Opinion
No. 93-525446S
August 29, 1997
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (NO. 244), DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (NO. 254) AND THE THIRD-PARTY PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT (NO. 229)
Pursuant to Practice Book § 378, the plaintiff, the defendants, and the third-party defendants have moved for summary judgment. This memorandum of decision will address the three motions as follows. Part III will address the defendants' motion for summary judgment as to the plaintiff. Part IV will address the plaintiff's motion for summary judgment as to the defendants. Part V will address the third-party defendants, motion for summary judgment as to the third-party plaintiffs.
I. Factual and Procedural History
The underlying facts are as follows. Prior to 1985, Alan K. Nudalman (hereinafter "Nudalman") purchased real property located at 35 Union Street, New London, Connecticut (hereinafter the "Crocker House"). In 1985, Nudalman entered into an agreement with the City of New London to construct a "greenhouse" on the sidewalk adjacent to the Crocker House to be used in conjunction with a restaurant and bar on the premises. Under the terms of the agreement, the City charged Nudalman a semi-annual rental fee for use of the sidewalk. The agreement expired on April 30, 1990.
In May, 1990, Charles Flanagan purchased Crocker House and thereafter hired Nellie Colonis to manage the property. On January 9, 1991, the City of New London requested that Flanagan immediately remove the greenhouse in order that the City could proceed with plans to reopen State Street. In March, 1994, Flanagan commenced removal of the greenhouse. On March 6, 1991, Anthony Clark, an employee of Flanagan's, was seriously injured when he was struck by a falling iron beam while dismantling the greenhouse. As a result of this accident, this litigation commenced.
By way of substituted complaint (hereinafter "complaint") dated January 13, 1995, Anthony Clark (hereinafter the "plaintiff") brings this action against the City of New London and its building inspector, Raymond Burke, (hereinafter the "defendants") for injuries incurred as a result of the March 6, 1991 incident. On January 19, 1996, the defendants filed a motion for summary judgment as to the following counts: 1) Counts one and two on the ground that governmental immunity bars the plaintiff's negligence claims; 2) Counts three, four, six, seven, eight, and thirteen on the ground that the defendants conduct does not, as a matter of law, rise to the level of recklessness; 3) Counts five and twelve on the ground that the plaintiff has, as a matter of law, alleged insufficient facts to support the allegations; and 4) Counts nine, ten, and eleven on the ground that the plaintiff has failed, as a matter of law, to state facts sufficient to state a claim of recklessness or nuisance, and on the ground that the defendants are not liable for actions of a non-agent or non-employee.
The complaint alleges the following: 1) Count one alleges negligence on the part of Raymond Burke; 2) Count two alleges liability on the part of the city of New London pursuant to General Statutes § 7-465; 3) Count three alleges recklessness on the part of defendant Burke; 4) Count four alleges liability on the part of the city of New London pursuant to General Statutes 7-465 for the damages caused by Defendant Burke as alleged in Count three; 5) Count five alleges liability of the city of New London pursuant to General Statutes § 52-557n for damages caused by the negligent acts or omissions of defendant Burke; 6) Count six alleges liability on the part of the city of New London pursuant to General Statutes § 52-557n for damages caused by the reckless acts or omissions of defendant Burke as alleged in Count three; 7) Count seven alleges recklessness on the part of the city of New London in the performance of ministerial activity; 8) Count eight alleges recklessness on the part of the city of New London in the performance of a ministerial duty pursuant to General Statutes 52-557n; 9) Count nine alleges liability for nuisance as to defendant Burke; 10) Count ten alleges liability on the part of the city of New London for defendant Burke's nuisance as alleged in Count nine; 11) Count eleven alleges liability for nuisance as to the city of New London pursuant to General Statutes § 52-557n; 12) Count twelve alleges liability on the part of defendant city of New London for "negligence in the performance of functions from which the city derived a Special Corporate Profit or Special Pecuniary Benefit" pursuant to General Statutes § 52-557n; and 13) Count thirteen alleges liability on the part of the city of New London for recklessness in the performance of functions from which "the City Derived a Special Corporate Profit or Special Pecuniary Benefit."
