Club, Inc., Superior Court, J.D. of Hartford, Docket No. CV-07-5009725-S (10/17/08, Prescott, J.).

In Martir, the plaintiff alleged that he was caused to slip and fall, in part, because the rear steps of the subject premises had been recently painted with a "glossy slick paint" that made the stairs unreasonably dangerous. The painting contractor, one of the named defendants, filed an apportionment complaint against the paint supplier and alleged that the paint supplier "was negligent and careless by, among other things, recommending the use of a particular paint for the steps in question, failing to consider or recommend other paints for the project, failing to warn [the painting contractor] that surfaces coated with the paint would become slippery when wet, and failing to advise [the painting contractor] that it should add texturing material to the paint if the paint is used in pedestrian areas to make the surface more slip resistant." Id. The paint supplier moved to dismiss the apportionment complaint on the grounds that its allegations "even though couched in the terms of negligence, sound in product liability and therefore may not be brought as apportionment claims." Id. In response, the painting contractor argued that the allegations "are not product liability...