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*********************************************** 
25 GRANT STREET, LLC v. CITY

OF BRIDGEPORT ET AL.

(AC 42155)

Prescott, Bright and Bear, Js.*

Syllabus

The plaintiff sought to recover damages from the defendant city of Bridgeport, for, inter alia, negligence, in connection with a fire that destroyed

its warehouse and caused substantial environmental damage to the

surrounding area. The plaintiff alleged that the defendant was negligent

in failing to inspect the warehouse as required by statute (§ 29-305) and

that, as a result, its fire department used water rather than foam to

extinguish the fire, which caused the fire to spread, when an inspection

would have revealed the presence of chemicals. After a series of

amended and revised complaints, the plaintiff filed a proposed complaint

in June, 2018, on the same day the defendant’s motion for summary

judgment was scheduled to be argued. In its proposed complaint, the

plaintiff newly alleged that the defendant’s failure to inspect resulted

in undiscovered code violations, and that these code violations were

the cause of the damages. The defendant argued that the court should not

consider the proposed complaint when deciding its motion for summary

judgment because it was untimely and the new theory of liability was

outside the statute of limitations and did not relate back to the previous

complaints. The court did not decide these issues but, instead, addressed

the merits of the defendant’s motion and granted the defendant’s motion

for summary judgment on the ground that it was entitled to statutory

(§ 52-557n) governmental immunity and rendered judgment thereon,

from which the plaintiff appealed to this court. Held:

1. This court affirmed the judgment of the trial court on the alternative

ground that the plaintiff’s proposed June, 2018 complaint was not properly before the trial court; the June, 2018 complaint was not the operative

complaint for purposes of the defendant’s motion for summary judgment

because the complaint was to be in response to a request to revise but,

instead, the plaintiff made substantive changes that set forth a new

theory of liability and were outside the scope of the requested revisions,

the plaintiff did not seek leave to amend its complaint to add this new

theory of liability, and the trial court neither explicitly granted the

plaintiff such leave nor indicated that it weighed the relevant considerations for determining whether to grant a plaintiff leave to amend a

complaint; moreover, the plaintiff does not challenge the court’s judgment to the extent it was based on its previous theory of liability but

only on the basis of the new theory set forth in the June, 2018 complaint

which was not properly before the court.

2. This court affirmed the judgment of the trial court on the alternative ground

that, even if the June, 2018 complaint were the operative complaint, the

new allegations contained therein did not relate back and, therefore,

were barred by the statute of limitations; all prior iterations of the

plaintiff’s complaint alleged that the acts and omissions of the defendant

resulted in it improperly using water rather than foam to extinguish the

fire, thereby causing damage, whereas the allegations in the June, 2018

complaint alleged that the defendant’s failure to inspect the warehouse

led to undiscovered code violations and that those code violations

caused the damages and constituted reckless disregard for health and

safety, an entirely new set of facts never previously alleged that did not

relate back to the prior, timely filed complaints.

Argued March 11—officially released August 18, 2020

Procedural History

Action to recover damages for, inter alia, negligence,

and for other relief, brought to the Superior Court in

the judicial district of Fairfield, where the plaintiff filed
amended and revised complaints; thereafter, the action

was withdrawn as to the defendant Brian Rooney et

al.; subsequently, the court, Radcliffe, J., granted the

named defendant’s motion for summary judgment and

rendered judgment thereon, from which the plaintiff

appealed to this court. Affirmed.

Devin W. Janosov, with whom was Donald A. Papcsy,

for the appellant (plaintiff).

James J. Healy, with whom were Barbara Curatolo

and, on the brief, Bruce L. Levin and Lawrence A.

Ouellette, Jr., associate city attorneys, for the appellee

(named defendant).
Opinion

PRESCOTT, J. This appeal arises from an action

brought by the plaintiff, 25 Grant Street, LLC, against

the defendant city of Bridgeport (city),1following the

destruction of the plaintiff’s warehouse by a fire that

caused substantial environmental damage to the surrounding area. The plaintiff ultimately alleged that the

city was liable for the damage because it had failed to

inspect the warehouse prior to the fire, which constituted a reckless disregard for health and safety. The

plaintiff appeals from the trial court’s summary judgment rendered in favor of the city on the ground that

it is entitled to governmental immunity pursuant to

General Statutes § 52-557n (b) (8).2 We affirm the judgment of the trial court on the alternative grounds that

are discussed herein.

The record before the court, viewed in the light most

favorable to the plaintiff as the nonmoving party,

reveals the following facts and procedural history. The

plaintiff owned property located at 25 Grant Street in

Bridgeport, which ‘‘consisted of 5.92 acres improved

with a 44,802 square foot one story industrial/commercial warehouse that sat toward the back of the property

near Seaview Avenue.’’ The plaintiff leased this warehouse to the Rowayton Trading Company (Rowayton)

and JWC Roofing and Siding Company. Inside the warehouse were fragrance and essential oil products contained in several hundred fifty-five gallon barrels.

On the evening of September 11, 2014, ‘‘someone

contacted 911 to report that a small fire had broken

out . . . at the [plaintiff’s] warehouse.’’ To extinguish

the fire, the fire department used only water and did

not use foam. The fire eventually ‘‘consum[ed] the entire

warehouse; and caused the release of [at least] 1500

. . . fifty-five gallon barrels of various chemicals into

the soil, air, and water surrounding the property.’’ In

total, the fire resulted in the plaintiff ‘‘sustain[ing] a

total loss of [its] warehouse; loss of use of the [25 Grant

Street] property; loss of rents; stigma to [the plaintiff’s]

business; the cost of an [Environmental Protection

Agency (EPA)] cleanup; the costs of [the plaintiff’s]

own attempted cleanup; legal fees [and] costs; and the

loss of future profits on the appreciation of its value

and/or continued rental of the property.’’

The plaintiff commenced this action against the city

on June 13, 2016. The plaintiff filed its original complaint

on June 28, 2016 (original complaint), and then filed or

attempted to file five amended or revised complaints

thereafter. In the first count3 of the original complaint,

which was titled ‘‘negligence,’’ the plaintiff made the

following relevant allegations:

‘‘37. Instead of applying foam to the small fire existing

at the site when they first arrived, first responding members of the Bridgeport Fire Department and those man-
ning its command structure, applied massive amounts

of solid water streams [despite the city being warned

against using water] . . . caus[ing] the fire to expand

rapidly [and] consum[e] the entire warehouse; and [also

resulted in] the release of 1500 or more fifty-five gallon

barrels of various chemicals into the soil, air and water

surrounding the property. . . .

‘‘43. Defendant [William] Cosgrove, as Bridgeport fire

marshal, failed to conduct an inspection of the [plaintiff’s warehouse], which was required pursuant to Connecticut General Statutes § 29-305 (a) and (d) (knowledge hazardous to life and safety from fire) and such

failure satisfies the exception for liability set forth at

. . . § 52-557n (b) (8) in that the knowledge that certain

chemicals present could be hazardous to life and safety

from fire constitutes reckless disregard for health and

safety under all relevant circumstances.

‘‘44. Defendant [Brian] Rooney, as Bridgeport fire

chief, failed to conduct an inspection of the [plaintiff’s

warehouse], for the purposes of ‘preplanning the control of a fire [involving] any combustible material . . .

that is or may become dangerous as a fire menace,’

pursuant to General Statutes § 7-313e (e); and such

failure satisfies the exception for liability set forth at

. . . § 52-557n (b) (8) in that the knowledge that certain

chemicals present could be hazardous to life and safety

from [a] fire constitutes reckless disregard for health

and safety under all relevant circumstances. . . .

‘‘47. [The] defendant [was] also negligent in one or

more of the following ways: (1) failure to have [the

information about the warehouse’s contents] immediately available so first response by fire personnel would

be appropriate to [the] chemicals present; (2) inexcusable delay in ascertaining [the] proper address [of the

warehouse] to obtain [the information about the warehouse’s contents]; (3) inexcusable delay in obtaining

[the] information [about the warehouse’s contents]; (4)

failure to access chemicals likely present and [the information about the warehouse’s contents] from website

of [Rowayton]; (5) failure to implement and utilize Computer Aided Management of Emergency Operations

(CAMEO) developed by the US Department of Commerce, National Oceanic and Atmospheric Association

and U.S. Environmental Protection Agency and

designed to help first responders and emergency planners respond to and plan for chemical accidents, including fires involving chemicals; (6) failure to implement

and utilize CAMEO Response Information Data Sheets

(RIDS), a database of over 4000 chemicals and product

trade names linked to chemical-specific information on

fire, explosive and health hazards, firefighting techniques, cleanup procedures and protective clothing,

developed by the National Oceanic and Atmospheric

Association and U.S. Environmental Protection Agency

and designed to help first responders and emergency
planners respond to and plan for chemical accidents,

including fires involving chemicals; (7) failure to implement an Integrated Command Structure (ICS) early

enough; resultant disorganization caused issues with

information management that could have potentially

put lives at risk; (8) failure to extinguish fire from chemicals in accordance with [prescribed] methods [contained in the information about the warehouse’s contents]; (9) failure to use [prescribed] foam created

seepage into Yellow Mill River and Long Island Sound

(foam would have prevented or mitigated amount of

chemical seepage); (10) failure to abide by [the] proscription for those media unsuitable to extinguish a fire

for certain chemicals [stated in the information about

the warehouse’s contents]; (11) failure properly to

ensure that members of the fire department, including

first responders, have sufficient training in hazardous

material response; (12) failure to [develop a plan] [for

extinguishing a potential fire] with the [plaintiff’s] tenant [who] stored and used chemicals [in the warehouse

and, thus] would have identified specific concerns for

the [warehouse] and opportunities to prepare effectively for those concerns, or to reduce existing risks.

