Opinion
No. CV 09-5031540-S
October 20, 2010
MEMORANDUM ORDER RE MOTION TO STRIKE APPORTIONMENT COMPLAINT
Upon reviewing all materials submitted by the parties in support of and in opposition to the Motion to Strike Apportionment Complaint filed by third-party defendant Guardian Pest Control on August 31, 2009, the Court hereby concludes, for the following reasons, that said motion must be GRANTED.
I. INTRODUCTION
1. This is an action by plaintiff Maria Huertas against the defendant, Hartford Housing Authority (HHA), to recover damages for injuries and losses she claims to have suffered on August 19, 2007 as the result of a fall in her apartment at 141 Woodland Street in Hartford. The plaintiff claims that the fall occurred when she was frightened by a rodent that had slipped inside her clothing while she was taking a shower in the apartment, which at all times relevant to this case was owned and controlled, possessed, managed and/or maintained by the HHA. The plaintiff asserts that her fall and resulting injuries and losses were legally caused by the negligence of the HHA in failing to rid the apartment of rodents, and thus in failing to keep it reasonably safe for the benefit of tenants and others invited to come upon the premises.
2. On August 31, 2009, HHA filed an apportionment complaint against Guardian Pest Control, which it claims to have been responsible, in the relevant time frame, for providing extermination and pest control services at 141 Woodland Street. HHA alleges in its apportionment complaint that, if the plaintiff suffered any injuries and losses due to its negligence, as alleged in the plaintiff's underlying complaint, those injuries and losses were legally caused by the negligence of Guardian Pest Control in failing properly to perform extermination and pest control services at the premises.
3. On December 4, 2009, Guardian Pest Control filed a Motion to Strike HHA's apportionment complaint on two grounds: first, that the injuries and losses alleged in the plaintiff's underlying complaint, which was attached to the apportionment complaint and incorporated by reference therein, are too remote to have been reasonably foreseeable consequences of its alleged negligence in failing properly to perform extermination and pest control services at 141 Woodland Street; and second, that HHA cannot lawfully assert a claim for apportionment against it because, as the owner of the premises at 141 Woodland Street, it had a nondelegable duty to inspect and maintain the premises in order to keep them reasonably safe for tenants and others invited to come upon them. Guardian Pest Control supported its Motion to Strike with an accompanying memorandum of law.
4. HHA filed an Objection to the Motion to Strike on January 14, 2010 along with a supporting memorandum of law. Guardian Pest Control responded to HHA's Objection by filing a reply memorandum on February 24, 2010, to which HHA responded with its own supplemental memorandum on September 23, 2010. The Motion was heard at the short calendar on September 27, 2010.
II. STANDARD
5. "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). While "[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). Accordingly, "[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 498. Alternatively, since the court should "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." American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).
III. ANALYSIS A. Foreseeability
6. Guardian Pest Control first argues that the severity and extent of the plaintiff's injuries, as well as what it characterizes as the "strange and unusual circumstances" which led up to them, were not foreseeable consequences of its conduct, as alleged in the apportionment complaint.
7. "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . With respect to the element of causation, a plaintiff must establish that the defendant's conduct legally caused the injuries, that is, that the conduct both caused the injury in fact and proximately caused the injury . . . The test for cause in fact is, simply, would the injury have occurred were it not for the actor's conduct . . . The test of proximate cause is whether the defendant's conduct is a substantial factor in producing the plaintiff's injury. The substantial factor test asks . . . whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence . . . The question of proximate causation generally belongs to the trier of fact because causation is essentially a factual issue." (Citations omitted; internal quotation marks omitted.) Archambault v. Soneco/Northeastern, Inc., 287 Conn. 20, 32-33, 946, A.2d 839 (2008).
8. This Court concludes that if a person with the duty to exterminate or control pests in a residential unit breaches that duty, it is reasonably foreseeable that the unit may become infested with rodents, that such rodents may enter the clothing of the unit's residents, and that such residents will be frightened, lose their balance and fall, thereby suffering serious injury.
