Opinion
No. AANCV10 6005576
September 20, 2011
MEMORANDUM OF DECISION MOTION TO STRIKE AMENDED COMPLAINT #118
The defendant, Ivy League Landscaping, LLC ("Ivy League"), has moved to strike the Third Count of the plaintiff's amended complaint, which is dated May 13, 2010. The defendant Ivy League argues that the plaintiff never sought the court's permission to file the amended complaint, and furthermore, the plaintiff has no legal basis for bringing the action against this defendant. A procedural summary of the proceedings to date is required prior to discussing the merits of the motion to strike.
The plaintiff brought her original action by way of a complaint dated December 21, 2009, bearing a return date of January 12, 2010. The named defendants were the People's Bank and the Mary Taylor Memorial United Methodist Church Foundation ("Church Foundation"). The complaint contained two counts, one of which was directed toward each of these defendants. In the complaint the plaintiff alleged she sustained personal injuries when while walking, she slipped and fell on an accumulation of ice on a parking lot surface, located at 190 Broad Street, Milford, Connecticut. The plaintiff claims the subject parking lot was owned, maintained and controlled by the Mary Taylor Church Foundation and that said defendant was negligent in several ways. The plaintiff also alleges that the defendant People's Bank, maintained and controlled said premises and was also negligent in several ways.
On or about April 15, 2010, the defendant People's Bank filed an apportionment complaint against the defendant Ivy League Landscaping, LLC, alleging that the People's Bank had entered into a contract with Ivy League for snow removal at the subject premises and that said contract provided that Ivy League would indemnify and hold harmless the People's Bank if an "incident, injury or claim arises by the negligent acts or omissions or failure to comply with the standards stated in this agreement." The apportionment complaint contained two counts sounding in contractual indemnification and common-law indemnification. Thereafter, on April 29, 2010, the defendant Ivy League filed a motion to strike the apportionment complaint citing Gazo v. Stamford, 255 Conn. 245 765 A.2d 505 (2001), and Smith v. Greenwich, 278 Conn. 428, 460, 899 A.2d 563, 583 (2006), as authority that a defendant who is an owner or one who controls property cannot bring an apportionment claim against a contractor hired to carry out the defendant's non-delegable duty.
On May 14, 2010, while Ivy League's motion to strike the apportionment complaint of the People's Bank was pending, the plaintiff Stapleford filed an amended complaint adding Ivy League as an additional defendant and alleging in a Third Count that Ivy League maintained and/or controlled the subject premises and was negligent in causing the plaintiff's injuries. Ivy League then filed the subject motion to strike on August 3, 2010. The plaintiff filed her objection on September 3, 2010. At this point Ivy League's motion to strike the apportionment complaint filed by People's Bank was yet to be resolved or decided by the court. However, thereafter, on January 24, 2011, the court (Gilardi, J.T.R.) granted the motion to strike the apportionment complaint, apparently at the same time the court was considering the merits of the present motion to strike the amended complaint. Judge Gilardi on the same date and within the same decision noted that the subject motion to strike was denied without prejudice. In ruling on both the motion to strike the apportionment complaint and the motion to strike the amended complaint, Judge Gilardi did not file a written memorandum of decision. Judge Gilardi's orders which were filed electronically state as follows:
The orders of Judge Gilardi are designated as #118.10 on the Web Edison electronic filing system.
The motion to strike is denied without prejudice. This court has, at this time, granted the motion to strike the apportionment complaint. Should that be the final disposition of the apportionment complaint, the motion to strike may be reclaimed.
Prior to Judge Gilardi's orders of January 24, 2011, the motion to strike the amended complaint was reclaimed for short calendar argument. However before the motion appeared on the short calendar, the plaintiff's action was transferred from the Judicial District of Fairfield at Bridgeport to Judicial District of Ansonia-Milford at Milford on January 21, 2011, by order of Judge Bellis, the presiding civil judge in Bridgeport, where Judge Gilardi is assigned. The motion to strike the amended complaint was then argued before this court on March 28, 2011.
The Web Edison site reflects that the reclaim request was filed electronically on January 11, 2011.
I Standard of Law
"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." Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). A motion to strike shall be granted if "the plaintiff's complaint [does not] sufficiently [state] a cognizable cause of action as a matter of law." Mora v. Aetna Life and Casualty Ins. Co., 13 Conn.App. 208, 211, 535 A.2d 390 (1988).
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 omitted.) Id. "A motion to strike is properly granted where a plaintiff's complaint alleges legal conclusions unsupported by facts." Id. "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). A motion to strike "is to be tested by the allegations of the pleading demurred to, which cannot be enlarged by the assumption of any fact not therein alleged." (Internal quotation marks and citations omitted.) Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541-50, 427 A.2d 822 (1980).
Upon deciding a motion to strike, the trial court must construe the "plaintiff's complaint in [a] manner most favorable to sustaining its legal sufficiency." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). "The allegations of the pleading involved are entitled to the same favorable construction a trier would be required to give in admitting evidence under them and if the facts provable under its allegations would support a defense or a cause of action, the motion to strike must fail." Mingachos v CBS, Inc., supra, 196 Conn. 108-09. However, if the plaintiff has alleged mere conclusions of law unsupported by the requisite facts, the motion to strike should be granted. Cavallo v. Derby Savings Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982).
II Discussion A.