. . .

‘‘50. As a direct and proximate cause of the negligence

as set forth herein,

[the] plaintiff [has] incurred [various] injuries . . . .’’

(Internal quotation marks omitted.)

On July 29, 2016, the city, in response to the original

complaint, filed a request to revise in which it requested,

inter alia, that the plaintiff provide certain information

in its complaint so that the city could plead a governmental immunity defense.4 The plaintiff did not object

to the request to revise and, on September 6, 2016, filed

a revised complaint (September, 2016 complaint). It

did so, however, only after the city had moved for a

judgment of nonsuit because the plaintiff had failed

either to object to or to comply with the request to

revise in a timely manner. See Practice Book § 10-37

(a).5

In the September, 2016 complaint, the plaintiff

attempted to make most of the revisions that the city

had requested. The substance of the plaintiff’s allegations in this complaint were the same as those made

in the original complaint.6

On September 6, 2016, the city again moved for a

judgment of nonsuit against the plaintiff. In support of

this motion, the city argued that the plaintiff had failed

to revise adequately paragraphs 41 and 47 of its original

complaint, as requested in its uncontested request to

revise.7 The plaintiff objected to this motion. On

November 7, 2016, the court denied without prejudice

the city’s motion for nonsuit but ordered the plaintiff

to comply fully with the city’s uncontested request to

revise within four weeks.
On December 21, 2016, more than four weeks after

the court entered its November 7, 2016 order, the plaintiff filed a new revised complaint (December, 2016 complaint). The only substantive change in this complaint,

as compared with the allegations made in the original

and September, 2016 complaints, was made to paragraph 47. In this paragraph of the December, 2016 complaint, the plaintiff reduced the number of ways in

which the city was allegedly negligent from twelve to

six. The plaintiff still alleged in this paragraph, however,

that the city was negligent for (1) failing to inspect the

warehouse, (2) failing to plan how it would extinguish

a potential fire, and (3) using water to extinguish the

fire, despite the fact that information was available to

the city about the chemicals stored in the warehouse

and that, in the event of a fire, foam should be used to

extinguish it instead of water.8

On December 27, 2016, the city again requested that

the plaintiff revise its complaint.9

In response to the

city’s request to revise, the plaintiff filed a revised complaint on January 27, 2017 (January, 2017 complaint).

In this version of the complaint, the plaintiff added to

paragraph 47 of the January, 2017 complaint’s allegations that certain acts or omissions of the city—including the city’s failure to inspect the warehouse as

required by . . . § 29-305 (a) and (d); its failure to use

foam to extinguish the fire, even though there were

chemicals inside of the warehouse; and its failure to

develop a plan for extinguishing a fire—satisfied the

exception to governmental immunity found in § 52-557n

(b) (8) because ‘‘the knowledge that certain chemicals

present could be hazardous to life and safety from [a]

fire constitutes reckless disregard for health and safety

under all relevant circumstances.’’

After the plaintiff filed its January, 2017 complaint,

the city filed its answer and special defenses. The city

then moved for summary judgment on August 29, 2017

(first motion for summary judgment). In that motion,

the city asserted, inter alia, that it was entitled to summary judgment because ‘‘the plaintiff’s claim of negligence in the first count of its [January, 2017 complaint]

. . . [was] barred by the defense of governmental

immunity, to which none of the exceptions apply.’’

(Footnote omitted.)

In response, the plaintiff, on September 5, 2017,

sought leave to amend its January, 2017 complaint. It

accompanied its request for leave with its proposed

amended complaint (September, 2017 complaint).10 On

September 14, 2017, the city objected to the plaintiff’s

request for leave to amend its complaint. At a hearing

on November 13, 2017, the court overruled the city’s

objection, thereby granting the plaintiff leave to amend

its complaint.11

In the September, 2017 complaint, the plaintiff alleged
in relevant part: ‘‘17. Because there had been no recent

inspection of the property, no accurate record keeping

and no coordination of known information about the

contents of the warehouse . . . the Bridgeport Fire

Department was delayed for more than an hour in

responding to the fire because they could not figure

out how to access the property. . . .

‘‘19. Then and there, given the lack of information,

instead of applying foam to the small fire existing at the

site when they arrived, they applied massive amounts

of solid water streams . . . that caused the fire to

expand rapidly, consuming the entire warehouse; and

caused the release of 1500 or more 55 gallon barrels of

various chemicals into the soil, air and water surrounding the property.

‘‘20. As a proximate result of the firefighter’s application of water rather than foam, the plaintiff was caused

to sustain [various] loss[es] . . . .

‘‘23. In the present case, the [city] had notice of the

violation of law and/or the hazard existing at 25 Grant

Street prior to the fire . . . .

‘‘24. Furthermore, and in the alternative, the [city] is

liable because [its] failure . . . to inspect the warehouse prior to the fire constituted, not mere negligence,

but rather a reckless disregard for health or safety under

the circumstances . . . .

‘‘25. As such, the [city] bears financial responsibility

for the plaintiff’s losses proximately caused by the fire

suppression effort as set forth above.’’12 (Internal quotation marks omitted.)

At the same November 13, 2017 hearing, the plaintiff

also clarified that it was no longer alleging negligence,

as it had done in prior iterations of its complaint, and

that it was alleging only recklessness against the city.13

Accordingly, the plaintiff’s lead counsel agreed that he

would ‘‘immediately’’ file a new one count complaint

sounding in recklessness, but he failed to do so until

the plaintiff attempted to file the proposed June 16,

2018 complaint (proposed June, 2018 complaint).

On November 15, 2017, the city requested that the

plaintiff revise its September, 2017 complaint. The plaintiff neither objected to nor complied with this request,

prompting the city, on February 2, 2018, again to move

for a judgment of nonsuit pursuant to Practice Book

§ 10-18. Prior to the court’s adjudication of the motion

for judgment of nonsuit, the city, on March 28, 2018,

moved for summary judgment a second time (second

motion for summary judgment). In sum, the city argued

that the court should enter summary judgment in its

favor on the basis of governmental immunity because

there was no genuine issue of material fact as to

whether the city exhibited recklessness in connection

with the fire that occurred at the plaintiff’s warehouse.
On April 16, 2018, the court denied the city’s motion

for judgment of nonsuit and ordered that the plaintiff

file a revised complaint within three weeks. In doing

so, the court never granted the plaintiff leave to file an

amended complaint but simply ordered it to file a

revised complaint that complied with the city’s November 15, 2017 request to revise. The plaintiff failed to

comply with the court’s order. This prompted the city

on May 8, 2018, to move again for a judgment of nonsuit

pursuant to Practice Book § 17-19.

On June 18, 2018, the plaintiff filed its proposed June,

2018 complaint, in which the plaintiff alleged for the

first time that fire code violations in the warehouse,

which the city should have discovered during an inspection required by § 29-305, were the proximate cause of

the substantial damage to its warehouse.14 Specifically,

in its one count proposed June, 2018 complaint, the

plaintiff alleged in relevant part:

‘‘6. At all times mentioned herein an inspection of

the property by the [city’s] fire marshal, or by the [city’s]

fire chief, or his designee, would have revealed that

[the chemicals contained in the warehouse], if ignited,

could not be suppressed with water, and that in fact

water would cause any fire, however small, to become

a conflagration engulfing the entire warehouse. . . .

‘‘8. In addition, upon inspection, they would have

found several code violations requiring immediate

remediation. . . .

‘‘14. Because there had been no inspection of the

property for over fifteen years, and therefore no remediation of code violations that would have been found

upon inspection, a minor fire turned into a conflagration that destroyed the entire property.

‘‘15. Then and there, because of the repeated lack of

inspection, the fire . . . expand[ed] rapidly, consuming the entire warehouse; and caused the release of

several hundred fifty-five gallon barrels of various

chemicals into the soil, air and water surrounding

the property.

‘‘16. As a proximate result of the fire department’s

reckless failure to comply with state law and inspect

the property for code violations for more than fifteen

years, the plaintiff was caused to sustain [various]

loss[es] . . . .

‘‘18. The [city] . . . is liable to the plaintiff due to

its reckless and repeated disregard of its statutory duty

to inspect the subject warehouse which inspection

would have shown serious code violations requiring

immediate remediation thereby causing the compete

loss of the building and the other damages specified

above.

‘‘19. The reckless actions of the [city’s] agents

included: (a) the fire marshal failing more [than] fifteen
times over fifteen years to honor his statutory duty; (b)

the fire chief ignoring for more than fifteen years his

duties per city ordinance to inspect and provide reports

and accurately keep records; (c) failing to identify and

remediate serious code violations that would have been

found upon inspection including amounts of chemical

that were stored on the property, improper storage of

said chemicals, and the lack of any sprinkler system

[or] [fire] suppression system.’’ (Emphasis added.)

