Opinion
No. FST CV 07 5004458 S
January 29, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE #124
Procedural History
This action arises from property damage allegedly sustained by the plaintiffs, J.C. Corporation (J.C. Corp.), Teahouse on the Riverside, Inc. (Teahouse), Julie Chen, Warren Hutchison (Hutchison), S.L. Chen and Hsiao-Wen Chen, due to the negligence of the defendant, Interstate Fire and Safety Equipment Company. The plaintiffs filed a one-count amended complaint against the defendant, dated October 13, 2008, alleging the following facts. The plaintiffs owned personal property which was located at 1076 East Putnam Avenue in Riverside, Connecticut (the building). J.C. Corp. hired the defendant to perform work at the building. On October 6, 2006, employees of the defendant arrived at the building to perform such work and in so doing used a plasma cutter to cut metal. Shortly thereafter, a fire was discovered at the premises. The plaintiffs claim that the defendant was negligent in the use of the plasma cutter thereby breaching a duty of reasonable care.
On October 27, 2008, the defendant filed an answer and three special defenses to the plaintiffs' amended complaint. The defendant's first special defense is for contributory negligence. The second special defense claims that as plaintiffs Teahouse, Julie Chen, Hutchinson, S.L. Chen and Hsiao-Wen Chen are not in privity with the defendant, the defendant owed no duty to them for the work performed at the property. The defendants allege that these plaintiffs lack standing to bring the claims and that the court therefore lacks subject matter jurisdiction. The third special defense similarly asserts a lack of privity and claims that the plaintiffs have failed to state a claim sounding in negligence.
The plaintiffs have filed a motion to strike the defendant's second and third special defenses asserting that "privity of the parties" is a legally insufficient basis to relieve the defendant of a duty to exercise reasonable care.
CT Page 2486
Legal Discussion
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any [pleading] . . . 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 [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001)."A motion to strike . . . does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "[The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the [pleading] would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117-18, 889 A.2d 810 (2006). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.
A plaintiff can move to strike a special defense. Nowak v. Nowak, 175 Conn. 112, 116, 394 A.2d 716 (1978); see also Connecticut National Bank v. Voog, 233 Conn. 352, 354-55, 659 A.2d 172 (1995). In ruling on such a motion, the trial court is obligated to take the facts to be those alleged in the special defense and to construe that defense in the manner most favorable to sustaining its legal sufficiency. Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992).
Second Special Defense
The defendant alleges in its second special defense that the plaintiffs Teahouse, Julie Chen, Hutchinson, S.L. Chen and Hsiao-Wen Chen are not in privity with the defendant and, therefore, the defendant owed no duty to them for the work performed at the property. Thus, the defendant argues, these particular plaintiffs lack standing to bring these claims and the court therefore lacks subject matter jurisdiction.
"Standing focuses on whether a party is the proper party to request adjudication of the issues, rather than on the substantive rights of the aggrieved parties . . . It is a basic principle of law that a plaintiff must have standing for the court to have jurisdiction. Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy . . . Thus, to state these basic propositions another way, if the injuries claimed by the plaintiff are remote, indirect or derivative with respect to the defendant's conduct, the plaintiff is not the proper party to assert them and lacks standing to do so. Where, for example, the harms asserted to have been suffered directly by a plaintiff are in reality derivative of injuries to a third party, the injuries are not direct but are indirect, and the plaintiff has no standing to assert them." (Citations omitted; internal quotation marks omitted.) Ganim v. Smith Wesson Corp., 258 Conn. 313, 347-48, 780 A.2d 98 (2001).
In the present case, the defendant asserts in its special defense that, because there is no contractual privity, the plaintiffs lack standing. In a negligence action such as this, however, privity is not a requirement for a plaintiff to have standing. Tackling v. Shinerman, 42 Conn.Sup. 517, 523, 630 A.2d 1381 [ 9 Conn. L. Rptr. 91] (1993); see Zapata v. Burns, 207 Conn. 496, 516-17, 542 A.2d 700 (1988) (recognizing abolishment of privity requirement in negligence cases); Coburn v. Lenox Homes, Inc., 173 Conn. 567, 574, 378 A.2d 599 (1977) (requirement of privity is only applicable to contract actions and is irrelevant to tort actions). Therefore, even construing the special defense of no privity in the manner most favorable to sustaining its legal sufficiency, it would still be possible for the plaintiffs to have standing if the defendant's negligence is found to be the direct foreseeable cause of the damage to the plaintiffs' property. Consequently, the defendant's special defense that there is a lack of privity and, therefore, no duty owed, is legally insufficient to assert a special defense of lack of standing. As such, the motion to strike the defendant's second special defense is granted.
Third Special Defense
The defendant alleges in its third special defense that as the plaintiffs Teahouse, Julie Chen, Hutchinson, S.L. Chen and Hsiao-Wen Chen are not in privity with the defendant, it owed no duty to them for the work performed at the property. The defendant argues, accordingly, that these plaintiffs have failed to state a claim sounding in negligence.
"The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action . . . Thus, [t]here can be no actionable negligence . . . unless there exists a cognizable duty of care." (Citations omitted; internal quotation marks omitted.) Nazami v. Patrons Mutual Insurance Co., 280 Conn. 619, 630, 910 A.2d 209 (2006). "A duty of care can be established by a contract, a special relationship, or through a two-pronged foreseeability and public policy analysis." Zappone v. Cavallo, Superior Court, judicial district of Waterbury, Docket No. CV 03 0178837 (November 19, 2004, Matasavage, J.) [ 38 Conn. L. Rptr. 302].
The two-prong analysis "for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case . . . The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy." (Internal quotation marks omitted.) Gazo v. Stamford, supra, 255 Conn. 250.
"It is now the almost universal rule that the contractor is liable to all those who may foreseeably be injured by the structure, not only when he fails to disclose dangerous conditions known to him, but also when the work is negligently done. This applies not only to contractors doing original work, but also to those who make repairs, or install parts, as well as supervising architects and engineers." (Citations omitted; internal quotation marks omitted.) Minton v. Krish, 34 Conn.App. 361, 367, 642 A.2d 18 (1994). As our Supreme Court has adopted the rule of foreseeability in place of the rule of privity, the requirement of privity is only applicable to actions growing out of a contractual relationship and is irrelevant to actions in tort. Id., 366.
In the present case, the plaintiffs' claim sounds in negligence. Consequently, a special defense asserting a lack of privity is legally insufficient to relieve the defendant of a duty of care. Accordingly the plaintiffs' motion to strike the defendant's third special defense is granted.