On July 12, 1996, the plaintiff filed a memorandum of law in opposition to defendants' motion for summary judgment. On August 21, 1996, the defendants filed a supplemental motion for summary judgment. On June 11, 1997, the plaintiff filed a supplemental memorandum of law in opposition to the defendants' motion for summary judgment.
On July 12, 1996, the plaintiff filed a motion for summary judgment as to liability on the ground that General Statutes § 29-404 imposes a mandatory duty on the City of New London to administer the state demolition code and that the defendants failed to so administer the code. On June 4, 1997, the defendants filed a memorandum of law in opposition to the plaintiff's motion for summary judgment stating that the court (Hurley, J.) had already determined that the defendants' actions pursuant to General Statutes § 29-404 discretionary and, therefore, governmental immunity bar the plaintiff's negligence claims.
In support of its motion for summary judgment the plaintiff submitted a memorandum of law and forty-two exhibits.
On July 21, 1997, the City of New London and Raymond Burke filed a third-party complaint against Charles Flanagan, Nellie Colonis (hereinafter the "third-party defendants"), and Alan K. Nudalman. On August 31, 1993, third-party defendants Flanagan and Colonis filed an answer and asserted special defenses.
On March 1, 1993, the court (Hurley, J.) granted the defendants' motion to cite in the abovementioned parties as third-party defendants. The third-party complaint contains the following counts: 1) Counts one through three are directed at Nudalman, 2) Counts four through six are directed at Flanagan, and 3) Counts seven and eight are directed at Colonis. [In addition, on June 10, 1997, the third-party plaintiffs moved for permission to file an amended complaint. The motion has not been acted on by the court.]
On June 4, 1997, the third-party defendants moved for summary judgment as to the third-party plaintiffs on the grounds that 1) Counts four and seven improperly seek apportionment of damages based on negligence against an employer, 2) Count five alleges facts insufficient to state a cause of action for breach of contract, and 3) Counts six and eight allege facts insufficient to state a cause of action for indemnification based on tort. On June 27, 1997, the third party plaintiffs filed a memorandum of law in opposition to the motion for summary judgment stating that 1) since this case was brought prior to the enactment of Public Act 95-111, a party otherwise immune from liability may nonetheless be made a party for apportionment purposes, 2) there is a genuine issue of material fact as to whether a contract existed between the City of New London and Charles Flanagan, and 3) the City of New London has properly pleaded a cause of action for indemnification based on tort.
In support of their motion for summary judgment the third-party defendants submitted a memorandum of law, an affidavit of Charles Flanagan, and other uncertified, supporting documents.
The third-party plaintiffs and the third-party defendants filed additional supporting memoranda in opposition to and in support of the third-party defendants' motion for summary judgment.
On June 27, 1997, the court (Handy, J.) heard oral argument on all three motions.
II. Summary Judgment, Legal Standard
"[S]ummary judgment shall be rendered forthwith if the pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). "A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Catz v. Rubenstein, 201 Conn. 39, 48, 513 A.2d 98 (1986). "The party seeking summary judgment has the burden of showing the absence of any genuine issues as to all material facts which, under applicable principles of substantive law, entitle [that party] to judgment as a matter of law." (Internal quotation marks omitted.) Suarez v. Dickmont Plastics, Corp., 229 Conn. 99, 105, 639 A.2d 99 (1994); Miller, supra, 233 Conn. 744-45. "Although the moving party has the burden of presenting evidence that shows the absence of any genuine issue of material fact, the opposing party must substantiate its adverse claim with evidence disclosing the existence of such an issue." Haesche v. Kissner, 229 Conn. 213, 217, 640 A.2d 89 (1994). "Demonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred." New Milford Savings Bank v. Roma, 38 Conn. App. 240, 244, 659 A.2d 1226 (1995).
III. THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (No. 229)
A. Disposition
The defendants's motion for summary judgment as to the plaintiff is denied as to all counts on the ground that there are disputed issues of material fact that must be resolved by a jury.
B. Discussion
1. Counts one and two: Negligence
The defendants argue that summary judgment should be granted as to Counts one and two of the plaintiff's complaint on the ground that governmental immunity bars the plaintiff's negligence claims. In support of their argument, the defendants assert that this court's (Hurley, J.) memorandum of decision on a prior motion to strike the plaintiff's complaint has established that defendant Burke's "duties in connection with the issuance of a permit for demolition is a governmental duty, and thus discretionary in nature." Memorandum of Decision on Motion to Strike, July 15, 1994, (Hurley, J.) at 9.
Count one reads in relevant part beginning at paragraph 12: "At all times alleged herein Defendant Burke as Building Official of the City of New London had a statutorily mandated duty to enforce and administer the provisions of the State Demolition Code. . . . At all times alleged herein Defendant Burke as Building Official of the City of New London had a mandatory duty imposed upon him by the Codes and Ordinances of the City of New London . . . to enforce all provisions, rules and regulations of the State Demotion Code . . . Raymond Burke, the local Building official of the City of New London, acting within the scope of his employment or official duties, knowingly permitted John K. Fowler to engage in the demolition of the structure described . . . Defendant Burke . . . had a mandatory duty to Plaintiff to administer and enforce the State Demolition Code . . . ." Plaintiff's revised complaint at 5-7. For the substance of Count two, please see footnote one.
"A municipality itself [is] generally immune from liability for its tortious acts at common law . . . . [A] municipal employee . . . has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act, as opposed to a discretionary act. . . . The word "ministerial" refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion. . . . The immunity from liability for the performance of discretionary acts by a municipal employee is subject to three exceptions or circumstances under which liability may attach even though the act was discretionary: first, where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence. (Citations omitted.) Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989).
The court's (Hurley, J.) memorandum of decision on the defendants' motion to strike has already determined that the acts in question are governmental acts; thus, governmental immunity would normally attach. However, the court also found that the facts, as alleged, fit one of the narrowly defined exceptions to the general rule barring claims against a government or its subdivision. Specifically, the court found that the plaintiff's complaint alleged facts sufficient to bring the allegations within the "wilful and wanton" exception to governmental immunity. Id. "Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstances." CFM of Connecticut, Inc. v. Chowdury, 239 Conn. 375, 404, 685 A.2d 1108 (1996). Summary judgment is denied as to Count one on the ground that this court (Hurley, J.) previously determined that the plaintiff's allegations fit one of the narrowly tailored exceptions to governmental immunity, and there remains a material issue of fact as to whether the defendants are liable to the plaintiffs as specified in Count one of the plaintiff's January 17, 1995 complaint.
In its decision, the court found, without elaboration, that Counts seven and eight were legally insufficient in that governmental immunity barred the plaintiff's claims. In his January 17, 1995 complaint, the plaintiff appears to have changed these stricken counts to counts sounding in recklessness.
Count two of the plaintiff's complaint alleges statutory indemnification for the negligence of defendant Burke, as alleged in Count one, pursuant to General Statutes § 7-465 "[I]n a suit under § 7-465, any municipal liability which may attach is predicated on prior findings of individual negligence on the part of the employee and the municipality's employment relationship with the individual." Wu v. Town of Fairfield, 204 Conn. 435, 438, 528 A.2d 364 (1979). Since this court has already determined that defendant Burke's negligence is a matter for the jury to determine, and it is undisputed that defendant Burke was, at all times relevant hereto, an employee of the City of New London, the court also finds that the City of New London's statutory duty to indemnify must also await the jury's determination.
General Statutes § 7-465 provides in pertinent part: "Any town, city or borough, notwithstanding any inconsistent provision of law . . . shall pay on behalf of any employee of such municipality . . . all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages award for . . . physical damages to person or property, except as hereinafter set forth, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrences, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty. . . ." General Statutes § 7-465 (a).