Notably, the plaintiff did not seek leave to amend its

September, 2017 complaint pursuant to Practice Book

§ 10-60. Instead, the plaintiff attempted to file its proposed June, 2018 complaint the same day as the court’s

June 18, 2018 hearing on the city’s second motion for

summary judgment.15 The plaintiff also filed an objection to the city’s motion for summary judgment the same

day as the court’s June 18, 2018 hearing on this motion.

The city, on June 18, 2018, objected to the proposed

June, 2018 complaint on the basis of the plaintiff’s failure to comply with Practice Book § 10-60 and filed

two supplemental memoranda in support of its second

motion for summary judgment. In both its objection

and supplemental memoranda, the city argued in relevant part that, ‘‘[a]s a matter of law . . . the [June,

2018] complaint sets forth a cause of action never previously pleaded, [and it] does not relate back to the filing

of the operative complaint, and, therefore, is violative

of the applicable statute of limitations16 for this September 11, 2014 fire claim such that it is time barred.’’

(Footnote added.) The city also objected to the proposed June, 2018 complaint becoming the operative

complaint on the grounds that it was filed after deadlines imposed by the court and that it would have to

expend additional resources conducting discovery on

and defending against the new theory of liability set

forth therein after already having expended significant

resources conducting discovery on and defending

against the theory of liability that the plaintiff had set

forth for approximately two years in prior versions of

the complaint.17

Moreover, the city, in a June 22, 2018 memorandum,

argued that the court should not consider the plaintiff’s

proposed June, 2018 complaint in adjudicating its second motion for summary judgment. In this memorandum, the city argued that, ‘‘when acting upon the defendant’s [second] motion for summary judgment . . . the

court should only consider the [September, 2017] operative amended complaint, and exclude from its consideration the plaintiff’s untimely . . . [proposed June,

2018] complaint . . . .’’ The city also noted that ‘‘if [the

plaintiff] desired to introduce the new factual and legal

claims that it is now attempting to assert in its [proposed

June, 2018] complaint, [then it could have timely] file[d],

in [accordance with] Practice Book § 10-60 . . . a

request for leave to amend, along with an appended
amended complaint, [which] would have allowed [the

court to determine] whether [the proposed June, 2018]

complaint would [become the] operative amended complaint . . . well before the scheduling order’s . . .

deadlines for the [city’s] motion for summary judgment.’’ Moreover, the city asserted that ‘‘the plaintiff’s

[September, 2017 amended complaint [would] continue

to be the operative complaint until the [city’s] . . .

objection to the plaintiff’s [proposed June, 2018] complaint has been decided . . . .’’ The court scheduled

hearings on the city’s second motion for summary judgment for June 18 and 25, 2018. The plaintiff’s lead counsel failed to attend both hearings and, instead, a different attorney appeared in his place at both hearings.18

On June 25, 2018, the court granted the city’s second

motion for summary judgment on the basis of governmental immunity. In addressing the merits of the case,

the court noted that ‘‘this is a case in which the [plaintiff]

allege[s] . . . that there was a reckless failure to

inspect, and that reckless failure to inspect did not

uncover certain [fire code] violations and that the failure to uncover those violations led to a conflagration

and led to the fire department responding using water

instead of foam, [despite] the contents of the . . .

warehouse . . . .’’ Moreover, the court characterized

the plaintiff’s claim as alleging ‘‘that there was a reckless

failure to inspect based upon a policy that no inspection

what[so]ever would be done. . . . And that had there

been an inspection, certain violations would have been

discovered. And but for that, it . . . would not have

led to the property damage to the extent that it did.’’

In rendering summary judgment in favor of the city,

the court noted that the plaintiff’s case was not brought

within the narrow exception to governmental immunity

for a municipality’s reckless failure to conduct an

inspection for fire code violations that was established

in Williams v. Housing Authority, 327 Conn. 338, 364,

368, 174 A.3d 137 (2017).19 In Williams, our Supreme

Court determined that, despite general principles concerning governmental immunity, a municipality may be

liable for damages to person or property if the municipality has a ‘‘general policy of not conducting inspections of a certain type’’; id., 368; and that ‘‘it is clear

that the failure to inspect may result in a catastrophic

harm, albeit not a likely one.’’ Id., 364. Such conduct,

according to the court, would ‘‘in the context of § 52-

557n (b) (8), [constitute] a . . . reckless disregard for

health or safety.’’ Id., 364.

In light of this narrow exception to governmental

immunity, the trial court rendered summary judgment

in favor of the city because the plaintiff had failed to

establish that there was a genuine issue of material fact

that ‘‘there [had] been [any fire] code violations that

[were] . . . a substantial factor in causing either the

fire or the method of response by the Bridgeport Fire

Company . . . .’’ Furthermore, the court concluded
that ‘‘there’s no genuine issue of fact [as to whether

the city’s failure to inspect the warehouse constituted

recklessness] because no violation of the code is

shown . . . .’’

Although the plaintiff’s lead counsel failed to attend

both hearings on the city’s second motion for summary

judgment, the court, nevertheless, stated that it would

‘‘entertain a motion to reargue if it is filed within the

appropriate time . . . and gives a basis for denying

the motion for summary judgment.’’ In response, the

plaintiff, on July 16, 2018, moved to reargue the city’s

motion. The city opposed the plaintiff’s motion to reargue. After hearing arguments from both parties, the

court granted reargument but denied relief, reiterating

that ‘‘as a matter of law . . . there [is no] genuine issue

of material fact . . . because a mere failure to inspect

without more, [is] not . . . sufficient to show [reckless] conduct.’’ Furthermore, the court noted that

‘‘there’s been no showing [by the plaintiff] that [the

city’s] failure to inspect [its warehouse] was wilful,

intentional, deliberate or was pursuant to a policy

whereby there were no inspection[s] of a particular

class of facilities . . . .’’ This appeal followed.

On appeal, the plaintiff claims that the trial court

improperly rendered summary judgment for the city on

the basis of governmental immunity. Specifically, the

plaintiff claims that there was a genuine issue of material fact as to whether the city’s failure to inspect the

plaintiff’s warehouse, and therefore its failure to

uncover fire code violations therein, constituted a

‘‘reckless disregard for health or safety under all the

relevant circumstances . . . .’’ See General Statutes

§ 52-557n (b) (8). The plaintiff, on appeal, however,

does not contest the court’s rendering of summary judgment in favor of the city based on the theory of liability

that it alleged in prior versions of its complaint, i.e.,

that the city improperly decided to use water rather than

foam to extinguish the fire in its warehouse, resulting

in significant damage to the warehouse and surrounding property.

In its appellate brief, the city argues, in sum, that the

court properly rendered summary judgment in its favor

on the basis of governmental immunity because there

was no genuine issue of material fact as to whether its

conduct in connection with the warehouse fire was

reckless. The city also argues that the plaintiff cannot

prevail on its claim on appeal for two alternative

reasons.

First, the city asserts that the proposed June, 2018

complaint was not the operative complaint and thus

was not properly before the court. In its preliminary

statement of issues on appeal, the city states that the

court improperly considered the proposed June, 2018

complaint, even though ‘‘that complaint was barred by

the statute of limitations, filed the morning of argument
on [the city’s] motion for summary judgment and filed

in violation of the scheduling order.’’20 Moreover, in its

appellate brief, the city asserts that the September, 2017

complaint was the operative complaint.21

Second, the city argues that the trial court properly

rendered summary judgment in its favor because the

new theory of liability set forth in the proposed June,

2018 complaint alleging that the city recklessly failed

to inspect the plaintiff’s warehouse and uncover fire

code violations was barred by the statute of limitations.

Having considered the arguments of both parties, we

conclude that the trial court properly rendered summary judgment in favor of the city. We do so, however,

on the alternative grounds that (1) the plaintiff’s proposed June, 2018 complaint, and the new allegations

contained therein, was not the operative complaint and

thus was not properly before the trial court and, (2) even

if the proposed June, 2018 complaint was the operative

complaint, the new allegations contained therein were

barred by the statute of limitations.

I

Before we consider whether the new theory of liability set forth in the plaintiff’s proposed June, 2018 complaint relates back to the original complaint for purposes of compliance with the statute of limitations, we

first must address whether this version of the complaint

became the operative complaint. For the following reasons, we conclude that the proposed June, 2018 complaint was not the operative complaint and, therefore,

that complaint, including the new theory of liability set

forth therein, was not properly before the trial court in

adjudicating the motion for summary judgment.

We begin by setting forth legal principles relevant

to amending a complaint. This court has stated that

‘‘[General Statutes §] 52-128 and Practice Book § 10-59

allow the curing of any defect [or] mistake in a complaint as of right within thirty days of the return date.

If an amendment is as of right, the amendment takes

effect ab initio. . . . Practice Book § 10-60 allows a

plaintiff to amend his or her complaint more than thirty

days after the return day [only] by [order of the] judicial

authority, written consent of the adverse party, or filing

a request for leave to amend with the amendment

attached.’’ (Citations omitted; internal quotation marks

omitted.) Gonzales v. Langdon, 161 Conn. App. 497,

517–18, 128 A.3d 562 (2015).

