Finkle v. Carroll ( 2015 )

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JENNIE FINKLE, ADMINISTRATRIX (ESTATE
OF BARBARA A. ECKERT) v. JOHN F.
CARROLL III ET AL.
(SC 18976)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued September 23, 2014—officially released March 24, 2015
James J. Healy, with whom, on the brief, was M.
Caitlin S. Anderson, for the appellant (plaintiff).
Scott M. Karsten, with whom, on the brief, was Kater-
yna Lagun, for the appellees (defendants).
Opinion
ROBINSON, J. This certified appeal requires us to
consider the application of General Statutes § 52-593,1
the ‘‘wrong defendant’’ statute, in the context of munici-
pal liability under, inter alia, General Statutes § 52-
557n.2 The plaintiff, Jennie Finkle, administratrix of the
estate of Barbara A. Eckert (decedent), appeals, upon
our grant of her petition for certification,3 from the
judgment of the Appellate Court affirming the trial
court’s award of summary judgment in favor of the
defendants, the town of Watertown (town) and John
F. Carroll III, a police officer employed by the town.
Finkle v. Carroll, 134 Conn. App. 278, 279–80, 37 A.3d
851 (2012). On appeal, the plaintiff contends that the
Appellate Court improperly concluded that § 52-593 did
not save the present case from the applicable statute
of limitations. Specifically, the plaintiff contends that
§ 52-593 applies to the present case because she failed
to name Carroll as a defendant in her original action
against the town and various other police officers and,
therefore, would have ultimately ‘‘failed to obtain [a]
judgment’’ in that original action insofar as Carroll was
the factually correct defendant for the causes of action
alleged therein. Guided by, inter alia, Cogan v. Chase
Manhattan Auto Financial Corp., 276 Conn. 1, 882 A.2d
597 (2005), we agree with the defendants’ contention
that, given the theories of municipal liability raised by
the plaintiff, in particular § 52-557n, the complaint in
the original action contained the essential factual and
legal components necessary for her to obtain full relief
against one of the defendants therein, namely, the town.
Accordingly, the plaintiff’s failure to name Carroll as a
party to the original action, or even to plead his specific
involvement in the events leading to the decedent’s
death, would not have precluded her from obtaining a
judgment therein, thus depriving her of shelter under
§ 52-593 in the present case. We, therefore, affirm the
judgment of the Appellate Court.
The opinion of the Appellate Court sets forth the
following relevant undisputed facts and procedural his-
tory. ‘‘This action arose out of the killing of the decedent
by her former boyfriend, Mark Tannenbaum. On the
evening of September 28, 2002, Tannenbaum was called
by the decedent’s thirteen year old son, who told him
that the decedent was not at home and that he needed
relief from taking care of the decedent’s and Tannen-
baum’s one year old child. When the decedent and a
male individual drove up to the decedent’s home, Tan-
nenbaum approached the vehicle and began punching
the windows of the vehicle. The decedent and the male
friend then drove to the town’s police department to
file a complaint against Tannenbaum. While the dece-
dent was speaking with Officer Christopher Marciano
at the police department, her cell phone rang several
times and Marciano heard a male voice yelling through
the phone. The third time the decedent’s phone rang,
Marciano answered it and Tannenbaum stated, ‘I’ll kill
you.’ Marciano identified himself as a police officer and
asked Tannenbaum for his location. Tannenbaum told
him he was at the decedent’s residence.
‘‘Three officers, including Marciano, traveled to the
decedent’s residence and found Tannenbaum there.
Marciano smelled alcohol on Tannenbaum’s breath at
that time and found him angry. Tannenbaum told the
police that he wanted the decedent arrested for leaving
the children in the residence alone. Tannenbaum was
arrested and taken to the police station where he was
processed. Later that evening, Carroll made the decision
to release Tannenbaum on a promise to appear. Subse-
quent to his release from police custody, on the morning
of September 29, 2002, Tannenbaum shot and killed the
decedent at her home . . . and then at another location
committed suicide.
‘‘On October 21, 2003, the plaintiff filed her initial
action pursuant to General Statutes § 52-555 against the
town and three police officers, Marciano, Officer David
McDonnell and Sergeant David Bromley, alleging that
they were negligent in charging Tannenbaum with one
misdemeanor and releasing him from their custody
without bond. On April 10, 2008, the plaintiff withdrew
her initial action and commenced the present action
on November 20, 2008, against the town and Carroll,
pursuant to §§ 52-593 and 52-555. In her complaint, the
plaintiff alleged that Carroll, the ranking officer at the
time of Tannenbaum’s release from police custody, neg-
ligently exercised the duty of care he owed to the dece-
dent by charging Tannenbaum improperly, releasing
Tannenbaum without proper conditions and restric-
tions, and violating the town’s family violence policy,
which requires protection for identifiable victims like
the decedent. This negligence allegedly resulted in Tan-
nenbaum’s killing of the decedent a short time after
his release.
‘‘The defendants filed a motion to dismiss, asserting
that the plaintiff’s claims were barred by the statute of
limitations found in § 52-555, and that the action was
not saved by the provisions of § 52-593, the ‘wrong
defendant’ statute. The court denied the motion. The
defendants then filed a motion for summary judgment
arguing, among other things, that the plaintiff’s claims
were barred by the applicable statute of limitations.