This court points out to the respective parties that pursuant to the explicit language of General Statutes § 7-465, a municipality is not liable for damages caused by an employee whose actions are determined to be willful and wanton (e.g. reckless). See General Statutes § 7-465.
This court denies the defendants' motion for summary judgment as to Counts one and two on the ground that the plaintiff has alleged facts which bring the defendants' actions within one of the exceptions to governmental immunity, and there remain material issues of fact whether the defendants are liable to the plaintiff.
2. Counts three, four, six, eight, and thirteen: Recklessness.
The defendants argue that they are entitled to summary judgment as to Counts three, four, six, seven, eight, and thirteen, on the ground that the plaintiff has failed to allege facts sufficient to constitute recklessness. "Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater . . . than that which is necessary to make his conduct negligent." (Internal quotation marks omitted.) Bishop v. Kelly, 206 Conn. 608, 614, 538 A.2d 108 (1988). "It is well recognized that summary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feeling and reactions." (Ellipsis omitted.) Batick v. Seymour, 186 Conn. 632, 646-47, 443 A.2d 471 (1982). Construing the facts in the complaint most favorably to the plaintiff, summary judgment is denied as to Counts three, four, six, seven, eight, and thirteen on the ground that there remain material issues of fact whether the defendants were reckless as to the plaintiff.
The plaintiffs' memorandum in opposition fails to address the defendants' motion as to Counts three, four, six, seven, eight, and thirteen.
Please see footnote number nine.
3. Counts five and twelve: Liability pursuant to General Statutes § 52-572n.
At the outset, there appears to be some confusion on the part of the defendants whether Counts five and twelve sound in negligence, recklessness, or both. Upon review of the complaint, Count five relies on the recklessness exception carved out in § 52-557n(b)(7); Count twelve relies on the general abrogation of governmental immunity set forward in § 52-557 (a)(1)(B).
Count five is entitled: "Liability of Defendant City of New London Pursuant to C.G.S. 52-557n for Damages to Plaintiff caused by the Negligent Acts or Omissions of Defendant Burke."
Count twelve is entitled: "Liability of defendant City for Negligence in the Performance of Functions from which the city Derived a Special Corporate Profit or Special Pecuniary Benefit — 52-557n."
In general, § 52-557n abrogates much of the common law rule of governmental immunity. However, the statute does provide for the immunity of a municipality and its employees if they are engaged in governmental, as distinguished from ministerial, acts within the scope of their employment, and these acts do not fall into one of the exceptions provided by the statute. See Gauvin v. New Haven, 187 Conn. 180, 184 (1984). Specifically, § 52-557n(a)(1)(B) abrogates governmental immunity in the negligent performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit. General Statutes § 52-557 (a)(1)(B). On the other hand, § 52-557n(b)(7) preserves governmental immunity unless the issuance or non-issuance of a permit, or other authorization, constitutes a reckless disregard for health or safety. General Statutes § 52-557n(b)(7).
General Statutes § 52-557n states in relevant part: "Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivisions or any employee, officer or agent thereof acting within the scope of his employment or official duties; (b) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit . . . . (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct; or (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or implied granted by law. . . . (b) 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 . . . (7) the issuance, denial, suspension or revocation of, or failure or refusal to issue, deny, suspend, or revoke any permit, license, certificate, approval, order or similar authorization, when such authority is a discretionary function by law, unless such issuance, denial, suspension or revocation or such failure or refusal constitutes a reckless disregard for health or safety." General Statutes § 52-557n.
See Evon v. Andrews, supra, 211 Conn. 505-06.
General Statutes § 52-557n(b)(7) appears to establish by statutory fiat that the act of issuing permits or other authorization is a governmental act and that in order for a plaintiff to prevail under this section the plaintiff must allege facts sufficient to constitute recklessness on the part of the defendant. See Evon v. Andrews, supra, 211 Conn. 505 (third exception to governmental immunity).
