Opinion
No. CV-06-500782 S
November 6, 2007
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#119)
The Plaintiff, Barbara Vitale, has instituted this action against three named defendants, Demar's Landscaping, LLC, Kimco Realty Services, Inc., and Marc Glassman, Inc., to recover for injuries and damages sustained as a result of an incident which occurred on February 9, 2006.
On that date, at approximately 9:58 a.m., the Plaintiff was walking in the parking lot at 411 Universal Drive, North Haven, when she slipped and fell on ice. As a result, she claims to have sustained injuries and damages.
In her complaint, the Plaintiff contends that the Defendant, Marc Glassman, Inc., owned, possessed, controlled and maintained the property at 411 Universal Drive, which is also known as X-PECT Discounts. She lodges similar allegations against the Defendant, Kimco Realty Services, Inc.
She claims that the Defendant, Demar's Landscaping, LLC, was under a duty to keep and maintain the premises known as 411 Universal Drive in reasonably safe condition on February 9, 2006, in order to safeguard the Plaintiff and others in their use of the premises.
On June 6, 2007, the Defendant, Kimco Realty Services, Inc., filed a two-count cross complaint against the Defendant Demar's Landscaping, LLC. In count one, Kimco alleges that Demar's Landscaping had contracted to remove ice and snow from the parking lot where the Plaintiff fell. It maintains that if the parking lot at 411 Universal Drive was defective when the Plaintiff fell, the defect was due to the negligence of the Third-party Defendant on the counterclaim, Demar's Landscaping, LLC.
In count one, Kimco, as the Third-party Plaintiff, claims that Demar's Landscaping, LLC was in control of the situation causing injury to the Plaintiff, Barbara Vitale, to the exclusion of the Third-party Plaintiff. It further maintains that it could not have anticipated the negligence of Demar's Landscaping, LLC, and could have reasonably relied upon Demar's not to be negligent.
As a result, it seeks common-law indemnification from Demar's, in the event that a judgment is rendered against Kimco on the Plaintiff's claim.
Count two alleges that Demar's breached an agreement with Kimco to obtain insurance coverage for Kimco, which would cover the claims made by Barbara Vitale. As a result, Kimco seeks damages for costs and expenses incurred in turning the action over to its own insurance company, as a result of the breach of contract.
Demar's moves to strike the cross claim. It claims that Count one fails to state a claim for common-law indemnification, and that Count two does not arise out of the same transactions as the claim raised by Barbara Vitale.
STANDARD OF REVIEW
The purpose of a motion to strike is to test the legal sufficiency of any complaint. Waters v. Autuori, 236 Conn. 825 (1996); Practice Book § 10-39. If facts provable in a complaint would support a cause of action, then the motion to strike must be denied. Westport Bank Trust Co. v. Corcoran, Mallin Arenesco, 221 Conn. 490, 496 (1992).
In ruling upon a motion to strike, a court must construe all facts in a complaint in the light most favorable to the non-moving party. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170 (1988); Rowe v. Godou, 209 Conn. 273, 278 (1988).
THIRD-PARTY COMPLAINT SETS FORTH CAUSES OF ACTION FOR COMMON- LAW INDEMNIFICATION AND FOR BREACH OF CONTRACT
In order to set forth a claim for indemnification, a complaint must set forth four separate elements:1) the third-party defendant was negligent, 2) that negligence, rather than any negligence of the third-party plaintiff was the direct and immediate cause of the incident, and any injuries claimed to have been sustained, 3) the third-party defendant was in control of the situation to the exclusion of the third-party plaintiff, and 4) the third-party plaintiff had no reason to anticipate the negligence of the third-party defendant, and could reasonably rely upon the third-party defendant not to be negligent. Skuzinski v. Bouchard Fuels, Inc., 249 Conn. 694, 698 (1997); CT Page 18889 Kyrtatas v. Stop Shop, Inc., 205 Conn. 694, 697-98 (1988); Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 416 (1965).
Each of the required elements is set forth in Count one of the Third-party Complaint.
The Third-party Defendant argues that the complaint is insufficient as a matter of law, due to the non-delegability doctrine, which holds that the owner or occupier of premises may not delegate the duty owed to persons utilizing the premises, and must exercise ordinary care for the safety of such persons. Gazo v. Stamford, 255 Conn. 245, 257 (2001). This argument is not well taken.
The Third-party Complaint does not raise issues concerning apportionment of liability, or an attempt by the Plaintiff to apportion responsibility between two tortfeasors. While the apportionment statute was intended to make a defendant liable proportionate to its fault, the non-delegable duty doctrine assumes than an owner or occupier of premises is fully liable to a plaintiff who has been injured as a result of a breach of that duty, regardless of the degree of fault. Smith v. Greenwich, 278 Conn. 428, 461 (2006).
There is nothing inconsistent with an attempt to secure common-law indemnification from a negligent party with a doctrine which allows a Plaintiff to recover fully from one in possession or control of premises.
In an action for common-law indemnification, it is not control over the premises which must be proven, but control over the situation causing injury, to the exclusion of the Third-party Plaintiff. Whether the element of exclusive control over the situation has been proven, must be determined with specific reference to the factual scenario. Skuzinski v. Bouchard Fuels, Inc., supra, 706.
Concerning the second count, a claim for breach of contract to obtain necessary insurance has a sufficient connection to the underlying action to withstand a motion to strike.
The "transaction test" is not to be rigidly applied. Telusmar v. Union Carbide Corporation, 1993 WL 197759.
CONCLUSION
The motion to strike, filed by the Third-party Defendant, Demar's Landscaping, LLC, is DENIED.