Miller v. Castro

Full title: Amber-Lee Miller v. Christopher Julian Castro aka C. Dot Castro et al

Court: Superior Court of Connecticut

Date published: Feb 17, 2016

NNHCV156053967S (Conn. Super. Ct. Feb. 17, 2016)

Opinion

NNHCV156053967S

02-17-2016

Amber-Lee Miller v. Christopher Julian Castro aka C. Dot Castro et al

Brian T. Fischer, Judge.

UNPUBLISHED OPINION

MEMORANDUM OF DECISION RE MOTIONS TO STRIKE #142, 144, 146 AND 152

Brian T. Fischer, Judge.

FACTS

The motions to strike cross claims presently before the court arise from a complaint filed by Amber-Lee Miller on April 16, 2015.¹ Miller was a student at the University of New Haven (UNH) and attended a concert that took place on UNH campus on May 3, 2014. Verge Campus, LLC (Verge) and Articulate Entertainment, LLC (Articulate) were the sponsors and promoters of the concert. In addition to other performers, Christopher Julian Castro and Robert Bryson Hall II were a part of the concert. Three Oh One Productions, LLC (Three Oh One) owns the trademark for Hall's band, Logic. William Vassell Services, Inc. (Vassell) provided security services for the concert held at UNH. During the concert, Castro jumped off the stage onto Miller, causing her to fall to the ground and incur a number of physical injuries. As a result of the events of the concert and her injuries, Miller brought causes of action in negligence, negligent supervision, and vicarious liability against Castro, UNH, Articulate, Verge, Hall, Three Oh One, and Vassell.

1 Miller filed an amended complaint on September 1, 2015, to include an additional injury to each count of the complaint. The substance of her claims are unchanged.

Subsequently, all defendants, except Castro and Vassell, filed cross claims against all named co-defendants and accompanying answers to the cross claims.² On June 18, 2015, Articulate filed cross claims alleging common-law contribution and common-law indemnity based on the theory of active/passive negligence against all co-defendants and for contractual indemnity against Verge and Hall. On July 20, 2015, UNH filed cross claims against all co-defendants alleging common-law indemnification based on the theory of active/passive negligence and common-law contribution. On October 23, 2015, Hall and Three Oh One jointly allege cross claims for common-law indemnity based on the theory of active/passive negligence against Castro, Articulate, Verge, UNH, and Vassel and for contractual indemnity against Verge. On November 12, 2015, Verge filed cross claims alleging contractual indemnity, failure to procure liability insurance, and common-law indemnity based on the theory of active/passive negligence against Articulate, Hall, and Three Oh One.

2 No appearance has been filed for Castro. Vassell has only filed a motion to strike the cross claims against it.

In response to the cross claims, Verge, Vassell, and Hall and Three Oh One, filed motions to strike. On September 16, 2015, Verge filed motions to strike and memoranda of law in support of its motions against UNH and Articulate on the grounds that Connecticut law no longer supports a claim for contribution and that UNH and Articulate insufficiently pleaded their claim for common-law indemnity. On September 18, 2015, Vassell filed a motion to strike against Articulate and UNH and adopted Verge's memorandum of law in support of striking claims for common-law contribution and common-law indemnity. On October 7, 2015, UNH filed a memorandum in opposition to Verge's and Vassell's motions to strike. On the same day, UNH also withdrew its claim for common-law contribution against all co-defendants (Docket Entry No. 148).³ On October 13, 2015, Articulate filed a memorandum in opposition to Verge's and Vassell's motions to strike. On October 23, 2015, Hall and Three Oh One filed a motion to strike Articulate's claim for common-law contribution and adopted Verge's memorandum of law in support of striking the claim for common-law contribution. On November 24, 2015, Articulate filed a memorandum in opposition to Hall and Three Oh One's motion to strike. Oral arguments on these motions were heard at the short calendar on November 30, 2015.

3 Because UNH withdrew its contribution claim against all co-defendants, this court need not address Hall and Three Oh One's motion to strike UNH's claim for common-law contribution filed on October 23, 2015 and any portion of the other motions to strike before this court addressing UNH's claim for common-law contribution.