As stated above, the facts alleged in Count five of the plaintiff's complaint are sufficient to create a material issue of fact as to whether the defendants are liable to the plaintiff. As for Count twelve, whether the defendant derived pecuniary benefit from the greenhouse is a question of fact not appropriate for determination by summary judgment.
The defendants' motion for summary judgment is denied as to Counts five and twelve on the grounds that governmental immunity does not bar the plaintiff's claims and that there are material issues of fact as to whether the defendants are liable pursuant to § 52-572n.
4. Counts nine, ten, and eleven: Nuisance.
Plaintiff asserts that Counts nine, ten, and eleven state claims for nuisance. The defendants assert that they are entitled to summary judgment on the ground that the defendant has not, as a matter of law, asserted facts sufficient to establish a claim for nuisance.
Count nine is entitled "As to Defendant Burke — Liability for Nuisance." Count ten is entitled "As to Defendant City — Liability for Defendant Burke's Count Nine Nuisance Liability Pursuant to Connecticut General Statutes § 7-465. (General Statutes § 7-465 is entitled "Assumption of liability for damages caused by employees or members of local emergency planning districts. Joint liability of municipalities in district department of health or regional planning agency.) Count eleven is entitled "As to Defendant city Liability for Nuisance Pursuant to C.G.S. 52-557n."
"In order to establish its claim for nuisance, the plaintiff [must] . . . prove the existence of the following four elements: (1) the condition complained of [has a] natural tendency to create danger and inflict injury upon person or property; (2) the danger created [is] a continuing one; (3) the use of land [is] unreasonable or unlawful; and (4) the existence of the nuisance [is] the proximate cause of the [plaintiff's] injuries and damages." (Brackets omitted; internal quotation marks omitted.) Tomasso Brothers, Inc. v. October Twenty-four, Inc., 221 Conn. 194, 197, 602 A.2d 1011 (1992). "Whether the elements necessary to establish a claim of nuisance have been proven is . . . a question of fact which is ordinarily determined by the trier of fact." Id. As the movant, the defendants have the burden of proof that there is no genuine issue of material fact. As such, the defendants have produced no affidavits contradicting the plaintiff's complaint but merely assert that the plaintiff's complaint cannot, as a matter of law, establish a prima facie case for nuisance.
Viewing the complaint in the non-movant's favor, this court finds that a jury could find that the plaintiff has made a valid claim for nuisance as against the defendants. The plaintiff has alleged a series of actions by the defendants that a jury could find have a natural tendency to create a danger, that said danger is a continuing one, and that plaintiff's injuries are proximately caused thereby. The defendants' motion for summary judgment is denied as to Counts nine, ten, and eleven.
Please see footnote nine.
D. Conclusion
The defendants' motion for summary judgment (No. 229) is denied as to Counts one, two, three, four, five, six, eight, nine, ten, eleven, twelve, and thirteen on the ground that there are material issues of fact that require resolution by a jury.
IV. THE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AS TO THE DEFENDANTS (No. 244)
A. Disposition
The plaintiff moves for summary judgment against the defendants on the ground that General Statutes § 29-404 imposes a mandatory duty on the defendants to administer the state demolition code and that the defendants failed to administer the code.
Pursuant to this court's reasoning in the defendants' motion for summary judgment, this court denies the plaintiff's motion for summary judgment on the ground that there are numerous outstanding issues of fact that require resolution by a jury.
V. THE THIRD-PARTY DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AS TO THE THIRD-PARTY DEFENDANTS (No. 254)
A. Disposition
The third-party defendants' motion for summary judgment is granted as to Counts four and seven on the ground that the exclusivity provision of the Worker's Compensation Act bars the third-party plaintiffs from citing in the third-party defendants for apportionment purposes. The third-party defendants' motion for summary judgment as to Counts five, six, and eight is denied on the ground that there are disputed issues of material fact.
