Opinion
No. NNI-CV-07-5002887-S
November 17, 2008
MEMORANDUM OF DECISION ON CROSS CLAIM DEFENDANT'S MOTION TO STRIKE #116
This memorandum of decision addresses the issues raised through a Motion to Strike and Memorandum in Support of Cross-Claim Defendant's Motion to Strike (#116) filed by the defendant, West Haven Street Sweeping, LLC, in response to the cross claim brought by a co-defendant, Elm Regency Limited Partnership (Elm Regency). This memorandum of decision also addresses the issues raised though the Objection to the Motion to Strike and supporting memorandum of law (#117) filed together by Elm Regency and another co-defendant, Nathan Wang (Wang). The underlying cause of action involves the plaintiff's personal injury action brought to recover damages he claims to have suffered when he fell upon property owned by Elm Regency and Wang, which property, including the location at which the injury occurred, was allegedly maintained by West Haven Street Sweeping, LLC (Street Sweeping). For the following reasons, Street Sweeping's motion to strike (#116) is hereby DENIED while, accordingly, the objection (#117) is hereby SUSTAINED.
I PROCEDURAL HISTORY
On December 10, 2007, the plaintiff, Michael Cuccaro, filed a three-count complaint against the three defendants referenced above, Elm Regency, Wang and Street Sweeping, seeking to recover damages for personal injuries and losses sustained in a slip and fall incident. The plaintiff sought to recover damages from each of the three defendants named in his complaint, alleging that the negligence on the part of Elm Regency, Wang and Street Sweeping caused him to sustain those injuries and losses. The complaint alleges the following pertinent facts: that in December 2005, the plaintiff was walking through the parking lot/walkway located at 200 Elm Street, West Haven, Connecticut when he fell due to an accumulation of ice and/or snow at that location (the property); that at the time of his fall, the property was owned, controlled, possessed, managed and/or maintained by the defendants Elm Regency and Wang; that at the time of the incident, the defendant Street Sweeping had a contract with the owners, Elm Regency and Wang, pursuant to which Street Sweeping assumed a duty to maintain the property by, among other things, removing snow and ice from the location in question. Elm Regency and Wang answered the complaint and filed special defenses on March 13, 2008 (#103); the plaintiff replied to those special defenses on March 18, 2008 (#105). On April 3, 2008 Street Sweeping answered the complaint and filed special defenses sounding in the plaintiff's comparative negligence (#106); the plaintiff replied to those special defenses(#107).
On April 21, 2008, Elm Regency and Wang filed an amended answer which presented their joint cross claim against Street Sweeping (#111). This cross claim sought: indemnification for all or part of any judgment that might be entered in favor of the plaintiff against Elm Regency; defense of the plaintiff's action against Elm Regency; and such other relief as the court might deem appropriate. (#111.) Specifically, the cross claim filed by Elm Regency and Wang alleged: that if the plaintiff sustained any injuries, they were the direct and immediate result of the negligence and carelessness of Street Sweeping; that prior to the alleged incident, Elm Regency and Sweet Sweeping had entered into an independent relationship pursuant to a contract in which Street Sweeping was to provide snow plow and snow removal services for the property; that at the time of the incident, Street Sweeping was in control of the snow and ice removal activities upon the property; and that Elm Regency did not have knowledge of Street Sweeping's negligence, did not have reason to anticipate such negligence, and reasonably relied on Street Sweeping not to be negligent with regard to servicing the property. (#111.)