The plaintiff filed an objection to that motion. There-
after, the court rendered summary judgment in favor of
the defendants on the ground that the plaintiff’s claims
were not saved by § 52-593. In its memorandum of deci-
sion, the [trial] court stated that ‘[i]n the original action,
the plaintiff failed to name the very party, the defendant
Carroll, who was responsible for releasing Tannenbaum
on September 29, 2002.’ The court noted that ‘[t]he
present case is not a situation where the plaintiff failed
to name all of the potentially liable defendants.’ Never-
theless, the court, citing Billerback v. Cerminara, 72
Conn. App. 302, 308–309, 805 A.2d 757 (2002), concluded
that the plaintiff’s ‘failure to obtain a judgment of dis-
missal in her original action is fatal to satisfying all
of the criteria set forth in . . . § 52-593.’ ’’ (Footnotes
omitted.) Finkle v. Carroll, supra, 134 Conn. App.
280–82.
The plaintiff appealed from the judgment of the trial
court to the Appellate Court. In a unanimous opinion,
the Appellate Court concluded that the trial court prop-
erly granted the defendants’ motion for summary judg-
ment, agreeing with their alternative ground for
affirmance that ‘‘§ 52-593 does not apply to the present
action because the plaintiff did not fail to name a proper
party in the original action.’’4 Id., 283. Relying on our
decision in Cogan v. Chase Manhattan Auto Financial
Corp., supra, 276 Conn. 1, and its decision in Iello v.
Weiner, 129 Conn. App. 359, 20 A.3d 81 (2011), the
Appellate Court disagreed with ‘‘the [trial] court’s con-
clusion to the contrary,’’ and held that ‘‘the present case
is a situation in which the plaintiff named some, but
not all, of the potentially liable defendants. In both
actions, the plaintiff alleged the legal theory of negli-
gence—specifically, negligence in charging Tannen-
baum with a misdemeanor and releasing him on a
promise to appear.’’ (Emphasis in original; footnote
omitted.) Finkle v. Carroll, supra, 134 Conn. App. 284–
85. The Appellate Court determined that Carroll’s deci-
sion, as the ranking officer, ‘‘to release Tannenbaum
. . . was made ostensibly on the basis of information
provided to him by Marciano, McDonnell and Bromley,’’
thus rendering those ‘‘original officers . . . proper
defendants under the legal theory of negligence due to
their involvement in the process that led to Tannen-
baum’s release.’’5 (Footnote omitted.) Id., 285–86.
Finally, the Appellate Court emphasized that, although
‘‘§ 52-593, a remedial statute, is construed liberally, it
should not be construed so liberally as to render stat-
utes of limitation[s] virtually meaningless,’’ and warned
against the risk, which we observed in Cogan v. Chase
Manhattan Auto Financial Corp., supra, 11, that an
overly broad reading of § 52-593 permitting ‘‘successive
complaints . . . naming different defendants, all of
whom were proper . . . could lead to unrestrained fil-
ings in cases with multiple defendants and open the
door to endless litigation.’’6 (Emphasis in original; inter-
nal quotation marks omitted.) Finkle v. Carroll, supra,
288. Accordingly, the Appellate Court affirmed the judg-
ment of the trial court. Id. This certified appeal fol-
lowed. See footnote 3 of this opinion.
On appeal, the plaintiff claims that, in concluding
that this action was not saved by § 52-593, the Appellate
Court improperly failed to apply the terms of that stat-
ute ‘‘liberally to embrace the facts of this case within
the statute’s remedial scope’’ to permit the plaintiff to
correct her ‘‘innocent, reasonable, and good faith mis-
take.’’ The plaintiff contends that from the moment
she filed the original action, she ‘‘intended to state a
negligence claim against the officer with the ultimate
authority to charge and release Tannenbaum,’’ and that
claim ‘‘only comes into existence based on the acts and
omissions of . . . Carroll, the defendant missing’’ from
the original action, particularly given her legal conclu-
sion that none of the other officers named in the original
action would be liable for Tannenbaum’s release. The
plaintiff emphasizes that, under Cogan v. Chase Man-
hattan Auto Financial Corp., supra, 276 Conn. 1, the
‘‘wrong defendant’’ analysis is ‘‘factually intensive and
case specific,’’ with its outcome turning on ‘‘how the
true facts at issue relate to the cause of action alleged.’’
She argues that this case stands in ‘‘stark contrast’’ to
the facts of Cogan and the decisions of the Appellate
Court in Isidro v. State, 62 Conn. App. 545, 550, 771
A.2d 257 (2001), and Iello v. Weiner, supra, 129 Conn.
App. 364, wherein § 52-593 was held not to apply
because the plaintiff’s mistake in those cases had been
legal in nature or one of simply omitting a proper defen-
dant, rather than a product of naming the factually
wrong defendant. The plaintiff further contends that
the ‘‘reasonable and honest mistake of fact’’ gloss that
Isidro imposed on § 52-593 will mitigate the floodgates
effect discussed by the Appellate Court.
