Opinion
No. CV 09 5013657
May 19, 2010
MEMORANDUM OF DECISION
This case requires an answer to the question. When an invitee is injured on a landowner's property and alleges his injury was due to the failure to use proper materials in the construction of stairs and the failure to repair the stairs, may the landowner and the property manager apportion their liability to the Contractor who built the stairs?
I
Robert Kwoczala, the plaintiff, filed a three-count action for negligence against the Wilde Wood Condominium Association, Inc. (Wilde Wood), G W Management, Inc. (G W), and the Nutmeg Housing and Development Corporation (Nutmeg). He alleges the following: A set of asphalt stairs leading to a playground are located in a common area under the control of Wilde Wood, which has a duty to maintain and preserve their safe condition. The stairs were in an unsafe condition due to poor craftsmanship and the failure to use the proper materials for their construction. This unsafe condition, which persisted for a sufficient amount of time that it should have been discovered, was exacerbated by a failure to inspect and make necessary repairs. As a result, on June 5, 2003 Mr. Kwoczala slipped and fell on the stairs, suffering serious injury. Subsequently, Wilde Wood and G W filed an apportionment complaint against Empire Paving, Inc. (Empire), Nutmeg, and the New Haven Construction Corporation, claiming that these parties are responsible for the construction of the stairs and, therefore, are the parties ultimately responsible to Mr. Kwoczala.
Empire has filed a motion to strike the apportionment complaint, claiming that Wilde Wood and G W have a nondelegable duty to maintain the premises in a reasonably safe condition. Wilde Wood and G W object. Wilde Wood argues that, as a landowner, while it may not apportion liability for Mr. Kwoczala's claim that it failed to maintain its property, it may seek apportionment for Empire's failure to construct safe stairs. G W's argument is that, because it is only a property manager, it does not have a nondelegable duty like that of a landowner.
Empire replies that Wilde Wood's attempt to draw a distinction between a duty to maintain the stairs and a duty to construct the stairs safely is without merit. Specifically, Empire argues that the apportionment sought is still for an injury suffered by an invitee owed a duty by Wilde Wood to keep the stairs reasonably safe and that the duty to do so is nondelegable. Further, Empire argues that G W also has a nondelegable duty because, as the property manager, it was in control of the premises.
II
"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). "[F]or the purpose of a motion to strike, the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994); see also Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989). Accordingly, "[i]f facts provable in the complaint 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). The court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Id. "Insofar as [a] motion to strike is directed [to] the entire complaint, it must . . . fail if any of the plaintiff's claims are legally sufficient." (Internal quotation marks omitted.) Whelan v. Whelan, 41 Conn.Sup. 519, 520, 588 A.2d 251 (1991) [ 3 Conn. L. Rptr. 135].
III
"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." (Citations omitted; internal quotation marks omitted.) Smith v. Greenwich, 278 Conn. 428, 458, 899 A.2d 563 (2006). Specifically, the owner or occupier must protect against "foreseeable slip and fall injuries." Id., 460. "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." Id., 460. While under Connecticut tort law, "each party against whom recovery is allowed shall be liable to the claimant only for his proportionate share of the recoverable economic damages . . ." General Statutes § 52-572h(c); "[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, 728 Conn. 460. "[T]he apportionment statute was `intended to make a defendant's liability to the plaintiff proportionate to the defendant's degree of fault. The very essence of the nondelegable duty doctrine, however, 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. When a property owner's liability to the plaintiff for the wrongful conduct of an independent contractor legally cannot be apportioned, then there is no reason to apportion fault between the property owner and the contractor in an apportionment proceeding." (Emphasis in original.) Id., 461.
Holding the landowner vicariously liable for the negligent act of its contractor does not put the policies behind apportionment and the nondelegable duty doctrine at odds. Because the landowner is fully liable for the acts of the contractor, there is no liability to apportion. Id., 548. In Smith v. Greenwich, the independent contractor's failure to remove snow and the land owner's failure to remove snow were the same act of negligence. Id., 458. "The act and hence the responsibility being one and the same, it is identical, indivisible, and hence incapable of being apportioned." (Internal quotation marks omitted.) Falcon v. Deerfield Woods Condominium Association, Superior Court, judicial district of New Haven, Docket No. CV 98 0418521 (December 18, 2000).
