Opinion
No. CV 03-0178837 S
November 19, 2004
MEMORANDUM OF DECISION
This matter is before the court on a motion to strike brought by the apportionment defendant, Mark Cloney. The apportionment defendant seeks to strike the apportionment complaint and count two of the plaintiff's amended complaint.
The plaintiff alleges that on April 14, 2002 at approximately 4:15 a.m., a fire occurred at 506 Davis Street in Oakville, Connecticut, a two-family residence owned by the defendant, Vito Cavallo. At the time of the fire the plaintiff, Debra Zappone resided at 506 Davis Street. The fire was allegedly the result of the defendant, Mark Cloney smoking near flammable materials while under the influence of illegal drugs. To escape the fire, the plaintiff had to jump approximately twenty-seven feet from a second-floor bedroom window. This action arises out of the injuries and losses the plaintiff allegedly sustained as a result of the fall.
On April 10, 2003, the plaintiff filed a one-count complaint in negligence against Cavallo. In the complaint the plaintiff alleges that Cavallo, the landlord and owner of the building, failed to install appropriate fire prevention devices, provide for alternative routes of escape in the instance of fire, and evict Cloney when Cavallo knew that Cloney had regularly and periodically engaged in one or more activities that presented a serious fire risk.
On September 15, 2003, Cavallo filed an apportionment complaint against Cloney alleging that if the plaintiff did suffer damages as a result of her fall, the damages were the "direct and proximate result of the negligence and carelessness of the apportionment defendant, Mark Cloney." The plaintiff, on October 14, 2003, amended her complaint to include an additional count, alleging negligence against Cloney. Cloney, on January 8, 2004, filed a motion to strike the apportionment complaint and the second count of the plaintiff's amended complaint on the ground that as a cotenant, he did not owe the plaintiff a duty of care, and, therefore, could not be liable for negligence. On May 11, 2004, Cavallo filed a memorandum of law in opposition to Cloney's motion to strike his apportionment complaint. The plaintiff did not file a memorandum of law in opposition to Cloney's motion to strike.
On January 13, 2004, Cloney amended his motion 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." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). When ruling on a motion to strike, "[i]t is fundamental that in determining the sufficiency of a . . . [pleading] challenged by a . . . [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the facts are taken as admitted." Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). The court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 498. "[G]rounds other than those specified should not be considered by the trial court in passing upon a motion to strike . . ." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001).
Cloney moves to strike count two of the plaintiff's amended complaint and Cavallo's apportionment complaint on the ground that the plaintiff and Cavallo fail to allege that Cloney owed a duty of care to the plaintiff and breached that duty. Cloney, therefore, argues that the negligence claims are legally insufficient.
The Supreme Court has held that the essential elements of a cause of action in negligence are well established; duty; breach of that duty; causation; and actual injury." (Internal quotation marks omitted.) Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 687 n. 13, 849 A.2d 813 (2004). A duty of care can be established by a contract, a special relationship, or through a two-pronged foreseeability and public policy analysis as defined by the Supreme Court in Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 479, 823 A.2d 1202 (2003). "Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual." (Internal quotation marks omitted.) Lodge v. Arett Sales Corp., 246 Conn. 563, 571, 717 A.2d 215 (1998). "The existence of duty is a question of law and [o]nly if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand." (Internal quotation marks omitted.) Petriello v. Kalman, 215 Conn. 377, 382-83, 576 A.2d 474 (1990).
"[T]he test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case . . . The first part of the test invokes the question of forseeability, and the second part invokes the question of policy." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 250, 765 A.2d 505 (2001).
In the present case, the plaintiff alleges that Cloney knew or should have known that smoking near flammable materials while under the influence of drugs could ignite a fire that might spread throughout the entire building, putting the plaintiff at risk to suffer bodily and other injuries. "A simple conclusion that the harm to the plaintiff was foreseeable [however] . . . cannot by itself mandate a determination that a legal duty exists . . . A further inquiry must be made, for we recognize that duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection . . . The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Assn., Inc., supra, 264 Conn. 479-80.
Next, in determining the extent of a legal duty as a matter of public policy, four factors are to be considered: "(1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions." Murillo v. Seymour Ambulance Assn., Inc., supra, 264 Conn. 480. By living in a two-family apartment building, the plaintiff has the normal expectation of an individual residing in an apartment building that she will be able to do so in a safe manner. Second, the court has a significant interest in encouraging individuals to live safely in apartments. Third, should negligence of the instant kind occur, litigation will likely ensue. Therefore, assigning a duty of care to the individual who created the peril, in this case a fire, will not increase pre-existing litigation, but will simply allow the injured party to be fully compensated for his or her loss at the expense of all responsible parties. Finally, many jurisdictions, including Connecticut, hold individuals who negligently set fires liable for their actions. See General Statutes § 52-559 "Damage for Spreading Fire"; see also Marchitto v. West Haven, 150 Conn. 432, 190 A.2d 597 (1963). In addition, some jurisdictions hold that an individual who negligently creates a peril owes a duty of care to foreseeable victims. See Eastburn v. Regional Fire Protection Authority, 98 Cal. App. 4th 426, 431, 119 Cal. Rptr.2d 655, cert. granted, 125 Cal. Rptr.2d 440, 54 P.3d 261 (2002); see also Bohme, Inc., v. Sprint International Communications Corp., 115 Ohio App. 3d 723, 729-30, 686 N.E.2d 300 (1996).