In response, the defendants rely on Cogan, Isidro,
and Iello, and characterize this case as a ‘‘paradigmatic
misuse of the wrong defendant statute.’’ The defendants
contend, inter alia, that the Appellate Court properly
determined that ‘‘some or all of the defendants named
in the [original action] were in fact ‘proper defendants’
for the legal theories alleged’’ therein, in particular, the
town, which is also named as a defendant in the present
case. The defendants argue that the plaintiff’s § 52-557n
claim against the town in the original action rendered
it an ‘‘an absolutely ‘proper defendant’ ’’ therein. Citing
Spears v. Garcia, 263 Conn. 22, 818 A.2d 37 (2003), and
Grady v. Somers, 294 Conn. 324, 984 A.2d 684 (2009),
the defendants emphasize that the ‘‘town could have
been held liable for the conduct of . . . Carroll, had
his conduct been found tortious, even without his being
named as a defendant in that [original] action,’’ and
therefore, the ‘‘plaintiff did not require any individual
defendant in [the original action] to establish the liabil-
ity of the town.’’7 We agree with the defendants, and
conclude that § 52-593 did not save this untimely action
because the plaintiff could have recovered from the
defendants in the original action, particularly the town,
based on the factual allegations and causes of action
in the original complaint.8
The plaintiff’s claim in this certified appeal, founded
on a challenge to the trial court’s grant of the defen-
dants’ motion for summary judgment on the ground that
it improperly construed § 52-593, presents a question of
law over which our review is plenary. See, e.g., Cogan
v. Chase Manhattan Auto Financial Corp., supra, 276
Conn. 7. ‘‘In making such determinations, we are guided
by fundamental principles of statutory construction.’’
(Internal quotation marks omitted.) Ulbrich v. Groth,
310 Conn. 375, 448, 78 A.3d 76 (2013); see General Stat-
utes § 1-2z (statutory interpretation process).
By way of background, § 52-593, also known as the
‘‘wrong defendant’’ statute, provides a one year ‘‘savings
provision [that] applies if the plaintiff has ‘failed to
obtain judgment’ in the original action on the basis of
her ‘failure to name the right person as defendant
. . . .’ ’’9 Cogan v. Chase Manhattan Auto Financial
Corp., supra, 276 Conn. 8. In its simplest application, the
wrong defendant statute contemplates the ‘‘situation in
which a plaintiff erroneously sues A under the mistaken
belief that A negligently operated or owned a vehicle,
when in fact B operated or owned the vehicle.’’ Isidro
v. State, supra, 62 Conn. App. 550. ‘‘This language con-
templates that, so long as the second action is brought
within the one year time limitation, the defendant in
that action may not avail itself of the statute of limita-
tions. The general remedial purpose of this statute is
to relieve a plaintiff of the statute of limitations conse-
quences where the plaintiff made a factual mistake in
selecting her original defendant for the legal theory of
the action, so long as the plaintiff brings the second
action against the ‘right person’ within the one year
period. Because the statute is remedial in nature, it
should be construed broadly to accomplish its remedial
purpose. . . . In addition, any ambiguities should be
resolved in a manner that furthers, rather than thwarts,
the [statute’s] remedial purposes.’’ (Citation omitted;
internal quotation marks omitted.) DiPietro v. Farm-
ington Sports Arena, LLC, 123 Conn. App. 583, 594, 2
A.3d 963 (2010), rev’d on other grounds, 306 Conn. 107,
49 A.3d 951 (2012). Nevertheless, as the Appellate Court
has aptly observed, an excessively broad reading of
§ 52-593 ‘‘would undermine the statute of limitations
because a plaintiff could unilaterally extend the limita-
tion period simply by filing an action against a defendant
who could not be liable based on a legal theory. To
allow [such an] action to continue at this time would
defeat the basic purpose of the public policy that is
inherent in statutes of limitation[s], i.e., to promote
finality in the litigation process.’’ (Internal quotation
marks omitted.) Isidro v. State, supra, 550–51.
‘‘Under Connecticut law, a right person, as that term
is used in § 52-593, is one who, as a matter of fact, is a
proper defendant for the legal theory alleged.’’ (Internal
quotation marks omitted.) Cogan v. Chase Manhattan
Auto Financial Corp., supra, 276 Conn. 8, citing Kron-
berg v. Peacock, 67 Conn. App. 668, 673, 789 A.2d 510,
cert. denied, 260 Conn. 902, 793 A.2d 1089 (2002); see
DiPietro v. Farmington Sports Arena, LLC, supra, 123
Conn. App. 594–95 (§ 52-593 saved action when prior
negligence action was brought against corporate defen-
dant that ‘‘was not the factually ‘right person’ to be
sued because [it] did not exist at the time of the injury
and, therefore, could not have been in control or posses-
sion of the soccer facility; the ‘right person’ for that
theory was in fact . . . the lessee of the soccer facil-
ity’’); see also Perzanowski v. New Britain, 183 Conn.
504, 507, 440 A.2d 763 (1981) (Relief is unavailable under
§ 52-593 when the plaintiff ‘‘failed to obtain judgment
in federal court [1] because the city could not be liable
for the civil rights violations alleged and [2] because the
jury rendered a general verdict in favor of the remaining
defendants who were sued in their individual capacity.
Neither result arises from a mistake in naming a defen-
dant.’’); Isidro v. State, supra, 62 Conn. App. 550 (§ 52-
593 did not save action brought against state after origi-
nal action against individual police officer was dis-
missed on immunity grounds, particularly because
plaintiff acknowledged in original action that state
owned police car at issue, and was ‘‘free to pursue the
state in the original action but did not to do so for some
reason, whether a tactical choice or technical defi-
ciency’’).
As this court has previously stated, ‘‘failure to name
all of the defendants from whom [the plaintiff] could
have recovered in [the] original action does not consti-
tute a ‘failure to name the right person as defendant’
within the meaning of § 52-593.’’ (Emphasis in original.)
