Opinion
No. CV 10 6004476
March 24, 2011
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#125)
FACTS AND PROCEDURAL HISTORY
The present motion to strike arises in the context of a negligence action brought by the plaintiff, Lumina Casadonte. The plaintiff owned a condominium unit at Dodgetown Condominiums in Niantic, Connecticut (the condominium complex), for which defendant Northeast Property Group, Inc. (Northeast) was the management company and defendant Dodgetown Condominium Association, Inc. (Dodgetown) was the condominium association. Dodgetown and Northeast hired defendant Hayes Services, LLC (Hayes) to perform landscaping services at the condominium complex. The plaintiff alleges that Hayes' negligent spreading of mulch resulted in the accumulation of dust in her condominium unit and exacerbation of her pre-existing chronic obstructive pulmonary disease condition.
Count one of the plaintiff's complaint alleges negligence as to defendant Hayes. Count two alleges negligence as to defendant Dodgetown. Count three alleges negligence as to defendant Northeast.
On December 12, 2010, Dodgetown and Northeast filed an answer to the plaintiff's complaint and a cross claim for indemnification against co-defendant Hayes (No. 122). In the cross claim, Dodgetown and Northeast allege that they are entitled to indemnification by Hayes to the extent they are found liable or are otherwise obligated to pay damages for the claims alleged in the plaintiff's complaint.
On December 22, 2010, Hayes filed a motion to strike the cross claim for indemnification (No. 125) on the ground that the facts alleged therein fail to establish that Hayes had exclusive control over the situation giving rise to the plaintiff's injury. Hayes submitted a memorandum of law in support of its motion (No. 126). On January 4, 2011, Dodgetown and Northeast filed a memorandum of law in objection (No. 127). This matter was heard on the short calendar on February 22, 2011.
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 (2003). A motion to strike may be used to challenge the legal sufficiency of the allegations of any cross complaint. Practice Book § 10-39(a)(1). "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." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). In ruling on a motion to strike, "[t]he role of the trial court [is] to examine the [cross claim], construed in favor of the [pleading defendant], to determine whether the [pleading defendant has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "[I]f facts provable in the [cross claim] would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).
Hayes argues that the court should strike the cross claim for indemnification because it fails to allege facts that satisfy the "exclusive control" element required to state a claim for common law indemnification, and maintains that exclusive control is an issue of law in the present case. In opposition, Dodgetown and Northeast argue that the facts alleged in the cross complaint satisfy all elements required to state a claim for common law indemnification, and that exclusive control is a question of fact that should not be determined by the court in the context of a motion to strike.
"[I]ndemnity involves a claim for reimbursement in full from one on whom a primary liability is claimed to rest . . . Ordinarily there is no right of indemnity . . . between joint tortfeasors." (Citation omitted; emphasis in original; internal quotation marks omitted.) Crotta v. Home Depot, Inc., 249 Conn. 634, 641-42, 732 A.2d 767 (1999). There is, however, 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.) Smith v. New Haven, 258 Conn. 56, 66, 779 A.2d 104 (2001).
A party seeking indemnification "must allege facts sufficient to establish at least four separate elements in order to maintain a common-law action for indemnity. These elements are: (1) that the other tortfeasor was negligent; (2) that [that] negligence, rather than [the party seeking indemnification's negligence], was the direct, immediate cause of the accident and injuries; (3) that [the other tortfeasor] was in control of the situation to the exclusion of [the party seeking indemnification]; (4) that [the party seeking indemnification] did not know of such negligence, had no reason to anticipate it, and could reasonably rely on the other tortfeasor not to be negligent." (Internal quotation marks omitted.) Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 698, 694 A.2d 788 (1997).
To sufficiently state a claim for indemnification, the cross claim by Dodgetown and Northeast must therefore allege: (1) that Hayes was negligent; (2) that Hayes' negligence, rather than negligence by Dodgetown or Northeast, was the direct and immediate cause of the accident and injuries; (3) that Hayes was in control of the situation, to the exclusion of Dodgetown and Northeast; and (4) that Dodgetown and Northeast did not know of Hayes' negligence, had no reason to anticipate it, and could reasonably rely on Hayes not to be negligent.
In the present case, the cross claim by Dodgetown and Northeast alleges: (1) that the plaintiff's complaint alleges that Hayes "negligently and carelessly `spread mulch, blew mulch, laid mulch, shredded mulch and/or landscape material' at or on the [condominium complex] property, causing the plaintiff injury." (Cross claim for indemnification, ¶ 2.); (2) that "the plaintiff's damages were a direct result of the active conduct of Hayes and/or the agents of Hayes rather than any conduct of Dodgetown and/or Northeast." (Cross claim for indemnification, ¶ 3.); (3) that "Hayes was responsible for the landscaping services on the premises of the [condominium complex] property, including but not limited to the spreading, blowing, laying or shredding of mulch and/or landscaping material, as alleged in the Complaint. Hayes had control of the alleged injury producing situation to the exclusion of Dodgetown and Northeast." (Cross claim for indemnification, ¶ 4.); and (4) that "Dodgetown and Northeast did not know of the conduct of Hayes which caused such conditions, had no reason to know of the same and could reasonably rely upon Hayes to act with due care." (Cross claim for indemnification, ¶ 5.)
