Opinion
No. CV03 0284975
September 19, 2005
MEMORANDUM OF DECISION RE MOTION TO STRIKE #113
On July 18, 2003, the plaintiff, Linda M. Warner, (Warner) filed a one-count complaint in negligence against the defendant, Best Foods, Inc. (Best Foods). Warner alleges that on July 9, 2001, she was shopping at Freihofer's Bakery Outlet in Cheshire, Connecticut when she was injured after slipping and falling on the tile floor. Best Foods allegedly owns, maintains and controls Freihofer's.
On December 19, 2003, Best Foods brought an apportionment complaint against Profile Building Maintenance, Inc., Artisan Building Maintenance, Inc. and Profile Floor Care, Inc. All three companies are allegedly doing business as Profile Building Maintenance (Profile). Best Foods alleges that Profile negligently maintained Freihofer's floor. On February 20, 2004, Warner amended her complaint to assert a direct claim of negligence against Profile.
Profile filed a motion to strike the apportionment complaint on March 22, 2004. Best Foods and Warner filed memoranda in opposition to the motion to strike.
Warner relies on Best Foods' arguments in its memorandum in opposition to the motion to strike and reiterates that she has amended her complaint to include direct claims against Profile.
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004).
In deciding whether to grant the motion to strike, "[t]he court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
The question before this court is whether a defendant-landowner in a negligence action claiming defective premises may bring an action for apportionment against its independent contractor. In its motion to strike, Profile, the independent contractor, argues that Best Foods, the defendant-landowner, owed Warner a nondelegable duty and that the breach of a nondelegable duty may not be apportioned. In response, Best Foods argues that an independent contractor is liable for its negligence in failing to keep the premises reasonably safe and may be brought into an action through apportionment.
Among the superior court judges who have addressed this issue, a split of authority exists. The majority does not allow liability to be apportioned between a property owner and an independent contractor. These courts, relying on Gazo v. Stamford, 255 Conn. 245, 765 A.2d 505 (2001), reason that liability is indivisible because the duty of the property owner to maintain safe premises is nondelegable. See, e.g., Hernandez v. Hines Interests, Ltd. Partnership, Superior Court, judicial district of Hartford, Docket No. CV 03 0828759 (June 27, 2005, Miller, J.); Schachner v. Kanehl, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 04 5000006 (June 21, 2005, Scholl, J.) ( 39 Conn. L. Rptr. 495); Atkins v. Christina Properties, Superior Court, judicial district of Fairfield, Docket No. CV 04 0411920 (March 23, 2005, Doherty, J.); Adkins v. Sodexho, Inc., Superior Court, judicial district of New Haven, Docket No. CV 0480783 (April 6, 2004, Blue, J.) ( 36 Conn. L. Rptr. 688).
The minority reasons that if an independent contractor may be directly liable to a plaintiff, then apportionment should be allowed. See, e.g., Jellif v. Armstrong Park Associates, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03 0193267 (March 16, 2004, Radcliffe, J.); Grehl v. Crossroads Condominium Assn., Inc., Superior Court, judicial district of Danbury, Docket No. CV 00 0338232 (January 8, 2001, White, J.) (28 Conn L. Rptr. 661); Gulisano v. National Amusements, Inc., Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 99 0065495 (July 29, 1999, Thompson, J.) ( 25 Conn. L. Rptr. 203); Dowd v. Jack, Superior Court, judicial district of Danbury, Docket No. CV __ 0323612 (January 16, 1998, Leheny, J.).
Best Foods urges this court to follow the minority of courts that allow apportionment by a landowner against independent contractors a negligence actions; however, this court, finding Gazo instructive and supportive, has previously sided with the majority. See Sittnick v. New England Expedition Wallingford, LLC, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 03 0283676 (November 25, 2003, Tanzer, J.) "[T]he nondelegable duty doctrine . . . involv[es] a form of vicarious liability, pursuant to which the party with the duty may be vicariously liable for the conduct of its independent contractor." Gazo v. Stamford, supra, 255 Conn. 256. Although generally an employer is not liable for the negligence of independent contractors, "[o]ne exception to this . . . rule . . . is that the owner or occupier of premises owes invitees a nondelegable duty to exercise ordinary care for the safety of [invitees]." (Internal quotation marks omitted.) Id., 256-57. While General Statutes § 52-572h(c) allows for the apportionment of liability between or among defendants who "are at least potentially liable in differing proportions . . . [i]t does not apply . . . to a case of vicarious liability of one defendant for the conduct of another." Id., 258. As a result, an employer may be held liable for the torts of independent contractors under the nondelegable duty doctrine. Id., 257.
No appellate court has decided the issue. Furthermore, in Gazo, the apportionment plaintiff did not appeal from the summary judgment rendered for the independent contractor on the apportionment complaint. Sittnick v. New England Expedition Wallingford, LLC, supra, Superior Court, Docket No. CV 03 0283676. Thus, the propriety of that ruling was not before the court. Id.
" 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." Adkins v. Sodexho, Inc., supra, 36 Conn. L. Rptr. 688. The plaintiff may choose to seek recovery from a maintenance company; however, the choice does not lie with the landowner. Id.
In the present case, Warner has amended her complaint and elected to seek recovery directly from Profile. Indeed, Profile admits in its motion to strike that it may be liable to Warner. Therefore, granting the motion to strike does not hamper Warner's ability to recover potentially from both Best Foods and Profile.
In the present case, Best Foods, as a landowner, had a duty to Warner, its invitee, to keep Freihofer's in a reasonably safe condition. The obligation of Best Foods to keep the premises safe was nondelegable to Profile. No matter how extensively it delegated responsibility to Profile, Best Foods may not avoid liability by bringing an apportionment complaint. See Adkins v. Sodexho, Inc., supra, 36 Conn. L. Rptr 688.
For the foregoing reasons, Profile's motion to strike is granted.
BY THE COURT
Tanzer, Judge