Opinion
No. CV 04-5000006 S
June 21, 2005
MEMORANDUM OF DECISION RE MOTION TO STRIKE ( #130)
Introduction
In this action the Plaintiff, Stephen Schachner, seeks damages for injuries he suffered when he fell stepping up from the parking lot to the sidewalk on a commercial property located at 237 Merrow Road in Tolland, Connecticut due to the dangerous and slippery condition of said parking lot and sidewalk. The complaint alleges that Mary Lee Kanehl owned, controlled, operated and maintained said commercial property. The plaintiff alleges that his fall was caused by the negligence and carelessness of the Defendant Kanehl in that, among other things, the area where the Plaintiff fell was covered with ice and/or snow and was, therefore, unsafe for lawful users of the same and that she failed to place any and/or adequate sand, salt, or other abrasive materials on the surface of the area of the parking lot and sidewalk where the Plaintiff fell. Kanehl subsequently filed an apportionment complaint against Michael Sebben, d/b/a Sebben's Lawn Service claiming that Sebben was responsible for snow and ice removal and maintenance of the parking lot where the Plaintiff claims to have been injured and that if the Plaintiff sustained any injuries and damages then those injuries and damages arose from the negligence of Sebben's Lawn Service which was responsible for snow and ice removal and maintenance of the parking lot in question. In the Second Count of the apportionment complaint Kanehl claims common-law indemnification. The Plaintiff then amended his complaint to add a count against Sebben. Sebben has now moved to strike the apportionment complaint against it on the ground that it is legally insufficient since Kanehl has a nondelegable duty to maintain the premises in a reasonably safe condition and that General Statutes § 52-107 does not permit a claim for indemnification.
At oral argument on the Motion, on April 4, 2005, counsel agreed that the Motion to Strike may be granted as to Second Count of the apportionment complaint without prejudice. Therefore this memorandum will address only the Motion to Strike as it pertains to the First Count of the apportionment complaint.
Discussion
"A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court . . . `We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. Bohan v. Last, 236 Conn. 670, 674, 674 A.2d 839 (1996); see also Mingachos v. CBS, Inc., 196 Conn. 91, 108-09, 491 A.2d 368 (1985). Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. Waters v. Autuori, 236 Conn. 820, 826, 676 A.2d 357 (1996).' (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260-61, 765 A.2d 505 (2001)." The Jewish Home For The Elderly v. Cantore, 257 Conn. 531, 531-38 (2001).
In Gazo v. Stamford 255 Conn. 245 (2001) the plaintiff brought an action against the defendants, the city of Stamford, David Rednick and Chase Manhattan Bank, N.A. (Chase Bank) for damages for injuries he suffered when he fell on an icy and snowy sidewalk in front of Chase Bank. Chase Bank filed an apportionment complaint against Joseph Pierni, Jr., doing business as Pierni Construction (Pierni). The plaintiff then filed a substitute complaint against the original defendants and against Pierni, who had contracted to perform ice and snow removal services for Chase Bank, which had a nondelegable duty to keep its premises safe. Although the Court in Gazo did not review the trial court's granting of Pierni's motion for summary judgment on the apportionment complaint since that issue had not been appealed, the Court did note that: "General Statutes § 52-572h(c) provides: `In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1, 1987, 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 his proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section.' This provision `replaced the common-law rule of joint and several liability with a system of apportioned liability that holds each defendant liable for only his or her proportionate share of damages.' Nash v. Yap, 247 Conn. 638, 645, 726 A.2d 92 (1999). That provision, however, proceeds on the premise that the defendants, between or among any of whom liability is apportioned, are at least potentially liable in differing proportions. It does not apply, therefore, to a case of vicarious liability of one defendant for the conduct of another. Thus, as Pierni pointed out in oral argument before this court, § 52-572h(c) does not apply, for example, when the two defendants are a servant and his master who is vicariously liable for his servant's tortious conduct. Consequently, in the present case, if Pierni were to be held liable to the plaintiff based on his contractual assumption of Chase Bank's duty of care to the plaintiff, in effect Chase Bank's liability would be tantamount to a form of vicarious liability for Pierni's conduct." Gazo v. Stamford, 255 Conn. 245, 258 (2001).