The plaintiff argues that the proposed June, 2018

complaint was the operative complaint because it was

filed in response to the court’s April 16, 2018 order

compelling it to file a ‘‘revised complaint.’’ In essence,

the plaintiff contends that, by ordering it to file a

‘‘revised complaint,’’ the court permitted it to make

any and all substantive changes to its September, 2017

complaint that it wanted to make, including making
new allegations or alleging new theories of recovery

that had not previously been set forth. Thus, the plaintiff

implicitly argues that all of the substantive changes

that it made to the September, 2017 complaint were

made in response to the court’s April 16, 2018 order

and that, therefore, its proposed June, 2018 complaint

automatically became the operative complaint. We disagree with the plaintiff’s argument.

In arriving at this conclusion, we consider the relevant procedural history that preceded the court’s April

16, 2018 order. The city filed a request to revise directed

at the plaintiff’s September, 2017 complaint, and the

plaintiff did not object to this request. Practice Book

§ 10-37 (a) provides in relevant part that a request to

revise ‘‘shall be deemed to have been automatically

granted by the judicial authority on the date of filing

and shall be complied with by the party to whom it is

directed within thirty days of the date of filing the same,

unless within thirty days of such filing the party to

whom it is directed shall file objection thereto.’’ Thus,

by neither objecting to nor complying with the city’s

request to revise within thirty days of it having been

filed, the plaintiff failed to comply with a request to

revise that automatically had been granted by the court.

See Practice Book § 10-37 (a).

Because the plaintiff failed to comply with this

request to revise, the city moved for nonsuit. On April

16, 2018, the court denied the city’s motion for nonsuit,

but it ordered the plaintiff to file a ‘‘revised complaint’’

within three weeks. (Emphasis added.)

In light of this procedural history, we reject the plaintiff’s assertion that the court’s April 16, 2018 order was

an invitation to make any and all substantive changes

to its September, 2017 complaint that it desired. Rather,

we construe the court’s order as compelling the plaintiff

to file a ‘‘revised complaint’’ that complied with the

city’s duly granted request to revise.

The plaintiff, however, attempted to make substantive changes to its September, 2017 complaint that were

outside the scope of the revisions that the court had

ordered. Indeed, the plaintiff, in its proposed June, 2018

complaint, set forth an entirely new theory of liability.

Accordingly, we reject the plaintiff’s argument that the

proposed June, 2018 complaint automatically became

the operative complaint upon being filed because the

proposed complaint contained substantive changes that

the city did not request in its request to revise.

In the alternative, the plaintiff argues that its proposed June, 2018 complaint was the operative complaint at the time that the court adjudicated the city’s

second motion for summary judgment because the

court had determined it as such. In support of this

argument, the plaintiff points to a colloquy between the

court and the city’s counsel at the June 25, 2018 hearing.
During this exchange, the city’s counsel stated that the

city objected to the proposed June, 2018 complaint

because the plaintiff had attempted to file it after the

‘‘pleading closure deadline fixed in the court’s scheduling order’’ and the deadline for the plaintiff to file a

revised complaint that the court had imposed in its

April 16, 2018 order. In response, the court stated that

it would ‘‘allow [the complaint] based on the deadlines

. . . because . . . the court ha[d] a flavor of [what

was] being requested . . . [and] . . . want[ed] to get

to the merits of [the case].’’ By making this statement

at the hearing, the plaintiff asserts that the court had,

in effect, permitted it to amend its September, 2017

complaint pursuant to Practice Book § 10-60 and had

concluded that the proposed June, 2018 complaint was

the operative complaint. We disagree with this argument for three reasons.

First, there is no indication in the record that the

plaintiff sought leave to amend its September, 2017

complaint and that any request for leave to amend,

along with the proposed June, 2018 complaint, was

properly served on the city, as required by Practice

Book § 10-60 (a) (3). Section 10-60 (a) (3) requires that

a request for leave to amend be made and that it contain

a proof of service indicating that the request and the

proposed amended complaint were properly served on

the opposing party.22 Gonzales v. Langdon, supra, 161

Conn. App. 517–18.

By way of comparison, in attempting to amend its

January, 2017 complaint, the plaintiff sought leave to

amend. The September 5, 2017 request for leave to

amend contained a certificate of service, in which the

plaintiff’s lead counsel certified that the city’s counsel

was served both its request for leave to amend and its

proposed September, 2017 complaint.23 Moreover, at

the November 13, 2017 hearing, the court overruled

the city’s objection to the proposed September, 2017

complaint and thereby determined that this complaint

was the operative complaint.

When the plaintiff attempted to amend its September,

2017 complaint, however, it failed to seek leave to

amend it. Moreover, there is no indication in the record

that the city properly was served with the plaintiff’s

request for leave to amend and its proposed June,

2018 complaint.24

Second, the court never explicitly ruled on whether

the plaintiff would be granted leave to amend its complaint. This court has stated that in the absence of a

trial court explicitly granting a request for leave to

amend a complaint, an appellate tribunal should infer

that the trial court denied such a request for leave to

amend. See Gonzales v. Langdon, supra, 161 Conn.

App. 509.

Moreover, our unwillingness to infer that the court
granted the plaintiff leave to amend its complaint is

buttressed by the fact that there is no indication in the

record as to whether the court weighed the relevant

considerations for determining whether a plaintiff

should be granted leave to amend his or her complaint.

Although determining whether to permit leave to amend

a complaint is within the discretion of a trial court,

a court, in exercising its discretion, normally weighs

certain considerations to determine whether allowing

an amendment is appropriate. See id., 509–10, 518. As

this court has stated, ‘‘[t]he allowance of an amendment

to a complaint more than thirty days after the return

day . . . rests in the discretion of the court. . . .

Much depends upon the particular circumstances of

each case. The factors to be considered include unreasonable delay, fairness to the opposing parties, and

negligence of the party offering the amendment.’’ (Internal quotation marks omitted.) Id., 509–10. Moreover,

‘‘[c]ourts traditionally deny leave to amend only if the

amendment would prejudice the defendant by causing

undue delay or the amendment does not relate back to

the matters pleaded in the original complaint.’’

(Emphasis added.) Id., 518. ‘‘In exercising its discretion

with reference to a [request] for leave to amend, a court

should ordinarily be guided by its determination of the

question whether the greater injustice will be done to

the mover by denying him his day in court on the subject

matter of the proposed amendment or to his adversary

by granting the motion, with the resultant delay.’’ (Internal quotation marks omitted.) Miller v. Fishman, 102

Conn. App. 286, 294, 925 A.2d 441 (2007), cert. denied,

285 Conn. 905, 942 A.2d 414 (2008).

Turning to the present case, the city filed an objection

to the June, 2018 complaint and set forth three primary

reasons in support of its objection. First, the city

asserted that the proposed June, 2018 complaint was

untimely based on certain deadlines for filing a revised

complaint that the court had imposed.

Second, the city asserted that the proposed June,

2018 complaint was prejudicial to the city and would

delay significantly the trial of this case because it set

forth a new theory of liability. Specifically, the city

stated that, after two years of setting forth a consistent

theory of liability, the plaintiff completely changed its

theory in its proposed June, 2018 complaint, which it

filed the same day as the June 18, 2018 hearing on the

city’s second motion for summary judgment. This new

theory of liability would require the city to conduct

additional discovery and investigation to defend

against it.

Third, the city objected to the proposed June, 2018

complaint on the ground that the new theory of liability

set forth therein was barred by the statute of limitations.

We address this issue in part II of this opinion.

The court, at the June 25, 2018 hearing and in the
absence of the plaintiff’s lead counsel, appears to have

declined to address most of the grounds asserted in the

city’s objection to the proposed June, 2018 complaint.

Instead, the court simply stated that, despite the deadlines for filing a revised complaint that the court had

imposed, it ‘‘[preferred] to get to the merits of [the

case].’’ The court, however, did not address the other

grounds raised in the city’s objection, even though all

of the grounds set forth in its objection are considerations that a trial court usually assesses when determining whether to grant a plaintiff leave to amend its complaint. See Gonzales v. Langdon, supra, 161 Conn. App.

509–10, 518; Miller v. Fishman, supra, 102 Conn.

App. 293–94.

Because the plaintiff did not properly seek leave to

amend its complaint pursuant to Practice Book § 10-60

(a) (3), and the court neither explicitly granted the

plaintiff leave to amend nor indicated that it had

weighed the relevant considerations for determining

whether to grant a plaintiff leave to amend, we conclude

that the court did not permit the plaintiff to amend its

September, 2017 complaint.25 Therefore, we also conclude that the proposed June, 2018 complaint did not

become the operative complaint. See Gonzales v. Langdon, supra, 161 Conn. App. 509.

Because we have determined that the proposed June,

2018 complaint was not the operative complaint, we

further conclude that this complaint, including the new

theory of liability set forth therein, was not properly

before the trial court. Moreover, as previously stated

in this opinion, on appeal, the plaintiff claims only that

the court improperly rendered summary judgment in

favor of the city based on the new theory of liability

that it set forth in its proposed June, 2018 complaint.

