Opinion
No. CV 08 5006343 S
September 26, 2008
MEMORANDUM OF DECISION RE MOTION TO DISMISS #110
On December 20, 2007, the plaintiff, Barbara Pacanski, filed a three-count complaint against the defendants, Bingham Bristol, LLC (Bingham), DH Management Services, LLC (DH), and James E. Turner d/b/a Superior Lawn Care (Turner). The plaintiff alleges that Bingham owns real property located at 50 Bingham Street, Bristol, Connecticut and DH is responsible for maintaining the property. On December 9, 2005, the plaintiff slipped and fell on a patch of ice and snow in the parking lot of the property. At the time of the plaintiff's fall, Turner was contractually obligated to DH to shovel, sand, salt, and otherwise maintain the property. Counts one, two, and three of the plaintiff's complaint allege negligence as to each defendant.
On May 5, 2008, Turner filed an apportionment complaint against KM Hauling, LLC (KM) and Kenneth Zuzick d/b/a KM Excavation (Zuzick). Turner alleges the following facts in the apportionment complaint. On October 26, 2005, DH and Turner entered into a contract for Turner to perform snow removal services on the property. At some point thereafter, but before the plaintiff's fall on December 9, 2005, Turner entered into a contract with KM "and/or" Zuzick for KM and/or Zuzick to perform snow removal services on the property. In the apportionment complaint, Turner alleges that if the plaintiff sustained injuries and damages as a result of the circumstances described in her complaint, those injuries and damages were caused by the negligence and carelessness of KM and/or Zuzick.
On June 12, 2008, KM filed a motion to dismiss or strike the apportionment complaint on the ground that an apportionment complaint cannot be brought against a defendant who is vicariously liable for the negligence of the apportionment defendant. KM has submitted a memorandum of law in support of its motion. On June 27, 2008, Turner filed a memorandum of law in opposition. The matter was heard at short calendar on August 11, 2008.
With regard to the apportionment claim, General Statutes § 52-572h(c) provides in relevant part: "In a negligence action to recover damages resulting from personal injury . . . 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 damages . . ." General Statutes § 52-102b(a) further provides in relevant part: "A defendant in any civil action to which [§] 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."
KM asserts that Turner may not maintain an apportionment complaint against KM because Turner is vicariously liable for KM's alleged negligence and cites Smith v. Greenwich, 278 Conn. 428, 460, 899 A.2d 563 (2006) to support its claim. In Smith, our Supreme Court held that § 52-572h(c) "does not apply to cases of vicarious liability . . . where defendants are not potentially liable to the plaintiff in differing proportions." In Smith, the plaintiff sustained injuries in a fall on an ice patch on a sidewalk and brought a negligence claim against the owner of the property abutting the sidewalk. The property owner, in turn, filed an apportionment complaint against its snow removal contractor. Id., 431-32. The trial court rendered summary judgment in favor of the apportionment defendant on the ground that, as a matter of law, a property owner may not assert an apportionment claim against a snow removal contractor. Id., 434. The Supreme Court affirmed the judgment of the trial court, concluding that "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., 460. The court elaborated 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." Id.
In the present case, there is no indication that Turner had a nondelegable duty or would be vicariously responsible for any tortious conduct on the part of KM. "The legal principles that govern a general contractor's liability for the negligence of its independent subcontractors are well established . . . [T]he rule that liability may not attach is subject to several exceptions, including, [i]f the work contracted for be unlawful, or such as may cause a nuisance, or is intrinsically dangerous, or in its nature is calculated to cause injury to others, or if the contractee negligently employ an incompetent or untrustworthy contractor, or if he reserve in his contract general control over the contractor or his servants, or over the manner of doing the work, or if he in the progress of the work assume control or interfere with the work, or if he is under a legal duty to see that the work is properly performed, the contractee will be responsible for resultant injury." (Internal quotation marks omitted.) Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 591-92, 945 A.2d 388 (2008). In contrast to the nondelegable duty owed by the property owner in Smith, there are no factual allegations in the present apportionment complaint out of which vicarious liability would arise.
For the reasons stated herein, the apportionment defendant KM's motion to dismiss is denied. It is so ordered.