Opinion
No. CV08-5018521-S
January 9, 2009
MEMORANDUM OF DECISION ON MOTION TO STRIKE
In this case the plaintiff claims to have tripped and fell due to broken, uneven, and loose sidewalk pavement which was covered with snow thereby sustaining injury. The plaintiff's complaint alleges that defendant KH Association was the owner of the property at 196 Crown Street where the fall occurred and is alleged to be responsible for the "care management and upkeep of the adjacent sidewalk." The complaint alleges KH Associates was negligent in a variety of ways.
In a second count the plaintiff has sued the City of New Haven. It is alleged that the city has a duty to keep and maintain its sidewalks in a reasonably safe condition but breached that duty in violation of § 13a-149 of the General Statutes and was otherwise negligent in complying with its statutory duties in a variety of ways.
Shortly after the return date the defendant KH Associates filed an apportionment complaint against Angersola Construction Company who thereby became the apportionment defendant. It alleges that KH Associates hired Angersola to "replace and/or repair uneven and/or loose sidewalk tiles which existed in the (subject) sidewalk." The apportionment complaint basically alleges Angersola did not properly do the contracted for work and was negligent in doing so. It then alleges if the plaintiff was injured the injuries were proximately caused by Angersola's negligence and pursuant to § 52-572(h) claims Angersola "should be apportioned that percentage of fault which is determined to have been proximately caused by its carelessness and negligence in causing and/or contributing to the plaintiff's alleged fall."
Angersola has filed a motion to strike the apportionment complaint relying on the case of Smith v. Town of Greenwich, 278 Conn. 428 (2006) where the court sustained the trial court's granting of an independent contractor's motion for summary judgment. There the property owner had asserted an apportionment complaint against the independent contractor who had been hired to remove snow; a plaintiff had sued the property owner claiming she was injured when she slipped on a patch of ice. In upholding the independent contractor's motion to dismiss the apportionment complaint, the court at page 461 said
We recognize that the apportionment statute was intended to make a defendant's liability to the plaintiff proportionate to the defendant's degree of fault. The very essence of the nondelegable duty doctrine, however, is that the property owner is fully liable to a plaintiff who has been injured as a result of a breach of a nondelegable duty regardless of whether the property owner actually is at fault or the degree of fault. When a property owner's liability to the plaintiff for the wrongful conduct of an independent contractor legally cannot be apportioned, then there is no reason to apportion fault between the property owner and the contractor in an apportionment proceeding.
In its objection to the motion to strike KH Associates points to the holding in Gazo v. Stamford, 255 Conn. 245 (2001). That case only held that an independent contractor hired to do snow removal owed an independent duty to a plaintiff alleging injuries due to his slipping on icy and snow covered property. It did not deal with and does not control the question presented in Smith as to whether the party in control or owning property who is sued can bring an apportionment complaint against the independent contractor. Smith answered that question in the negative. But the thrust of the objection is based on KH Associates' argument which is that KH Associates contests whether it had control or ownership of the sidewalk where the fall took place. If it did not have ownership or control then the holding of Gazo might have some bearing.
KH Associates cites various factors to support its opposition some of which are clearly outside the scope of what may be considered by the court on a motion to strike. It points to the fact that the city's responses to KH Associates' Requests for Admission wherein it is pointed out that the city admits the sidewalk was in its right of way. But other responses such as the fact that the city denies ownership of the sidewalk or any duty to maintain it in light of Angersola's being hired to repair the sidewalk (i.e., absence of control) are not mentioned. Also even assuming the court can wander through the file to decide this motion to strike how are the admissions of the city binding on either KH Associates or Angersola or even of any relevance to deciding this motion whether they favor either one or the other side to it?
The court must confine itself to the pleadings, that is the motion to strike and perhaps other pleadings in the file made by either KH Associates or Angersola which might be considered admissions on the ownership and control issue.
If the apportionment complaint is read closely and even giving it every favorable inference as is required by a motion to strike, it does appear that KH Associates on the present state of the pleadings cannot say it flatly denies ownership and/or control and thus escape the holding in Smith or even suggests otherwise.
The date in the apportionment complaint appears to be incorrect in paragraph 3 but that paragraph alleges
3. Prior to September 27, 2007, Norman Properties Inc. the property manager for KH Associates, Inc. hired Angersola Contracting to replace and/or repair uneven and/or loose slate sidewalk tiles which existed in the sidewalk adjacent to the Kelly House Condominiums located in New Haven, Connecticut.
In Panorini v. Johnson, 158 Conn. 92, 98 (1969) the court said: "The word `control' has no legal or technical meaning distinct from that given in its popular acceptation; . . . and refers to the power or authority to manage superintend, direct or oversee." If KH Associates did not control the premises why would it hire Angersola to repair the part of the premises at issue — the sidewalk. Panorini involved a case where a tenant was injured on the leased premises and the question of the landlord's liability turned on the issue of control of the stairway where the injury occurred. As to the significance of repair the court said: "The making of repairs by the landlord in and of itself, may denote a retention of control or may be an indicia of limited, temporary or full control. For the court to determine whether a conclusion of retained control is warranted, consideration must be given to the extent and instances under which the landlord undertook to make or in fact did make repairs to the stairway," 158 Conn. at page 99, also see Mack v. Clinch, 166 Conn. 295. Also the whole point of the tort law in this area is to protect users of the land walking on portions of the land such as sidewalks where they are in fact invited to go or under ordinary understanding would assume they had a right to travel or walk upon. Given this assumption, liability must be imposed on parties who control the land and or premises in question. In this regard Prosser On Torts, 5th ed. at § 57, footnote 1, page 386 notes: "The obligation (to discover and control dangers presented by the land) may arise from possession and control even without legal ownership" — that would not prevent a vicarious liability relationship between such a party and an independent contractor which is the significant factor in the Smith analysis.
Also this is an apportionment complaint, if KH Associates does not own the sidewalk or maintains it does not control it or has no obligation to repair it, the defense would appear to be a simple denial of any such allegation in the original complaint. Does not a claim for apportionment assume the viability of at least making a duty of care claim by the injured party — but how is this possible if KH Associates, at the same time it files its apportionment complaint, argues the complaint does not suggest ownership or control?
Smith appears to apply and therefore the court grants the motion to strike.