Opinion
CV186077592S
03-05-2019
Meredith CANTO v. WSFS FINANCIAL CORPORATION
UNPUBLISHED OPINION
Wilson, J.
STATEMENT OF CASE AND PROCEDURAL HISTORY
The present action arises out of an action by the plaintiff, Meredith Canto, against WSFS Financial Corporation (WSFS); Leading Edge Companies, LLC (Leading Edge); and ROC Lawncare & General Construction, LLC (ROC Lawncare). In a three-count negligence complaint, she alleges to have been injured when a front porch collapsed beneath her. In count one, she alleges that at the time of the incident, WSFS was the owner of the premises and had hired two maintenance companies, Leading Edge and ROC Lawncare, to work on the property.
On September 7, 2018, WSFS filed an amended apportionment complaint to apportion liability against the other defendants in the plaintiff’s original action. In count one, which is the only count at issue, WSFS claims to have contracted with Leading Edge to clean and maintain the property so it could be sold. WSFS further alleges that if the plaintiff, Canto sustained injuries, then her injuries resulted from the negligence of Leading Edge, who, at all relevant times, exercised possession and control over the premises and was "legally responsible to ensure the premises was safe for invitees such as Canto." In the apportionment complaint’s specifications of negligence, WSFS only refers to invitees.
Leading Edge has moved to strike on the ground that WSFS is improperly seeking to apportion liability for its nondelegable duty. WSFS filed an objection disputing the applicability of the nondelegable duty doctrine and further alleging that no duty was owed to the plaintiff, Canto as she was not an invitee but rather a licensee or trespasser. Leading Edge responded with a reply brief, and the motion was heard at short calendar on November 13, 2018.
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).
"Under the general rule, an employer is not liable for the negligence of its independent contractors." Gazo v. Stamford, 255 Conn. 245, 256, 765 A.2d 505 (2001). "Nondelegable duties generally are imposed, most often by statute, contract or common law, in recognition of the policy judgment that certain obligations are of such importance that employers should not be able to escape liability merely by hiring others to perform them ... In such circumstances, the nondelegable duty doctrine means that the employer may contract out the performance of [its] nondelegable duty, but may not contract out [its] ultimate legal responsibility ... Thus, the nondelegable duty doctrine creates a form of vicarious liability, whereby the employer remains vicariously liable for the negligence of its independent contractors in their performance of the employer’s nondelegable duty." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Machado v. Hartford, 292 Conn. 365, 371-72, 972 A.2d 724 (2009).
Connecticut courts "long have held that a property owner cannot escape liability for injury to a third party by hiring a contractor to inspect and maintain the property as conditions appear to demand" Smith v. Greenwich, 278 Conn. 428, 460, 899 A.2d 563 (2006); Koskoff v. Goldman, 86 Conn. 415, 420, 85 A. 588 (1912). "Should the owner or occupier of the premises hire a contractor to maintain the property, the owner or occupier is vicariously liable for the consequences arising from that contractor’s tortious conduct ... [A] defendant that owns or controls property may not bring an apportionment claim against a contractor hired to carry out the defendant’s nondelegable duties." Smith v. Greenwich, supra, 278 Conn. 460.
