Opinion
No. CV06-5001923-S
March 22, 2007
MEMORANDUM OF DECISION ON MOTION TO STRIKE
In this case the defendant Winter Ridge moves to strike the Apportionment Complaint and the Second Count of the Amended Complaint. Very generally the basis of the motion is that the apportionment plaintiff Housing Authority which also occupies the position of defendant as to the original complaint filed by the plaintiff Tyson had a non-delegable duty as a landowner to the plaintiff Tyson. It is also argued that the referenced Second Count of the Amended Complaint filed by Tyson must also be stricken — it derives from the legally insufficient Apportionment Complaint and also the statute of limitations for a negligence action against Winter Ridge ran prior to the filing of the Amended Complaint.
To address the legal issues raised the court believes it must set forth the allegations of the various complaints. The original complaint against the Housing Authority was served on January 24, 2006. It alleges the plaintiff Tyson was a firefighter/EMT on January 18, 2004 and was on premises owned by the Housing Authority "within the course of his employment," responding to an emergency call to assist a tenant. He claims to have fallen on ice and alleges this was caused by the Housing Authority's negligence. Various allegations of negligence are made in paragraph 8 of the complaint it says:
8. Said incident was directly and proximately caused by the carelessness and negligence of the defendant, in one or more of the following ways:
a. In that it caused or allowed and permitted the sidewalk on its premises, to be or become unsafe, icy and dangerous for use by the public;
b. In that it failed to remedy the icy, slippery and dangerous sidewalk by placing sand, salt, sawdust or other abrasive substances thereon, when the same was reasonably necessary under the circumstances;
c. In that it failed to erect or maintain proper safeguards, warnings, or signs, or failed to otherwise warn the plaintiff of the aforesaid icy and dangerous conditions of the sidewalk;
d. In that it failed, to maintain the sidewalk located on its premises;
e. In that it failed to inspect the condition of the sidewalk on its premises; and
f. In that it failed to keep the sidewalk on its premises in a reasonably safe condition.
As a result of the fall Mr. Tyson claims to have suffered injury and he has made a monetary damage claim against the Housing Authority.
On April 20, 2006 the Housing Authority filed an Apportionment Complaint against Winter Ridge. That complaint repeats the allegation by Tyson that he fell on ice causing him to sustain injuries. In the fourth paragraph it says
4. The plaintiff further alleges that the defendant was negligent in that, among other things, it failed to remedy said icy condition on the premises, thereby causing him to slip and fall.
The Apportionment Complaint goes on to say in paragraph seven that the Housing Authority denies it was negligent and then says if Mr. Tyson was injured in the way he claims "his damages were caused in whole or in part by the negligence and/or carelessness of Winter Ridge LLC, in one or more of the following ways:
a. in that it caused or allowed and permitted the sidewalk to become unsafe, icy and dangerous for use by the public;
b. in that it failed to remedy the icy, slippery and dangerous sidewalk by placing sand, salt, or other abrasive substances thereon, when the same was reasonably necessary under the circumstances;
c. in that it failed to keep the sidewalk in a reasonably safe condition; and
d. it negligently performed the snow and ice removal services it agreed to perform.
In an Amended Complaint dated July 27, 2006 the plaintiff Tyson repeated in the First Count the allegations and claims of negligence made in the original complaint against the Housing Authority and added a Second Count against Winter Ridge. It stated in this count that the Housing Authority hired Winter Ridge by way of a contract for snow plowing and removal at the subject premises. Paragraph 5 states Winter Ridge "was to provide all necessary snow plowing and removal services required by (the Housing Authority at the premises where Mr. Tyson fell)." It then states Tyson fell on a sidewalk open to the public and paragraph 9 then says the following:
9. Said incident was directly and proximately caused by the carelessness and negligence of the defendant, WINTER RIDGE, LLC, its agents and employees, in one or more of the following ways:
a. In that it caused or allowed and permitted the sidewalk on its premises, to be or become unsafe, icy and dangerous for use by the public;
b. In that it failed to remedy the icy, slippery and dangerous sidewalk by placing sand, salt, sawdust or other abrasive substances or chemicals thereon, when the same was reasonably necessary under the circumstances;
c. In that it failed to erect or maintain proper safeguards, warnings, or signs, or failed to otherwise warn the plaintiff of the aforesaid icy and dangerous conditions of the sidewalk;
d. In that it maintained the sidewalk located on its premises in the aforesaid condition;
e. In that it knew or should have known, that any untreated icy condition in the winter season could become worse and hidden from reasonable observation by the occasion of a snowfall, yet failed to take reasonable steps to correct that condition; and
f. In that it failed to inspect the condition of the sidewalk on the premises.
