Opinion
No. CV 07-5014615-S
October 18, 2011
MEMORANDUM OF DECISION ON DEFENDANT COMMAND SECURITY CORP. MOTION FOR SUMMARY JUDGMENT #244
FACTS
On October 25, 2007, Fletcher Embry, Jr. and Angeline Davis, as co-administrators of the estate of Fletcher Embry III (the decedent), commenced this action against the third-party plaintiffs, the city of Hartford, and the third-party defendant, Command Security Corporation. Following several requests to amend, the estate filed an eleven-count amended complaint against the plaintiff and the defendant. The estate alleges that on or about June 28, 2006, the decedent, a licensee, entered the premises of Pope Park, an outdoor swimming pool (the pool), which the plaintiff "constructed, licensed, owned, operated, inspected, maintained and controlled . . ." Thereafter, the decedent fell into the pool and drowned.
Embry and Davis will be referred to collectively as "the estate."
The city of Hartford will be referred to as "the plaintiff," and Command Security Corporation will be referred to as "the defendant."
While the numbering of the amended complaint seems to allege twelve counts, the trial court, Miller, J., granted the defendant's motion to strike count six, which alleged recklessness against the defendant. Therefore, the estate does not allege a sixth count in the amended complaint.
Specifically, the estate alleges the following causes of action against the plaintiff that are relevant to the present summary judgment motion. Counts one and two set forth allegations of negligence and recklessness, respectively, alleging, inter alia, that the plaintiff failed to prevent access to the pool when it was "not open for use." In counts three and four, the estate alleges absolute nuisance and negligent nuisance, respectively, alleging, inter alia, that the creation of a public nuisance induced, enticed and attracted the decedent to gain entry to the pool "after closing hours." In count five, the estate alleges negligence against the defendant. In count seven, the estate alleges that the plaintiff is liable under a vicarious liability theory based on the defendant's negligence.
Alternatively, in counts nine and ten, the estate alleges that on or about June 28, 2006, the decedent, an invitee, entered the premises of the pool at approximately 1:45 p.m., and drowned after falling into the pool. In count nine, the estate alleges negligence against the plaintiff by its employees. In count ten, the estate alleges negligence per se against the plaintiff.
On March 25, 2010, the plaintiff filed a three-count cross claim against the defendant alleging common-law indemnification, breach of contract and contractual indemnification. In its two indemnification claims, the plaintiff does not specify the causes of action in the amended complaint for which it seeks indemnification. Rather, the plaintiff alleges that it is entitled to indemnification for any judgment rendered against the plaintiff in favor of the estate. As a result, the plaintiff effectively seeks indemnification against all the counts alleged against the plaintiff.
In its common-law indemnification claim, the plaintiff alleges that at the time of the decedent's death, the defendant was contractually responsible to provide security guard services (security services) at the pool while it was closed and had control over the security of the pool to the exclusion of the plaintiff. Therefore, the plaintiff alleges that if the decedent sustained the injuries alleged in the amended complaint, it was the result of the active negligence of the defendant, which the plaintiff did not know of and had no reason to anticipate.
The plaintiff alleges the following facts in count three of its cross claim for contractual indemnification. On or about January 7, 2000, the defendant was issued a state of Connecticut contract (Connecticut contract) to render security services. On or about February 19, 2004, in accordance with the specifications section of the Connecticut contract, the plaintiff sent a letter (piggy-back letter) to the defendant and "requested that [the defendant] extend the prices, terms and conditions of the [Connecticut contract] for . . . [security services] for various properties . . ." The defendant accepted the request and agreed to extend all prices, terms and conditions of the Connecticut contract to the plaintiff. This agreement will be referred to throughout this memorandum as the "Hartford contract."
The plaintiff further alleges that pursuant to § II.1(D)(2)(b) of the Hartford contract, "[t]he contractor agrees to assume all risk of loss and to indemnify and hold by State . . . harmless from and against any liabilities, demands, claims, suits, losses, damages, causes of action, fines or judgments, including costs . . . for injuries to persons (including death) . . . arising out of or in connection with this agreement unless caused by the negligence or willful misconduct of the State, its officers, agents or employees." Thus, the plaintiff alleges that it is entitled to indemnification from the defendant for any judgment that may be rendered against the plaintiff in favor of the estate.
Section II.1(D)(2)(b) of the Hartford contract will be referred to as the "indemnification provision."