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). " A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). " 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 . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013).

" The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011). " [T]he trial court is limited to considering the grounds specified in the motion." Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980). " Motions to strike that do not specify the grounds of insufficiency are fatally defective and, absent a waiver by the party opposing the motion, should not be granted . . . Practice Book § [10-39(c)], which requires a motion to strike to be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies, does not dispense with the requirement of [Practice Book § 10-39(b)] that the reasons for the claimed pleading deficiency be specified in the motion itself." (Internal quotation marks omitted.) Stuart v. Freiberg, 102 Conn.App. 857, 861, 927 A.2d 343 (2007). " 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.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013). If, however, " facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Tracy v. New Milford Public School, 101 Conn.App. 560, 563, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).

In the present case, Verge, Vassell, and Hall and Three Oh One have filed motions to strike cross claims by UNH and Articulate. In support of its motion to strike against UNH (Docket Entry No. 142), Verge contends that UNH fails to set forth the requisite elements of a claim for common-law indemnity. Verge argues that UNH does not allege that Verge was in control of the situation as required to properly plead indemnity. Verge further argues that UNH cannot contest that it had exclusive control because it had a non-delegable duty to keep its premises safe. In support of its own motion to strike (Docket Entry No. 146), Vassell expressly adopts the arguments set forth in Verge's memorandum of law in support of its motion to strike (Docket Entry No. 143). UNH, in opposition to Verge's and Vassell's motions to strike (Docket Entry No. 149), responds that the court should deny these motions because it sufficiently pleaded indemnity; it properly alleged active/passive negligence, which raises issues of fact not appropriately addressed on a motion to strike; whether UNH had exclusive control over the situation on the date of the concert is a question of fact not appropriately addressed in a motion to strike; and the non-delegable duty doctrine is inapplicable where the alleged injury is not a result of a premise defect.

Verge also moves to strike Articulate's cross claims for common-law indemnity and common-law contribution (Docket Entry No. 144). Verge argues that Articulate fails to allege the requisite elements for an indemnity claim. Specifically, it argues that Articulate does not and cannot allege that Verge was in control of the situation. In support of its argument, Verge notes that Articulate admitted in its answer to the complaint that it was a producer for the concert and contracted with UNH to organize the concert. In addition, Verge maintains that Articulate provides no factual basis that Verge and the other co-defendants were the primary or affirmative causes of Miller's injuries. As to common-law contribution, Verge contends that there is no right of contribution between joint tortfeasors. It cites to General Statutes § 52-572h (Negligence actions. Doctrines applicable. Liability of multiple tortfeasors for damages.) to support its argument that a basis for reallocation of liability among defendants for a claim attaches only after final judgment. In support of its own motion to strike Articulate's claim for common-law contribution (Docket Entry No. 152), Hall and Three Oh One expressly adopt the arguments set forth in Verge's memorandum of law in support of its motion to strike (Docket Entry No. 145).

Articulate, in opposition to Verge's and Hall and Three Oh One's motions to strike (Docket Entry No. 150, 161), responds that the court should deny Verge's and Hall and Three Oh One's motions because they are procedurally defective; it set forth the requisite elements for indemnity in its cross claim; and it is entitled to contribution under an exception recognized at common law. As a procedural matter, Articulate argues that Verge's and Hall and Three Oh One's motions do not comply with Practice Book § 10-39(b).⁴ Articulate contends that Verge and Hall and Three Oh One fail to adequately specify, on the face of their motions, the reasons for the alleged legal insufficiency of Articulate's cross claims and that their arguments in support of their motions to strike are merely conclusory. Furthermore, Articulate contends that Verge does not indicate what facts Articulate should have alleged in order to meet the requisite elements of its indemnity claim. Articulate, therefore, concludes that Verge's and Hall and Three Oh One's motions to strike are fatally defective for lack of specificity.

4 Practice Book § 10-39(b) provides: " Each claim of legal insufficiency enumerated in this section shall be separately set forth and shall specify the reason or reasons for such claimed insufficiency."