As to that aspect of the motion to strike directed against the Apportionment Complaint the argument made by Winter Ridge in its motion to strike is straightforward. It cites the cases of Smith v. Town of Greenwich, 278 Conn. 428 (2006) and Gazo v. Stamford, 225 Conn. 245 (2001) and notes that the Smith court, relying on Gazo, concluded that "a defendant that owns or controls property may not bring an apportionment claim against a contractor hired to carry out the defendant's non-delegable duties," 278 Conn. at page 440. The brief of Winter Ridge concludes on this point by saying therefore that the Housing Authority "cannot maintain an apportionment action (against) Winter Ridge, an independent contractor, for whose negligence the Housing Authority is vicariously liable."
The Smith case sets forth the reasoning behind this position at 278 Conn. page 459, where quoting from Gazo it said
We further concluded that "[o]ur analysis of the apportionment defendant's] liability to the plaintiff is consistent with the abolition of joint and several liability by tort reform. [Section] 52-572h(c) provides: `In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property . . . 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 his proportionate share of the recoverable . . . damages . . .' This provision `replaced the common-law rule of joint and several liability with a system of apportioned liability that holds each defendant liable for only his or her proportionate share of damages.' Nash v. Yap, [ supra, 247 Conn. 645]. That provision, however, proceeds on the premise that the defendants, between or among any of whom liability is apportioned, are at least potentially liable in differing proportions. It does not apply, therefore, to a case of vicarious liability of one defendant for the conduct of another. Thus . . . § 52-572h(c) does not apply, for example, when the two defendants are a servant and his master who is vicariously liable for his servant's tortious conduct" (emphasis by this court).
In opposition to the motion to strike the Housing Authority (apportionment plaintiff) cites two cases by this writer, Beavis v. Whiting Turner Contracting Co., CV04-5000184-S (2006); Aube v. Middlesex Hospital. CV04-0488844-S Jan. 6, 2006, (original opinion); Aube, supra, memorandum of decision on motion to reargue dated Feb. 15, 2006. The difficulty this court has in understanding and therefore applying Gazo and/or Smith is reflected in the two sentences underlined in the foregoing quote. If we consider the universe of possibilities these sentences, and thus the two appellate cases, do not cover the perhaps unique or at least not common situation where the entity with the purportedly non-delegable duty does some act prior to or independent of the independent contractor it engages on its property or some act following the activities of the independent contractor which are negligent and contribute to the injury suffered by the plaintiff (see Beavis, Aube is a factually unusual case). The problem is that the propositions in each of these two underlying sentences could both be true — what then?
In other words the language of the plaintiff's original and amended complaint is very broad as is the language of the apportionment complaint. In Smith at 278 Conn. page 456 the court said on the way to its final result cited an older case to the following effect:
In addition, we long have held that a property owner cannot escape liability for injury to a third party by hiring a contractor to inspect and maintain the property as conditions appear to demand, because the `negligence of the servant (is) the negligence of the (master)' . . . Koskoff v. Goldman, 86 Conn. 415, 420 (1912).
Here all the various complaints allege, which is the universe of negligence before the court, that the apportionment defendant was hired to remove snow and ice only and not to have a running obligation to warn and inspect the property for consequences of its work which on a time line basis might present a danger to third parties. For example snow plowed or moved to a location too close to sidewalk so thawing would result in freezing and a runoff over the sidewalk. The danger may not result or be apparent for a period of time after the independent contractor conducts snow removal operations, yet during all this time the landowner would have a non-delegable duty to inspect and warn temporally running through the time the independent contractor performs and completes his work but also after it has left the premises. But in the foregoing scenario each could be "potentially liable to the plaintiff in different proportions," 278 Conn. at page 460 which would result in the application of § 52-572h(c). Or to perhaps put it another way, the apportionment defendant's position obviously has merit under Gazo and Smith but for this court those cases do not present the clear blue print which would allow the issue raised to be decided on the basis of a motion to strike. A motion for summary judgment is perhaps the appropriate vehicle to decide the question presented. The court must give the pleadings under attack their must favorable inference so it does not believe it can grant the motion to strike as to the apportionment complaint.