It does not claim that the court’s rendering of summary

judgment in favor of the city based on the theory of

liability set forth prior to the proposed June, 2018 complaint was improper, to the extent that the court rendered summary judgment in favor of the city based on

this theory. Therefore, because the proposed June, 2018

complaint was not the operative complaint and both it

and the new theory of liability set forth therein were

not properly before the trial court, we conclude that

the trial court properly rendered summary judgment in

favor of the city.

Even if we were to conclude that the proposed June,

2018 complaint was the operative complaint, the city

argues that the new allegations in that complaint,

including the new theory of liability set forth therein,

are barred by the statute of limitations. In support of

this argument, the city asserts that these new allegations

were raised outside of the two year limitation period

for actions alleging negligent or reckless conduct; see

footnote 16 of this opinion; and do not relate back to

the original complaint. We turn then to this alternative
basis for affirming the trial court’s rendering summary

judgment in favor of the city.

II

Assuming for the sake of argument that the proposed

June, 2018 complaint was, indeed, the operative complaint, the plaintiff contends that the new allegations

set forth in this complaint were not barred by the statute

of limitations. In support of this argument, the plaintiff

asserts that, even though these allegations were brought

outside of the two year limitation period for actions

alleging negligent or reckless conduct; see footnote 16

of this opinion; they related back to the original complaint. We disagree with the plaintiff.

We begin by setting forth our standard of review and

relevant legal principles pertaining to whether amendments made to a complaint relate back to the original

complaint for purposes of compliance with the statute

of limitations. Our Supreme Court has stated that ‘‘[t]he

de novo standard of review is always the applicable

standard of review for’’ making such a determination.

(Internal quotation marks omitted.) Briere v. Greater

Hartford Orthopedic Group, P.C., 325 Conn. 198, 206,

157 A.3d 70 (2017). Indeed, ‘‘[i]f the statute of limitations

has expired and an amended pleading does not relate

back to the earlier pleading, then the trial court has

no discretion to allow an amendment.’’ Id., 206 n.8.

Determining whether an amendment relates back ‘‘is

grounded in interpretation of the pleadings and is not

the type of determination that a trial court is in a better

position to make than an appellate court. Therefore,

whether a pleading relates back is subject to plenary

review.’’ Id.

‘‘The relation back doctrine [is] well established

. . . . [An amendment relates back for purposes of the

statute of limitations when it] amplif[ies] or expand[s]

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 [that does not relate back

has been] stated. . . .

‘‘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 . . . .’’ (Citations omitted; internal

quotation marks omitted.) Id., 207; see Sempey v. Stamford Hospital, 180 Conn. App. 605, 612, 184 A.3d 761

(2018). ‘‘[I]n order to provide fair notice to the opposing

party, the proposed new or changed allegation . . .

must fall within the scope of the original cause of action,

which is the transaction or occurrence underpinning
the plaintiff’s legal claim against the defendant. Determination of what the original cause of action is requires

a case-by-case inquiry by the trial court. In making such

a determination, the trial court must not view the allegations so narrowly that any amendment changing or

enhancing the original allegations would be deemed to

constitute a different cause of action. But the trial court

also must not generalize so far from the specific allegations that the cause of action ceases to pertain to a

specific transaction or occurrence between the parties

that was identified in the original complaint.’’ (Emphasis omitted; footnote omitted.) Briere v. Greater Hartford Orthopedic Group, P.C., supra, 325 Conn. 210.

Importantly, ‘‘[i]f the alternat[ive] theory of liability

[in the amended complaint] may be supported by the

original factual allegations, then the mere fact that the

amendment adds a new theory of liability is not a bar

to the application of the relation back doctrine. . . .

If, however, the new theory of liability is not supported

by the original factual allegations of the earlier, timely

complaint, and would require the presentation of new

and different evidence, the amendment does not relate

back.’’ (Citation omitted.) Sherman v. Ronco, 294 Conn.

548, 563, 985 A.2d 1042 (2010).

Moreover, in determining whether an amendment

relates back, we also ‘‘must . . . determine whether

the new allegations support and amplify the original

cause of action or state a new cause of action entirely.

Relevant factors for this inquiry include, but are not

limited to, whether the original and the new allegations

involve the same actor or actors, allege events that

occurred during the same period of time, occurred at

the same location, resulted in the same injury, allege

substantially similar types of behavior, and require the

same types of evidence and experts.’’ Briere v. Greater

Hartford Orthopedic Group, P.C., supra, 325 Conn. 211.

If the amendment does not support or amplify the original cause of action and instead states a new cause of

action entirely, then the amendment does not relate

back. See id., 207–208. ‘‘[I]n the cases in which [our

courts] 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 upon previous allegations.’’ (Internal quotation marks omitted.) Id.; see Sempey v. Stamford Hospital, supra, 180 Conn. App. 612.

We are also mindful of our well settled rules for

construing pleadings to determine whether an amendment relates back to the original complaint for purposes

of compliance with the statute of limitations. ‘‘When

comparing [the original and proposed amended] pleadings [to determine whether allegations in an amended

complaint relate back for purposes of the statute of

limitations], we are mindful that, [i]n Connecticut, we
have long 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 upon which it proceeded, and do substantial 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.) Briere v. Greater Hartford Orthopedic

Group, P.C., supra, 325 Conn. 209.

Moreover, in determining whether an amendment

relates back, ‘‘[w]e note that the original [complaint]

itself must provide the opposing party with notice of a

cause of action that encompasses the proposed

amended allegations. . . . A plaintiff may not rely

solely on disclosures made during discovery to overcome his failure to plead a cause of action prior to the

expiration of the statute of limitations that he later

decides is a better claim.’’ Id., 210 n.9.

Turning to the present case, the plaintiff acknowledges ‘‘that the pleadings in the [present] case are far

from perfect.’’ (Emphasis in original.) The plaintiff nevertheless sets forth two arguments in support of its

claim that the new allegations in the proposed June,

2018 complaint relate back for purposes of the statute

of limitations. First, the plaintiff contends that these

new allegations relate back because the plaintiff ‘‘consistently alleged, although under a heading which was

not entitled ‘recklessness,’ statutory recklessness by

the [city] . . . .’’ (Emphasis omitted.) Moreover, the

plaintiff argues that, in all versions of the complaint,

the city’s ‘‘recklessness’’ derived from its failure to

inspect the plaintiff’s warehouse, in violation of § 29-

305. In the alternative, the plaintiff asserts that, even if

versions of the complaint filed prior to the proposed

June, 2018 complaint did not put the city on notice

of its theory of liability concerning undiscovered code

violations, its response to one of the city’s interrogatories provided this notice. We are not persuaded by these

arguments for the reasons that follow.

A

The plaintiff first argues that its allegations regarding

code violations relate back because, in every iteration

of the complaint, the plaintiff generally alleged that the

city had failed to inspect its warehouse and that such

conduct was reckless. In support of this argument, the

plaintiff points to paragraphs 43 and 44 of its original

complaint, in which it alleged that the fire marshal had

failed to inspect its warehouse and that ‘‘such failure
satisfies the exception for liability set forth at . . .

§ 52-557n (b) (8) in that the knowledge that certain

chemicals present could be hazardous to life and safety

from fire constitutes a reckless disregard for health

and safety under all relevant circumstances,’’ and that

the fire chief had ‘‘failed to conduct an inspection of

the [plaintiff’s warehouse], for the purposes of ‘preplanning the control of fire . . . where any combustible

material . . . that is or may become dangerous as a

fire menace’ pursuant to General Statutes § 7-313e (e);

and such failure satisfies the exception for liability

set forth at . . . § 52-557n (b) (8) in that the knowledge that certain chemicals present could be hazardous

to life and safety from fire constitutes a reckless disregard for health and safety under all relevant circumstances.’’ (Emphasis added.)

In light of these allegations in the original complaint,

the plaintiff asserts that it ‘‘consistently alleged [in various iterations of the complaint] statutory recklessness

by the defendant under . . . § 52-557n (b) (8),’’ and,

therefore, the city had sufficient notice for the theory

of liability in the proposed June, 2018 complaint concerning undiscovered code violations to relate back.

(Emphasis omitted.) Moreover, the plaintiff contends

that ‘‘the . . . complaint[s] [subsequent to the original

complaint merely] amplify this particular portion of the

allegations contained within the original [complaint],

so as to fit more squarely with the facts obtained during

discovery in the matter.’’ We are not persuaded by the

plaintiff’s argument.

In asserting that these new allegations in the proposed June, 2018 complaint relate back, the plaintiff

misconstrues our state’s well established relation back

doctrine. Indeed, merely alleging that a defendant violated a statute or that a defendant was negligent or

reckless in all iterations of a complaint by themselves is

insufficient for allegations to relate back to the original

complaint for purposes of compliance with the statute

of limitations. See Sharp v. Mitchell, 209 Conn. 59, 73,

546 A.2d 846 (1988) (concluding that ‘‘[t]he fact that

the same defendant is accused of negligence in each

complaint and the same injury resulted . . . does not

make any and all bases of liability relate back to an

original claim of negligence’’).