B. The Nondelegable Duty Doctrine
9. Guardian Pest Control next argues that, even if the harm suffered by Ms. Huertas was of the same general nature as the foreseeable risk created by its alleged negligence, HHA has no legal right to apportion to it any of its liability for that harm. This is so, it claims, under the rule of Smith v. Greenwich, 278 Conn. 428, 899 A.2d 563 (2006), wherein our Supreme Court held that an owner or occupier of land, such as the HHA, owes a nondelegable duty to all persons invited to come upon such land, such as tenants like plaintiff Maria Huertas, to inspect the land and maintain it in such condition as to keep it reasonably safe for its intended use by such invitees.
10. HHA responds to this argument by insisting that a motion to strike cannot be granted on this ground when the apportionment complaint does not itself allege facts tending to establish the apportionment plaintiff's ownership and control of the subject premises, despite the presence of such allegations in the plaintiff's underlying complaint. On that basis it argues that Guardian Pest Control's Motion to Strike must be denied.
11. In Smith, the Supreme Court considered whether a property owner can assert an apportionment claim against its independent contractor under General Statutes § 52-572h(c). In so doing, the Court quoted at length from its previous decision in Gazo v. Stamford, 255 Conn. 245, 765 A.2d 505 (2001), in which it explained the nondelegable duty doctrine and discussed as follows that doctrine's relationship to vicarious liability: "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 duty doctrine is, therefore, an exception to the rule that an employer may not be held liable for the torts of its independent contractors . . . Nondelegable duties create a form of vicarious liability . . . In vicarious liability situations, the law has . . . broaden[ed] the liability for that fault by imposing it upon an additional, albeit innocent, defendant . . . namely, the party that has the nondelegable duty." (Citations omitted; emphasis in original; internal quotation marks omitted.) Smith v. Greenwich, supra, 278 Conn. at 458-59.
Section 52-572h(c) provides, in relevant part: "Unless otherwise provided by law, in a negligence action to recover damages for personal injury or wrongful death, accruing on or after October 1, 1986, if the damages are determined to be proximately caused by the negligence of more than one person, each person against whom recovery is allowed shall be liable to the claimant only for his proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section."
12. The apportionment plaintiff in Smith had argued that the issue there before the court, "namely, the viability of an apportionment complaint by a property owner against its contractor, was not before [the court] in Gazo . . . [and t]hus . . . [that that] court's discussion of the relationship between the nondelegable duty doctrine and vicarious liability was dicta and is not binding." Id., 460. In response to this argument, the CT Page 20142 Smith Court expressly held that, "Regardless of whether the language in Gazo was dicta or was part of our holding, we now formally adopt the reasoning of that decision and conclude that the owner or occupier of a premises owes a nondelegable duty to keep the premises safe by protecting third persons from foreseeable slip and fall injuries. 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. Section 52-572h(c) does not apply to cases of vicarious liability, like the present one, where defendants are not potentially liable to the plaintiff in differing proportions. We conclude, therefore, that in such circumstances, 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." Id.