On October 22, 2010, the defendant filed a motion for summary judgment against the plaintiff's common-law indemnification claim on the grounds that the plaintiff cannot establish that the defendant had exclusive control over the situation or that the plaintiff was passively negligent. Furthermore, the defendant moves for summary judgment against the plaintiff's contractual indemnification claim on the grounds that no contract for indemnification exists or alternatively, that the plaintiff is not entitled to indemnification under the terms of the indemnification provision.
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Internal quotation marks omitted.) Unifund CCR Partners v. Schaeppi, 126 Conn.App. 370, 379, 11 A.3d 723 (2011). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent." (Internal quotation marks omitted.) Taylor v. Lantz, 129 Conn.App. 437, 442, 20 A.3d 88 (2011).
I
As to the common-law indemnification claim, the defendant argues that the plaintiff cannot establish that the defendant had exclusive control over the situation, as the defendant shared the responsibility of pool safety with the plaintiff. The defendant further asserts that the plaintiff cannot establish when the accident occurred and therefore, there is no evidence to establish that the defendant had exclusive control of the situation at the time the decedent drowned. Moreover, the defendant contends that the plaintiff cannot establish that its conduct was merely passive, as the plaintiff failed to make the dangerous condition safe after having notice of the condition.
In opposition, the plaintiff argues that the estate alleges that the decedent's death occurred "after hours" and during nonoperational pool hours. Thus, the plaintiff argues that there is no dispute that the defendant had exclusive control over the dangerous condition, as the defendant rendered its security services during the time of the decedent's death. At the same time, the plaintiff asserts that a genuine issue of material fact exists as to when the accident occurred and whether the defendant was primarily negligent. According to the plaintiff, the estate alleges that the decedent drowned "after hours" and during nonoperational pool hours. Alternatively, the plaintiff contends that the estate alleges that the decedent gained access to the pool at 1:45 p.m., when the pool was open for use. Thus, the plaintiff asserts that a genuine issue of material fact exists as to when the accident occurred and whether the defendant is primarily negligent. As a result, the plaintiff argues that summary judgment is inappropriate.
"Indemnity involves a claim for reimbursement in full from one who is claimed to be primarily liable." Atkinson v. Berloni, 23 Conn.App. 325, 326, 580 A.2d 84 (1990), rev'd in part on other grounds, 240 Conn. 694, 694 A.2d 788 (1997). In Connecticut, "[t]o assert a claim for [common-law] indemnification . . . [a] defendant must show that: (1) the party against whom the indemnification is sought was negligent; (2) that party's active negligence, rather than the defendant's own passive negligence, was the direct, immediate cause of the accident and the resulting injuries and death; (3) the other party was in control of the situation to the exclusion of the defendant seeking reimbursement; and (4) the defendant did not know of the other party's negligence, had no reason to anticipate it, and reasonably could rely on the other party not to be negligent." Smith v. New Haven, 258 Conn. 56, 66, 779 A.2d 104 (2001). Specifically, "property owners can assert third party claims for indemnification against contractors, thus enabling the indemnification claims to be tried in the same action as the [first party] plaintiff's original claims." Smith v. Greenwich, 278 Conn. 428, 463, 899 A.2d 563 (2006).
In order "[t]o ascertain whether a third party defendant cannot, as a matter of law, be liable to the [third party plaintiff] for the claims by the plaintiff, it is necessary to assume that [a] jury found that the plaintiff established the elements of the cause or causes of action in the first party complaint against the [third party plaintiff] . . . It is settled law that if a judgment in the first action against the . . . third party plaintiff rests on a fact fatal to recovery in the action over against the third party defendant, the latter action cannot be successfully maintained." (Internal quotation marks omitted.) CT Page 21925 Gregoire v. Michaud Enterprises LLC, Superior Court, judicial district of Hartford, Docket No. CV 07 5011658 (November 3, 2010, Peck, J.).
See also Wohlfert v. SPEC Personnel, LLC, Superior Court, judicial district of Fairfield, Docket No. CV 08 5014761 (May 3, 2011, Dooley, J.) ( 51 Conn. L. Rptr. 873) ("'the situation' or 'dangerous condition giving rise to the accident' over which exclusive control is alleged must be identified with reference to the claims of the plaintiff").
