Opinion
No. CV00 037 50 40 S
July 10, 2001
MEMORANDUM OF DECISION RE: MOTION TO STRIKE (DOCKET ENTRY NO. 114)
Before the court is the apportionment defendant's motion to strike the apportionment complaint. On July 28, 2000, the plaintiffs, Claudia and Fitzroy Hylton, filed an amended four count complaint against the defendants, Elm Street Limited Partnership (Elm Street) and First Union National Bank (First Union), alleging claims of negligence against the defendants in counts one and three, and claims of loss of consortium against the defendants in counts two and four. The plaintiffs allege that Elm Street is the owner of land and a building, occupied and leased as a bank by First Union, and that on or about June 16, 1998, Claudia Hylton, while visiting the bank, fell on a slippery portion of the tile floor in the lobby of the bank while she was entering the building. On October 11, 2000, First Union filed an apportionment complaint against Tower Cleaning Systems, Inc. (Tower Cleaning) pursuant to General Statutes § 52-102b. First Union alleges therein that Tower Cleaning contracted with First Union to provide, inter alia, cleaning and janitorial services for the property in question, and further that, based upon the plaintiffs' allegations of negligence, Tower Cleaning is or may be liable to the plaintiffs for all or part of their claim for negligence. Pursuant to Practice Book § 10-39, Tower Cleaning moves to strike the apportionment complaint on the basis that a landowner cannot maintain a claim for apportionment against an independent contractor.
In its apportionment complaint, First Union incorporates by reference the allegations of negligence and damages set forth in the plaintiffs' amended complaint.
In its memorandum in support of its motion to strike, Tower Cleaning acknowledges that First Union has incorporated by reference "the plaintiff's allegations of negligence, specifically claiming that the defendants were negligent in allowing the lobby to become slippery and/or failing to remedy the condition, and that they applied or permitted to be applied an unsafe amount of wax on the floor so as to render it dangerous and failed to remedy this condition." Thus, the only ground for the motion to strike relates to the propriety of a claim for apportionment by a landowner against an independent contractor.
On January 17, 2001, after Tower Cleaning had filed its motion to strike and the parties had filed memoranda in support and in opposition thereto, First Union filed a request for leave to amend its apportionment complaint pursuant to Practice Book § 10-60. In the first count of the amended apportionment complaint, First Union again alleges its apportionment claim against Tower Cleaning based upon the plaintiffs' allegations of negligence, and in the second count First Union alleges that it had a written contract with Tower Cleaning and that Tower Cleaning breached the contract by failing to obtain insurance for loss claims such as the Hyltons', by failing to name First Union as an additional insured on such policy, and by failing to indemnify, defend and hold First Union harmless for the Hyltons' claim.
Practice Book § 10-60 provides in relevant part: "Except as provided in Section 10-66, a party may amend his or her fipleadings or other parts of the record or proceedings at any time . . . (3) [b]y filing a request for leave to file such amendment, with the amendment appended . . ."
Tower Cleaning filed an objection to First Union's request to amend the apportionment complaint on February 15, 2001. The court, Rush, J., overruled the objection on March 7, 2001. Because Tower Cleaning has not filed a motion to strike the amended apportionment complaint, the court will apply the motion to strike the original apportionment complaint to the amended apportionment complaint as far as possible. First Union incorporated the original apportionment claim into the first count of the amended apportionment complaint. The motion to strike there fore applies to the first count of the amended apportionment complaint.
"[T]he rules of practice provide that pleadings already filed the adverse party shall be regarded as applicable so far as possible to the amended pleading. . . . Under this analysis, a motion to strike is regarded as applicable to an amended complaint filed in response thereto." (Citation omitted; internal quotation marks omitted.) Flores v. Viveros-Velazguez, Superior Court, judicial district of Windham at Putnam, Docket No. 063971 (November 21, 2000, Foley, J.); Practice Book § 10-61. "Accordingly, the court will look to the amended apportionment complaint in considering the apportionment defendant's motion to strike." Id.; see also Harris v. Town of Clinton, Superior Court, judicial district of Middlesex at Middletown, Docket No. 090095 (May 4, 2000, Gordon, J.)
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaints . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.)Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). "We take the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. . . . Moreover, we note that [wihat is necessarily implied [in an allegation] need not be expressly alleged." (Citations omitted; internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001)
Tower Cleaning, an independent contractor, moves to strike the apportionment claim on the ground that First Union, as an occupier of the premises, has a nondelegable duty to invitees such as the plaintiff, and cannot absolve itself of liability by delegating that duty to a contractor. It argues that because the negligence of the contractor is the negligence of the occupier of the premises, a claim for apportionment between them is not a legally cognizable claim.
