Opinion
CV196109381S
11-13-2019
Kathy Pepin-Roussel, Admx. et al. v. Town of Avon et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Taylor, Mark H., J.
MEMORANDUM OF DECISION RE MOTIONS TO STRIKE APPORTIONMENT COMPLAINTS ##137 & 139 OBJECTION TO REQUEST TO AMEND COMPLAINT #141
Mark H. Taylor, Judge.
I
BACKGROUND
The defendants in the underlying action, Robert and Elizabeth Begley (Begleys), seek to apportion two defendants, Asplundh Tree Expert, LLC and Asplundh Tree Expert, Co. (Asplundh), for the breach of their duty to properly inspect, discover and provide notice of a defect, or otherwise correct, a dangerous tree located on their property, resulting in the death of the plaintiff, Steve Roussel, from a fallen branch onto a public roadway. Asplundh filed motions to strike these apportionment complaints on August 21, 2019, contending that they fail to state causes of action, in that Begleys have a nondelegable duty to the plaintiff in the underlying case as property owners, relying upon the pivotal case of Smith v. Town of Greenwich, 278 Conn. 428 (2006), inter alia. Concurrently, Asplundh objects to the plaintiff pleading over against them as apportionment defendants, as they contend there is no liability as a matter of law.
The Begleys counter that the allegations in the apportionment complaint do not allege a contract between them as property owners and Asplundh, as was true in Smith, instead, it is alleged that Asplundh was hired to, and negligently performed their duty to inspect, trim and maintain trees and branches in close proximity to utility wires near or next to their property. Smith v. Town of Greenwich, supra, 278 Conn. 457. The holding of Smith, they therefore claim, does not preclude their complaint as a matter of law, asserting that they may proceed pursuant to the common law. Id., 428.
At oral argument, it was represented by counsel that the Asplundh contract appears to have been with Eversource.
II
DISCUSSION
A
Motion to Strike
The court will begin its analysis by setting forth the legal standard applicable to motions 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 ... A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court ... We take the facts to be those alleged in the complaint ... and we construe the complaint in the manner most favorable to sustaining its legal sufficiency ... Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ... A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
B
Liability
The court concludes that Smith expresses the controlling legal principle of the nondelegable duty of landowners to third parties, to which no recognized exception has been identified by the apportionment plaintiffs. Smith v. Town of Greenwich, supra, 278 Conn. 428. In Smith, the Supreme Court expanded the longstanding, nondelegable duty doctrine to include vicarious landowner liability for the negligent acts of their contractors, involving a slip and fall injury. In so holding, the court stated that "we now formally adopt the reasoning of [Gazo ] 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 ... [T]he party in control of a premises long has had a nondelegable duty to maintain the safety of those premises. We perceive no reason to reconsider this question." Id., 460.
The apportionment plaintiff correctly points to the distinction between the facts in Smith and the present case, as it does not involve vicarious liability; however, this factual distinction militates against liability, as the contractors here are more distant and attenuated from the Begleys as landowners and their duty to keep their premises safe, held to be nondelegable in Smith. Smith v. Town of Greenwich, supra, 278 Conn. 457. Absent a reckless, willful or malfeasant act by a third-party contractor, beyond a negligent omission of an, otherwise, nondelegable duty, this court finds no authority for the liability alleged in the apportionment complaint, nor has any been cited.
Most cases involving liability for decayed trees involve tree wardens. See McDermott v. Calvary Baptist Church, 263 Conn. 378 (2003) (instruction on law of agency regarding town and town’s tree warden was not warranted); DeConti v. McGlone, 88 Conn.App. 270, 274 (2005) ("[W]e concluded that a person driving a vehicle who is struck by a falling tree limb is not an identifiable victim for the purpose of governmental immunity"); Estate of Dawne M. Addario v. Yannes, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-00-0071510-S (June 20, 2002, Sequino, J.) ("Absent any allegations of willfulness or reckless disregard on the part of the Town Defendants, they cannot be held liable by the terms of this statute. If the individual defendants are not liable, then their failure to inspect does not give rise to a cause of action against a municipality either").
III
CONCLUSION
Asplundh’s motions to strike the apportionment complaints, numbers 137 and 139, are granted. Its objection to the plaintiff’s amended complaint, number 141, is sustained.