To accept Wilde Wood's argument that an allegation of negligent construction is not the same as an allegation of failure to maintain safe premises would be to ignore the policy behind the nondelegable duty doctrine. In support of its argument, Wilde Wood relies on Friedman v. Berman, Superior Court, judicial district of New Haven, Docket No. CV 06 5001910 (April 5, 2007) [ 43 Conn. L. Rptr. 236], which permitted a landowner to apportion liability to excavators working on his property when an adjacent landowner brought suit for property damage and nuisance. Friedman is distinguishable from the present case, however, because the claims in that case were for property damage and nuisance to an adjacent landowner — not for personal injury to an invitee to the premises. "Nondelegable duties generally are imposed . . . 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." (Internal quotation marks omitted.) Machado v. Hartford, 292 Conn. 364, 371, 972 A.2d 724 (2009). The non-delegable duty doctrine exists to protect "third persons from foreseeable slip and fall injuries." Smith v. Greenwich, supra, 278 Conn. 460. Considering that the court in Friedman v. Berman was not faced with an invitee, its analysis is inapplicable to the present case.
"[S]ince the owner or proprietor . . . held out an invitation to plaintiff and others to use the premises . . . its acts made it a sponsor for the enterprise and it came under the duty to use reasonable care to see that the place was safe for those who entered in pursuance of its invitation. This duty is nondelegable. And the measure of the duty is that of the concessionaire himself, whose position the proprietor assumed by his sponsorship." (Internal quotation marks omitted.) F. Harper, F. James O'Gray, Harper, James and Gray on Torts (3d Ed. 2008) § 26.11, n. 64 p. 100.
Wilde Wood also suggested at oral argument that a landowner unfamiliar with the technical requirements of installation and construction would be unaware of any unsafe defects and unable to make his property safe even after a reasonable inspection. However, this concern for the innocent landowner is addressed by the land-owner's ability to bring an action for indemnification. Smith v. Greenwich, supra, 278 Conn. 462.
As an example, at oral argument Wilde Wood suggested that a landowner with an elevator on his premises should not be held to the same knowledge of safety as the individual who installed the elevator because the installation of an elevator requires technical knowledge a landowner likely does not possess. Superior Court cases concerning elevators, however, do not appear to alter the above interpretation of the nondelegable duty doctrine. For example, in Girard v. Kabatznick, 128 Conn. 520, 526, 24 A.2d 257 (1942), the Supreme Court found that "the test is stated to be: Who had control and possession of the elevator and the machinery necessarily connected with its operation, and the right to make repairs?" It follows that, the individual with the power to control whether an elevator is installed or repaired retains the liability for its malfunction as against third-party invitees. See Adkins v. Sodexho, Inc., Superior Court, judicial district of New Haven, Docket No. CV 03 0480783 (April 6, 2004) [ 36 Conn. L. Rptr. 688] (denying apportionment from a hotel landowner to an elevator maintenance company when a hotel guest was allegedly injured due to elevator malfunction).
"To assert a claim for indemnification . . . an out-of-pocket defendant must show that: (1) the party against whom the indemnification is sought was negligent; (2) that party's active negligence, rather than the defendant's own passive negligence, was the direct, immediate cause of the . . . resulting injuries . . . (3) the other party was in control of the situation to the exclusion of the defendant seeking reimbursement; and (4) the defendant did not know of the other party's negligence, had no reason to anticipate it, and reasonably could rely on the other party not to be negligent." (Internal quotation marks omitted.) McCann Real Equities Series XXII, LLC. v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 523-24, 890 A.2d 140, cert. denied, 277 Conn. 928, 895 A.2d 798 (2006). "Common-law indemnification imposes an implied obligation of indemnity on a tortfeasor whose active negligence is primarily responsible for a plaintiff's injuries . . ." (Emphasis in original; internal quotation marks omitted.) Id., 523.
While the defendant in Smith v. Greenwich argued that indemnification places a greater burden on the landowner, the court was unmoved and stated "[e]ven assuming that an indemnification action does place a greater burden on the defendant, requiring the defendant to bring such an action would not constitute an additional burden on the courts, because defendant property owners can assert third party claims for indemnification against contractors, thus enabling the indemnification claims to be tried in the same action as the plaintiff's original claims." Smith v. Greenwich, supra, 463.
Superior Courts that have considered this issue agree that indemnification strikes the proper balance between the policies of protecting invitees and providing a remedy to innocent landowners. "The existence of that nondelegable duty, however, does not compel the conclusion that [the landowner] has exclusive control over the situation or that an independent contractor who negligently performs work at the premises is relieved of an obligation to indemnify the premises owner if that negligence causes harm." Bradley v. Highland Park Market of Farmington, Superior Court, judicial district of Hartford, Docket No. CV 07 5014765 (December 30, 2008) ( 46 Conn. L. Rptr. 854). See Duncan v. Raynham Hill Condominium Association, Superior Court, judicial district of New Haven, Docket No. CV 08 5020589 (January 30, 2009) ( 47 Conn. L. Rptr. 171) ("The proper remedy for the would-be apportionment plaintiffs is a claim for indemnity rather than apportionment"); Manfredi v. Lakeside Condominium Association, Inc., Superior Court, judicial district of New London, Docket No. CV 06 5002252 (February 20, 2008) ("[I]f liability is imposed on [the landowner] vicariously due to the negligence of [his contractor], the appropriate remedy is to bring an indemnification claim").