In determining whether an amendment to a complaint

relates back, we must analyze whether the amendment

sets forth a new theory of liability that relies on ‘‘different . . . circumstances and . . . different facts’’ that

would require a ‘‘defendant . . . to gather different

facts, evidence and witnesses to defend the amended

claim’’ or whether the amendment merely ‘‘amplifie[s]

and expand[s] upon the previous allegations by setting

forth alternat[ive] theories of liability.’’ Gurliacci v.

Mayer, 218 Conn. 531, 549, 590 A.2d 914 (1991). Indeed,

‘‘[i]f . . . the new theory of liability is not supported
by the original factual allegations of the earlier, timely

complaint, and would require the presentation of new

and different evidence, the amendment does not relate

back.’’ Sherman v. Ronco, supra, 294 Conn. 563.

Before making these determinations regarding new

allegations in the proposed June, 2018 complaint, we

must first assess the differences between the new theory of liability set forth in that complaint and the theory

set forth in prior versions of the complaint. All of the

versions of the complaint preceding the proposed June,

2018 complaint set forth a consistent theory of liability.

In these versions, the plaintiff alleged that the city failed

to access information in its possession about the chemicals in the warehouse or, in the alternative, failed to

inspect the warehouse and document the presence of

chemicals in the warehouse. The plaintiff also alleged

that the city failed to develop a plan for extinguishing

a potential fire in its warehouse that accounted for the

presence of chemicals inside the warehouse. Based on

these allegations, the plaintiff’s theory of liability in

these complaints was that, as a result of the city’s failure

to utilize information about the chemicals in the warehouse that it possessed or should have possessed, the

city improperly decided to use water rather than foam

to extinguish the fire that occurred. Thus, in sum, the

theory of liability alleged by the plaintiff in these complaints was that the manner in which the city extinguished the fire was the proximate cause of the damages

to its warehouse and property.

The new theory of liability that the plaintiff set forth in

its proposed June, 2018 complaint, however, is distinct

from the theory that it set forth in the prior iterations

of its complaint. Indeed, the attorney, Thomas G. Cotter,

who appeared at the June, 2018 hearing in the place of

the plaintiff’s lead counsel, appears to have acknowledged this in the following exchange with the court:

‘‘The Court: Well, what’s the cause of action—the

new cause of action in the [June, 2018] complaint? It

seems to me that [the plaintiff is] alleging here that

there was a reckless failure to inspect at all pursuant

to a policy and that—that an inspection would have—

unlike the initial complaint, [the plaintiff is] alleging

that an [inspection] would have disclosed violations of

the code, and that those violations of the code were

a substantial factor in causing the destruction of the

property because, but for the failure to inspect, they

wouldn’t have existed.

* * *

‘‘The Court: I’ve tried—I tried to look at the original—

the amended complaint of September [3], 2017, and I

didn’t see any allegation in there—and, correct me if

I’m wrong, Mr. Cotter, I didn’t see any allegation in that

complaint that there was a violation of the fire code or

the building code for that matter. Now—although the
fire company’s not responsible for the building code. I

didn’t see any. Am I missing something?

‘‘[The Plaintiff’s Attorney]: No, you’re not, Your

Honor.’’

In its proposed June, 2018 complaint, the plaintiff

alleges that the city recklessly failed to inspect the

plaintiff’s warehouse in violation of § 29-305. For the

first time during the course of this litigation, the plaintiff

also alleged that, as a result of this failure to inspect

the warehouse, the city failed to uncover certain fire

code violations and that these undiscovered code violations proximately caused the fire in the plaintiff’s warehouse to be more intense, resulting in greater damage

to the plaintiff’s warehouse and surrounding property.

Thus, unlike the theory of liability alleged prior to the

proposed June, 2018 complaint, this new theory of liability does not assert that the manner in which the city

extinguished the fire proximately caused significant

damage to the plaintiff’s warehouse and surrounding

property. Rather, it asserts that code violations existed

at the warehouse that the city should have discovered

during an inspection. The plaintiff alleges that these

code violations caused the fire to intensify, resulting

in significant damage to the warehouse and surrounding property.

Having concluded that the new theory of liability in

the proposed June, 2018 complaint is distinct from the

theory contained in all prior versions of the complaint,

we must now determine whether it relates back for

purposes of compliance with the statute of limitations.

To make this determination, we must determine

whether this theory is dependent on different factual

allegations than those made in prior iterations of the

complaint. See Sherman v. Ronco, supra, 294 Conn.

563. We also must determine whether this new theory

would require the city to gather facts and evidence to

defend against it that are different than what would

have been necessary to defend against the prior theory.

See Gurliacci v. Mayer, supra, 218 Conn. 549.

First, we conclude that the new theory alleged in the

proposed June, 2018 complaint is dependent on factual

allegations that were not set forth in prior iterations of

the complaint. Indeed, the new theory is dependent

on the warehouse containing code violations that an

inspection would have uncovered and that these violations caused either the ignition or intensification of the

fire. In iterations of its complaint prior to the proposed

June, 2018 complaint, however, the plaintiff never

alleged that such code violations existed at its warehouse, let alone alleged that these undiscovered violations either caused the fire to start or intensified it.

Thus, the new theory depends on factual allegations

that were not made prior to the proposed June, 2018

complaint.
Second, the facts and evidence necessary for the city

to defend against the prior theory of liability differ from

what would be necessary to defend against the new

theory. The plaintiff’s prior theory of liability, which

alleged that that the damage to its warehouse was proximately caused by the city’s erroneous decision to use

water rather than foam to extinguish the fire, would

require that both parties produce evidence concerning

firefighting strategies. To defend against this theory,

the city likely would have presented evidence showing,

inter alia, that its actions after the fire started—its decision to use water rather than foam on the fire—were

not the proximate cause of the harm that the plaintiff

suffered.

To defend against the new theory of liability, however, the city would be required to produce evidence

that was significantly different from that needed to

defend against the prior theory. Indeed, to defend

against the new theory, the city’s evidence would need

to focus on the cause of the fire. The city would need

to present evidence disputing the existence of fire code

violations and that these code violations proximately

caused the fire to start or to burn more intensely.

Accordingly, we conclude that the new theory set

forth in the proposed June, 2018 complaint relies on

facts never alleged in prior iterations of the complaint

and would require different facts and evidence for the

city to defend against it than the prior theory. For the

reasons stated, we conclude that the plaintiff’s first

argument is unpersuasive and that its new theory of

liability does not relate back for purposes of the statute

of limitations.

B

The plaintiff’s second argument—that the city was on

notice of its theory of liability concerning undiscovered

code violations based on an answer that the plaintiff

provided to one of its interrogatories—fails for two

primary reasons. In support of this argument, the plaintiff points to an interrogatory of the city and its response

to the interrogatory:

‘‘Q. What is the legal basis for the plaintiff’s claim

that the [city] . . . had a ministerial duty to inspect

the [plaintiff’s warehouse?]

‘‘A. There is a statutory duty to annually inspect buildings such as [the plaintiff’s warehouse] imposed by the

fire code on the fire marshal. Had the fire marshal

conducted an inspection the [city] would have known

the nature of the chemicals stored and [the] quantity.

Moreover, [it] would have known how to access the

building. Further, [the city] would have advised [the

plaintiff] as to any modifications necessary to ensure

that foam as opposed to water could be used in the

event of a fire. By failing in [its] duties, the plaintiff

suffered unnecessary and enormous loss. The [city’s
employees] clearly should have known that this was an

occupied warehouse, and that their failure to [develop]

a . . . plan [for extinguishing a potential fire] exposed

an identifiable victim to harm—that victim being [the

plaintiff], the residences adjacent to the warehouse,

[the plaintiff’s] lessees and the environment. In addition,

discovery is ongoing as to the procedures and customs

of the [city], which [the plaintiff] expect[s] [will

uncover] additional buttressing ministerial duties, as

public safety and [developing plans for addressing] fires

and other emergencies was the foundation for the duties

assigned to [the city].’’ In its brief, the plaintiff asserts

that its response to the city’s interrogatory ‘‘[put] the

[city] on notice of the precise type of claim which the

plaintiff intended to bring regarding violating the

inspection policies and . . . § 52-557n (b) (8).’’

First, in making this argument, the plaintiff completely disregards the proper analysis for determining

whether amendments made to a complaint relate back

to the original complaint for purposes of compliance

with the statute of limitations. Indeed, our Supreme

Court has stated ‘‘that the original [complaint] itself

must provide the opposing party with notice of a cause

of action that encompasses the proposed amended allegations [and that a] plaintiff may not rely solely on

disclosures made during discovery to overcome his

failure to plead a cause of action prior to the expiration

of the statute of limitations that he later decides is

a better claim.’’ (Emphasis added.) Briere v. Greater

Hartford Orthopedic Group, P.C., supra, 325 Conn.

210 n.9.

In the present case, the plaintiff failed to provide the

city with notice of its theory of liability concerning fire

code violations in the warehouse in all iterations of the

complaint preceding the proposed June, 2018 complaint. Thus, even if the plaintiff described this theory

in its response to an interrogatory, this response alone

is insufficient for it to relate back for purposes of compliance with the statute of limitations.