Numerous Superior Courts have interpreted Gazo as precluding an apportionment complaint between contractors and landowners where the duty of the landowner sued upon was nondelegable. For example in Smith v. Two Shaw's Cove, LLC, Superior Court, judicial district of New London, Docket No. 564700 (May 2, 2003, Hurley, J.T.R.), the court granted a motion to strike an apportionment complaint by the Defendant against the contractor responsible for snow and ice removal on the Defendant's property. In Flanagan v. Greystone Park Condominium, Superior Court, judicial district of New Haven at New Haven (December 2, 2002, Arnold, J.) ( 33 Conn. L. Rptr. 435) the court stated: "There is a split of authority among the judges of the Superior Court as to whether apportionment is available to a possessor of property as against an independent contractor. Those in favor of apportionment conclude that if an independent contractor may be directly liable to a plaintiff, the apportionment should be allowed. See, e.g., Gulisano v. National Amusements, Inc. Superior Court, judicial district of Ansonia/Milford at 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.). Other Superior Court cases hold that liability may not be apportioned between a property owner and an independent contractor. They reason that liability is indivisible because the duty of the property owner to maintain the safety of premises for invitees is non-delegable. See, e.g., 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); CT Page 10182 Wood v. Susse Chalet International, Superior Court, judicial district of New Haven at Meriden, Docket No. 245558 (May 18, 1995) (Silbert, J.); Lovallo v. Devcon-Torrington, L.L.C., Superior Court, judicial district of Litchfield at Litchfield, Docket No. 081097 (May 23, 2001) (Agati, J.); Sutphin v. Barberino Real Estate, Inc., Superior Court, judicial district of New Haven at New Haven, Docket No. 447378 (July 16, 2001) (Licari, J.); Reed v. Suburban Associates, Superior Court, judicial district of New Haven at New Haven, No. CV 010457724 S (Aug. 19, 2002) (Arnold, J.) ( 32 Conn. L. Rptr. 735), 2002 Ct.Sup. 10610. In the present case, the landowner-possessor Greystone has a non-delegable duty, and it may not absolve itself of liability by contracting out the performance of that duty to the apportionment defendant MacMillan. The non-delegable duty doctrine means that a party may contract out the performance of a non-delegable duty, but may not contract out its ultimate legal responsibility. Gazo v. City of Stamford, supra, 255 Conn. 255. `[W]e view the non-delegable duty doctrine as involving a form of vicarious liability, pursuant to which the party with the duty may be vicariously liable for the conduct of its independent contractor.' Id. at 257. The duty doctrine, however, does not prevent a plaintiff from suing an independent contractor for negligence by applying a two-part test invoking the questions of foreseeabiity and policy. Here it can be alleged that MacMillan knew or should have known it was foreseeable that the plaintiff's slip and fall was likely to occur. Second, there is a valid public policy for holding a contractor such as MacMillan liable for its conduct. Id. at 251. Therefore, it can be argued that MacMillan owed a duty of reasonable care to the plaintiff J. Tracy Flanagan, and an independent action could have been brought against the apportionment defendant, MacMillan. However, the property owner-possessor, Greystone may not seek to apportion liability where it has a non-delegable duty to keep the premises in a reasonably safe condition for invitees. The Supreme Court stated that apportionment is not applicable where one defendant is vicariously liable for the conduct of another defendant because apportionment `proceeds on the premises that the defendants . . . are at least potentially liable in differing proportions.' Id., 258. The non-delegable duty doctrine is a form of vicarious liability. Id., 257."
The trend of support for the majority position has continued by Superior Court judges that have considered this issue after Gazo. See, e.g., Atkins v. Christina Properties, Superior Court, Judicial District of Fairfield at Bridgeport, Docket No. CV04 0411920 (March 23, 2005, Doherty, J.); Nieves v. Housing Authority of Stamford, Superior Court, Judicial District of Stamford-Norwalk at Stamford, Docket No. CV 04 0200048 (February 8, 2005, Wilson, J.); White v. PRT, LLC, Superior Court, Judicial District of New Britain at New Britain, Docket No. CV-04-5000018 (December 23, 2004, Burke, J.); Griffith v. Williams, Superior Court, Judicial District of Waterbury at Waterbury, Docket No. CV04-0182676S (November 4, 2004, Matasavage, J.) ( 38 Conn. L. Rptr. 209); Adkins v. Sodexho, Inc., Superior Court, Judicial District of New Haven at New Haven, Docket No. 480783 (April 6, 2004, Blue, J.) ( 36 Conn. L. Rptr. 688); Quinones v. Hoffman Investment Partners, LLC, Superior Court, Judicial District of Danbury at Danbury, Docket No. CV 03-0348693 S (March 29, 2004, Nadeau, J.) ( 35 Conn. L. Rptr. 744).