13. In response to Guardian Pest Control's argument that the holding of Smith is binding in this case, HHA argues that it cannot serve as the basis for granting the instant Motion to Strike because the challenged apportionment complaint does not itself allege that HHA is the owner or occupier of the subject premises. The result of this pleading omission, it claims, is that when the apportionment complaint is read, as it must be, in the light most favorable to the pleader, it does not necessarily state a claim that is barred as a matter of law. This argument is supported by several Superior Court decisions which have held that challenged apportionment complaints should not be stricken because their essential allegations do not necessarily bar the requested relief under Smith. See, e.g., LeBlanc v. Elderly Housing Management, Superior Court, judicial district of Litchfield, Docket No. CV 08 5005116 (July 29, 2009, Gallagher, J.) ( 48 Conn. L. Rptr. 323, 325) ("When an apportionment complaint fails to allege ownership or control of [a] premises, a court cannot find that a nondelegable duty exists and cannot grant an apportionment defendant's motion to strike") (Internal quotation marks omitted); Rosario v. Orlando Annulli Sons, Inc., Superior Court, judicial district of Hartford, Docket No. CV 07 5007896 (August 9, 2007, Wagner, J.T.R.) ( 44 Conn. L. Rptr. 9, 10); Callis v. Cumberland Farms, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 08 5009596 (March 20, 2009, Brunetti, J.) (denying motion to strike where, "[a]lthough other pleadings in this case may allege or support that [the defendant] is the owner of the premises involved, the apportionment complaint neither alleges or admits that [the defendant] is the owner of the premises"); Jones v. Greater Waterbury YMCA, Superior Court, judicial district of Waterbury, Docket No. CV 07 5004504 (January 16, 2008, Roche, J.) ( 44 Conn. L. Rptr. 625, 626) ("[a]s [the defendant's] apportionment complaint does not reference its legal relationship towards the subject premises or its relationship towards [the apportionment defendant], and based upon the apportionment complaint alone, there is an insufficient basis for granting the motion to strike"); Cretella v. HBNI Orange, LLC, Superior Court, judicial district of New Haven, Docket No. CV 06 5007399 (November 30, 2007, Jones, J) (denying motion to strike where apportionment complaint did not allege any facts that would indicate that the defendants had a vicarious relationship with the apportionment defendant); see also Cintron v. Meriden Square #3, Superior Court, judicial district of New Haven, Docket No. CV 05 5000244 (January 23, 2007, Taylor, J.) ("in order to construe the [challenged apportionment complaint] in the manner most favorable to sustaining its legal sufficiency . . . the court will assume, for the sake of this motion alone, that [the defendant] is not the owner of the property in question. Based upon the allegations in [the defendant's] pleading and the nondelegable duty claim by [the apportionment defendant], Smith v. Greenwich does not apply. Therefore, the motion to strike the apportionment complaint is denied" [citation omitted; internal quotation marks omitted]).
In LeBlanc, the plaintiff initiated an action by filing a complaint in which she alleged she was injured after she fell on an unlighted walkway of a parking lot maintained by the defendant. LeBlanc v. Elderly Housing Management, supra, 48 Conn. L. Rptr. 323. Thereafter, the defendant filed an apportionment complaint against a third party, alleging that it contracted with that third party to install lighting in the parking lot and walkway where the plaintiff allegedly fell, and that the installation was done negligently. Id. The third party moved to dismiss the apportionment complaint and the plaintiff moved to strike it. Id. The court considered the motions together. Id.
In denying the motion strike, the court, after citing Rosario and relying on that decision, stated that "[a]t oral argument, [the defendant] correctly pointed out that it is the apportionment complaint that must be viewed by this court in a manner most favorable to sustaining its legal sufficiency. The apportionment complaint contains no allegations that [the defendant] owned, occupied or in any way controlled the subject premises." Id., 325.
14. Notwithstanding the foregoing cases, Guardian Pest Control duly notes that, "[T]here is a split of authority among Superior Courts as to whether, in circumstances such as these, the court may look beyond the challenged complaint and examine the facts alleged in the original complaint. For instance, in Rohr v. Rocky River Business Professional Center Unit Owner's Association, Inc., Superior Court, judicial district of Litchfield, Docket No. CV 07 6000202 (November 20, 2007, Marano, J.) . . . the court examined the apportionment complaint in light of the original complaint. Id. In reaching its conclusion, the Rohr Court stated that ` Smith v. Greenwich imposes restrictions upon parties that owe nondelegable duties, namely that those parties cannot apportion the liability for their nondelegable duties. Under these circumstances, allowing an apportionment plaintiff, commonly the party that owes the nondelegable duty, to escape those restrictions by simply omitting from the apportionment complaint an allegation of ownership or control would circumvent the effect of the decision in Smith v. Greenwich. An apportionment plaintiff would never have any interest in alleging ownership or control, and would not allege ownership or control, thereby permitting a legally insufficient claim to survive a motion to strike. This would also allow a party with a nondelegable duty to apportion its liability.' Id. [;] [s]ee also Bowen v. Stonegate Condominium Assn., Superior Court, judicial district of New Haven, Docket No. CV 98 0416453 (January 5, 2001, Jones, J.) ( 28 Conn. L. Rptr. 578) (examining original complaint where apportionment plaintiff omitted allegations regarding legal relationship to subject premises)." Jones v. Greater Waterbury YMCA, supra, 44 Conn. L. Rptr. 626; see also Gallo v. Cumberland Farms, Inc., Superior Court, judicial district of Middlesex, Docket No. CV 08 6000459 (November 18, 2009, Bear, J.). Under these authorities, Guardian Pest Control urges this Court to consider the allegations of ownership and control of the subject premises in the plaintiff's underlying complaint as the basis for deciding that HHA, as the owner of the subject premises, owed the plaintiff a nondelegable duty to keep the premises reasonably safe for the use she and other tenants were invited to make of them.