A
In the present case, the court must determine whether the defendant is entitled to judgment as a matter of law on the ground that the defendant did not have exclusive control over the situation. Our Supreme Court has defined "exclusive control over 'the situation' as exclusive control over the dangerous condition that gives rise to the accident." Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 706, 694 A.2d 788 (1997); see also Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 416-17, 207 A.2d 732 (1965) (interpreting "control" as being determined at the time of the accident). "[T]he requisite 'exclusive control' is control to the exclusion of the third party plaintiff, not necessarily control to the exclusion of other third party defendants . . . Second, the 'exclusive control' required by our case law is not exclusive control of the premises but exclusive control of 'the situation.'" (Citation omitted; emphasis in original.) Hartt v. Schwartz, Superior Court, judicial district of New Haven, Docket No. 331912 (December 3, 1997, Blue, J.) ( 21 Conn. L. Rptr. 52, 54). Moreover, the issue of exclusive control is generally a question of fact. Skuzinski v. Bouchard Fuels, Inc., supra, 240 Conn. 704. "[S]pecial circumstances [however] may give rise to the question of whether, in light of the facts alleged in the third party complaint, [no] reasonable juror could find that the third party defendants had exclusive control of the situation. Under such [rare] circumstances, this issue becomes a question of law." Id., 705.
In Skuzinski v. Bouchard Fuels, Inc., supra, 240 Conn. 694, "the question of exclusive control [was] one of the rare examples in which the issue may properly be decided as a question of law." (Emphasis added.) Id., 705.
Here, both parties argue that the dangerous condition that gave rise to the accident was access to the pool during the time when it was closed. In essence, however, the parties provide different interpretations of the "situation." The defendant provides an expansive view of the situation, arguing that it had no control over "a chain link fence that was allegedly inadequate to keep 'pool hoppers' out of the pool, repeated damage to [the] chain link fence, a lack of a more secure fence such as a wrought iron fence, inadequate lighting, a lack of a pool cover and the poor response time of the city police." In contrast, the plaintiff argues that the defendant had an obligation to properly secure and patrol the pool, and therefore, the defendant had exclusive control over the situation.
In the present case, the issue of exclusive control is complicated by the fact that the present case is riddled with factual uncertainties; namely, causation. At this stage of the proceedings, there is no conclusive evidence that details the exact situation of the decedent's death. There is no evidence of firsthand witnesses to the accident and nothing indicates the exact time of the accident. After hearing evidence, however, the trier of fact may properly determine these factual issues. Based on its determination, a jury could determine whether the defendant was in exclusive control of the pool during the time it was closed. Therefore, this is not one of the special circumstances where the court will decide the issue of exclusive control as a matter of law.
The defendant further argues that "there is no evidence as to whether the . . . decedent entered . . . [the] pool during the hours that [the defendant] was contractually obligated to be at the site, i.e. from 8 p.m. to 4 a.m." Therefore, the defendant argues that the plaintiff cannot establish that the defendant was in exclusive control of the situation when the decedent drowned. An issue of material fact exists, however, as to whether the decedent entered the pool when the defendant was contractually obligated to provide security services.
In its opposition, the plaintiff submits the affidavit of Carver, a chief medical examiner of the state of Connecticut, who attests that he reviewed the decedent's autopsy report, reviewed photographs of the decedent and reviewed the affidavit of Kevin Walsh, a captain in the plaintiff's fire department. Carver attests that "the evidence suggests that at the time [the decedent] was found in the [pool], [the decedent] had been in the pool for a considerable period of time . . . [Moreover,] the evidence suggests that [the decedent] died from a drowning in the pool at some point before 8:00 a.m. on the morning of June 28, 2006." By viewing the evidence in the light most favorable to the plaintiff; Taylor v. Lantz, supra, 129 Conn.App. 442; the decedent could have entered the pool and drowned before 4 a.m., on June 28, 2006. Therefore, Carter's affidavit creates an issue of fact as to whether the decedent entered the pool and drowned when the defendant was contractually obligated to render security services at the pool.
Based on the foregoing, the present case is not one of the special circumstances where the court will decide the issue of exclusive control as a matter of law. At the same time, the plaintiff's evidence establishes an issue of material fact as to whether the decedent entered the premises of the pool when the defendant was contractually obligated to render security services. As a result, the defendant is not entitled to summary judgment against the common-law indemnification claim, as it is for the trier of fact to determine whether the defendant had control of the situation to the exclusion of the plaintiff.