As to indemnity, Articulate maintains that it sufficiently alleged the necessary elements as required by law. Articulate emphasizes that Verge's argument that it cannot contest exclusive control is factually misplaced. Articulate notes that it did not contract directly with UNH, rather, it contracted with UNH on behalf of Verge and, therefore, Verge retained all duties and responsibilities to control the safety of the audience on the day of Miller's injury. Articulate further notes that its role was limited to procuring the headliner for the concert whereas Verge's role was to procure other artistic talent for the show, including Hall's band, Logic, and Castro who fell on Miller. Articulate concludes that the question of exclusive control and primary/secondary negligence is a question for the trier of fact not appropriate for a motion to strike.

As to contribution, Articulate argues that it is entitled to contribution pursuant to a common-law exception that permits contribution between joint tortfeasors where the liability of a defendant is vicarious or based merely on a relationship, while reserving its statutory right to contribution. Articulate relies on our Supreme Court's statement in Gomeau v. Forrest, 176 Conn. 523, 524-25, 409 A.2d 1006 (1979): " The common law of this state, unlike that of a number of other jurisdictions, does not permit contribution between joint tortfeasors . . . Our rule has certain exceptions, notably in the indemnity situation where the liability of a defendant is vicarious or based merely on a relationship, such as that of employer-employee." (Citations omitted.) Specifically, Articulate notes that its only affiliation with Miller's action is based merely on its relationship to Verge in that its role as a promoter for Verge was limited to selecting a headliner band for the concert. Articulate reasons that it is involved in the present case not as the primary tortfeasor, but as a passive actor in organizing only a part of the concert where the injurious event occurred and, therefore, it is entitled to contribution from Verge and Hall and Three Oh One. In addition, Articulate requests that if this court is inclined to strike its claim for contribution that its claim be dismissed without prejudice as to permit it to raise a claim for statutory contribution pursuant to § 52-572h at a later date.⁵

5 To the extent that this court is inclined to grant the motions to strike against Articulate's claims, it has expressed that it will not do so without prejudice per Articulate's request.

As a threshold matter, the court must address Articulate's procedural challenges to Verge's and Hall and Three Oh One's motions to strike as procedurally deficient. " The purpose of [Practice Book § 11-10 Requirement that Memorandum of Law Be Filed with Certain Motions] is to grant the opposing party notice of the motion and the legal basis for it. The defendant does not claim that notice was inadequate or that [he] needed time to prepare for argument." Rinere v. M. Kalfus Building & Design Corp., Superior Court, judicial district of New Haven, Docket No. CV-96-03888220-S (April 9, 1997, DeMayo, J.T.R.) (19 Conn. L. Rptr. 393, 393, *1). " [A] memorandum of law setting forth the movant's legal claims is essential for the opposing party to evaluate fully and respond legally to these claims of law for the ultimate judgment of the court. Without such a memorandum of law the opposing party is unable effectively to rebut the legal claims upon which the movant bases his motion . . ." Stewart v. Air Jamaica Holdings Ltd., Superior Court, judicial district of Hartford, Docket No. CV-99-0589438-S (May 2, 2000, Rubinow, J.) (27 Conn. L. Rptr. 144, 145-46, *6). Here, the matter dealt not with an absolute failure to comply with the rules of practice, but only with a substantial compliance with the rules. See Chan v. Carter, Superior Court, judicial district of New London, Docket No. 4000389, (May 17, 2005, Hurley, J.T.R.) (allowing abbreviated memorandum of law in support of motion to dismiss: " In light of [co-defendant's] adoption of [other co-defendants'] memorandum of law in support of their motion to dismiss, and the fact that each defendant has moved to dismiss on identical grounds, this court will address both motions to dismiss in a single discussion of the merits and the law").