Cogan v. Chase Manhattan Auto Financial Corp.,
supra, 276 Conn. 11; see also id., 8 n.6 (noting court
was resolving statutory ambiguity as to ‘‘whether the
term ‘right person’ means any right person or all right
persons from whom the plaintiff can recover’’ [empha-
sis in original]). Applying this rule, this court concluded
in Cogan that § 52-593 did not save an untimely second
action that the plaintiff brought against a leasing com-
pany as the owner of a vehicle involved in an accident,
which she had filed following her settlement and with-
drawal of the original action. Id., 3. The plaintiff in
Cogan had brought the original action against a defen-
dant who was properly named under the pleaded theory
of liability, namely, the family car doctrine, which does
not legally depend on the ownership of the vehicle. Id.,
10–11; see also Iello v. Weiner, supra, 129 Conn. App. 364
(‘‘[T]he fact that the specific allegations of negligence
directed [against the original defendant] were more
appropriately pleaded against the defendant does not
alter our resolution of the plaintiff’s claim on appeal.
Because the plaintiff’s first action, premised on a theory
of negligence, was brought against a ‘right person,’ § 52-
593 is inapplicable and cannot save the plaintiff’s sec-
ond action from being time barred . . . .’’); Kronberg
v. Peacock, supra, 67 Conn. App. 673–74 (§ 52-593 does
not ‘‘save this negligence action against the owner and
the operator of the vehicle from being time barred by
claiming that he named the wrong party in [the previous
action] because the insurer was the proper defendant
in that uninsured motorist action’’); cf. DiPietro v.
Farmington Sports Arena, LLC, supra, 123 Conn. App.
597 (subsequent naming of additional ‘‘presumptively
factually correct defendants’’ does not deprive plaintiff
of entitlement to § 52-593 when she had failed ‘‘to name
the factually correct defendant in the original action’’).
Our review of the operative complaint in the original
action reveals that the plaintiff’s failure to name Carroll
as a defendant would not have caused her to fail to
obtain judgment therein. Specifically, the plaintiff
named the town as a defendant in the original action
and pleaded a theory of liability, namely, a direct action
under § 52-557n; see footnote 2 of this opinion; the
viability of which did not depend on Carroll being dis-
cussed specifically in the complaint, either as a named
party or tortfeasor. With respect to the decision to
release Tannenbaum on a promise to appear, which
provides the factual basis for the plaintiff’s claims in
this case, the third count of the original complaint seeks
indemnification from the town pursuant to General Stat-
utes § 7-465 (a)10 for the negligence of the individual
defendants in the original action, town police officers
Marciano, Bromley, and McDonnell. That third count
incorporates by reference the detailed factual allega-
tions in the negligence claim, contained in count one,
which the plaintiff brought directly against those offi-
cers individually. Finally, the fourth count in the original
action is pleaded directly against the town pursuant to
§ 52-557n,11 and alleges that the ‘‘failure of [its] police
department to institute and implement proper guide-
lines [for operations in family violence incidents] consti-
tutes negligence per se [under General Statutes § 46b-
38b] in the conduct of the duties owed by the [town]
to [its] residents . . . and to the public in general.’’12
Notably, this same general body of factual allegations,
updated to include Carroll’s ultimate role in the release
decision, supports the two count operative complaint
in the case giving rise to this certified appeal, the first
count of which is brought against Carroll directly, and
the second count seeks indemnification from the town
pursuant to § 7-465 (a).
These factual allegations and legal causes of action,
together with the fact that the town was a defendant
in the original action, both via an indemnification theory
under § 7-465 (a) and directly under § 52-557n, demon-
strate that the plaintiff would not have been precluded
from obtaining a judgment in the original action by
virtue of having named the ‘‘wrong’’ defendant—despite
the fact that she was not aware of Carroll’s role in
Tannenbaum’s release until after discovery had taken
place in the original action. It is well settled that the
plaintiff did not need to name Carroll or any other town
employee as a defendant—or even identify their specific
roles as tortfeasors—in order to maintain a direct action
against the town pursuant to § 52-557n. See Spears v.
Garcia, supra, 263 Conn. 37; see also id., 38 n.8 (‘‘§ 52-
557n does not require a plaintiff to identify the tortfea-
sor’’). The plaintiff could have sought relief from the
town with respect to the release decision itself, both
in the original action and in the current case, under
§ 52-557n, rather than citing § 7-465 (a) as the sole legal
basis, because those two statutes are coextensive ‘‘par-
allel vehicles for municipal liability,’’ and the relief avail-
able to the plaintiff is the same whether she proceeds
directly against the town under § 52-557n, or indirectly
against it via an indemnification theory under § 7-465
(a). Grady v. Somers, supra, 294 Conn. 339; see also
id., 348 (rejecting need to assert separate claims under
§§ 52-557n and 7-465 [a] as embodying ‘‘ ‘hypertechni-
cal’ ’’ triumph of ‘‘ ‘form over substance,’ ’’ and at odds
with ‘‘the legislature’s intent, when it enacted § 52-557n,
to create a harmonious body of law governing municipal
liability’’); Spears v. Garcia, supra, 34 (‘‘we conclude
that the statutes can coexist and that a party may choose
to rely on either statute’’).