B
Next, the defendant argues that the plaintiff cannot establish that it was merely passive, as "it is undisputed that the plaintiff had knowledge of the dangerous condition and allegedly took no steps to remedy it." In a common-law indemnification claim, "whether a party is primarily negligent and thereby precluded from indemnification from another tortfeasor is ordinarily one for the trier of fact." Weintraub v. Richard Dahn, Inc., 188 Conn. 570, 573-74, 452 A.2d 117 (1982). Furthermore, "[a]n indemnitee may be chargeable with personal negligence, independent of any negligence of the indemnitor, and still not be chargeable with active or primary negligence." (Internal quotation marks omitted.) Bristol v. Dickau Bus Co., 63 Conn.App. 770, 775, 779 A.2d 152 (2001). "Personal independent negligence may be passive or secondary negligence. It need not necessarily be active or primary negligence." Kaplan v. Merberg Wrecking Corp., supra, 152 Conn. 415.
The terms "primary" or "active" and "secondary" or "passive" often cause confusion and therefore, it is necessary to define these terms. "The liability of the indemnitor to the tort victim is . . . described as 'primary' and that of the indemnitee is described as 'secondary.' Alternatively, the indemnitor is called the 'active' tortfeasor and the indemnitee the 'passive' tortfeasor. Common law indemnity is not a fault-sharing mechanism that allows a party, whose negligence was minor, to recover from the tortfeasor whose negligence was dominant." Wilkes-Barre v. Kaminski Bros., Inc., 804 A.2d 89, 92 (Pa.Commw. 2002). Instead, "[t]he right to indemnity shifts the entire loss from one who, although without fault, has been obligated to pay because of some vicarious, constructive, derivative, or technical liability to another who should bear the costs because it was the latter's wrongdoing for which the former is held liable." 41 Am.Jur.2d 440, Indemnity § 22 (2005).
In count one of the amended complaint, the plaintiff in the present case is charged with personal negligence, independent of any negligence of the defendant. Pursuant to Bristol v. Dickau Bus Co., supra, 63 Conn.App. 775, however, the plaintiff's personal negligence is not necessarily active or primary negligence. Even if the plaintiff failed to correct a dangerous condition after having notice of it, as argued by the defendant, the issue of whether the plaintiff is primarily negligent is to be determined by the trier of fact. Therefore, the defendant's argument is unavailing.
II
The defendant moves for summary judgment against the plaintiff's contractual indemnification claim on the ground that there is no contract providing for indemnification between the parties. "The existence of a contract is a question of fact to be determined by the trier on the basis of all of the evidence." (Internal quotation marks omitted.) Harley v. Indian Spring Land Co., 123 Conn.App. 800, 813, 3 A.3d 992 (2010). "Generally, incorporation by reference of existing documents produces a single contract which includes the contents of the incorporated papers. Where . . . the signatories execute a contract which refers to another instrument in such a manner as to establish that they intended to make the terms and conditions of that other instrument a part of their understanding, the two may be interpreted together as the agreement of the parties . . . The documents incorporated need not be attached to the contract nor signed or initialed unless the contract so requires." (Internal quotation marks omitted.) 556 New Park Associates, LLC v. Blardo, 97 Conn.App. 803, 810-11, 906 A.2d 720 (2006).
In the present case, the parties do not dispute that the defendant signed the piggy-back letter. While the defendant argues that no contract for indemnification exists, the plaintiff submits the specifications section of the Connecticut contract, which includes the indemnification provision. According to the plaintiff, the indemnification provision was included in the Connecticut contract, and therefore, it applies to the Hartford contract by virtue of the "prices, terms and conditions" language in the piggy-back letter. "[T]he trial court's function is not to decide issues of material fact, but rather to determine whether any such issues exist . . . [I]ssue-finding, rather than issue-determination, is the key to the procedure." (Citation omitted; internal quotation marks omitted.) Ocsai v. Exit 88 Hotel, LLC, 127 Conn.App. 731, 735, 17 A.3d 83 (2011). As a result, a genuine issue of material fact exists as to whether the "prices, terms and conditions" of the piggy-back letter incorporated the indemnification provision from the Connecticut contract into the Hartford contract. Thus, the defendant is not entitled to summary judgment on the ground that no contract for indemnification exists.
