Opinion
No. FST CV 04 5000046
July 25, 2006
MEMORANDUM OF DECISION RE DISMISS/STRIKE
October 20, 2004, the plaintiff, Ann Esposito, filed a two-count complaint against the defendants, Filene's, Inc., Filene's Department Stores, and The May Department Stores Company. This action arises out of injuries allegedly sustained as a result of the plaintiff's slip and fall on snow and/or ice on property maintained by the defendants.
Count one of the complaint alleges negligence against Filene's, Inc. and Filene's Department Stores for its failure to keep the sidewalk reasonably safe by removing the snow and/or ice. Count two of the complaint alleges negligence against The May Department Stores Company for the same reasons set forth in count one.
On February 24, 2005, the defendants filed an apportionment complaint against the apportionment defendant, Landserv, Inc. (Landserv). The defendants allege that they contracted with Landserv to provide snow removal and treatment of the sidewalk where the plaintiff's injury allegedly occurred. An answer to the apportionment complaint was filed by Landserv on April 4, 2005.
On January 27, 2006, the plaintiff filed (1) a motion to dismiss the apportionment complaint (#112), (2) a motion to strike the apportionment complaint, (#110) and (3) a request for leave to amend her complaint (#108).
MOTION TO DISMISS
"A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 666 A.2d 599 (2005). "[A] motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action." Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993). "The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, CT Page 13755 490 A.2d 509 (1985); Practice Book § 10-31.
Because the plaintiff's motion to dismiss could dispose of the matters before the court, the motion to dismiss is addressed first.
"When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . [A] court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Filippi v. Sullivan, supra, 273 Conn. 8.
The plaintiff moves to dismiss the apportionment complaint on the grounds that the defendants failed to timely serve on her the apportionment complaint as required by General Statutes § 52-102b(a). General Statutes § 52-102b(a) provides for service of process of the apportionment complaint to be made within 120 days of the original complaint's return date. Section 52-102b(a) also provides that the defendant shall serve the apportionment complaint on all parties to the original action on or before the apportionment complaint's return date. The plaintiff argues she first received a copy of the apportionment complaint, which is dated February 11, 2005, by facsimile on December 12, 2005, well past the return date of March 22, 2005. In opposition, the defendants argue that service of process was timely made on the plaintiff because a copy of the apportionment complaint was mailed to her counsel on February 11, 2005, in accordance with the certification of service attached to that pleading.
General Statutes § 52-102b(a) provides, in relevant part: "A defendant in any civil action to which section 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability. Any such writ, summons and complaint, hereinafter called the apportionment complaint, shall be served within one hundred twenty days of the return date specified in the plaintiff's original complaint. The defendant filing an apportionment complaint shall serve a copy of such apportionment complaint on all parties to the original action in accordance with the rules of practice of the Superior Court on or before the return date specified in the apportionment complaint."
The plaintiff has submitted an affidavit of Attorney Eric L. Reinken, counsel to the plaintiff, attesting to this fact.
Practice Book § 10-12(a) permits service of pleadings on the attorney for a represented party.
In support of their position, the defendants have submitted an affidavit of Attorney Kirby G. Huget, counsel for the defendants.
"A defect in process . . . implicates personal jurisdiction, rather then subject matter jurisdiction . . . [W]hen a particular method of serving process is set forth by statute, that method must be followed . . . Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction [over the person]." (Citation omitted; internal quotation marks omitted.) Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 31, 848 A.2d 418 (2004). "Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person." (Internal quotation marks omitted.) Connecticut Light Power Co. v. St. John, 80 Conn.App. 767, 772, 837 A.2d 841 (2004).
The affidavit of counsel for the defendants indicates that he sent a copy of the apportionment complaint to the plaintiff on February 11, 2005 in compliance with General Statutes § 52-102b(a). The fact that the plaintiff's counsel indicates that he did not receive these papers until a number of months thereafter is essentially irrelevant because the defendants' obligation is to send the papers by mailing them to the plaintiff and defendants' counsel so certified.
Hence, the plaintiff's motion to dismiss is denied.