The plaintiff argues in her reply brief, however, that
the fact that the town was a defendant in the original
action does not preclude application of § 52-593 in the
present case because her original claims were ‘‘doomed
to fail’’ insofar as count three against the town was an
indemnification claim under § 7-465 (a) that was
derived from a factually defective count one against the
individual officers directly. We disagree. If the plaintiff
took no further action in the original action, her claims
as pleaded might well have failed. Under our rules of
practice, namely, Practice Book § 10-60 et seq.,13 those
claims were not, however, pleaded in stone. Even
before ascertaining Carroll’s role in the events leading
to the decedent’s death, the plaintiff could have
amended her complaint to incorporate the factual alle-
gations from the first and third counts relating to the
release decisions into a § 52-557n count against the
town, and to omit the names of any specific officer’s
involvement. Moreover, after learning during discovery
of Carroll’s role, the plaintiff could have amended her
complaint further to conform the allegations in the § 52-
557n claim to that specific proof adduced during dis-
covery.14
Such an amendment to state a legally and factually
correct claim against the town—which was already a
party to that case as a proper defendant—would have
been without apparent legal obstacle given the ‘‘ ‘liberal-
ity’ ’’ with which trial courts are to grant motions to
amend when no injustice will result; see, e.g., Rizzuto
v. Davidson Ladders, Inc., 280 Conn. 225, 255, 905 A.2d
1165 (2006); given our ‘‘well settled’’ body of case law
holding that ‘‘a party properly may amplify or expand
what has already been alleged in support of a cause
of action, provided the identity of the cause of action
remains substantially the same. . . . If a new cause of
action is alleged in an amended complaint . . . it will
[speak] as of the date when it was filed. . . . A cause
of action is that single group of facts which is claimed
to have brought about an unlawful injury to the plaintiff
and which entitles the plaintiff to relief. . . . A change
in, or an addition to, a ground of negligence or an act
of negligence arising out of the single group of facts
which was originally claimed to have brought about
the unlawful injury to the plaintiff does not change
the cause of action. . . . It is proper to amplify or
expand what has already been alleged in support of a
cause of action, provided the identity of the cause of
action remains substantially the same, but [when] an
entirely new and different factual situation is presented,
a new and different cause of action is stated.’’15 (Empha-
sis added; internal quotation marks omitted.) DiLieto
v. County Obstetrics & Gynecology Group, P.C., 297
Conn. 105, 140, 998 A.2d 730 (2010). An amendment of
the § 52-557n claim to incorporate allegations concern-
ing Carroll’s role in the release decision fits well within
the original complaint’s existing factual and legal
nucleus.16 Compare, e.g., id., 142–43 (additional allega-
tions that physician improperly failed to ensure that
colleague participated in surgery related back to origi-
nal theory that physician negligently caused patient to
undergo three unnecessary procedures by failing to
obtain and communicate test results, along with claim
that other surgeon had failed to properly supervise
junior physician), Deming v. Nationwide Mutual Ins.
Co., 279 Conn. 745, 776–77, 905 A.2d 623 (2006) (nar-
rower and more ‘‘artful’’ allegations related back to
earlier complaint when directed to same general claims
of misappropriation of book of business, which caused
‘‘identical’’ harm), and Franc v. Bethel Holding Co., 73
Conn. App. 114, 133, 807 A.2d 519 (proper to permit
amendment to amend pleading to conform with proof
by adding recklessness allegations to negligence claim
because recklessness ‘‘stems from the same factual situ-
ation as the plaintiffs’ earlier claims, i.e., the wrongful
excavation, and amplifies those claims only as to the
egregiousness of the defendant’s actions’’), cert.
granted, 262 Conn. 923, 812 A.2d 864 (2002) (appeal
withdrawn October 21, 2003), with Alswanger v. Smego,
257 Conn. 58, 66–67, 776 A.2d 444 (2001) (complaint
alleging act of negligence based on ‘‘different set of
facts from that alleged in the original complaint’’ did
not relate back because ‘‘focus of the original complaint
was on the informed consent as it related to the surgical
procedure itself, the amended complaint shifted the
focus to consent by the patient to the participation
of the individuals involved in the surgery,’’ which was
change that ‘‘would have forced the defendants to
gather different facts, evidence and witnesses to defend
the amended claim’’ [internal quotation marks
omitted]).
Under these principles of municipal liability, the
plaintiff named a legally and factually correct cast of
defendants to play the plot of the original action, with
the town as lead actor, and that plot and cast remained
generally the same between the original action and the
second action, meaning that she was not entitled to
introduce additional actors by bringing this second
action under § 52-593.17 The plaintiff readily could have
altered the script in the original action by amending
the allegations in her complaint—which had named the
town as a correct defendant with respect to the basic
relevant factual allegations—to conform to the proof
adduced during discovery, thereby averting the need to
sustain an adverse judgment, voluntarily or involun-
tarily.18 Carroll’s presence as a party would, then, have
not been necessary for a judgment in the plaintiff’s
favor in the original action, which means that, under
Cogan v. Chase Manhattan Auto Financial Corp.,
supra, 276 Conn. 10, his absence from that action does
not entitle the plaintiff to use § 52-593 to save this case.
Finally, we note that the plaintiff’s interpretation of
§ 52-593 is inconsistent with public policy, notwith-
standing the remedial purpose of the statute. In addition
to its negative consequences for judicial economy, by
permitting an entirely new action to be litigated in lieu
of the relatively simple step of amending the complaint
in the original action, the plaintiff’s view of § 52-593
also raises the improper specter of a plaintiff filing
‘‘successive complaints . . . naming different defen-
dants, all of whom were proper, thereby permitting the
plaintiff to take the proverbial second, third or even
fourth bite of the apple, [which] could lead to unre-
strained filings in cases with multiple defendants and
open the door to endless litigation.’’19 Id., 11. Accord-
ingly, like the Appellate Court, we conclude that this
time barred action was not saved by § 52-593.
The judgment of the Appellate Court is affirmed.
In this opinion ZARELLA, McDONALD and
ESPINOSA, Js., concurred.
1
General Statutes § 52-593 provides in relevant part: ‘‘When a plaintiff in
any civil action has failed to obtain judgment by reason of failure to name
the right person as defendant therein, the plaintiff may bring a new action
and the statute of limitations shall not be a bar thereto if service of process
in the new action is made within one year after the termination of the
original action. . . .’’