Second, nothing contained in the interrogatory

response to which the plaintiff points would put the

city on notice that the plaintiff’s theory of liability had

shifted to undiscovered code violations resulting in a

minor fire turning into a conflagration. Instead, in

response to the city’s interrogatory, which asked the

plaintiff to set forth its legal basis for its claim against

the city, the plaintiff merely described the theory of

liability that it set forth prior to the proposed June,

2018 complaint. Indeed, in its response, the plaintiff

mentions the city’s failure to inspect its warehouse,

which, it asserts, resulted in the city’s failing to use

‘‘foam as opposed to water’’ in extinguishing the fire,

and the city’s failure to ‘‘[develop plans to address] fires

and other emergencies.’’

In sum, having construed the iterations of the plain-
tiff’s complaint broadly and realistically and having

compared the new theory of liability in the proposed

June, 2018 complaint to the theory alleged in prior versions of the complaint, we conclude that the proposed

June, 2018 complaint did not relate back for purposes

of the statute of limitations.26 Because this theory was

barred by the statute of limitations, we conclude that

the trial court properly rendered summary judgment in

favor of the city.

The judgment is affirmed.

In this opinion the other judges concurred.

* The listing of judges reflects their seniority status on this court as of

the date of oral argument.

1 The plaintiff also named the following individuals as defendants: Brian

Rooney, individually and in his capacity as the former fire chief; William

Cosgrove, individually and in his capacity as the former fire marshal; Scott

T. Appleby, individually and in his capacity as the Director of Emergency

Management and Homeland Security; and Terron Jones, individually and in

his capacity as Deputy Director of Emergency Management and Homeland

Security. On November 21, 2017, however, the plaintiff withdrew the underlying action as against these defendants.

In addition, the city filed an apportionment complaint, alleging that the

plaintiff’s lessees, Rowayton Trading Company and JWC Roofing and Siding

Company, also known as Jim Waters Corp., would be liable for a proportionate share of the plaintiff’s damages if the city were found liable to the

plaintiff. The apportionment defendants have not participated in this appeal.

2 General Statutes § 52-557n (b) (8) provides in relevant part: ‘‘Notwithstanding the provisions of subsection (a) of this section, a political subdivision of the state or any employee, officer or agent acting within the scope

of his employment or official duties shall not be liable for damages to person

or property resulting from . . . failure to make an inspection or making an

inadequate or negligent inspection of any property, other than property

owned or leased by or leased to such political subdivision, to determine

whether the property complies with or violates any law or contains a hazard

to health or safety, unless the political subdivision had notice of such a

violation of law or such a hazard or unless such failure to inspect or such

inadequate or negligent inspection constitutes a reckless disregard for

health or safety under all the relevant circumstances . . . .’’ (Emphasis

added.)

3 The original complaint contained four other counts. Count two of the

complaint sounded in nuisance and counts three, four, and five stated that

the city was obligated to indemnify the individual defendants; see footnote

1 of this opinion; for their liability pursuant to General Statutes §§ 7-101a,

7-308, and 7-465.

4

In its request to revise the original complaint, the city requested the

following: ‘‘[T]hat, [with respect to paragraph 11 of the complaint], the

plaintiff . . . stat[e] specifically the authority which the plaintiff is quoting.

This revision is necessary in order to determine whether the plaintiff has

cited a city charter provision, ordinance, regulation, rule, policy, or any

other directive. . . .

‘‘[With respect to paragraph 18 of the complaint], that the plaintiff stat[e]

the citation of the authority which mandates a protocol for firefighting, as

required by Practice Book § 10-3. . . .

‘‘[With respect to paragraph 41 of the complaint] that the plaintiff delete

this paragraph in accordance with Practice Book § 10-1 fact pleading), [Practice Book §] 10-20 (contents of complaint), as this paragraph pleads only

evidence. . . .

‘‘[With respect to paragraph 47 of the complaint] that the plaintiff revise

each specification of negligence by stating whether it violated a city charter

provision, ordinance, regulation, rule, policy, or any other directive. . . .

This revision is necessary in order to determine whether the duty allegedly

breached was ministerial or discretionary and to determine whether the

[city] should plead the defense of governmental immunity. . . . [This revision] is also necessary for the [city] to move to strike the complaint on the

basis of governmental immunity. . . .’’ (Citations omitted; internal quotation

marks omitted.)

5 Practice Book § 10-37 (a) provides: ‘‘Any such request [to revise], after
service upon each party as provided by Sections 10-12 through 10-17 and

with proof of service endorsed thereon, shall be filed with the clerk of the

court in which the action is pending, and such request shall be deemed to

have been automatically granted by the judicial authority on the date of

filing and shall be complied with by the party to whom it is directed within

thirty days of the date of filing the same, unless within thirty days of

such filing the party to whom it is directed shall file objection thereto.’’

(Emphasis added.)

The city moved for nonsuit pursuant to Practice Book §§ 10-18, 17-19,

and 17-31. Practice Book § 10-18 provides that ‘‘[p]arties failing to plead

according to the rules and orders of the judicial authority may be nonsuited

or defaulted, as the case may be. (See General Statutes § 52-119 and annotations.)’’

Practice Book § 17-19 provides that ‘‘[i]f a party fails to comply with an

order of a judicial authority or a citation to appear or fails without proper

excuse to appear in person or by counsel for trial, the party may be nonsuited

or defaulted by the judicial authority.’’

Practice Book § 17-31 provides in relevant part that ‘‘[w]here either party

is in default by reason of failure to comply with Sections 10-8, 10-35, 13-6

through 13-8, 13-9 through 13-11, the adverse party may file a written motion

for a nonsuit or default or, where applicable, an order pursuant to Section

13-14. . . .’’

6

In paragraph 47 of the September, 2016 complaint, unlike paragraph 47

of the original complaint, the plaintiff alleged that the city’s negligence

represented a reckless disregard for safety. Specifically, in the September,

2016 complaint, the plaintiff alleged that, ‘‘[p]ursuant to [§] 52-557n, the

[city was] negligent for failure to inspect and prepare [for] a fire at the

subject property even though the hazard information was provided to them.

This negligence represents a reckless disregard for safety . . . .’’

7 Paragraph 41 of the plaintiff’s original complaint states: ‘‘Defendant City

of Bridgeport’s then head of economic development, David Kooris, estimated

that the fire [in the plaintiff’s warehouse] left about fifty people out of

work: ‘It’s probably the first commercial fire in a long time that displaced

companies and workers,’ referring to other blazes in vacant buildings.’’

8 The September, 2016 complaint alleged that the city was negligent in

one or more of the same twelve ways that it had alleged in paragraph 47

of the original complaint. For comparison, in paragraph 47 of the December,

2016 complaint, the plaintiff alleged that the ‘‘[d]efendant . . . [was] negligent in one or more of the following ways: (1) failure to have [the information

about the warehouse’s contents] immediately available in violation of department written policy, directive and standard custom; (2) failure to implement

and utilize Computer Aided Management of Emergency Operations

(CAMEO) developed by the U.S. Department of Commerce in violation of

department written policy, directive and standard custom; (3) failure to

extinguish fire from chemicals in accordance with [the prescribed] methods

[stated in the information about the warehouse’s contents, which was] in

violation of department written policy, directives, and standard custom; (4)

failure to use [prescribed] foam in violation of department written policy,

directives and standard custom; (5) failure to abide by [the] proscription

for those media unsuitable to extinguish a fire for certain chemicals [stated

in the information about the warehouse’s contents, which was] in violation

of written department policies, directives and standard custom; and/or (6)

failure to inspect the facility and [develop a plan] [for extinguishing a potential fire] with [Rowayton, who] stored and used chemicals [and] would have

identified specific concerns for the facility . . . to prepare effectively for

those concerns, or to reduce existing risks, in violation of state statute,

written department policies, directives and standard custom.’’

9

In its request to revise the December, 2016 complaint, the city requested

the following: ‘‘[T]hat the plaintiff state the statute allegedly violated in

paragraph 47 (6) [because] Practice Book § 10-3 (a) requires that ‘[w]henever

any claim made in a complaint . . . is grounded on a statute, the statute

shall be specifically identified by its number’ [and] so that the [city] may

test the legal sufficiency of [the] allegation [made in paragraph 47 (6) of

the complaint] pursuant to a motion to strike based on governmental immunity. . . .

‘‘[With respect] to each subparagraph of paragraph 47, [that the plaintiff

set] forth the department written policy [and] directive allegedly violated

and . . . describ[e] the standard custom allegedly violated . . . so that the

[city] may test the legal sufficiency of [these] allegation[s] pursuant to a

motion to strike based on governmental immunity.’’ (Internal quotation
marks omitted.)

10 In addition to responding to the city’s first motion for summary judgment

by filing its September, 2017 complaint, the plaintiff also objected to the

city’s motion for summary judgment on November 9, 2017.

11 Neither party disputes that, at this hearing, the court determined that the

proposed September, 2017 complaint had become the operative complaint.

12 In light of the plaintiff having filed the September, 2017 amended complaint, the court determined that no action was necessary on the city’s first

motion for summary judgment.

