Opinion
No. CV03 0283676-S
November 25, 2003
MEMORANDUM OF DECISION RE MOTION TO STRIKE #110
The plaintiff has sued the defendant, The New England Expedition-Wallingford, LLC, for injuries she sustained as a result of a fall on the premises under the defendant's possession and control. The defendant, in turn, has filed an apportionment complaint against the apportionment defendant, Pete's General Contracting, LLC, claiming that it was negligent in allowing ice and snow to accumulate on the premises. The New England Expedition-Wallingford, LLC, seeks to apportion liability between itself and its contractor, Peter's General Contracting, LLC.
This action comes before the court on the apportionment defendant's motion to strike the apportionment complaint. The question before the court, whether liability may be apportioned between owners of property and a snow removal contractor in a slip and fall action, is not a new one to the Superior Court. Several Superior Court judges have addressed the issue, and there is a division of opinion among them. The minority allows apportionment by a landowner in negligence actions involving snow removal contractors. The majority rejects apportionment in slip and fall cases where a landowner seeks to apportion liability to a snow removal contractor. The majority reasons that a landowner has a nondelegable duty to maintain its premises in a reasonably safe condition and, therefore, cannot seek to apportion liability to an independent contractor. For reference, the majority and minority opinions are cited in Roberts v. CM Corp., Superior Court, judicial district of Windham at Putnam, Docket No. 067348 (September 16, 2002, Foley, J.) 33 Conn. L. Rptr. 314, and in Falcon v. Deerfield Woods Condominiums Ass'n, Superior Court, judicial district of New Haven, Docket No. CV98 418521 (December 18, 2000, Zoarski, J.). In determining which view to adopt, this court finds the discussion of the Supreme Court in Gazo v. Stamford, 255 Conn. 245 (2001) instructive and supportive of the rationale expressed by the majority in rejecting apportionment. In Gazo, the Supreme Court held that an independent contractor could be held liable in negligence by a plaintiff, who claimed to have been injured in a fall on ice and snow, in addition to the possessor of the premises, that is, the party who had the nondelegable duty. In reaching its decision, the court rejected the argument of the independent contractor that imposing liability on him would revive joint and several liability which had been abolished by tort reform. General Statutes § 52-572h(c). The court viewed "the nondelegable 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., 256. The court reasoned that General Statutes § 52-572h apportions liability between or among defendants who "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." Id., 258. A similar rationale has been expressed by the majority for rejecting apportionment. See Falcon v. Deerfield Woods Condominiums Ass'n, supra, and cases cited therein.
In that case, one of the defendants filed an apportionment complaint against the independent contractor it had hired to provide ice and snow removal services. Because the apportionment plaintiff did not appeal from the summary judgment rendered in favor of the independent contractor on the apportionment complaint, the propriety of that ruling was not before the Court. Gazo v. Stamford, 255 Conn. 245.
The defendant, The New England Expedition, LLC, as possessor of land has a duty to keep it in a reasonably safe condition. The defendant's duty is nondelegable; its liability cannot be apportioned to its contractor.
The apportionment defendant's motion to strike is granted.
LOIS TANZER, JUDGE.