The defendant, Ivy League, argues that the Gazo v. Stamford, supra, 255 Conn. 245, and Smith v. Greenwich, supra, 278 Conn. 428, both stand for the proposition that a plaintiff cannot bring a direct action sounding in negligence against an independent contractor because defendant property owners have a non-delegable duty to maintain their property and cannot absolve themselves of liability by contracting out the performance of that duty. This court disagrees.
In Gazo, supra, the plaintiff, who had been injured in a fall on an icy sidewalk, sought damages from the defendant city, from the owner of the property abutting the sidewalk, and from the tenant of that property, the defendant bank. After the bank filed an apportionment complaint against the independent contractor it had hired to provide ice and snow removal services, the plaintiff filed a substitute complaint asserting negligence and contract claims against the independent contractor. The trial court granted the independent contractors motion for summary judgment on the negligence count as well as its motion to strike the breach of contract count, and rendered judgment in favor of the independent contractor, from which the plaintiff appealed.
Contrary to the trial court's determination, the Supreme Court in Gazo ruled that the independent contractor owed a direct duty of care to the plaintiff. Although the property owner bank could not absolve itself of liability by contracting out the performance of its duty, the independent contractor also owed a duty because the relationship between his alleged negligence and the plaintiff's injuries was direct and well within the scope of foreseeability, and there were valid public policy reasons for holding the independent contractor responsible for his failure to use reasonable care not to cause injury to those whom he reasonably could foresee to be injured by his negligent conduct. The independent contractor would be liable to the plaintiff for his physical injuries if the plaintiff could show that the contractor failed to exercise reasonable care when performing the duty owed by the bank to the plaintiff. Contrary to the claim raised by the independent contractor, imposing liability on him would not impermissibly revive the concept of joint and several liability, which was abolished by the tort reform statute (§ 52-572h[c]], but instead would be tantamount to imposing a form of vicarious liability.
As the Connecticut Supreme Court has recognized, in premises liability cases, "the nondelegable duty doctrine means that the party with such a duty . . . may not absolve itself of liability by contracting out the performance of that duty . . . [A] party may contract out the performance of a non-delegable duty, but may not contract out his ultimate legal responsibility . . . It is 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, we view the non-delegable 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. That vicarious liability, however, does not necessarily preclude liability on the part of the independent contractor." (Citations omitted; emphasis added.) Gazo v. Stamford, supra, 255 Conn. 255-56, 765 A.2d 505 (2001).
In Smith v. Greenwich, supra, 278 Conn 428, the apportionment plaintiff in a slip and fall case appealed, inter alia, the granting of summary judgment in favor of the apportionment defendant, in which the trial court "[ruled] as a matter of law that a property owner may not assert an apportionment claim against a snow removal contractor." Id., 452. The Supreme Court ruled that a property owner, as a matter of law, may not assert an apportionment claim against a snow removal contractor; the owner or occupier of a premises owes a non-delegable duty to keep the premises safe by protecting third persons from foreseeable slip and fall injuries and, if it hires a contractor to maintain the property, is vicariously liable for consequences arising from the contractor's tortious conduct and may not bring an apportionment claim against the contractor. Id., 460-61.
In Smith v. Greenwich, supra, the plaintiff filed a complaint against the town, Greenwich Acquisition and 19 West Elm Street. Greenwich Acquisition then filed an apportionment complaint against Passerelli, the independent contractor, claiming, inter alia, that, to the extent that the plaintiff had been injured as alleged, the contractor had caused the injuries through his negligence. The plaintiff also amended her complaint pursuant to General Statutes § 52-102b(d), to assert a direct claim of negligence against Passerelli, the independent contractor. During jury selection, the plaintiff withdrew her claims against the town and Passerelli, leaving Greenwich Acquisition and 19 West Elm Street as the only direct defendants, although Passerelli remained as an apportionment defendant. Id., 432-33.
The court in Smith extensively discussed its decision in Gazo v. Stamford, supra, 255 Conn. 245. In reaffirming the non-delegable duty doctrine set forth in Gazo, the Smith court also reaffirmed the holding in Gazo that "it is not a necessary implication of the non-delegable 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, we view the non-delegable 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 . . ." Smith v. Greenwich, supra, 278 Conn. 457-58. "[W]e now formally adopt the reasoning of that decision and conclude that the owner or occupier of a premises owes a non-delegable 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., 460.
The plaintiff in the present action, Stapleford, filed an amended complaint adding Ivy League as an additional defendant and alleging in a Third Count that Ivy League maintained and/or controlled the subject premises and was negligent in causing the plaintiff's injuries. The decisions in Gazo v. Stamford, supra, 255 Conn. 245, and Smith v. Greenwich, supra, 278 Conn 428, do not prevent the plaintiff from doing so. A review of the Third Count of the Amended Complaint reveals that the plaintiff has sufficiently stated a cause of action sounding in negligence against the defendant Ivy League.
B.
The defendant Ivy League argues that the plaintiff never sought the court's permission to file the amended complaint. The record reveals that on or about April 15, 2010, the defendant People's Bank filed an apportionment complaint against the defendant Ivy League Landscaping, LLC. On May 14, 2010, while Ivy League's motion to strike the apportionment complaint of the People's Bank was pending, the plaintiff Stapleford filed an amended complaint adding Ivy League as an additional defendant.
General Statutes § 52-102b(d) states as follows:
(d) 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.
The court finds that the amended complaint filed on May 14, 2010 was within sixty days of the filing of the apportionment complaint by People's Bank against the defendant Ivy League. The amended complaint was timely and properly filed by the plaintiff.
Order
Accordingly, for the reasons set forth herein, the defendant's motion to strike is hereby denied.