Opinion
No. CV 02-0080302 S
October 16, 2003
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#109)
Introduction
In this action the Plaintiff, Anthony Wasilefsky, seeks damages for injuries he suffered when he slipped at or near the exit of the premises allegedly owned, controlled, possessed, managed and/or maintained by the Defendants, Rite Aid of Connecticut, Rite Aid Lease Management Company and Norwich Realty Incorporated, located at 1310 Main Street in Willimantic, Connecticut. The plaintiff alleges that his fall was caused by the negligence and carelessness of the defendants in that, among other things, they caused or allowed snow and ice to accumulate on the area where the plaintiff exited. Rite Aid of Connecticut subsequently filed an apportionment complaint against H S Carpet and Janitorial Services, LLC, d/b/a H S Snow Plowing and Removal (hereafter "H S") claiming that at the time of the plaintiff's alleged injury H S was under a contract with Rite Aid of Connecticut to perform snow removal services for the parking lot and sidewalk area where the plaintiff claims to have fallen and that if the allegations of the plaintiff's complaint are true, the injuries sustained by the plaintiff were proximately caused by the negligence of H S. The plaintiff then amended his complaint to add a count against H S. H S then moved to strike the apportionment complaint against it by Rite Aid of Connecticut on the ground that it is legally insufficient since apportionment does not apply in vicarious liability situations between a possessor of land and a snow removal operator.
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.), 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., Grelisano v. National Amusements, Inc. Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. 065495 (July 29, 1999) (Thompson, J.); 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 properly 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, 26 Conn. L. Rptr. 260 (January 11, 2000) (Alander, J.); Wood v. Suisse 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 01 0457724 S, 32 Conn. L. Rptr. 735 (Aug. 19, 2002) (Arnold, J.), 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 foreseeability 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."
Although Rite Aid argues that this split in authority referred to in Flanagan still exists subsequent to Gazo, it appears from the cases cited that where Superior Courts have referenced such a split in decisions after Gazo, those cases cited for the proposition that apportionment may be available were decided prior to Gazo. This is true for the decision cited by Rite Aid, Reed v. Suburban Associates, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 01 0457724 S, 32 Conn. L. Rptr. 735 (August 19, 2002, Arnold, J.). There the court, citing Gazo, stated: "In the present case, the landowner-possessor Suburban 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 Larsen. 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, 255 Conn. 245, 255, 765 A.2d 505 (2001). `[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 foreseeability and policy. Here Larsen knew or should have known it was foreseeable that the plaintiff Reed's slip and fall was likely to occur. Second, there is a valid public policy for holding a contractor such as Larsen liable for its conduct. Id. at 251. Therefore, Larsen owed a duty of reasonable care to plaintiff Reed and an independent action could have been brought against the apportionment defendant, Larsen. However, the property owner-possessor, Suburban 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. This court holds that the apportionment of Suburban's non-delegable duty, which could be contracted out to Larsen, is inappropriate. A duty is owed to the plaintiff Reed by both the owner-possessor Suburban and the contractor, Larsen. The breach of duty to the plaintiff, mainly keeping the premises safe for invitees, can be committed by either the possessor-owner or the contractor, but the landowner remains legally responsible because it has a non-delegable duty. Therefore Larsen's motion to strike the apportionment complaint is hereby granted." Sutphin v. Barberino Real Estate, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 01-0447378S (July 16, 2001, Licari, J.). The court concluded that "vicarious liability precludes apportionment. While the language of Gazo may be dicta on the issue at hand, it does inform its resolution . . ."
Rite Aid has not cited any case decided since Gazo in which apportionment has been allowed. It cites Parr v. Sard Realty Co., Superior Court, judicial district of Hartford at Hartford, Docket No. CV02 0820814 S, 34 Conn. L. Rptr. 363 (April 24, 2003, Beach, J.), where the court noted: "Much has been written on the issue; the Supreme Court case of Gazo v. City of Stamford, 255 Conn. 245 (2001), at first blush disposes of the issue, but questions remain. See, e.g., Hylton v. First Union National Bank, 30 Conn. L. Rptr. 104, 2001 Conn. Super. Lexis 1894 (Skolnick, J.) (2001). Gazo may fairly be said to have established the principles that in the circumstances presented, the duty of the person in control of the premises to maintain them in reasonably safe condition is non-delegable, at least as to the plaintiff, and that issues presented by vicarious liability are not properly addressed by the apportionment scheme, because the liability is conceptually indivisible, at least for the pleading purposes presented." Although the court in Farr raised the possibility that apportionment might be allowed where the owner asserts negligence on the part of the contractor which is clearly beyond the allegations of the plaintiff against the owner and outside of the duty to keep premises reasonably safe, the court did not find such allegations in Farr. Likewise Rite Aid claims that such may be the situation here, yet it points to no allegations in the complaint or amended complaint which would support such a position.
Rite Aid also argues that since the Plaintiff has amended his complaint to include a claim against H S the court need not decide the issue of apportionment since the jury will have to apportion liability among the defendants. In support of this proposition Rite Aid cites the decision in Carpenter v. Law Offices Of Dressler, Superior Court, judicial district of Hartford at Hartford, Docket No. CV01 0804795 S, 34 Conn. L. Rptr. 342 (March 13, 2003, Beach, J.). There the court was confronted with a motion to dismiss a amended complaint which added a claim against the apportionment defendant after the court had granted a motion to strike the apportionment complaint. That decision is inapplicable here because the court does not have before it such a motion and the court cannot contemplate what the result of such a motion might be in determining this motion to strike. The determination of the motion to strike must be limited to the pleading sought to be stricken. See, King v. Board Of Education, 195 Conn. 90, 93 (1985). In any event, the determination of the viability of the apportionment complaint may effect the viability of the amended complaint as to the Plaintiff's claim against H S if brought outside the statute of limitations. See, Currier v. Fieldstone Condominium Association, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 9969258, 28 Conn. L. Rptr. 90 (September 13, 2000, Sferrazza, J.).
Conclusion
Since the defendants had a nondelegable duty to keep their premises safe, apportionment of their liability is not permitted and the Motion to Strike is granted.
Scholl, J.