This is distinguishable from instances where the independent contractor has been hired for a specific job and has exclusive control when and where an incident occurs. "[T]he nondelegable duty doctrine [cannot] provide an independent basis for imposing a duty on the title owner of a premises in a case in which the plaintiff has not established that the owner of the premises has possession and control of the premises at the time the injury allegedly occurred." Millette v. Connecticut Post Ltd. Partnership, 143 Conn.App. 62, 75, 70 A.3d 126 (2013) For example, in Millette, the plaintiff fell while walking into a construction area and brought an action against the property owner and the construction company. Id., 65-66. The trial court granted the defendant property owner’s motion for judgment notwithstanding the verdict, and the Appellate Court affirmed, reasoning "the ongoing and significant construction [project] ... amounted to more than maintenance of the premises" and indicated there was insufficient evidence that the property owner had exclusive control over the area. Id., 76. The law recognizes a difference between hiring an independent contractor for a specific job (Millette) and hiring a contractor to completely undertake a property owner’s general duty to inspect and maintain a property for invitees, a duty which is nondelegable (Smith). Smith recognized that giving general authority to a contractor to plow snow whenever the circumstances warrant is a wholesale delegation of the property owner’s general duty to inspect and maintain the property. In Millette, the contractor was on-site for a specific construction project, building a movie theater, and therefore could have had possession and control to the exclusion of the property owner. It is not enough for the contractor, though, to be hired for a specific job. At a very minimum, the contractor must have exclusive control, as opposed to joint control with the owner, and the accident must occur on the specific area of the property that the contractor possesses and controls and at the time when the contractor controls it. This nuance in the law is also reflected in the treatises. The 2 Restatement (Second), Torts § 422, and also 41 Am.Jur.2d, Independent Contractors § 45, the antecedent of which (§ 46) was referenced in Gazo, albeit for a different reason. Also, prior to Gazo and Smith, the Connecticut Supreme Court recognized in dicta that there are circumstances under which the independent contractor could be solely liable: "In a situation where the [independent] contractor has control of that portion of the premises where the accident occurs [and] ... the owner [of the premises] has [not] retained or assumed control thereof ... the owner of [the] premises is not responsible to [the] independent contractor for injury from defects or dangers which the contractor knows of, or ought to know of." (Citation omitted; internal quotation marks omitted.) Paige v. Saint Andrew’s Roman Catholic Church Corp., 247 Conn. 24, 41, 718 A.2d 425 (1998), rev’d on other grounds, 250 Conn . 14, 734 A.2d 85 (1999). Here, the apportionment complaint does not allege the contractor was hired specifically to repair or replace the porch or to otherwise engage in construction on that area of the property. It simply repeats the allegation of the original complaint that the contractor was hired to clean and maintain the entire property so it could be sold.
In Smith, the defendant property owner owed "a nondelegable duty to keep [the] premise safe by protecting third persons from foreseeable slip and fall injuries," and therefore was not able to apportion liability for an injury resulting from an independent contractor’s failure to properly clear snow and maintain a public sidewalk. Id. "[W]hen one party is vicariously liable for another party’s conduct, the appropriate remedy for an innocent party who has been held vicariously liable is a claim for indemnity rather than apportionment." Id., 462. See also Moore v. Shelton Investments, LC, Superior Court, judicial district of New Haven, Docket No. CV-16-6059068-S (November 17, 2016, Wilson, J.) .
In the present case, WSFS claims to have hired Leading Edge to carry out its general duty to clean and maintain its premises so that it could be sold and is now attempting to apportion liability for an injury related to improper performance of this duty. Here, as in Smith, WSFS cannot escape liability by hiring a contractor to perform its nondelegable duty to maintain safe premises. Therefore, apportionment is improper.
The reasons to deny the motion put forward by WSFS are unavailing. First, WSFS argues Leading Edge created the defect and thereby acted beyond the scope of the nondelegable duty. WSFS is attempting to relate respondeat superior, the principle that employers will not be held liable for the tortious conduct of employees conducted outside the scope of their employment, to the present action, and cites to Gatten v. Michaud, Superior Court, judicial district at Hartford, Docket No. CV-16-6055965-S (December 16, 2016, Scholl, J.) ; and Rubenstein v. Oxford Health Plans, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV-00-0370404-S (January 18, 2002, Gallagher, J.) .
While it is true the nondelegable duty doctrine and respondeat superior are forms of vicarious liability, the former is concerned with independent contractors, not employees. Unlike with employees, "an employer is not liable for the negligence of its independent contractors," and "[o]ne exception to this general rule ... is when the owner or occupier of premises owes invitees a nondelegable duty to exercise ordinary care for the safety of such persons." Machado v. Hartford, supra, 292 Conn. 371. Accordingly, the law pertaining to employer-employee liability is inapplicable to the nondelegable duty doctrine.
The second argument, that the nondelegable duty doctrine only applies to invitees and the plaintiff Canto is either a licensee or trespasser, also fails. In its apportionment complaint, WSFS specifically alleges that Canto was an invitee at the time of the incident, and nowhere is she alleged to be anything else. In the context of a motion to strike, the court cannot consider allegations outside the pleadings. See Mercer v. Cosley, 110 Conn.App. 283, 292 n.7, 955 A.2d 550 (2008).
CONCLUSION
Accordingly, for the foregoing reasons, the motion to strike is granted.