On July 9, 2008, the cross claim defendant Street Sweeping filed the pending motion to strike the cross claim, generally asserting that its request for common law indemnification is legally insufficient. (#116, Memorandum in Support of Cross-Claim Defendant's Motion to Strike.) Street Sweeping contends that the entire cross claim should be stricken because: it has not alleged the cross claim defendant's exclusive control of the property; the nondelegable duty doctrine, applicable to premises liability cases, precludes exclusive control of a situation by an independent contractor such as itself; and the fact finder's determination of each party's share of negligence, including the share due from each defendant found responsible for the plaintiff's injuries and losses, makes the claim for indemnification unnecessary and moot. Street Sweeping identifies a number of specific grounds for its argument that the cross claim for indemnification is legally insufficient. First, Street Sweeping contends that the counter claim merely alleges that Street Sweeping had control over the snow and ice removal activities in the parking lot without including express language asserting that indemnitor had control of the situation to the exclusion of the indemnitee, thereby leaving unsatisfied a requisite exclusive control element of an indemnification claim. Second, Street Sweeping argues that it is not legally permissible for Elm Regency and Wang to allege that Street Sweeping had exclusive control of the location where the injury occurred because, under the common law, Elm Regency and Wang, as owners of the property, had a nondelegable duty to maintain it. Third, Street Sweeping asserts that the claim for indemnification by Elm Regency and Wang is moot because the fact finder will be called upon to determine each party's share of negligence, and that if a jury finds that Elm Regency was even one percent negligent, or not negligent at all, it could not lawfully prevail on its indemnification claim. (#116.)
Street Sweeping has styled both its Motion to Strike and its thorough, analytical Memorandum in Support as if that motion had been filed by Elm Regency, alone. (#116.) As both Elm Regency and Wang submitted #111, the amended answer containing the cross claim, the court has addressed Street Sweeping's claims as if brought against both these codefendants.
In objecting to the counter claim defendant's motion to strike, Elm Regency and Wang argue that neither case law nor statutes support the contention that the nondelegable duty doctrine precludes exclusive control of a situation by a property maintenance contractor such as Street Sweeping. (#117.) In support of their position, Elm Regency and Wang primarily rely upon the principles of law articulated in Smith v. Greenwich, 278 Conn. 428, 458, 899 A.2d 563 (2006), and Gazo v. Stamford, 255 Conn. 245, 255, 765 A.2d 505 (2001). Measured against the rules enunciated therein, the court finds the cross claim presented Elm Regency and Wang to be legally sufficient. Accordingly, their objection to the motion to strike (#117) must be sustained, while Street Sweeping's motion to strike (#111) must be denied.
II RESOLUTION OF THE PARTIES' CLAIMS
The court has utilized applicable procedural principles to resolve the issues raised by Elm Regency's and Wang's motion to strike (#116), and Sweet Sweeping's objection thereto (#117). "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). "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." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). The court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, CT Page 18194 889 A.2d 810 (2006).
To assess the first aspect of Street Sweeping's motion to strike, and the corresponding objection by Elm Regency and Wang, the court must consider the elements of a claim sounding in indemnification insofar as control of real property is concerned in a negligence action. "[A] party is entitled to indemnification, in the absence of a contract to indemnify, only upon proving that the party against whom indemnification is sought either dishonored a contractual provision or engaged in some tortious conduct . . . [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 . . . Such proof requires a plaintiff to establish four separate elements: (1) that the other tortfeasor was negligent; (2) that his negligence, rather than the plaintiffs, was the direct, immediate cause of the accident and injuries; (3) that he was in control of the situation to the exclusion of the plaintiff; and (4) that the plaintiff 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; emphasis added.) Burkert v. Petrol Plus of Naugatuck, Inc., 216 Conn. 65, 74, 579 A.2d 26 (1990).
Street Sweeping argues to the effect that Elm Regency's omission of the phrase "to the exclusion of the indemnitee" in the cross claim renders its identification of the party responsible for control of the property legally insufficient with regard to matters of indemnification. Despite the vigor of Street Sweeping's argument, the court declines to adopt the strictures of this proposed rule, finding it to be unsupported by Gazo v. Stamford, supra, 255 Conn. 245. To acknowledge and apply this aspect of Street Sweeping's motion to strike, in the absence of any case law or legislation specifying any requirement that such exact or affirmative language be used in presenting an indemnification claim, the court would have to disregard fundamental rules for renewing the pleadings at this stage of the proceedings, among other things. It is fundamental that when considering a motion to strike, the complaint at issue must be construed "in the manner most favorable to sustaining its legal sufficiency." Sullivan v. Lake Compounce Theme Park Inc., supra, 277 Conn. 117. Thus, insofar as Street Sweeping's proposed construction of the allegations raised in the cross claim is concerned, "[t]he role of the trial court [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; emphasis added.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). Moreover, in so construing the pleadings, the court should remain mindful that "[W]hat is necessarily implied [in an allegation] need not be expressly alleged . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." Violano v. Fernandez, supra, 280 Conn. 318.