Hayes contests the sufficiency of allegations in the cross claim only with respect to the third element, that of exclusive control. Whether an indemnitor had exclusive control over a situation is generally a question of fact that should not be resolved on a motion to strike. Skuzinski v. Bouchard Fuels, Inc., supra, 240 Conn. 704; see also Viadella v. Yankee Remodeler of New London, Inc., Superior Court, judicial district of New London, Docket No. CV 08 5008382 (March 19, 2010, Cosgrove, J.) (discussing special circumstances wherein exclusive control may become a question of law); Hawkins v. Hidden Quarry Association, Inc., Superior Court, judicial district of New Haven, Docket No. CV 06 5002025 (May 22, 2007, Cosgrove, J.) ( 43 Conn. L. Rptr. 494, 495) ("The issue of exclusive control . . . presents issues of fact not suitable for resolution by a motion to strike"). "[I]t is plausible to define exclusive control over `the situation' as exclusive control over the dangerous condition that gives rise to the accident." Skuzinski v. Bouchard Fuels, Inc., supra, 240 Conn. 706.
Hayes argues that the cross claim for indemnification should be stricken because "no reasonable juror could conclude that Hayes had exclusive control over the situation." The inquiry in the context of a motion to strike, however, is only whether the allegations have sufficiently stated a cause of action upon which relief may be granted. Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498. Thus, the court must ask only whether the facts as alleged in the cross complaint, if provable, would satisfy the elements required to state a claim for common law indemnification.
As explained below, the issue of whether a reasonable juror could conclude that Hayes had exclusive control over the situation giving rise to the plaintiff's injury is relevant only in determining whether exclusive control may be considered a question of law in the present case.
In Skuzinski, the court stated: "[T]he question of exclusive control should not be resolved on a motion to strike because the absence or presence of exclusive control is a question of fact. That is ordinarily the applicable rule. Weintraub v. Richard Dahn, Inc., 188 Conn. 570, 573, 452 A.2d 117 (1982); Kaplan v. Merberg Wrecking Corp., supra, [ 152 Conn. 405, 418, 207 A.2d 732 (1965)]. Nonetheless, 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. Under such circumstances, this issue becomes a question of law. Cf. Hallas v. Boehmke Dobosz, Inc., supra, [ 239 Conn. 658, 674, 686 A.2d 491 (1997)]; Abrahams v. Young Rubicam, Inc., 240 Conn. 300, 307, 692 A.2d 709 (1997)." Skuzinski v. Bouchard Fuels, Inc., supra, 240 Conn. 704-05. See also Gordon v. 0'Neall Construction, LLC, Superior Court, judicial district of Stamford-Norwalk, Docket No. X08 CV 07 5003336 (May 27, 2009, Jennings, Jr., J.T.R.) ("the determination of the issue of `exclusive control over the situation' is ordinarily a question of fact to be determined by the finder of fact . . . But in circumstances where the disagreement of the parties does not, upon close examination, turn upon any meaningful dispute about the alleged facts or a circumstance where under the factual scenario alleged, no reasonable juror could find that the third party defendants had exclusive control over the situation, the issue should be decided by the court as a matter of law." [Citations omitted; internal quotation marks omitted]).
In the present case, based on the facts alleged in the cross claim, a reasonable juror could find that Hayes had exclusive control over the situation giving rise to the plaintiff's injury. It is therefore submitted that it would not be proper, in the present case, to characterize exclusive control as a question of law.
In the present case, "the situation" giving rise to the plaintiff's injury refers to landscaping services performed by Hayes at the condominium complex, including the spreading, blowing, laying and shredding of mulch and/or other landscaping material that the plaintiff alleges was performed negligently. See Skuzinski v. Bouchard Fuels, Inc., supra 240 Conn. 706; see also Gordon v. 0'Neall Construction, LLC, Superior Court, judicial district of Stamford-Norwalk, Docket No. X08 CV 07 5003336 (May 27, 2009, Jennings, Jr., J.T.R.) ("`The situation' or `dangerous condition giving rise to the accident' over which exclusive control is alleged must be identified with reference to the claims of [the plaintiff] in [her] complaint against [the defendants]."). The facts alleged in the cross claim identify Hayes' spreading of mulch as the situation which gave rise to the plaintiff's injury, and further allege that "Hayes had control of the alleged injury producing situation to the exclusion of Dodgetown and Northeast." (Cross claim for indemnification, ¶ 4.) Based on the facts alleged in the cross claim, a reasonable fact finder could conclude that Hayes had exclusive control of the situation giving rise to the plaintiff's injury. Thus the issue of Hayes' exclusive control presents a question of fact not suitable for resolution on a motion to strike. See Skuzinski v. Bouchard Fuels, Inc., supra, 240 Conn. 704-05.
CONCLUSION
For the foregoing reasons, the court denies the defendant Hayes' motion to strike the cross claim for indemnification.