Verge and Hall and Three Oh One, on the face of their motions, state that Articulate's claim for common-law contribution should be struck because our law does not recognize such a cause of action for contribution and that its claim for common-law indemnity should be struck for failure to sufficiently plead all requisite elements. None of the motions state merely that Articulate's claims should be struck for legal insufficiency or merely because Articulate fails to state a claim upon which relief can be sought. Although the statements are succinct, they provide specific reasons for moving to strike Articulate's claims for indemnity and contribution. Based on the language of Practice Book § 10-39(b), Verge's and Hall and Three Oh One's motions to strike are not facially deficient.

Articulate also argues that Verge's and Hall and Three Oh One's motions are procedurally deficient for lack of specificity, namely, that they fail to state what Articulate should have alleged in order for its claims to be legally sufficient. To the contrary, Verge's and Hall and Three Oh One's memoranda of law in support of their motions indicate that Articulate's common-law contribution claim is legally insufficient because there is no such claim under our laws and Articulate's common-law indemnity claim is insufficient for failure to properly plead the required element of exclusive control. Moreover, the purpose of the motion and required accompanying memorandum of law is to put the non-moving party on notice of the basis of the moving party's challenge to the sufficiency of the non-moving party's claims. Here, it cannot be said that Verge's and Hall and Three Oh One's motions to strike do not put Articulate on notice of their reasons for challenging its claims. Furthermore, Articulate has neither argued that Verge's and Hall and Three Oh One's motions failed to provide it notice of the grounds for striking nor that it was unable to rebut the challenges to its claim as evidenced by its memorandum in opposition. While Verge and Hall and Three Oh One do not detail what Articulate should have alleged for its claims to be legally sufficient, they do provide reasons with supporting legal authority as to why Articulate's claims are legally insufficient or insufficiently pleaded. In essence, they have substantially complied with the procedural rules and principles regarding motions to strike. For the foregoing reasons, Verge's and Hall and Three Oh One's motions to strike are not procedurally deficient and the court may consider them as properly pleaded.

I

Common-Law Contribution

Prior to October 1, 1986, Connecticut followed the rules of joint and several liability with no right to contribution among joint tortfeasors at common law. See Collins v. Colonial Penn Ins. Co., 257 Conn. 718, 729, 778 A.2d 899 (2001). After October 1, 1986, the legislature enacted tort reform to replace the rule of joint and several liability with a system of apportioned liability, which held tortfeasors liable for damages proportionate to their individual fault as determined by a fact finder. Id., 730. Number 83-338 of the 1986 Public Acts amended § 52-572h to provide a right of contribution to tortfeasors who paid more than their proportional share of damages. Section 52-572h(h) provides: " (1) A right of contribution exists in parties who, pursuant to subsection (g) of this section are required to pay more than their proportionate share of such judgment. The total recovery by a party seeking contribution shall be limited to the amount paid by such party in excess of such party's proportionate share of such judgment. (2) An action for contribution shall be brought within two years after the party seeking contribution has made the final payment in excess of such party's proportionate share of the claim." ⁶

6 Section 52-572h(g) sets forth the process by which a claimant may petition the court to seek recoverable damages that she has been unable to collect through reallocation of damages among defendants. This section also expressly permits defendants to seek contribution from nonpaying co-defendants under subsection (h).

Absent clear appellate authority, various Superior Courts have ruled that the right to contribution pursuant to § 52-572h exists only in post-judgment proceedings. The Superior Court in South Beach Beverage Co., LLC v. Elite Beverage, Inc., Superior Court, judicial district of Fairfield, Docket No. CV-97-348733-S (July 16, 1998, Nadeau, J.) , succinctly summarized decisions of other Superior Courts as to when right of contribution is effective under § 52-572h: " The right of contribution arises only after: (1) the claimant has gone to final judgment, (2) the claimant has failed to collect on one or more liable defendants after making good faith effort to do so, (3) the claimant has moved to open the judgment within one year after it becomes final for purposes of reallocation, (4) a reallocation is made by the court, and (5) a defendant is actually required to pay an amount in excess of his share of the original judgment." (Internal quotation marks omitted.); see also Harris v. Levin, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X06-CV990170961-S, (July 7, 2003, McWeeny, J.) (" Generally, the right to contribution exists only in postjudgment proceedings pursuant to General Statutes § 52-572h." [Internal quotation marks omitted.]); Allstate Ins. Co. v. Lerer, Superior Court, judicial district of New Britain, Complex Litigation Docket, Docket No. X03-CV-95-0502559-S, (January 16, 2001, Aurigemma, J.) (" The statutory framework for apportionment allows a right to contribution only in post-judgment proceedings pursuant to § 52-572h(h). Section 52-572h(g)."); Aponte v. Johnson, Superior Court, judicial district of Fairfield, Docket No. CV-91-0114281-S (September 18, 1992, Rush, J.) (7 Conn. L. Rptr. 364, 366, *7) (" [T]here is no present right of contribution, which exists only in post judgment proceedings pursuant to General Statutes § 52-572h(h)").