MOTION TO STRIKE
"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 1118 (2003). "It is fundamental that in determining the sufficiency of a complaint challenged by a . . . motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Asylum Hill Problem Solving Revitalization Ass'n. v. King, 277 Conn. 238, 246, 890 A.2d 522 (2006). The court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Greco v. United Technologies Corp. 277 Conn. 337, 347, 890 A.2d 1289 (2006).
The plaintiff moves to strike the apportionment complaint on the ground that the defendants had a nondelegable duty to keep the premises safe and clear from snow and ice. The plaintiff argues that the defendants may not escape liability by contracting out the performance of a nondelegable duty to the apportionment defendant. In opposition, the defendants argue that the apportionment complaint alleges a cognizable claim of negligence against Landserv in that Landserv may be liable for a proportionate share of the plaintiff's damages pursuant to General Statutes § 52-572h(c).
The defendants also allege that the plaintiff's motion to strike is untimely because an answer to the complaint had already been filed by Landserv. In response, the plaintiff contends that the motion is timely as a copy of the apportionment complaint was not received by the plaintiff until December 12, 2005. The plaintiff argues that the order of pleading, as prescribed by Practice Book § 10-6, does not preclude the plaintiff from filing a motion to strike after an apportionment defendant has filed an answer to the apportionment complaint. The filing of an answer by one party does not preclude a different party such as the plaintiff from filing a motion to strike.
General Statutes § 52-572h(c) provides: "In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1, 1987, if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for such party's proportionate share of the recoverable economic damages and the recoverable noneconomic damage except as provided in subsection (g) of this section." "This provision replaced the common-law rule of joint and several liability with a system of apportioned liability that holds each defendant liable for only his or her proportionate share of damages . . . That provision, however, proceeds on the premise that the defendants, between or among any of whom liability is apportioned, are at least potentially liable in differing proportions. It does not apply, therefore, to a case of vicarious liability of one defendant for the conduct of another." (Citation omitted; internal quotation marks omitted.) Smith v. Greenwich, 278 Conn. 428, 459, (2006).
In Smith v. Greenwich, supra, 278 Conn. 428, our Supreme Court held that "under the nondelegable duty doctrine, the party with such a duty may not absolve itself of liability by contracting out the performance of that duty . . . [T]he nondelegable duty doctrine means that a party may contract out the performance of a nondelegable duty, but may not contract out his ultimate legal responsibility." (Internal quotation marks omitted.) Id., 457. The court found that it was "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 . . . Instead, [the court viewed] 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. "(Internal quotation marks omitted.) Id., 457-58.
"A landowner is responsible for one hundred per cent of the damages to which a plaintiff may be entitled, including those arising out of an independent contractor's negligence for which the landowner is vicariously liable. This is true regardless of whether the plaintiff may directly sue the independent contractor. There can be no apportionment of the damages due by the landowner to the plaintiff because the landowner is responsible for all of them." Nieves v. Housing Authority of Stamford, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 04 0200048 (February 8, 2005) ( 38 Conn. L. Rptr. 692). The defendants had a non-delegable duty to keep its property safe and clear of snow and/or ice and the defendants "may not absolve [themselves] of liability by contracting out the performance of that duty to [a third party]. The non-delegable duty doctrine means that a party may contract out the performance of a non-delegable duty, but may not contract out its ultimate legal responsibility." Piquol v. Charles Street Associates, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 04 5000016 (December 21, 2005).
In the present case, the defendants' apportionment complaint fails to state a legally sufficient cause of action because the defendants cannot apportion liability to a third party such as an independent contractor of their nondelegable duty to keep the premises safe and clear of snow and ice.
The plaintiff's motion to strike the apportionment complaint is granted.