First Union argues that the motion to strike should be denied and that liability can be apportioned to Tower Cleaning pursuant to General Statutes § 52-102b, because Tower Cleaning is an entity who is or may be liable for a proportionate share of the plaintiffs' damages pursuant to General Statutes § 52-572h. First Union argues, therefore, that it may implead Tower Cleaning under the apportionment statute.
General Statutes § 52-102b provides in relevant part: "Addition of person as defendant for apportionment of liability purposes. (a) A defendant in any civil action to which section 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability."
General Statutes § 52-572h provides in relevant part: "Negligence actions. Doctrines applicable. Liability of multiple tortfeasors for damages. . . . (c) In a negligence action to recover damages . . . if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for such party's proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section."
Both parties find authority for their arguments in Superior Court decisions because the judges of that court "have spoken with two divergent voices on the issue . . ." Riggione v. KMart Corp., Superior Court, judicial district of New Haven at New Haven, Docket No. 425255 (January 11, 2000, Alander, J.) ( 26 Conn.L.Rptr. 260). One line of cases holds that a defendant in possession of the premises has a non-delegable duty to maintain the premises in a reasonably safe condition which precludes the defendant from seeking an apportionment of damages from an independent contractor. . . . The opposing view . . . holds that "an independent contractor is liable for its negligent acts or omissions in failing to keep the premises reasonably safe and may be brought into the negligence action for apportionment purposes. . . ." Id., 261.
See Currier v. Fieldstone Villaqe, Superior Court, judicial district of Tolland at Rockville, Docket No. 069258 (January 19, 2000, Sullivan, J.); Riggione v. KMart Corp., supra, 26 Conn.L.Rptr. 260;Fullerton v. Wawa, Inc., Superior Court, judicial district of New Haven at New Haven, Docket No. 406911 (December 15, 1998, Silbert, J.) ( 23 Conn.L.Rptr. 549); Lobovits v. Nemeth, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 348992 (April 7, 1998, Stodolink, J.) ( 21 Conn.L.Rptr. 651); and Fuda v. Judd Square Associates, Superior Court, judicial district of New Haven at Meriden, Docket No. 251564 (August 18, 1997, Dipentima, J.) ( 20 Conn.L.Rptr. 285).
See Gulisano v. National Amusements, Inc., Superior Court, judicial district of Ansonia/Milford Docket No. 065495 (July 29, 1999, Thompson, J.) ( 25 Conn.L.Rptr. 203); Dowd v. Jack, Superior Court, judicial district of Danbury, Docket No. 323612 (January 16, 1998, Leheny, J.); Uliano v. East Hill Woods, Inc., Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. 061900 (November 9, 1998, Grogins, J.) ( 23 Conn.L.Rptr. 335); and Veach v. Walbaums, Inc., Superior Court, judicial district of Danbury, Docket No. 331159 (September 16, 1998, Radcliffe, J.) ( 23 Conn.L.Rptr. 145).
The decisions in the latter line of cases find support in the recent case of Gazo v. Stamford, supra, 255 Conn. 245, wherein the Supreme Court discussed the doctrine of nondelegable duty stating that "the nondelegable duty doctrine simply does not address whether the person to whom the performance of the duty has been delegated . . . may not also be liable." Id., 257. The court held that an independent contractor may owe "a direct duty of care to the plaintiff" in the performance of the duty owed by the defendant to the plaintiff. Id., 250-54, 256. Therefore, Tower Cleaning is a — person who is or may be liable for a share of the plaintiff's damages pursuant to General Statutes § 52-572h.
An independent contractor that meets the elements of 1 having a legal duty of care to the plaintiff, owes the plaintiff a direct duty of care and may be liable for the negligent performance of its services.Gazo v. Stamford, supra, 255 Conn. 250-51.
Although Tower Cleaning appears to meet the requirements of General Statutes §§ 52-102b and 52-572h, because it is an entity that is or may be held liable to the plaintiff, the questions of whether First Union meets the requirements of that statutory scheme, and whether it may implead Tower Cleaning under the apportionment statute remain. Specifically, the issue is whether First Union and Tower Cleaning are joint tortfeasors, or whether First Union's liability is based solely on the doctrine of vicarious liability. The Supreme Court, although not dealing directly with this issue in Gazo v. Stamford, recognized the rule which applies in this case, that "the owner or occupier of premises owes invitees a nondelegable duty to exercise ordinary care for the safety of such persons." (Internal quotation marks omitted.) Id., 257.
As discussed by the Supreme Court in Alvarez v. New Haven Register, Inc., 249 Conn. 709, 720, 735 A.2d 306 (1999), "[t]he rules of vicarious liability . . . respond to a specific need in the law of torts; how to fully compensate an injury caused by the act of a single tortfeasor." (Emphasis in original.) The court explained that "a principal whose liability rests solely upon the doctrine of respondent superior and not upon any independent act of the principal is not a joint tortfeasor in the true sense of the word because he is not independently liable based upon his own independent actionable fault. . . . Consequently, there is no right of contribution, only indemnification." (Citations omitted; emphasis added.) Id., 720-21.