15. Without deciding the general issue presented in the latter debate — whether or not the Court may always, or ever, rely upon otherwise unpleaded allegations of the underlying complaint when assessing the legal sufficiency of an apportionment complaint challenged by a motion to strike — the Court must note that in this case, unlike other cases cited by HHA, the underlying complaint has been appended to and incorporated by reference into the apportionment complaint. By so framing its apportionment complaint, HHA has expressly conditioned its claim of apportionment upon the plaintiff's ability to prove at trial that HHA was negligent in the manner pleaded in the underlying complaint. HHA has thus identified the allegations of the underlying complaint, including its allegations that at all times relevant to this case HHA owned and controlled, possessed, managed and/or maintained the subject premises, as the sole legal and factual basis which the plaintiff can establish the claim for damages which HHA now seeks apportion to Guardian Pest Control. Thus, for any liability potentially subject to apportionment to be established against the HHA in this case, under the allegations of the challenged apportionment complaint, the plaintiff must first establish that HHA is liable to the plaintiff in the manner alleged in the underlying complaint, to wit: as the owner and controller, possessor, manager and/or maintainer of the subject premises. Because such allegations seek to hold HHA liable for breach of its nondelegable duty, as the owner of leased premises, to exercise due care to keep such premises reasonably safe for tenants and others invited to come upon them, apportionment of liability to others hired to perform such nondelegable duties is unavailable as a matter of law.
On this score, the apportionment complaint alleges as follows:
CT Page 20146
1) The plaintiff Maria Huertas, has commenced a cause of action (sic) against the defendant, Hartford Housing Authority for damages allegedly sustained as a result of an incident that occurred on 8/19/07 in her apartment. A copy of the plaintiff's complaint dated 6/22/07, bearing a return date of 7/211/09 is attached hereto as "Exhibit A."
2) In that complaint, the plaintiff alleges that she sustained injuries and damages as a result of the defendant's negligence, which the defendant denies.
3) The apportionment defendant was responsible for providing extermination and pest control at property located at 141 Woodland Street, and in particular apartment 208 which the plaintiff occupied a tenant on or about 8/19/07.
4) If the plaintiff sustained any injuries and damages, and said injuries and damages arose from the negligence as alleged in the plaintiff's complaint, which allegations are expressly denied, and those injuries and damages were approximately (sic) caused by the negligence of Guardian Pest Control, who is responsible for extermination and pest control of the plaintiff's apartment, then the apportionment defendant was negligent or careless in one or more of the following ways: . . . [.]
5) The apportionment defendant is liable to respond to the claim for damages set forth in the plaintiff's complaint . . .
C. CONCLUSION
16. For the foregoing reasons, the Court hereby concludes that the apportionment complaint of defendant HHA must be stricken because it fails to state a claim for apportionment of liability can lawfully be granted under the authority of Smith v. Greenwich, supra, 278 Conn. at 428.
IT IS SO ORDERED this 20th day of October 2010.