The court has utilized these legal principles to address the first aspect of Street Sweeping's motion to strike. When the allegations of the cross claim are construed broadly, realistically and in the manner most favorable to sustaining its legal sufficiency, rather than narrowly and technically, an allegation that Street Sweeping had the requisite exclusive control of the ice and snow removal process, and thus over the location upon where the plaintiff fell upon the property, is implicitly asserted. (#111.) Id. Paragraphs 6 and 7 of the cross claim support this conclusion, as they state, in pertinent part, as follows: "6) . . . prior to the alleged incident, . . . Elm Regency entered into an independent relationship with [Street Sweeping] by virtue of a contract to provide snow plow and snow removal services for the property in question up to and including the day of the alleged incident. 7) At the time of the incident, the snow and ice removal activities in the parking lot were in the control of . . . [Street Sweeping], its agents, servants and employees." (#111.) In view of the mandate to "construe the [cross] complaint in the manner most favorable to sustaining its legal sufficiency," Street Sweeping cannot prevail on the first aspect of its motion to strike. Sullivan v. Lake Compounce Theme Park, Inc., supra, 277 Conn. 117.
Similarly, the second aspect of Street Sweeping's argument in support of its motion to strike, that the nondelegable doctrine precludes Elm Regency's and Wang's indemnification claim, fails to find support in the law sufficient to grant the relief requested. Notwithstanding Street Sweeping's proposed construction of Gazo v. Stamford, the court concludes that this opinion operates to support the inclusion, rather than the exclusion, of the indemnification allegations raised in the counter claim. In premises liability cases, "the nondelegable duty doctrine means that the party with such a duty . . . may not absolve itself of liability by contracting out the performance of that duty . . . [A] party may contract out the performance of a nondelegable duty, but may not contract out his ultimate legal responsibility." (Emphasis in original.) Gazo v. Stamford, supra, 255 Conn. 255. Notwithstanding this general precept, however, Gazo explained that "it is not a necessary implication of the nondelegable duty doctrine that the contractor to whom the performance of the duty has been assigned may not, under appropriate circumstances, also owe the same duty to a party injured by its breach . . . Moreover, we see no persuasive policy reason to attach such an implication to the doctrine as a matter of law. Instead, we view the nondelegable duty doctrine as involving a form of vicarious liability, pursuant to which the party with the duty may be vicariously liable for the conduct of its independent contractor. That vicarious liability, however, does not necessarily preclude liability on the part of the independent contractor." (Emphasis added; citations omitted.) Id., 256.
Smith v. Greenwich, supra, further supports a finding that the allegations of the counter claim are legally sufficient, as argued by Elm Regency and Wang. In Smith, our Supreme Court further explicated the role of vicarious liability for property owners who engage independent third parties to maintain the premises upon which injuries are alleged to have been proximately caused by the negligence by or on behalf of those third parties. "Under the general rule, an employer is not liable for the negligence of its independent contractors . . . One exception to this general rule, however, is that the owner or occupier of premises owes invitees a nondelegable duty to exercise ordinary care for the safety of such persons . . . The nondelegable doctrine is, therefore, an exception to the rule that an employer may not be held liable for the torts of its independent contractors." (Citations omitted; internal quotation marks omitted.) Smith v. Greenwich, supra, 278 Conn. 428. "The very essence of the nondelegable duty doctrine . . . 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." (Emphasis in original.) Id., 461. "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 contractors tortious conduct." Id., 460. Indemnification by the contractor is clearly contemplated by Smith v. Greenwich, which noted: "It is widely recognized that, when 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 for apportionment." Id., 462. Accordingly, Street Sweeping cannot prevail on the second aspect of its motion to strike. Id.