Cloney argues that he was a tenant residing at 506 Davis Street at the time of the fire, and that as a cotenant, he owes no legal duty of care to the plaintiff. Cloney asserts that in failing to allege that he had a duty of care to a cotenant, the plaintiff and Cavallo have failed to state a legally sufficient claim.
"[T]here generally is no duty that obligates one party to aid or to protect another party . . . One exception to this general rule arises when a definite relationship between the parties is of such a character that public policy justifies the imposition of a duty to aid or to protect another . . . In delineating more precisely the parameters of this limited exception to the general rule, this court has concluded that [in the absence of] a special relationship of custody or control, there is no duty to protect a third person from the conduct of another . . . For any such relationship, the theory of liability is essentially the same . . . [S]ince the ability of one of the parties to provide for his own protection has been limited in some way by his submission to the control of the other, a duty should be imposed upon the one possessing control (and thus the power to act) to take reasonable precautions to protect the other . . ." (Citations omitted, internal quotation marks omitted.) Ryan Transportation, Inc. v. M G Associates, 266 Conn. 520, 526, 832 A.2d 1180 (2003).
The Supreme Court defines a tenant as a "person entitled under a rental agreement to occupy a . . . premises to the exclusion of others or as is otherwise defined by law." (Internal quotation marks omitted.) Muniz v. Kravis, 59 Conn.App. 704, 713, 757 A.2d 1207 (2000). In the present case, the plaintiff, Cavallo and Cloney all seem to concede that Cloney and the plaintiff were cotenants on a month-to-month basis at 506 Davis Street when the fire allegedly occurred. Connecticut courts, however, vary on when a duty is owed to a cotenant.
Cloney relies on Ryan Transportation in arguing that, as a cotenant, he did not owe a duty of care to the plaintiff. As Cloney points out and the plaintiff clarifies, however, Ryan Transportation states that a cotenant does not owe a duty to another cotenant when there is the potential for harm resulting from the actions of a third party who is not a cotenant. Ryan Transportation, Inc. v. MG Associates, supra, 266 Conn. 520. Other courts have reached the same conclusion in ruling that an individual does not owe a duty of care to prevent or mitigate harm to another individual when that harm is caused by a third party. Murdock v. Croughwell, 268 Conn. 559, 848 A.2d 393 (2004) (finding that the Hartford chief of police did not owe a duty to an off duty officer to protect him from harm resulting from the action of another off duty officer); see also Dennison v. Klotz, 12 Conn.App. 570, 532 A.2d 1311 (1987), cert. denied, 206 Conn. 803, 535 A.2d 1317 (1998) (finding that a passenger in a car did not owe a duty to another passenger who suffered injuries from an accident caused by the negligence of the driver).
The Superior Court, however, in Kargul v. Sandpiper Dunes Limited Partnership, Superior Court, Docket No. 505600, judicial district of New London (January 29, 1991 Axelrod, J.) ( 3 Conn. L. Rptr. 154), ruled that a cotenant does have a duty to another cotenant when harm to one cotenant is the proximate result of an affirmative action by the other cotenant. In Kargul, the court found that since the defendant affirmatively allowed an individual to reside with her who subsequently assaulted a cotenant, she owed a duty of care commensurate to her knowledge and experience regarding the perpetrator. Id. The Kargul court concluded that, "[e]ach tenant is under a duty to each other tenant not to create an unsafe condition on the premises by an affirmative act on the part of such tenant." Id.
In Kargul v. Sandpiper Dunes Limited Partnership, Superior Court, Docket No. 505600, judicial district of New London (January 29, 1991 Axelrod, J.) ( 3 Conn. L. Rptr. 154), a sex offender therapist who subsequently allowed one of her clients to live with her with full knowledge that he was actively assaulting women, failed to warn her cotenants of the potential harm, and was held liable for negligence when the sex offender raped a cotenant.
In the present case, harm to the plaintiff was caused by the affirmative actions of Cloney that resulted in the ignition of the fire. The plaintiff and Cavallo assert that Cloney's negligent actions in smoking while under the influence of drugs and while surrounded by linens and other flammable materials were the proximate cause of the fire that subsequently injured the plaintiff. In addition, they allege that Cloney was negligent in failing to extinguish the fire or to notify or warn other residents of the fire that was caused by his negligence.
Although the relationship or status of cotenant does not in itself create an affirmative duty as might a landlord/tenant, parent/child, or innkeeper relationship, it certainly does not relieve the cotenant from a basic duty to act reasonably under a given set of circumstances that is required of all individuals. Therefore, Cavallo and the plaintiff have successfully alleged that Cloney owed a duty of care to the plaintiff and breached that duty. Accordingly, the motion to strike count two of the complaint and the apportionment complaint is denied.
Matasavage, J.