Although Kanehl argues that the court should follow the line of cases which have allowed apportionment claims against contractors, this court has previously adopted the majority view in Wasilefsky v. Rite Aid Of Connecticut, et al, Superior Court, Judicial District of Tolland at Rockville, Docket No. CV 02-0080302 S (October 16, 2003). In any event two of the cases cited by Kanehl, Fournier v. Gomes and Gulisano v. National Amusements, Inc., were decided prior to Gazo. As to the decision in Jeliff v. Armstrong Park Properties, Superior Court, judicial district of Stamford-Norwalk at Stamford, (March 16, 2004, Radcliffe, J.), which was decided after Gazo, the court there rejected the contention that Gazo supports the proposition that a non-delegable duty cannot be the subject of an apportionment claim. The court stated: "Because no appeal was taken from the granting of the motion for summary judgment concerning the apportionment complaint, the Gazo court specifically declined to address the issue presented here, concerning an apportionment complaint. Gazo v. Stamford, supra, 251. Gazo analogized the issue concerning an independent contractor charged with the removal of snow and ice, with those cases involving independent contractors involved in construction or repairs to premises. Gazo v. Stamford, supra, 253-54. In construction cases, our courts have abandoned the `completed but accepted' rule, and replaced that rule with one of forseeability. Coburn v. Lenox Homes, Inc., 173 Conn. 567, 575, 378 A.2d 599 (1977); R.A. Civitello Co. v. New Haven, 6 Conn.App. 212, 224, 504 A.2d 542 (1986); Minton v. Krish, 34 Conn.App. 361, 367-68, 642 A.2d 18 (1994). In Minton v. Krish, supra, the court held that an independent contractor is liable to one who may be forseeably injured by the contractor's negligence, even after the contractor has completed the job, and left the premises. Minton v. Krish, supra, 367-68. This duty arises independent of the ownership or continuing control of the property by an owner, or one in possession pursuant to a lease. Zapata v. Burns, 207 Conn. 496, 517, 542 A.2d 700 (1988). Because, based on the allegations in both the Plaintiff's complaint and the Apportionment Complaint, a duty is owed by the independent contractor directly to the Plaintiff, Laura Jelliff, there is no basis for denying apportionment. Apportionment does not determine liability, or breach of a duty. Instead, it determines the degree of fault a determination which is appropriate in premises liability cases, notwithstanding the non-delegable duty owed to a Plaintiff, by one lawfully in control of real property. Kriz v. Coldwell Banker Real Estate, 67 Conn.App. 688, 696-97, 789 A.2d 1091 (2002). A Plaintiff may recover against both the person in possession and control of property, and an independent contractor. Furthermore, a scenario can easily unfold in which liability would attach to an independent contractor who creates a defective condition, while the person in control of the premises would be found to have neither actual or constructive notice of the defective condition. No reason exists why the trier of fact may not find against the two Defendants, each owing an independent duty to a plaintiff, while at the same time attributing a degree of fault, as to each defendant." This court does not agree with this position but finds the conclusion of the court in Adkins v. Sodexho, Inc., Superior Court, Judicial District of New Haven at New Haven, Docket No. 480783 (April 6, 2004, Blue, J.) ( 36 Conn. L. Rptr. 688), more persuasive. There the court stated: `Because, under Gazo, the obligation of the original defendants to keep the premises safe was nondelegable, those defendants are `powerless as against plaintiff, to avoid liability no matter how extensively they delegated their responsibility to however independent a maintenance contractor. Put another way, the [law] had the effect of imputing to them the negligence of any delegate insofar as plaintiff's rights to recover were concerned.' Rogers v. Dorchester Associates, 300 N.E.2d 403, 408 (N.Y. 1973). Gazo does not alter the policy of the law that an injured person, if she chooses to do so, `may always look to an owner as well as any delegate.' Id. at 410. Under Gazo, the option of choosing to seek recovery from a maintenance company lies with the plaintiff, not with the possessor of property."
Conclusion CT Page 10185
Since the Defendant Kanehl had a nondelegable duty to keep her premises safe, apportionment of her liability is not permitted and the Motion to Strike is granted.Scholl, J.