2
General Statutes § 52-557n (a) provides in relevant part: ‘‘(1) Except as
otherwise provided by law, a political subdivision of the state shall be liable
for damages to person or property caused by: (A) The negligent acts or
omissions of such political subdivision or any employee, officer or agent
thereof acting within the scope of his employment or official duties . . . .
(2) Except as otherwise provided by law, a political subdivision of the state
shall not be liable for damages to person or property caused by: (A) Acts
or omissions of any employee, officer or agent which constitute criminal
conduct, fraud, actual malice or wilful misconduct; or (B) negligent acts or
omissions which require the exercise of judgment or discretion as an official
function of the authority expressly or impliedly granted by law.’’
3
We granted the plaintiff’s petition for certification to appeal limited to
the following issue: ‘‘Did the Appellate Court properly determine that the
plaintiff’s action was not saved by . . . § 52-593?’’ Finkle v. Carroll, 305
Conn. 907, 908, 44 A.3d 184 (2012).
4
Because of its conclusion that the ‘‘original defendants were the ‘right
person[s]’ for purposes of § 52-593,’’ the Appellate Court declined to address
whether the trial court had properly determined that a voluntary withdrawal
of an action qualifies as a ‘‘ ‘failure to obtain judgment’ ’’ under that statute.
Finkle v. Carroll, supra, 134 Conn. App. 284 n.6.
5
The Appellate Court observed some conflicting evidence in the record
on this point, but concluded that it did not matter for purposes of § 52-593.
See Finkle v. Carroll, supra, 134 Conn. App. 285 n.7 (‘‘Although Marciano
testified during his deposition that the decision to release Tannenbaum was
between Carroll and Bromley, Bromley testified during his deposition that,
to the contrary, the decision was Carroll’s alone. Even assuming that only
Carroll made the final decision to release Tannenbaum, this does not make
the original officers ‘wrong defendants . . . .’ ’’).
6
Because of its conclusion that ‘‘the original officers were proper defen-
dants for the legal theory of negligence,’’ the Appellate Court did not address
the defendants’ argument that the ‘‘town was a proper defendant in the
original action’’ as well. Finkle v. Carroll, supra, 134 Conn. App. 286 n.9.
7
The plaintiff contends that the defendants’ argument that § 52-593 is
inapplicable because the town was a defendant in the original action consti-
tutes an alternative ground for affirmance that was not properly raised under
Practice Book § 84-11 (c). Nevertheless, the plaintiff, who prudently and
extensively responded to the merits of this claim in her reply brief, does
not claim any prejudice from that procedural defect. Accordingly, we address
the merits of the defendant’s argument, which raises a pure question of law
based on the pleadings in the original and present actions. See, e.g., Olson
v. Mohammadu, 310 Conn. 665, 684–85 n.15, 81 A.3d 215 (2013); Dickinson
v. Mullaney, 284 Conn. 673, 682 n.4, 937 A.2d 667 (2007); Russell v. Mystic
Seaport Museum, Inc., 252 Conn. 596, 600 n.3, 748 A.2d 278 (2000).
8
The defendant also argues that the Appellate Court properly determined
that Marciano, McDonnell and Bromley were proper defendants in this case,
citing their participation in the events leading to the ultimate release decision
and contending that there is no legal principle exempting them from exercis-
ing a duty of care, despite Carroll’s ultimate decision-making role. Because of
our conclusion with respect to the town, we need not address this argument.
9
As the Appellate Court noted, the ‘‘parties do not dispute that the present
action was brought within one year after the termination of the original
action.’’ (Internal quotation marks omitted.) Finkle v. Carroll, supra, 134
Conn. App. 281 n.3.
10
General Statutes § 7-465 (a) provides in relevant part: ‘‘Any town, city
or borough, notwithstanding any inconsistent provision of law, general,
special or local, shall pay on behalf of any employee of such municipality
. . . all sums which such employee becomes obligated to pay by reason of
the liability imposed upon such employee by law for damages awarded for
infringement of any person’s civil rights or for physical damages to person
or property, except as set forth in this section, if the employee, at the time
of the occurrence, accident, physical injury or damages complained of,
was acting in the performance of his duties and within the scope of his
employment, and if such occurrence, accident, physical injury or damage
was not the result of any wilful or wanton act of such employee in the
discharge of such duty. . . . No action for personal physical injuries or
damages to real or personal property shall be maintained against such
municipality and employee jointly unless such action is commenced within
two years after the cause of action therefor arose and written notice of the
intention to commence such action and of the time when and the place
where the damages were incurred or sustained has been filed with the
clerk of such municipality within six months after such cause of action has
accrued. Governmental immunity shall not be a defense in any action brought
under this section. In any such action the municipality and the employee
may be represented by the same attorney if the municipality, at the time
such attorney enters his appearance, files a statement with the court, which
shall not become part of the pleadings or judgment file, that it will pay any
final judgment rendered in such action against such employee. No mention
of any kind shall be made of such statement by any counsel during the trial
of such action. . . .’’
Although § 7-465 has recently been amended by our legislature; see Public
Acts 2013, No. 13-247, § 273; that amendment has no bearing on the merits
of this appeal. In the interest of simplicity, we refer to the current revision
of the statute.
11
The original complaint cites ‘‘General Statutes § 52-577n,’’ but this
appears to be a scrivener’s error because there is no such statute, and the
context plainly refers to the subject matter of § 52-557n.