MOTION TO AMEND COMPLAINT
On January 27, 2006, the plaintiff, pursuant to Practice Book § 10-60, filed a request for leave to amend her complaint to include a negligence count against the apportionment defendant, Landserv. On February 10, 2006, Landserv filed an objection to the plaintiff's request for leave to amend on the ground that the motion is untimely. Landserv argues that pursuant to General Statutes § 52-102b(d) the plaintiff has sixty days from the return date of the apportionment complaint to assert a claim against the apportionment defendant and that the plaintiff's failure to file her request to amend within the time prescribed by statute renders it untimely. In opposition, the plaintiff argues that she did not receive a copy of the apportionment complaint until December 12, 2005, well past the March 22, 2005 return date. The plaintiff contends that given the circumstances of the case, she has timely filed a request to amend her complaint.
Practice Book § 10-60, in relevant part, provides: "(a) Except as provided in Section 10-66, a party may amend his or her pleadings or other parts of the record or proceedings at any time subsequent to that stated in the preceding section in the following manner: (1) By order of judicial authority; or (2) By written consent of the adverse party; or (3) By filing a request for leave to file such amendment, with the amendment appended, after service upon each party as provided by Sections 10-12 through 10-17, and with proof of service endorsed thereon. If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party."
General Statutes § 52-102b(d) provides: "Notwithstanding any applicable statute of limitation or repose, the plaintiff may, within sixty days of the return date of the apportionment complaint served pursuant to subsection (a) of this section, assert any claim against the apportionment defendant arising out of the transaction or occurrence that is the subject matter of the original complaint."
In Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 10, our Supreme Court examined whether the 120-day time limitation in General Statutes § 52-102b(a) for filing an apportionment complaint was mandatory or discretionary. The court concluded that "§ 52-102b created rights that did not exist at common law, [such that] the statute's 120 day time limitation is a substantive limitation on the right to apportionment . . . [S]ection 52-102b was designed to create an effective means of accomplishing apportionment with reasonable certainty . . . Although § 52-102b contains some procedural aspects, its substantive purpose and effect cannot be minimized. Section 52-102b gives tangible force to the right to apportionment created in § 52-572h. Conversely, failure to comply with its requirements prevents a defendant from exercising the right to apportion liability. Accordingly, on the basis of the mandatory language employed by the legislature and [the court's] conclusion that § 52-102b(a) is substantive, [the court concluded] that the 120 day time limitation contained therein is mandatory." Id., 26.
"The result is the same when the plaintiff fails to serve the apportionment defendant within sixty days of the return date of the apportionment complaint [as proscribed by § 52-102b(d)] . . . Since the majority of the courts have been strictly enforcing the 120 day statutory limit for original defendants who wish to serve apportionment complaints, it would be somewhat anomalous not to similarly enforce the sixty day limit for plaintiffs who wish to plead over claims against apportionment defendants." (Internal quotation marks omitted.) Serrano v. Haag, Superior Court, judicial district of New Britain, Docket No. CV 04 4000658 (June 27, 2005) ( 39 Conn. L. Rptr. 694).
In the present case, the apportionment complaint had a return date of March 22, 2005. The plaintiff filed a request for leave to amend her complaint to include a cause of action against Landserv on January 27, 2006, ten months after the return date had passed. Therefore, the plaintiff's request to amend her complaint is denied as she has failed to comply with the sixty-day time limitation set forth in § 52-102b(d).
The plaintiff contends that her request to amend is timely given the fact that she did not receive a copy of the apportionment complaint until December 12, 2005. Landserv certifies, and the plaintiff does not contest, that an answer to the apportionment complaint, dated April 1, 2005, was served on the plaintiff. Even if the plaintiff had no prior knowledge that an apportionment complaint had been filed, the moment the plaintiff received a copy of Landserv's answer to the apportionment complaint the plaintiff was on notice of the apportionment complaint's existence. Had the plaintiff taken heed of this notice and sought to obtain a copy of the apportionment complaint, she could then have timely filed a request for leave to amend.
To summarize, the plaintiff's motion to dismiss is denied because service was timely. The plaintiff's motion to strike the apportionment complaint on the grounds that the defendants cannot apportion liability of their nondelegable duty to an independent contractor is granted. Finally, plaintiff's motion for leave to amend her complaint is denied as the request was not timely filed as required by General Statutes § 52-102b(d).
So Ordered.