Opinion
No. CV-04-4001181 S
January 31, 2006
MEMORANDUM OF DECISION ON PLAINTIFFS' MOTION TO STRIKE THIRD-PARTY COMPLAINT
In this action, the minor plaintiff, Mikayla Gawlak, through her mother brings a personal injury action against the defendants, Mt. Snow, Ltd. (Mt. Snow) and American Skiing Company Resort Properties, Inc. (American Skiing). The plaintiffs' complaint alleges that the minor plaintiff was injured after she fell from a ski lift at the Mt. Snow ski resort located in Mt. Snow, Vermont. The defendants/third-party plaintiff's filed a third-party complaint against Charles Gawlak, the third-party defendant and minor plaintiff's father; seeking indemnification from any judgment rendered against them and for all attorneys fees, costs and expenses.
The third-party defendant filed this motion to strike the entire third-party complaint on the grounds that Connecticut Law applies to this action and that Connecticut Law recognizes the doctrine of parental immunity. The motion to strike asserts that the third-party complaint is barred by parental immunity. Alternatively, the third-party defendant contends that the third-party complaint fails to state a legally sufficient indemnification claim because it does not contain the element of exclusive control.
The third-party plaintiffs argue that Vermont substantive law applies to the case before the court. Vermont has abolished the doctrine of parental immunity and the complaint alleges a legally sufficient indemnification claim.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon of which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC. v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "The role of a trial court [is] to examine the [complaint], construed in favor of the plaintiffs, to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Szczapa v. United Parcel Service, Inc., 56 Conn.App. 325, 328, 743 A.2d 622, cert. denied, 252 Conn. 950, 748 A.2d 299 (2002). "[I]f facts provable in a complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 400, 876 A.2d 522 (2005).
Choice Of Law
In resolving the issues raised by the motion to strike the third-party complaint, the court must determine whether the law of Connecticut or the law of Vermont governs the claims in such complaint. "In deciding conflict of laws issues, [Connecticut courts] are guided by the principals set forth in . . . O'Connor v O'Connor, 201 Conn. 632, 519 A.2d 13 (1986). In O'Connor, [the Connecticut Supreme Court] recognized that . . . [the court] has traditionally adhered to the doctrine that the substantive rights and obligations arising out of a tort controversy are determined by the law of the place of injury, or lex loci delicti . . . Under the facts of O'Connor, however, [the court] expressly abandoned categorical allegiance to the doctrine of lex loci delicti in tort actions." (Citation omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 800, 830 A.2d 752 (2003).
In O'Connor, the court held that the Restatement (Second), Conflicts of Laws §§ 6 and 145 (1971), establishes "the governing principles for those cases in which application of the doctrine of lex loci would produce an arbitrary, irrational result." O'Connor v. O'Connor, supra, 201 Conn. at 650. In subsequent Connecticut Supreme Court decisions, there has been "a clear trend to towards a full embrace of the conflict of laws principles established by the Restatement . . ." Campofiore v. Wyeth, Superior Court, complex litigation docket at Waterbury, Docket No. X06 CV 04 4000639 (December 7, 2004, Alander, J.) (38 Conn. L. Rtpr. 367, 368); see Williams v. State Farm Mutual Automobiles Ins. Co., 229 Conn. 359, 641 A.2d 783 (1994); Dugan v. Mobile Medical Testing Services, Inc., supra, 265 Conn. 800. Therefore, "it is appropriate to utilize [Restatement] principles [rather than the doctrine of lex loci] in deciding the choice of law issue presented here." Campofiore v. Wyeth, supra, 38 Conn. L. Rtpr. 368.
Restatement (Second), supra, § 145(1) provides that "[t]he rights and liabilities of the parties with respect to an issue are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6." See O'Connor v. O'Connor, supra, 201 Conn. 651. Restatement (Second), supra, § 6 provides: "(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law. (2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protections of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result and (g) ease in the determination and application of the law to be applied." See O'Connor v. O'Connor, supra, 651.
O'Connor directs that the court in evaluating the policy decisions set forth in § 145(1) and § 6(2), should look to Restatement (Second), supra § 145(2), "which establishes black-letter rules of priority to facilitate the application of the principles of § 6 to tort cases. . . . Section 145(2) provides: 'Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered. These contracts are to be evaluated according to their relative importance with respect to the particular issue. O'Connor v. O'Connor, supra, 201 652.
In addition, O'Connor references § 146 of the Restatement (Second) which provides: "`In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.'" O'Connor v. O'Connor, supra, 201 Conn. 652 n. 14.
In accordance with the principles set forth in O'Connor the applicable substantive law in the case before the court is determined by analyzing whether Vermont or Connecticut has a more significant relationship to the occurrence at issue and the parties involved. Vermont has a significant number of contacts with the case. The alleged negligence and injury occurred at Mt. Snow Ski Resort. Mt. Snow is organized under the laws of Vermont. The relationship between the parties was centered in Vermont.