Street Sweeping's third proposed basis for granting the motion to strike, that Elm Regency's claim for common law indemnification is moot because the jury will determine each defendant's percentage of negligence, lacks legal validity, as well. "Ordinarily, there is no right of indemnity or contribution between joint tortfeasors . . . Where, however, one of the defendants is in control of the situation and his negligence alone is the direct immediate cause of the injury and the other defendant does not know of the fault, has no reason to anticipate it and may reasonably rely upon the former not to commit a wrong, it is only justice that the former should bear the burden of damages due to the injury." (Internal quotation marks omitted.) Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 697, 694 A.2d 788 (1997). In Smith v. Greenwich, supra, our Supreme Court affirmed the propriety of concluding "that, when both parties to an indemnity proceeding are negligent, liability may be allocated between the plaintiff and the defendant according to the degree of fault," and noted that "[t]o the extent that [the cross claim plaintiff] argues that fault may be allocated between it and [the cross claim defendant] in the present case, any such claim must be raised within the context of an indemnity proceeding." Smith v. Greenwich, supra, 278 Conn, 461 n. 10. "Through various enactments known collectively as Tort Reform I and Tort Reform II . . . the legislature enacted our present apportionment statute, § 52-575h." Smith v. Greenwich, supra, 278 Conn. 455. This very legislative scheme expressly leaves the common-law right to indemnity against a joint tortfeasor intact, pursuant to General Statutes § 52-572h(j).
With regard to the scope of the impact of apportionment legislation upon indemnity issues arising in negligence cases, § 52-572h(j) provides: "This section shall not impair any right to indemnity under existing law. Where one tortfeasor is entitled to indemnity from another, the right of the indemnitee is for indemnity and not contribution, and the indemnitor is not entitled to contribution from the indemnitee for any portion of such indemnity obligation." This final provision unequivocally affirms the existence of a right to indemnity among joint tortfeasors.
Street Sweeping's additional arguments concerning Elm Regency's eligibility for indemnification, even in the absence of a finding of liability on Elm Regency's part, are also defeated through reference to Smith v. Greenwich, supra. As previously discussed, in that opinion, the Supreme Court adjured that "when 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." Id., 462. Thus, consistent with § 52-572h(j), "it is generally agreed that there may be indemnity in favor of one who is held responsible solely by imputation of law because of a relationship to the actual wrongdoer, as where an employer is vicariously liable for the tort of a servant or an independent contractor." (Internal quotation marks omitted.) Id., 462-63.
Construing, as it must at this stage of the proceedings, the allegations of the cross claim in the light most favorable to overcoming Street Sweeping's motion to strike, the court concludes that Elm Regency and Wang have presented a sufficient claim for common law indemnification. Accordingly, the court to declines to accept of the third aspect of Street Sweeping's motion to strike, as well.
III CONCLUSION
Based on the foregoing principles of statutory and common law, the court finds inadequate legal basis for granting Street Sweeping's motion to strike. Here, the court has concluded that the requisite element of the cross claim defendant's exclusive control of the property is implied through the text of the cross claim itself: the nondelegable duty doctrine does not prevent an owner of premises from seeking common law indemnification against an independent contractor in vicarious liability situations; and notwithstanding the enactment of § 52-572h, there may be a right of indemnity between the defendants as joint tortfeasors, as indemnification is an appropriate remedy for an innocent party who has been held vicariously liable. See Smith v. Greenwich, supra, 278 Conn. 461 n. 10; § 52-572h(j).
WHEREFORE the Motion to Strike (#116) filed by the defendant, West Haven Street Sweeping, LLC is hereby DENIED, and the Objection to the Motion to Strike (#117) filed by the codefendants Elm Regency Limited Partnership and Nathan Wang is hereby SUSTAINED.