Premises Liability: Court grants defendant’s motion for summary judgment after finding that the accidental failure of suit statute is inapplicable to save the plaintiff’s now time-barred claim against the defendant because the original action was not “commenced,” as that term is defined by Connecticut courts

Plaintiff’s Lawsuit and Accidental Failure of Suit Statute

The plaintiff brought this lawsuit under the accidental failure of suit statute, Connecticut General Statutes § 52-592, after she allegedly fell in the parking lot of the defendant’s premises. The defendant now moves for summary judgment on the grounds that the plaintiff’s claim is barred by the statute of limitations and cannot be saved by the accidental failure of suit statute.

The relevant procedural background is as follows: On November 7, 2018, the plaintiff claims that she was injured when she fell in the defendant’s parking lot. On December 7, 2020, the marshal delivered the original summons and complaint to an employee of the defendant, but not a person in charge as defined in Connecticut General Statute § 52-57(c). The defendant was defaulted for failure to appear in the original action.

On November 10, 2022, counsel for the plaintiff sent a letter with a copy of the original complaint to the defendant. The defendant then filed an appearance as well as a motion to dismiss the original complaint on the grounds of insufficient service. On July 18, 2023, following a hearing on the motion to dismiss, the court dismissed the original complaint for insufficient service. On November 29, 2023, the plaintiff filed the present action.

Court’s Decision on Whether the Original Lawsuit Was “Commenced”

In its motion for summary judgment, the defendant argues that the accidental failure of suit statute does not save the plaintiff’s claim because the original lawsuit was never “commenced” within the two-year statute of limitations. In setting forth the applicable law, the court states that although Connecticut does have a savings statute, § 52-592, it does not save an action that was never commenced.

The parties in this case agree that the original suit was dismissed for insufficient process, but they disagree on whether the suit had “commenced.” The Connecticut Supreme Court clarified the definition of “commenced” in light of prior case law. The term “commenced” in § 52-592(a) has been construed to mean actual or effective notice to a defendant that an action is pending through receipt of the summons and complaint.

Defendant’s Motion for Summary Judgment and Court’s Ruling

This court clarifies that the receipt of the summons and complaint by a defendant is required for the action to have been commenced under the savings statute. It does not matter that the summons and complaint were improperly served for purposes of the saving statute; it matters only that the defendant received those documents within the time permitted by law, even if they were received through improper means.

However, in this case, the court finds that the plaintiff has failed to establish an evidentiary basis demonstrating a genuine issue of material fact as to whether the original action was commenced by giving the defendant a copy of the summons and complaint within the time limited by law. It is undisputed that the marshal’s service of the original complaint was insufficient as it was never served upon an authorized person per the statutory requirements. Moreover, the plaintiff has failed to establish that the defendant received a copy of the summons and complaint.

The defendant had no notice of the lawsuit and no copy of any suit paper until November 10, 2022, two years after the statute of limitations expired. The accidental failure of suit statute does not operate to save the plaintiff’s action. Therefore, the defendant’s motion for summary judgment is granted.

Brenda Borusiewicz v. Finex Credit Union, No. HHD CV-23-6177353-S, 2024 WL 4893609 (Conn. Super. Ct. Nov. 20, 2024)