Furthermore, in Delvecchio v. La Porta, Superior Court, judicial district of New Haven, Docket No. CV 05 5000256 (October 7, 2005), the court found that, even with respect to an allegation of negligent construction, the landowner's duty is nondelegable. In that case, the plaintiff fell on the landowners' stairs and brought an action for personal injury against the landowners. Id. The landowners then filed an apportionment complaint against the company that constructed the stairs. Id. The court, invoking the doctrine of vicarious liability, found that "the nondelegable duty doctrine applies to landowners as they have a duty to maintain their property in a reasonably safe condition . . . Accordingly, the [landowners] had a nondelegable duty to ensure the safety of their exterior stone stairway to those lawfully on their property." Id. While Delvecchio v. Porta predates Smith v. Greenwich, the court's reasoning was founded on the same principles that guided that decision and is persuasive in the present case.
II
Next, the court must address G W's claim that, because it does not own the property, it does not have a nondelegable duty and, therefore, may bring an apportionment claim against Empire. "[A] defendant who owns or controls property may not bring an apportionment claim against a contractor hired to carry out the defendant's nondelegable duties." (Emphasis added.) Smith v. Greenwich, supra, 278 Conn. 460. "[T]he party in control of a premises long has had a nondelegable duty to maintain the safety of those premises." Id.
This language has been interpreted in one Superior Court opinion to mean that a defendant in control of the premises has the same nondelegable duty to make those premises safe as the owner of the premises. See Rohr v. Rocky River Business and Professional Center Unit Owner's Association, Superior Court, judicial district of Litchfield, Docket No. CV 07 6000202 (November 20, 2007). In Rohr, the plaintiff allegedly slipped and fell on snow and brought suit for personal injury against both the landowner and the property manager. Id. The property manager then brought an apportionment complaint against its snow removal contractor. Id. The property manager, just as G W here, argued that because it did not own the property, its duty was not nondelegable. Id. The court did "not read the holding in Smith v. Greenwich as narrowly as the apportionment plaintiff [read] it. The central holding of [ Smith v. Greenwich] is that `a defendant who owns or controls property may not bring an apportionment claim against a contractor hired to carry out the defendant's nondelegable duties.'" (Emphasis in original.) Id. Relying on the concept of control as giving rise to the nondelegable duty, the court found that a property manager in control of the premises may not bring an apportionment claim against its contractors.
In fact, this reasoning had been applied to similar fact patterns prior to Smith v. Greenwich. "[A] possessor is not necessarily the owner, but, rather the person who is in a position of control and best able to prevent harm." Bowen v. Stonegate Condominium Association, Superior Court, judicial district of New Haven, Docket No. CV 98 0416453 (January 5, 2001) [ 28 Conn. L. Rptr. 578] (granting motion to strike property manager's apportionment complaint against snow removal contractor because property manager allegedly "operated, managed, maintained and controlled the property," which gave rise to a nondelegable duty to invitees). See also Lanzi v. The Great Atlantic and Pacific Tea Co., Superior Court, judicial district of Arisonia-Milford, Docket No. CV 95 0050551 (September 10, 1999) [ 25 Conn. L. Rptr. 342] ("It is in fact true that a party in possession and control of premises has a nondelegable duty to persons injured on those premises . . .") Cf. Ramos v. Waterbury Housing Authority, Superior Court, judicial district of Waterbury, Docket No. CV 98 0146687 (July 8, 1999) (permitting apportionment of liability from contractor to subcontractor for injury to an invitee who fell on defective stairs because contractor was not alleged to be in control of premises).
Reading the plain language of Smith v. Greenwich, as well as building upon the reasoning of the Superior Courts that have considered this issue, the court concludes that G W has a nondelegable duty to Mr. Kwoczala in this case. He alleged that G W was in control of the premises; as a party in control of the premises, G W had a nondelegable duty to foreseeable plaintiffs to make the property safe. Regardless of actual ownership, as the party in actual control of the premises, G W was in the best position to make those premises safe — not its contractors. As a result, G W may not seek apportionment from its contractors.
CONCLUSION
For the foregoing reasons Empire's motion to strike count three of the apportionment complaint is GRANTED.