B. Discussion
1. Counts Four and Seven: Apportionment
The third-party defendants argue that summary judgment should be granted as to Counts four and seven of the third-party plaintiffs' complaint on the ground that the exclusivity provision, General Statutes § 31-284 (a), prohibits the third-party plaintiffs from bringing in the third-party defendants for apportionment purposes. In opposition, the third-party plaintiffs argue that, at the time this action commenced, an immune party could be brought into a case for apportionment purposes.
The third-party plaintiffs admit that General Statutes § 52-102 (b) no longer permits otherwise immune parties from being brought in for apportionment purposes.
Prior to the enactment of General Statutes § 52-102b, General Statutes § 52-102 was the appropriate statutory vehicle for citing in a party for apportionment purposes. See Cooper v. Delta Chi Housing Corporation of Connecticut, 41 Conn. App. 61, 65, 674 A.2d 858 (1996). In their brief, the third-party plaintiffs fail to cite the pertinent portion of General Statutes § 52-102: "no person who is immune from liability shall be made a defendant in the controversy."
General Statutes § 52-102 provides: "Upon motion made by any party or nonparty to a civil action, the person named in the party's motion or the nonparty so moving, as the case may be . . . shall be made a party by the court if that person is necessary for a complete determination or settlement of any question involved therein; provided no person who is immune from liability shall be made a defendant in the controversy." General Statutes § 52-102.
In Cooper v. Delta Chi Housing Corporation, supra, the Appellate court determined that an immune party could not be brought in for apportionment of liability pursuant to General Statutes § 52-102 and 52-572h. Id. 65. In that case, the defendants attempted to cite in the University of Connecticut as a defendant for apportionment purposes. Id. 63. The Court concluded that the language of § 52-102 prohibiting immune parties from being made a defendant was applicable for an apportionment defendant as well. Id. 65.
In this case, the third-party plaintiffs do not dispute that the third-party defendants are employers within the meaning of the Workers Compensation Act. Subject to exceptions which do not apply to apportionment, the Supreme Court has observed that the Worker's Compensation Act is the exclusive remedy as against an employer. Ferryman v. Groton, 212 Conn. 138, 144-45, 561 A.2d 432 (1989). Thus, the third-party plaintiff is immune from liability within the context of General Statutes § 52-102. On the basis of the Court's reasoning in Cooper, the third-party defendants' motion for summary judgment is granted as to Counts four and seven on the ground that they are immune from liability pursuant to General Statutes § 31-275 et seq., and thus may not be made parties to this action for apportionment purposes.
2. Count five: Breach of Contract
The third-party defendants assert that summary judgment, should be granted as to Count five of the third-party complaint on the ground that there is no evidence whereby a jury could find that there was either an express or implied contract between the third-party plaintiffs and the third-party defendants. The third-party plaintiffs assert that whether there was an implied or express contract between third-party defendant Flanagan and the third-party plaintiff City is a matter of fact for the jury to determine.
In support of its motion, the third-party defendants have produced the affidavit of third-party defendant Flanagan. In his affidavit, Flanagan asserts that, at the time he purchased the property in question, he was unaware of any agreement between the City and the former owner of Crocker House, Alan K. Nudalman. Flanagan Affidavit at 2.
The third-party complaint asserts that "[b]y virtue of taking ownership control and/or possession of the property known as the Crocker House, the third party defendant . . . did expressly or impliedly agree to properly maintain, control and/or possess the greenhouse addition to the Crocker House. Third party defendant Charles Flanagan did breach his express or implied agreement . . . ."
An express contract is a contract whose terms and conditions are expressed in actual words. An implied contract "is an agreement between the parties which is not expressed in words but which is inferred from the acts and the conduct of the parties." Brighenti v. New Britain Shirt Corporation, 167 Conn. 403, 406, 356 A.2d 181 (1974). Both types of contracts depend on an actual agreement or the undertaking of an actual contract commitment. D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 211-12 n. 2, 520 A.2d 217 (1987).