The court further stated: "The system of contribution among joint tortfeasor, of which our apportionment rules — General Statutes §§ 52-102b and 52-572h — are a key component, meets the problem of how to compensate an injury inflicted by the acts of more than one tortfeasor. . . . The liability of the joint tortfeasor is direct because the tortfeasor actually contributed to the plaintiff's injury, and is divisible because the conduct of at least on other also contributed to the injury." (Citation omitted.) Id., 721.
Clearly, a principal whose liability is derived solely from an agent's conduct is not a joint tortfeasor and cannot have proximately caused an injury, as required under General Statutes §§ 52-572h and 52-102b. Thus, the question whether First Union may implead Tower Cleaning under the apportionment statute depends on whether First Union's liability rests solely upon its vicarious liability for the conduct of Tower Cleaning, and not upon any independent actionable fault of its own. See Alvarez v. New Haven Register, Inc., supra, 249 Conn. 720-21. If First Union's liability rests solely upon the actionable fault of Tower Cleaning then First Union is not a tortfeasor in the true sense of the word and may not implead Tower Cleaning pursuant to General Statutes § 52-572h.
"The rule is that for all acts done by a servant in obedience to the express orders or directions of the master, or in the execution of the master's business, within the scope of his employment, and for acts in any sense warranted by the express or implied authority conferred upon him, considering the nature of the services required, the instructions given, and the circumstances under which the act is done, the master is responsible." Son v. Harford Ice Cream Co., 102 Conn. 696, 698, CT Page 9516 129 A. 778 (1925). "The acts of an agent are imputed to his principal, and a principal may not use his agent as a shield when the agent acts within the bounds of his authority." Kallas v. Harnen, 48 Conn. App. 253, 260 n. 5, 709 A.2d 586, cert. denied, 244 Conn. 935, 717 A.2d 232 (1998).
This conclusion is supported by the language in footnote 4 of the supreme court's opinion in Gazo v. Stamford, supra. The extent of the respective parties' liabilities to the plaintiff depends in part on the extent of the independent contractor's contractual undertaking of the principal's duty of care.
On the other hand, if First Union's liability does not rest solely upon the doctrine of vicarious liability, but is also based ion its own independent actionable fault, then both First Union and JTower Cleaning would be independent tortfeasors and First Union would be permitted to implead Tower Cleaning under General Statutes §§ 52-572h and 52-102b.
Thus, the court must determine whether the allegations in the plaintiffs' amended complaint could be construed to assert a claim against First Union that is based on the independent actionable fault of First Union. In the first count of the plaintiffs' amended complaint, which is directed at First Union, Claudia Hylton alleges that First Union controlled, possessed and/or maintained the bank and lobby where she fell on a slippery portion of the tile floor, that her fall on the floor in the lobby of the Bank was due to First Union's negligence in one or more of several enumerated ways, and that First Union knew, or had [it] used due care or proper dingence should have known, of the aforesaid existing condition. (Amended Complaint, Count One, ¶ 2-5.) of the enumerated bases of negligence in paragraph four of the amended complaint at least those under (A), (B), (E), (F), (I) and (J) allege facts which could be construed to assert independent jactionable fault on the part of First Union. Accordingly, the court finds First Union to be a joint tortfeasor based upon it's own independent actionable fault, and may implead Tower Cleaning under General Statutes § 52-102b.
In paragraph four of the amended complaint the plaintiff enumerates the following bases for negligence on the part of the defendants: (A) In that they caused or allowed and permitted said lobby to be and become slippery and dangerous f or use; (B) In that they maintained said lobby in the aforementioned condition; (C) In that they failed to have slippery material removed from said lobby; (D) In that they failed to remedy said slippery and dangerous condition by placing thereon some abrasive material or some protective matting; (E) In that they failed to make proper and reasonable inspection; (F) In that the floor of said lobby was improperly constructed and was maintained by the defendant in the form of a slanting tile surface; (G) In that they applied, or permitted to be applied, an unsafe amount of wax on said floor so as to render the surface dangerous, unsafe and slippery; (H) In that they failed to use a form of material to cleanse the said floor which would not result in a highly slippery and dangerous condition; (I) In that they knew or in the exercise of reasonable care should have known that said floor at the time was and had for some time 1prior thereto, been extremely dangerous and slippery; (J) In that the defendant failed to give any warning to the plaintiff of the dangerous and defective condition existing in the lobby; (K) In that they, by their agents, otherwise failed to exercise reasonable care in order to keep said premises in reasonable safe condition for persons lawfully suing the same.
Accordingly, the apportionment defendant's motion to strike the amended apportionment complaint is denied.
____________________ SKOLNICK, JUDGE