In the present case, Verge and Hall and Three Oh One argue that Articulate cannot state a claim for contribution because contribution cannot be sought until after final judgment as permitted under § 52-572h. Articulate contends that its contribution claim is not pursuant to § 52-572h. Rather, its claim is grounded in a common-law exception articulated in Gomeau . Articulate oversimplifies and misconstrues the exception stated in Gomeau in reasoning that Gomeau permits contribution between tortfeasors where the liability of a defendant is vicarious or based merely on a relationship. The statement in Gomeau upon which Articulate relies indicates that common-law indemnity is the exception to the common-law rule barring joint tortfeasors from seeking contribution. See Gomeau v. Forrest, supra, 176 Conn. 525 (" The common law of this state, unlike that of a number of other jurisdictions, does not permit contribution between joint tortfeasors . . . Our rule has certain exceptions, notably in the indemnity situation where the liability of a defendant is vicarious or based merely on a relationship, such as that of employer-employee" [emphasis added; citations omitted]). It is clear that Gomeau did not state an exception to permit contribution when liability is vicarious or based on a relationship. Id. Rather, Gomeau provides for indemnity when liability is vicarious or arises from a relationship that gives way to vicarious liability such as the employer-employee relationship. Id. Therefore, Articulate cannot claim an exception for entitlement to contribution.

Moreover, the language of § 52-572h suggests that contribution is a claim more appropriate for post-judgment. As the statute expressly states and Superior Courts have concluded, the right of contribution under § 52-572h(h) is available to defendants when they are required to pay more than their proportionate share of judgment. Defendants may be required to pay more than their proportionate share of judgment when a plaintiff has been unable to collect its recoverable damages and seeks reallocation of damages among defendants pursuant to § 52-572h(g). The procedures outlined in § 52-572h(g) and (h) cannot be logically followed without a favorable verdict to a plaintiff that first establishes damages. Therefore, in the present case, Articulate cannot make a claim for contribution until there has been a favorable judgment to Miller and until it is required to pay more than its proportionate share of damages as decided by a potential judgment. For the foregoing reasons, this court grants Verge's and Hall and Three Oh One's motions to strike Articulate's contribution claim (Docket Entries No. 144, 152).

II

COMMON-LAW INDEMNITY

Our appellate courts have recognized " an implied obligation of indemnity on a tortfeasor whose active negligence is primarily responsible for a plaintiff's injuries, thus superseding the indemnitee's passive negligence." (Emphasis in original; internal quotation marks omitted.) Pellecchia v. Connecticut Light & Power Co., 139 Conn.App. 767, 770, 57 A.3d 803 (2012), cert. denied, 308 Conn. 911, 61 A.3d 532 (2013). " Indemnity involves a claim for reimbursement in full from one on whom a primary liability is claimed to rest . . . Indemnity shifts the impact of liability from passive joint tortfeasors to active ones." (Emphasis in original; internal quotation marks omitted.) Id., 771. " [I]f a claim for indemnification is grounded in tort, reimbursement is warranted only upon proof that the injury resulted from the 'active or primary negligence' of the party against whom reimbursement is sought." Burkert v. Petrol Plus of Naugatuck, Inc., 216 Conn. 65, 74, 579 A.2d 26 (1990). Under such circumstances, the party seeking indemnity must show: " (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). Being " in control of the situation" has been interpreted to mean control over the dangerous condition that exposed a plaintiff to harm by virtue of alleged negligent conduct as opposed to control over the negligent conduct itself. See Pellecchia v. Connecticut Light & Power Co., supra at 775.