13 The proposed September, 2017 complaint contained two other counts.

Count two alleged that individual defendants Scott T. Appleby and Terron

Jones were liable for their reckless failure to communicate information

about the chemicals inside the warehouse to the firefighters working to

extinguish the September 11, 2014 fire. The plaintiff, however, at the November 13, 2017 hearing, stated that it was withdrawing its action against these

two defendants and filed a withdrawal of action on November 21, 2017

stating as much. See footnote 1 of this opinion. Moreover, this count did

not appear again in the proposed June, 2018 complaint.

Count three of this complaint alleged that the city was obligated to indemnify Appleby and Jones for their liability pursuant to General Statutes §§ 7-

465 and 7-301 et seq. This count, too, did not appear in the proposed June,

2018 complaint.

14 In response to this new theory of liability, the court observed that ‘‘the

plaintiff feels that [it] doesn’t have any claim other than [the new allegations

set forth in the proposed June, 2018 complaint] because otherwise that

additional language wouldn’t have been inserted . . . into the revised complaint.’’

15 Practice Book § 10-60 provides: ‘‘(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 an amendment together with: (A)

the amended pleading or other parts of the record or proceedings, and (B)

an additional document showing the portion or portions of the original

pleading or other parts of the record or proceedings with the added language

underlined and the deleted language stricken through or bracketed. The

party shall file the request and accompanying documents after service upon

each party as provided by Sections 10-12 through 10-17, and with proof of

service endorsed thereon. If no party files an objection to the request within

fifteen days from the date it is filed, the amendment shall be deemed to

have been filed by consent of the adverse party. If an opposing party shall

have objection to any part of such request or the amendment appended

thereto, such objection in writing specifying the particular paragraph or

paragraphs to which there is objection and the reasons therefor, shall, after

service upon each party as provided by Sections 10-12 through 10-17 and

with proof of service endorsed thereon, be filed with the clerk within the

time specified above and placed upon the next short calendar list.

‘‘(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. If the amendment occasions delay in the trial or inconvenience to the

other party, the judicial authority may award costs in its discretion in favor

of the other party. For the purposes of this rule, a substituted pleading shall

be considered an amendment. (See General Statutes § 52-130 and annotations.)’’

16 General Statutes § 52-584 provides in relevant part that ‘‘[n]o action to

recover damages for injury to the person, or to real or personal property,

caused by negligence, or by reckless or wanton misconduct . . . shall be

brought but within two years from the date when the injury is first sustained

or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three

years from the date of the act or omission complained of, except that a

counterclaim may be interposed in any such action any time before the

pleadings in such action are finally closed.’’

17 Specifically, in addition to asserting that the new theory of liability was

barred by the statute of limitations, the city also objected to the proposed

June, 2018 complaint for the following reasons: ‘‘1. The plaintiff . . . violated the final court-ordered deadline of [May 7, 2018] within which to file

a revised pleading . . . .
‘‘2. The revision [to the operative complaint] is being filed well beyond

the [April 1, 2018] pleading closure deadline fixed in the court’s scheduling

order . . . and seeks to keep the pleadings open in violation of that order.

‘‘3. Allowing a revised complaint that sets out an entirely new cause of

action at this stage for this 2016 lawsuit stemming out of a [September 11,

2014] fire is highly prejudicial to the [city] and will . . . significantly delay

the trial of this case because’’ the city would have to conduct new discovery,

an additional investigation, and file a third motion for summary judgment

in order ‘‘to address the newly pleaded allegations and claims in the [June,

2018] complaint.’’

18 Because the plaintiff’s lead counsel was unable to attend the June 18,

2018 hearing, an attorney, who previously had filed an appearance in the

case, attended in his place. This attorney, however, was unprepared for the

hearing, noting that he had learned of the proposed June, 2018 complaint

the morning of the hearing and that he ‘‘had just a few minutes to review

. . . the [city’s] motion for summary judgment.’’ ] In light of his unpreparedness, the attorney ‘‘ask[ed] . . . the court [to] allow a short continuance [so that the plaintiff’s lead counsel could] address [the] issues’’ pertaining to the proposed June, 2018 complaint and the city’s motion for

summary judgment. The court agreed to continue the June 18, 2018 hearing

until June 25, 2018.

The plaintiff then moved to continue the June 25, 2018 hearing three days

prior to the hearing. The city objected to this motion, and the court never

granted a continuance. The plaintiff’s lead counsel failed to attend the June

25, 2018 hearing, and the same attorney appeared in his place. This attorney

stated that the plaintiff’s lead counsel was unable to attend the hearing

because ‘‘he [was] on a preplanned family vacation . . . .’’

19 The Williams case arose ‘‘out of a tragic fire in which four residents

of a Bridgeport public housing complex . . . lost their lives. The plaintiff

. . . as administratrix of the estate of each decedent [sued] the Bridgeport

Fire Department and five Bridgeport city officials . . . .’’ Williams v. Housing Authority, supra, 327 Conn. 341. ‘‘In her revised complaint, the plaintiff

alleged, among other things, that the municipal defendants failed to ensure

that [the] unit [in which the fire started] complied with state building and

fire safety codes, failed to remedy numerous defects in [this] unit . . . and

failed to conduct an annual fire safety inspection of [this] unit . . . as

required by § 29-305. The plaintiff specifically alleged that the municipal

defendants knew or should have known about and remedied a number of

asserted defects in [this] unit . . . including the absence of fire escapes or

other adequate means of egress, photoelectric smoke detectors, fire alarm

systems, fire suppression systems, fire sprinklers, fire extinguishers, and

fire safety or prevention plans. [Moreover, the plaintiff] alleged that such

conduct on the part of the municipal defendants was both negligent and

reckless.’’ Id., 345.

20 The city’s preliminary statement of issues on appeal contained in relevant part: ‘‘1. Did the trial court abuse its discretion in overruling the [city’s]

objection to the plaintiff’s request for leave to amend to file the amended

complaint of September 5, 2017, where that complaint was filed beyond the

statute of limitations and was otherwise untimely?

‘‘2. Did the trial court abuse its discretion in considering the plaintiff’s

revised complaint filed June 18, 2018 . . . where that complaint was barred

by the statute of limitations, filed the morning of argument on [the city’s]

motion for summary judgment and filed in violation of the scheduling order?’’

21 In its appellate brief, the plaintiff acknowledges that ‘‘[t]he operative

complaint at present is a matter [that] the [city] has called into question,’’

but it also asserts that the trial court determined that the proposed June,

2018 complaint was the operative complaint when the court adjudicated

the city’s second motion for summary judgment. Moreover, in its reply brief,

the plaintiff stated that ‘‘[i]t is folly for the [city] to claim . . . that [the

June, 2018] complaint was not operative’’ and noted that ‘‘the [city] [undertook] some impressive maneuvers to make the [June, 2018] complaint inoperable in the instant appeal.’’

22 Practice Book § 10-60 (a) provides in relevant part: ‘‘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: . . . (3) By filing a request for

leave to file an amendment together with: (A) the amended pleading or

other parts of the record or proceedings, and (B) an additional document

showing the portion or portions of the original pleading or other parts of

the record or proceedings with the added language underlined and the
deleted language stricken through or bracketed. The party shall file the

request and accompanying documents after service upon each party as

provided by Sections 10-12 through 10-17, and with proof of service endorsed

thereon. . . .’’

Practice Book § 10-12 (a) provides in relevant part: ‘‘It is the responsibility

of counsel or a self-represented party filing the same to serve on each other

party who has appeared one copy of every pleading subsequent to the

original complaint . . . and every paper relating to . . . request . . . .

When a party is represented by an attorney, the service shall be made upon

the attorney unless service upon the party is ordered by the judicial

authority.’’

Practice Book § 10-14 provides in relevant part: ‘‘Proof of service pursuant

to Section 10-12 (a) and (b) may be made by written acknowledgment of

service by the party served, by a certificate of counsel for the party filing

the pleading or paper or by the self-represented party, or by affidavit of the

person making the service, but these methods of proof shall not be exclusive.

Proof of service shall include the address at which such service was

made. . . .’’

23 The plaintiff’s September 5, 2017 request to amend contained the following certificate of service: ‘‘Undersigned certifies that a copy of this request

and the amended complaint were sent to City Attorney Bruce Levin who is

counsel of record for the defendants on . . . September [3], 2017.’’

24 At the June 18, 2018 hearing, the city’s counsel stated that it received

the proposed June, 2018 complaint but that counsel received it no more

than two days before the hearing.

25 We do not mean to suggest that a trial court is obligated to state explicitly

that it has weighed the considerations that this court described in Gonzales

v. Langdon, supra, 161 Conn. App. 509–10, 518, in order to determine whether

to grant a plaintiff leave to amend his or her complaint. In the present case,

however, because the plaintiff failed to properly seek leave to amend its

complaint and the court was silent with respect to these considerations and

did not explicitly state that it would grant the plaintiff leave to amend,

we decline to infer that the court granted the plaintiff leave to amend

its complaint.

26 As previously stated, the plaintiff, on appeal, claims only that the trial

court improperly granted summary judgment for the city based on the new

theory of liability set forth in the proposed June, 2018 complaint. The plaintiff

does not claim on appeal that the trial court improperly rendered summary

judgment based on the theory set forth in iterations of the complaint prior

to the proposed June, 2018 complaint, to the extent that the court rendered

summary judgment in favor of the city based on this theory.