In support of their motion, the third-party defendants have produced an affidavit by Flanagan which states that at the time he purchased the above-mentioned property he was unaware of any agreement between the City and the former owner, Alan Nudalman. See Flanagan Affidavit at 2. The third-party plaintiffs argue that Flanagan's knowledge of a prior agreement is irrelevant as to whether Flanagan and the City had an agreement in place at the time of the plaintiff's accident. The third-party plaintiffs argue that the City's demand to have the greenhouse removed, coupled with Flanagan's removal of the greenhouse, is evidence of at least an implied agreement between Flanagan and the City to remove the greenhouse, making resolution of this issue by way of summary judgment inappropriate.
Summary judgment is ordinarily inappropriate where intent is implicated. Reynolds v. Chrysler First Comm. Corp., 40 Conn. App. 725, 731-32, 673 A.2d 573 (1996). The third-party plaintiffs have set forward facts sufficient to demonstrate that whether there was a contract between the parties is an issue of fact appropriately resolved by a jury. The third-party defendants' motion for summary judgment is denied as to Count five.
3. Counts Six and Eight: Indemnification
The third-party defendants argue that their motion for summary judgment should be granted as to Counts six and eight on the ground that the third-party plaintiffs have failed to make out a prima facie case for common law indemnification. The third-party plaintiffs assert that they have alleged facts sufficient to set forward a prima facie case for indemnification.
"Indemnity involves a claim for reimbursement in full from one who is claimed to be primarily liable. . . . Ordinarily, there is no right of indemnity between joint tortfeasors. . . . Exceptions to this general rule exist, however, where the primarily liable tortfeasor owes an independent legal duty to the secondarily liable tortfeasor. . . . In order to establish that a party was primarily negligent and, thus, liable to indemnify a secondarily negligent tortfeasor, the following essential elements must be proved: . . . (1) the party must have been negligent; (2) its negligence rather than another's was the direct and immediate cause of injury; (3) it had exclusive control over the situation; . . . (4) the negligent party seeking indemnification did not know of the charged party's negligence, had no reason to anticipate it and could reasonably have relied on the charged party to act without negligence . . . [and 5] . . . an independent legal relationship between the indemnitor and the indemnitee [are] rise to a special duty." (Citations omitted; internal quotation marks omitted.) Atkinson v. Berloni, 23 Conn. App. 325, 326-27, 580 A.2d 84 (1990).
The third-party plaintiff has arguably stated a prima facie case for common law indemnification. The City has alleged that the third-party defendants were negligent in supervising and hiring the work crew responsible for dismantling the greenhouse, that the third-party defendants had exclusive control and ownership of the greenhouse, that the third-party plaintiffs were unaware of the third-party defendants negligent conduct and had no reason to anticipate such conduct, and that an independent legal relationship existed between the third-party defendants and the third-party plaintiffs by virtue of a contract, whether express or implied, between the parties. These alleged facts are sufficient to create a material issue of fact as to whether the third-party plaintiffs are entitled to indemnification from the third-party, defendants. The third-party defendants' motion for summary judgment is denied as to Counts six and eight.
This court has already determined that whether there was a contract between the parties is for the factfinder to determine.
C. Conclusion
The third-party defendants' motion for summary judgment is granted as to Counts four and seven and denied as to Counts five, six, and eight.
VI. CONCLUSION
The defendants' motion for summary judgment (No. 229) is denied as to Counts one, two, three, four, six, seven, eight, nine, ten, eleven, twelve and thirteen on the ground that there remain disputed issues of material fact that a jury must resolve.
The plaintiff's motion for summary judgment (No. 244) is denied on the ground that there are disputed issues of fact that must be resolved by a finder of fact.
The third-party defendants' motion for summary judgment (No. 254) is granted as to Counts four and seven on the ground that General Statutes § 52-102 prohibits the citing in of an otherwise immune party for apportionment purposes, and denied as to Counts five, six, and eight on the ground that there are disputed issues of material fact that must be resolved by a finder of fact.
HANDY, J.