Opinion
No. CV 03-0348693 S
March 29, 2004
MEMORANDUM OF DECISION
Fall victim sues property owner regarding for negligence regarding ice and snow maintenance. Owner apportions in its maintenance contractor. Plaintiff does not move against contractor. Contractor moves to strike owner's apportionment complaint. Motion granted.
If Gazo v. Stamford, 255 Conn. 245 (2001), teaches that the duty to maintain is not one the possessor may delegate, then the existing cross-claim by possessor against the maintenance contractor is the appropriate and sole remedy for this possessor, given that plaintiff has not sought to move directly or indirectly against both. An apportiomnent setting would seem to create an anomalous situation wherein one, burdened with non-delegable duty, is able to shunt it toward his contractor while plaintiff stands helplessly by. A court would have a very difficult time explaining this to a jury. The heart of the anomaly is that if the owner's duty is non-delegable and vicarious, as Gazo also instructs, that owner serves itself well when it praises rather than attacks the performance of his purported delegatee. Were primary defendant to attack this apportionment defendant, the court would later be instructing the jury that the primary defendant is liable for the negligence of the contractor. Should the jury be persuaded by plaintiff's case, possessor's recourse is in his cross-claim against the negligent "delegatee" whose negligence rendered possessor vicariously liable. The situation of course differs when a plaintiff brings a direct action against both, or may differ when plaintiff pleads over against the apportionment defendant. Neither setting exists here.
Maintenance contractor's motion to strike the apportionment complaint filed by possessors is granted. Accord, Flanagan v. Greystone Park Condominium, Superior Court, judicial district of New Haven, Docket No. CV02 0459590 (December 2, 2002, Arnold, J.) ( 33 Conn.L.Rptr. 435); Albano v. Cheshire ILMR-LLC, Superior Court, judicial district of Waterbury, Docket No. CV 01 0167537 (April 24, 2003, Gallagher, J.) ( 34 Conn.L.Rptr. 360); Sgro v. Desco Associates, Superior Court, judicial district of New Britain, Docket No. CV03 0518758 (September 29, 2003, Robinson, J.) ( 35 Conn.L.Rptr. 565); Montano v. Carriage Hill Condo, Superior Court, judicial district of New Haven, Docket No. CV01 0457926 (October 24, 2002, Zoarski, J.T.R.); Roberts v. CM Corp., Superior Court, judicial district of Windham at Putnam, Docket No. 067348 (September 16, 2002, Foley, J.) ( 33 Conn. L. Rptr. 374); Hoffmeister v. Westbury Condominium Assn., Superior Court, judicial district of Hartford, Docket No. CV98 0582041 (December 6, 2001, Fineberg, J.T.R.); Lovallo v. Devcon-Torrington, L.L.C., Superior Court, judicial district of Litchfield, Docket No. CV99 0081097 (May 23, 2001, Agati, J.).
Nadeau, J.