12
The second count of the operative complaint in the original action claims
that the actions of Marciano, Bromley, and McDonnell constituted negligence
per se in violation of § 46b-38b.
We note that § 46b-38b has been amended on several occasions since the
events underlying the present appeal. See, e.g., Public Acts 2013, No. 13-3,
§ 37. These amendments have no bearing on the merits of this appeal. In
the interest of simplicity, we refer to the current revision of the statute.
13
Practice Book § 10-60 provides in relevant part: ‘‘(a) Except as provided
in Section 10-66, a party may amend his or her pleadings or other parts of
the record or proceedings at any time subsequent to that stated in the
preceding section in the following manner:
‘‘(1) By order of judicial authority; or
‘‘(2) By written consent of the adverse party; or
‘‘(3) By filing a request for leave to file such amendment, with the amend-
ment appended, after service upon each party as provided by Sections 10-
12 through 10-17, and with proof of service endorsed thereon. If no objection
thereto has been filed by any party within fifteen days from the date of the
filing of said request, the amendment shall be deemed to have been filed
by consent of the adverse party. . . .
‘‘(b) The judicial authority may restrain such amendments so far as may
be necessary to compel the parties to join issue in a reasonable time for
trial. . . .’’
Practice Book § 10-62 provides in relevant part: ‘‘In all cases of any material
variance between allegation and proof, an amendment may be permitted at
any stage of the trial. . . .’’
14
The dissent appears to consider our amendment related points to be a
surprise Blumberg-ing of the parties. See Blumberg Associates Worldwide,
Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 162, 84 A.3d
840 (2014); C. Ray & M. Weiner, ‘‘Mueller v. Tepler, 312 Conn. 631 (2014):
The Appellate Court Gets ‘Blumberg-ed,’ ’’ Connecticut Lawyer, Vol. 25, No.
3 (October 2014), p. 30. Specifically, the dissent posits that the defendants
have not ‘‘raise[d] this claim on appeal and the parties have not had an
opportunity to brief it . . . .’’ We respectfully disagree with the dissent’s
expansive reading of Blumberg Associates Worldwide, Inc. Our reliance
on the availability of the frequently utilized amendment procedure is an
amplification and logical extension of the defendants’ argument that the
original complaint did in fact name a proper defendant for the facts alleged,
namely, the town.
15
We recognize that, by the time she learned of Carroll’s specific role
during discovery, the plaintiff’s direct claims against Carroll—and any deriva-
tive claims against the town seeking indemnification of Carroll under § 7-
465 (a)—might well have been time barred and, therefore, an improper
subject for addition by amendment. See Kaye v. Manchester, 20 Conn. App.
439, 445, 568 A.2d 459 (1990) (improper to add claims against school board
chairman in his individual capacity for purposes of indemnification under
§ 7-465 [a] when ‘‘the original complaint in the present case contained only
allegations of negligence by the town and board. It contained no reference
to . . . § 7-465 nor did it contain any claim that the town or board was
liable as an indemnitor for any individual defendant’s negligence.’’). Never-
theless, we disagree with the plaintiff’s contention that the loss of these
direct claims against Carroll and the associated § 7-465 (a) indemnification
claims means that she could not obtain a judgment on the ground that she
had named the wrong party in the original action, thus entitling her to the
protection of § 52-593. As a matter of the substantive law governing munici-
pal liability, the continued viability of the plaintiff’s claim under § 52-557n,
brought against a ‘‘right defendant,’’ namely the town, means that she was
not deprived of the opportunity to obtain a judgment, despite the loss of
her direct and indemnification claims against Carroll. Sections 7-465 (a) and
52-557n are coextensive ‘‘parallel vehicles for municipal liability,’’ and the
plaintiff does not lose anything by proceeding directly against the town
under § 52-557n, as opposed to under an indemnification theory under § 7-
465 (a). Grady v. Somers, supra, 294 Conn. 339.
16
The statute of limitations would not have posed any obstacle to this
amendment with respect to the town, despite the fact that the plaintiff’s
original § 52-557n claims were not specifically founded on the decision to
release Tannenbaum, but rather, were focused on the town’s failure to
implement policies in accordance with § 46b-38b (e). Given the plaintiff’s
detailed pleading in counts one and three of the facts concerning the release
of Tannenbaum, all of which comprised her cause of action, it would have
been an appropriate use of the relation back doctrine to permit the amend-
ment of the complaint to assert a claim under § 52-557n arising from those
facts because the policy underlying that doctrine ‘‘is that a party, once
notified of litigation based [on] a particular transaction or occurrence, has
been provided with all the notice that statutes of [limitations] are intended
to afford. . . . [I]f a party seeks to add new allegations to a complaint and
a statute of limitations applicable to those allegations has run since the
filing of the complaint, the party must successfully invoke the relation back
doctrine before amendment will be permitted. . . .
‘‘Our relation back doctrine provides that an amendment relates back
when the original complaint has given the party fair notice that a claim is
being asserted stemming from a particular transaction or occurrence,
thereby serving the objectives of our statute of limitations, namely, to protect
parties from having to defend against stale claims . . . . [I]n the cases in
which we have determined that an amendment does not relate back to an
earlier pleading, the amendment presented different issues or depended on
different factual circumstances rather than merely amplifying or expanding
[on] previous allegations.’’ (Citations omitted; internal quotation marks omit-
ted.) Austin-Casares v. Safeco Ins. Co. of America, 310 Conn. 640, 657, 81
A.3d 200 (2013).