III
In the alternative, the defendant moves for summary judgment against the plaintiff's contractual indemnification claim on the ground that even if a contract for indemnification exists, the plaintiff's reliance on the indemnification provision is misplaced. The defendant argues that the estate alleges negligence and recklessness conduct against the plaintiff. Therefore, the defendant argues that "if [the estate] obtains a judgment against [the plaintiff], then the [plaintiff's] own indemnification claim against [the defendant] fails under the terms of the [indemnification provision]."
"[T]he concept of indemnity usually involves an indemnitor, A, and an indemnitee, B, who enter into a contract whereby A agrees to indemnify B for any money B becomes legally obligated to pay to a third party." (Emphasis in original.) Amoco Oil Co. v. Liberty Auto Electric Co., 262 Conn. 142, 149, 810 A.2d 259 (2002). "[A]llegations of contractual indemnification must be supported by the terms of the contract or the contract itself . . . Under Connecticut law, to state a contract-based indemnification claim, the claimant must allege either an express or implied contractual right to indemnification . . . There is no requirement that a party seeking indemnification must assert allegations of exclusive control (or any of the other elements of a claim for indemnification based on active-passive negligence) in order to state a legally sufficient claim for contractual indemnification . . . As a general rule, contractual indemnification claims that are based on written agreements are construed in accordance with the principles of contract law." (Citation omitted; internal quotation marks omitted.) Muller v. GESI, LLC, Superior Court, judicial district of New London, Docket No. CV 10 6002809 (August 24, 2011, Martin, J.).
In its cross claim, the plaintiff's contractual indemnification claim is not limited to the negligence and recklessness counts of the amended complaint. Rather, the plaintiff alleges contractual indemnification for any judgment rendered against the plaintiff in favor of the estate. In the amended complaint, the estate alleges ten separate causes of action against the plaintiff. Thus, there are ten separate judgments that may be rendered against the plaintiff. The defendant does not address the additional causes of action to which the plaintiff may be entitled to indemnification; namely, vicarious liability. Therefore, the defendant's argument effectively moves the court to grant summary judgment against some, but not all of the allegations within count three of the plaintiff's cross claim.
In Connecticut, "[t]here is no appellate authority as to whether a court can permit summary judgment against a party relative to individual allegations within a single count of a complaint. At the trial court level there is a split of authority on the issue. A review of the decisions finds that the majority of the cases do not allow a party to eliminate some, but not all, of the allegations of a single count through a motion for summary judgment . . . [S]ome courts have found that the language of Practice Book § 17-51 authorizes the entry of summary judgment on part of a claim within a single count provided final judgment can be entered with respect to that part of the claim and it can be severed from the remainder of the claim." (Internal quotation marks omitted.) Fuller v. Manchester Obstetrics Gynecology Associates, Superior Court, judicial district of Hartford, Docket No. CV 07 5012261 (June 3, 2011, Robaina, J.). Nonetheless, "the majority rule . . . is that Connecticut procedure does not allow entry of summary judgment on one part or allegation of a cause of action when the ruling will not dispose of an entire claim, and therefore, will not allow entry of judgment on that claim." (Internal quotation marks omitted.) Pfizer, Inc. v. Mine Safety Appliances Co., Superior Court, complex litigation docket at Hartford, Docket No. X04 CV 04 4034705 (May 19, 2008, Shapiro, J.) ( 45 Conn. L. Rptr. 577, 579).
Practice Book § 17-51 provides: "If it appears that the defense applies to only part of the claim, or that any part is admitted, the moving party may have final judgment forthwith for so much of the claim as the defense does not apply to, or as is admitted, on such terms as may be just; and the action may be severed and proceeded with as respects the remainder of the claim."
This court will adhere to the majority rule. In the present case, the entry of summary judgment as to the negligence and recklessness allegations will not dispose of count three in its entirety. Rather, the plaintiff may still be entitled to indemnification from the defendant for the estate's vicarious liability claim. Therefore, the defendant is not entitled to summary judgment against the contractual indemnification claim.
CONCLUSION
Based on the foregoing, the trier of fact should determine whether the defendant was in exclusive control of the situation and whether the plaintiff was primarily or passively negligent. Moreover, the plaintiff raises a genuine issue as to whether a contract for indemnification exists. Furthermore, it is improper for the court to grant a summary judgment against some, but not all of the plaintiff's allegations within its contractual indemnification claim. The motion for summary judgment is denied.