FARR v. SARD REALTY CO.

Full title: THOMAS FARR v. SARD REALTY COMPANY, LLC

Court: Connecticut Superior Court, Judicial District of Hartford at Hartford

Date published: Apr 24, 2003

2003 Ct. Sup. 5517 (Conn. Super. Ct. 2003)

34 CLR 363

Opinion

No. CV02 0820814 S

April 24, 2003

RULING ON MOTION TO STRIKE APPORTIONMENT COMPLAINT

BEACH, JUDGE.

The plaintiff in this action has alleged that he fell on ice in a parking lot controlled by the defendant Sard Realty. Sard has filed and served an apportionment complaint, which alleges that a third party, D.W. Burr, was engaged by Sard to clear the premises and is liable to the plaintiff for its share of the negligence. The plaintiff has moved to strike the apportionment complaint on the ground that the duty to keep premises reasonably safe is non-delegable.¹

1 It appears that the apportionment defendant Burr has also moved to strike the apportionment complaint. That motion has not appeared on the calendar.

Much has been written on the issue; the Supreme Court case of Gazo v. City of Stamford, 255 Conn. 245 (2001), at first blush disposes of the issue, but questions remain. See, e.g., Hylton v. First Union National Bank, 30 Conn.L.Rptr. 104, 2001 Conn. Super. Lexis 1894 (Skolnick, J.) (2001). Gazo may fairly be said to have established the principles that, in the circumstances presented, the duty of the person in control of the premises to maintain them in reasonably safe condition is non-delegable, at least as to the plaintiff, and that issues presented by vicarious liability are not properly addressed by the apportionment scheme, because the liability is conceptually indivisible, at least for the pleading purposes presented.

I have read Gazo and much of its myriad offspring and ancestry. It seems to me that the following analysis is supported by the reasoning of Gazo and of much, but not all, of the surrounding material. First, in the usual premises liability scenario, the owner² has contracted with a third party to do a certain job, such as plowing, cleaning, and the like. If the third party negligently performs its duty, the owner ordinarily may not bring that party into the case on an apportionment theory,³ because the owner is vicariously liable to the plaintiff in any event and the duty is not divisible. The pleading situation in which there is one allegation of fault, such as careless plowing, is, therefore, easy to consider.

2 I use the term "owner" as shorthand for the person in control; obviously the term "owner" may not always describe the responsible party.

3 Third-party indemnity actions, and perhaps others, are of course not foreclosed.

Does the analysis change when the plaintiff alleges more than one means of negligence⁴ as to the owner, and the owner alleges as grounds against the contractor some but not all of the grounds alleged by the plaintiff? An apportionment action still ought not lie simply because the owner arguably might be liable to the plaintiff both vicariously and because of the owner's "own" negligence. Either way, the plaintiff's recovery is not divisible.⁵

4 Liability other than negligence may not be apportioned in any event.

5 It may be advisable to devise some means of attributing a specific portion of the overall negligence to the vicarious segment for the purpose of allocating liability of the contractor to the owner, but that is beyond the scope of this memorandum.

Suppose a third scenario is true. What happens if the owner asserts negligence on the part of the contractor which is clearly beyond the allegations of the plaintiff against the owner and outside of the duty to keep premises reasonably safe? Depending on the circumstances, an apportionment complaint ought to be viable.

Here, however, we have at best the second scenario, and the motion to strike is granted.

Beach, J.