Further, ‘‘[w]hen comparing [later] pleadings [to timely filed pleadings to
determine whether the former relate back to the latter], we are mindful
that, [i]n Connecticut, we long have eschewed the notion that pleadings
should be read in a hypertechnical manner. Rather, [t]he modern trend,
which is followed in Connecticut, is to construe pleadings broadly and
realistically, rather than narrowly and technically. . . . [T]he complaint
must be read in its entirety in such a way as to give effect to the pleading
with reference to the general theory [on] which it proceeded, and do substan-
tial justice between the parties. . . . Our reading of pleadings in a manner
that advances substantial justice means that a pleading must be construed
reasonably, to contain all that it fairly means, but carries with it the related
proposition that it must not be contorted in such a way so as to strain the
bounds of rational comprehension.’’ (Internal quotation marks omitted.)
DiLieto v. County Obstetrics & Gynecology Group, P.C., supra, 297
Conn. 140–41.
17
The dissent questions why, given our conclusion that the plaintiff could
have ‘‘obtain[ed] a judgment against the town pursuant to § 52-557n for
its alleged negligence in failing to adopt operational guidelines for arrests
involving family violence,’’ we ‘‘[devote] the bulk of [our] opinion to establish-
ing that the plaintiff cannot invoke § 52-593 because she could have amended
her complaint to include that negligence allegations against Carroll in her
claim against the town pursuant to § 52-557n.’’ See footnote 10 of the dis-
senting opinion. The need for this analysis is explained by the difference
between the words ‘‘could’’ and ‘‘would,’’ as well as the plaintiff’s tactical
decision to withdraw the original complaint in order to file a new pleading
naming Carroll as the party who had released Tannenbaum on a promise
to appear. That the plaintiff ‘‘could’’ have obtained a judgment on her § 52-
557n family violence policy claim in the original action does not mean that
she ‘‘would’’ have done so, but that determination pertains to the merits of
the claim, rather than whether the town was the appropriate defendant for
it. Put differently, that the town was already properly in the original action
meant that the plaintiff could have amended her complaint therein to assert
a potentially more successful § 52-557n claim against the town arising from
Carroll’s decision to release Tannenbaum on a promise to appear.
18
Because of the manner in which the parties briefed and argued this
certified appeal, we, like the Appellate Court; see Finkle v. Carroll, supra,
134 Conn. App. 284 n.6; need not consider whether the trial court properly
determined that the plaintiff’s withdrawal of the original action, as opposed
to obtaining a judgment of dismissal, meant that she ‘‘failed to obtain judg-
ment’’ within the meaning of § 52-593. See also Iello v. Weiner, supra, 129
Conn. App. 364 n.6.
19
To this end, the plaintiff contends that, consistent with the remedial
purpose of the statute, we should not interpret § 52-593 as requiring a
complete inability to obtain judgment in the original action as a result of
naming the wrong defendant, and allow its use whenever a plaintiff ‘‘fails
to obtain judgment on any count in a complaint as a result of a factual error
in naming the defendant to replead with the proper defendant.’’ She contends
that § 52-593 ‘‘does not require a ‘failure to obtain judgment on all counts’
or a ‘failure to obtain judgment on all theories of liability alleged.’ ’’ We
disagree. The plaintiff’s interpretation of § 52-593 is inconsistent with the
plain language of the statute, which refers to the ‘‘fail[ure] to obtain judg-
ment’’ in ‘‘any civil action’’ in a global sense, and does not contemplate a
failure to obtain judgment with respect to any particular defendant or claim
when other viable claims exist within the plaintiff’s original civil action. It
also is inconsistent with Cogan v. Chase Manhattan Auto Financial Corp.,
supra, 276 Conn. 10–11, Iello v. Weiner, supra, 129 Conn. App. 361–62, and
Kronberg v. Peacock, supra, 67 Conn. App. 673–74, wherein the inclusion
of properly named parties in an earlier action was held to bar the use of
§ 52-593 to save later actions against different defendants under different
legal theories, along with our admonition in Cogan against allowing multiple
‘‘bites at the apple.’’ Cogan v. Chase Manhattan Auto Financial Corp.,
supra, 11. For purposes of § 52-593, the plaintiff has not described, and we
do not see, a meaningful distinction between an original action with a
complaint alleging a proper cause of action against a single correctly named
defendant—as existed in Cogan, Iello, and Kronberg—and an original com-
plaint with multiple causes of action against multiple defendants, at least
some of whom are properly named.
We also note that the plaintiff relies on the ‘‘reasonable and honest mistake
of fact’’ gloss that the Appellate Court imposed on § 52-593 in Isidro v.
State, supra, 62 Conn. App. 549–50, to mitigate the floodgates effect of her
construction of the wrong defendant statute. We believe that the plaintiff’s
reliance on this gloss is misplaced. First, as the plaintiff herself acknowl-
edges, the ‘‘reasonable and honest mistake’’ gloss contained in Isidro may
well be of questionable vitality, as the Appellate Court has recently described
it as ‘‘dictum [that] is not controlling, because it is inconsistent with the
language and purpose of the statute, and neither case on which it relied,
namely, [Perzanowski v. New Britain, supra, 183 Conn. 507 and Vessichio
v. Hollenbeck, 18 Conn. App. 515, 520, 558 A.2d 686 (1989)], contains either
the language or the reasoning reflecting such a limitation.’’ DiPietro v.
Farmington Sports Arena, LLC, supra, 123 Conn. App. 596 n.6. Second,
the judicial economy considerations we rely upon are not affected by the
motivations—however good faith they might have been—behind the plain-
tiff’s decision to suffer an adverse judgment in the original action, rather
than amend the complaint therein to render it viable against the town.