Vermont also has a strong policy interest in applying its own substantive law to cases involving ski resorts located within the state so that the ski resort owners, as well as patrons, have a clear expectation and understanding of the relevant laws. Under the position articulated by the third-party defendant, Vermont ski resorts would be subject to liability in accordance with any jurisdiction in which the individual skier resides. See Matteis v. National Car Rental Systems, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV90 0111957 (January 28, 1993, Rush, J.) ( 8 Conn. L. Rptr. 709) ("In the opinion of the court, the application of the Connecticut statute to the facts of this case would require a party, such as National, to be exposed for damage liability in accordance with any jurisdiction in which the plaintiff resides. Such an application of Connecticut law would, in the opinion of the court, not provide protection for the justified expectations of the parties.")
Connecticut has fewer contacts with the occurrence and the parties. In fact the only contact that Connecticut has with the dispute is that the plaintiff and the third-party defendant are residents of Connecticut. Connecticut does, however, have viable public policy concerns regarding the doctrine of parental immunity. The Connecticut Supreme Court has noted that "[t]he primary focus of the parental immunity doctrine in Connecticut is the protection of the relationship between the parent and the child." Crotta v. Home Depot, Inc., 249 Conn. 634, 643, 732 A.2d 767 (1999). "[A]llowing such third party claims would have a detrimental effect upon the injured child. It is artificial to separate the parent and child as economic entities by the assertion that the recovery of the nonparent defendant from the negligent parent does not technically diminish the injured child's recovery. The reality of the family is that, except in cases of great wealth, it is a single economic unit and recovery by a third party against the parent ultimately diminishes the value of the child's recovery." (Internal quotation marks omitted.) Id., 644.
Acknowledging the existence of this valid policy, the court does not find that it outweighs the policy concerns of Vermont. See Restatement (Second), supra, § 146. In this case, based on these facts, the policy concerns of Vermont are stronger than those of Connecticut. The majority of contacts are based in Vermont rather than Connecticut and Vermont policy concerns were at least equally important than those of Connecticut. Vermont law will be applicable to this case.
Vermont law does not recognize the doctrine of parental immunity. See Wood v. Wood, 135 Vt. 199, 370 A.2d 191 (1977). In Wood, a minor boy brought a negligence action, through his father, against his mother. Id., 120. The court found that "Vermont law does not bar the institution of such a suit as a matter of law." Id., 121. The court noted that the state of Vermont "has historically allowed other kinds of suits between parent and child . . . and has recently set aside interspousal immunity . . . [Therefore] a contrary ruling on the right to bring suit would be anomalous. All of the policies relating to domestic tranquility, collusion and fraud, intrafamily harmony and the like have all been seen as insufficient to cut off the right to litigate a claim in these related contexts, and should not do so here." (Citations omitted.) Id., 122.
Vermont law recognizes the right to indemnity "where (1) an express agreement or undertaking by one party to indemnify the other exists or (2) circumstances require the law to imply such an undertaking." Burling v. Arthur J. Gallagher Co. 173 Vt. 484, 486, 788 A.2d 18 (2001). In the third-party complaint the allegation is of implied indemnity.
"Implied indemnity is a right accruing to a party who, without active fault, has been compelled by some legal obligation, such as a finding of vicarious liability, to pay damages occasioned by the negligence of another . . . In such cases, indemnity is implied for equitable reasons where it is fair to shift the loss resulting from negligence from one party to the more responsible party." (Citations omitted; internal quotation marks omitted.) Burlington v. Arthur J. Gallagher Co., supra, 173 Vt. 486-87. "[I]mplied indemnification is usually appropriate only when the indemnitee is vicariously or secondarily liable to a third person because of some legal relationship with that person or because of the indemnitee's failure to discover a dangerous condition caused by the act of the indemnitor, who is primarily responsible for the condition." White v. Quechee Lakes Landowners' Assoc., Inc., 170 Vt. 25, 29 742 A.2d 734 (1999). Pursuant to Vermont law, an action in indemnity needs to allege that the defendant was primarily responsible for the dangerous condition causing the plaintiff's injuries. The complaint does not need to allege exclusive control.
In this case, the third-party complaint makes the following allegations: (1) that the third-party defendant accompanied the minor plaintiff on the chair lift prior to her fall; (2) that he did not advise the minor plaintiff of proper chair lift use; (3) that he did not advise the minor plaintiff of her proper chair lift dismount procedures; (4) that he failed to properly keep the minor plaintiff under his control while using the chair lift; that he failed to keep the chair lift bar properly secured; and (5) that such negligence was the "active primary cause of the plaintiff's injuries, losses and damages." These allegations are legally sufficient under Vermont law. Vermont law applies to this case. Vermont law does not recognize the doctrine of parental immunity, and the third-party complaint states a legally sufficient claim for indemnification. The third-party defendant's motion to strike is denied.