" Generally, the question of control should not be resolved on a motion to strike because it is a question of fact . . . In a given case, however, special circumstances may give rise to the question of whether, in light of the facts alleged in the third party complaint, any reasonable juror could find that the third party defendants had exclusive control of the situation." (Citation omitted; internal quotation marks omitted.) Id. In addition, " the determination of whether an act is negligent is a matter for the jury . . . A party's actual knowledge and the reasonableness of his reliance on others are also to be determined by the trier of fact. Accordingly, the question of whether a party is primarily negligent and thereby precluded from indemnification from another tortfeasor is ordinarily one for the trier of fact." (Citations omitted.) Weintraub v. Richard Dahn, Inc., 188 Conn. 570, 573-74, 452 A.2d 117 (1982); see Clark v. Castaldi, Superior Court, judicial district of Fairfield, Docket No. CV-075007921-S, (March 4, 2008, Arnold, J.) (denying motion to strike indemnity claim on grounds that determinations of primary negligence and exclusive control were questions for trier of fact and inappropriately determined on motion to strike); Angelone v. Travisano, Superior Court, judicial district of New Britain, Docket No. CV-97-0483599, (August 3, 1999, Robinson, J.) (denying motion to strike on same grounds).

In the present case, UNH alleges that Verge was one of the parties that provided performances for the concert at UNH on May 3, 2014 and that Vassell provided security services for the concert. UNH further alleges that Verge and Vassell " maintained sole responsibility for maintaining a safe environment for the Verge Campus Concert." When reading UNH's allegations realistically and broadly and favorably to UNH, they indicate that Verge and Vassell had control over the situation to the exclusion of UNH. As our appellate courts have explained, having control over the situation means control over the condition that exposed a plaintiff to injury by virtue of alleged negligent conduct. In addition, our appellate courts have held that the question of control should not be decided on a motion to strike because it is one of fact. In the present case, UNH alleges that Verge and Vassell had control over the general safety of the concert, which is sufficient to maintain a claim for indemnity at this stage. Moreover, the facts are not so clear that a reasonable juror could find that the third-party defendants had exclusive control of the situation such that the issue need not be presented to the trier of fact. Given the number of named defendants and cross claims among these defendants, the question of exclusive control cannot be determined on a motion to strike and would be more properly resolved by the trier of fact. Therefore this court denies Verge's and Vassell's motions to strike (Docket Entry Nos. 142, 146) UNH's claim for common-law indemnity.

Verge and Hall and Three Oh One also move to strike Articulate's claim for common-law indemnity. They argue that Articulate fails to provide a factual basis for its allegation that Verge's and Hall and Three Oh One's negligence was the primary cause of Miller's injuries. They further argue Articulate failed to or cannot allege that Verge, Hall, or Three Oh One had control of the situation to the exclusion of Articulate. In response, Articulate maintains that it sufficiently pleaded the elements of primary negligence and exclusive control by adopting certain allegations from Miller's complaint. In doing so, Articulate contends that it pleaded sufficient facts to support that Verge, Hall, and Three Oh One were primarily negligent and in control of the situation.

Specifically, in its cross claim for indemnity, Articulate adopts the allegations contained in counts One, Two, Three, Four, Six, Seven, and Eight of Miller's complaint. Counts Two, ⁷ Three, ⁸ Four, ⁹ and Six¹⁰ are directed at Verge and Hall and Three Oh One. In summary, counts Two through Four and Six set forth Miller's allegations of Verge's, Hall's, and Three Oh One's negligence that caused her injuries. When reading these allegations realistically and broadly and favorably to Articulate, they are sufficient to plead that Verge, Hall, and Three Oh One, against whom Articulate seeks indemnification, were negligent and in control of the situation. Also, as noted, the question of exclusive control under the present circumstances cannot be properly decided on a motion to strike; it would be more appropriately decided by the trier of fact. Articulate further alleges that the Verge, Hall, and Three Oh One's conduct was the primary negligent acts and causes of Miller's injuries. This allegation is also sufficient because, as noted, the determination of primary negligence is a question of fact not appropriately determined on a motion to strike. For the foregoing reasons, this court denies Verge's and Hall and Three Oh One's motions to strike Articulate's common-law indemnity claim (Docket Entries No. 142, 146).

7 Paragraph 25 of count Two of Miller's complaint provides: " At the time of the concert on May 3, 2014, the defendant, Christopher Julian Castro a/k/a C. Dot Castro, was the agent, servant, or employee of, and/or part of the crew of, Robert Bryson Hall, II, a/k/a Logic, and the defendant, Robert Bryson Hall, II, a/k/a Logic, is vicariously liable for the negligence of the defendant, Christopher Julian Castro a/k/a C. Dot Castro."

8 Paragraph 25 of count Three of Miller's complaint provides: " At the time of the concert on May 3, 2014, the defendant, Christopher Julian Castro, a/k/a C. Dot Castro, was the agent, servant, or employee of, and/or associated with defendant, Three Oh One Productions, LLC, which owns the Logic trademark and Three Oh One Productions, LLC is vicariously liable for the negligence of the defendant, Christopher Julian Castro a/k/a C. Dot Castro.

9 Paragraphs 21 through 24 of Count Four of Miller's complaint provides: " Upon information and belief, the defendant, Christopher Julian Castro a/k/a C. Dot Castro, had previously jumped or dove into the audience while in the presence of the defendant, Robert Bryson Hall, II, a/k/a Logic. As the lead performer of Logic, the defendant, Robert Bryson Hall, II, had a duty to control the behavior of his crew, including Christopher Julian Castro, a/k/a C. Dot Castro, to make sure that he did not put the safety of the audience, including the plaintiff, at risk of harm or injury. If Christopher Julian Castro was not part of the Logic crew, and was not an agent of Logic, then defendant, Robert Bryson Hill [sic] II a/k/a Logic, should not have allowed Castro onto the stage during the Verge Campus Spring Tour performance, and by allowing Castro onto the stage, he put members of the audience, including the plaintiff at risk of injury. At no time prior to the time of the plaintiff's injury, either on or before May 3, 2014, did the defendant, Robert Bryson Hall, II, a/k/a Logic, take sufficient action to prevent the defendant Christopher Julian Castro a/k/a C. Dot Castro, from jumping or diving into the audience, although he knew or should have known that the defendant, Christopher Julian Castro, a/k/a C. Dot Castro, had previously done so and/or that it was likely that he would do so at the concert on May 3, 2014."

10 Paragraphs 22 through 24 of count Six of Miller's complaint provides: " As producer and/or promoter of the Verge Campus Spring Tour 2014, the defendant, Verge Campus, LLC had a duty to investigate the credentials and past conduct of the performers of the Verge Campus Spring Tour 2014, and to make sure that only selected performers be on stage at the concert at the University of New Haven on May 3, 2014. As producer and/or promoter of the Verge Campus Spring Tour 2014, the defendant, Verge Campus LLC, had a duty to supervise the behavior of the performers and others on the tour, including Logic and Christopher Julian Castro, a/k/a C. Dot Castro, and to make sure that only selected performers be on stage at the concert, and to make sure that the performers did not put the safety of the audience, including the plaintiff, at risk of harm or injury. The plaintiff's injuries and damages were caused by the carelessness and negligence of the defendant, Verge Campus LLC, in failing to properly investigate and supervise the performers at the Verge Campus Spring Tour 2014, including performers Logic and Christopher Julian Castro a/k/a C. Dot Castro."

CONCLUSION

For the foregoing reasons, this court grants the motions to strike the contribution claims (Docket Entries No. 144, 152) and denies the motions to strike the indemnity claims (Docket Entries No. 142, 146).