Andrew Meretsky, Conservator of the Estate of Mary Meretsky v. Tanger Properties Limited Partnership et al. (2010)

MEMORANDUM OF DECISION

On August 10, 2009, the plaintiff Andrew Meretsky, conservator of the estate of Mary Meretsky, filed a second revised and amended seven-count complaint against the defendants Tanger Properties LP, COROC/Westbrook II, LLC and Tanger Factory Outlet Centers, Inc.;   Michael Heard;  Allied Snowplowing Removal and Sanding Services Corporation (Allied);  and United-Rentals, Inc. and United Rentals North America, Inc. (collectively referred to as the United Rentals defendants).   Therein, the plaintiff alleges the following facts.   On or about January 22, 2007, Mary Meretsky was driving her motor vehicle in a westbound direction on Flat Rock Place, in Westbrook, Connecticut, west of the entrance of the Tanger Outlet Center located at 314 Flat Rock Place.   COROC/Westbrook II, LLC, was the owner of the property at 314 Flat Rock Place.   The defendants Tanger Properties LP and COROC/WESTBROOK II, LLC were subsidiaries of the defendant Tanger Factory Outlet Centers Inc., and these defendants (collectively referred to as the Tanger defendants) owned, leased, operated or controlled the Tanger Outlet Center located on Flat Rock Road, and were responsible for its safe operation.

The plaintiff further alleges that the Tanger defendants hired, engaged, employed or contracted with Allied to remove snow and otherwise maintain in a safe condition the property of Tanger Outlet Center.   Michael Heard was an agent, servant, or employee of Allied.   On the same day that Meretsky was traveling on Flat Rock Place, Heard was operating a JCB Loader, owned by United Rentals and exited onto Flat Rock Place from a private, unpaved dirt lot, which was under the ownership and/or control of the Tanger defendants.   At that same time, the loader being operated by Heard, while making a left turn from the private, unpaved dirt lot described above, crossed both westbound lanes of Flat Rock Place and struck the vehicle operated by Meretsky.   At all times Heard was performing acts in furtherance of the Tanger defendants' non-delegable duty to prevent the accumulation of snow from defendants' public access and otherwise to maintain the property in a safe condition.   In addition, the plaintiff alleges that the carelessness and negligence of Heard was a substantial factor in causing the collision and injuries of Meretsky and that the Tanger defendants are responsible for the damages and injuries of Meretsky.   Count one of the complaint alleges negligence by the Tanger defendants.   Count two contains allegations of negligence as to Heard.   Counts three and four allege causes of action against Allied.   Counts five, six and seven assert causes of action against the United Rentals defendants.

On September 21, 2009, the Tanger defendants filed a motion to strike count one on the grounds that the plaintiff has failed to state a legally recognized cause of action because there is no non-delegable duty to supervise the conduct of an employee of an independent contractor, even in the course of performing tasks in furtherance of the non-delegable duty to keep the premises safe, and there is no basis to impose vicarious liability for the acts or omissions of the employee of an independent contractor.   The Tanger defendants have submitted a memorandum of law in support of the motion.   On January 6, 2010, the plaintiff filed a memorandum of law in opposition.   Subsequently, the defendant filed a reply brief, and the plaintiff later filed its surreply brief.   The matter was heard on the short calendar on February 22, 2010.

Discussion

“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.”  (Emphasis omitted;  internal quotation marks omitted.)   Ameriquest Mortgage.   Co. v. Lax, 113 Conn.App. 646, 650, 969 A.2d 177, cert. denied, 292 Conn. 907, 973 A.2d 103 (2009).  “A motion to strike challenges the legal sufficiency of a pleading ․ and, consequently, requires no factual findings by the trial court.”  (Internal quotation marks omitted.)   Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).

“It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”   (Internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).  “If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ․ the complaint is not vulnerable to a motion to strike.”  Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).   The court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).

In support of their motion to strike, the Tanger defendants specifically rely on the principle that one who employs an independent contractor is not liable for the negligence of that independent contractor.   Their reliance on this principle is based on certain factual predicates.   Particularly the Tanger defendants assert and rely on the predicate that the complaint characterizes Allied as an independent contractor of the Tanger defendants.   In response, the plaintiff argues that an employer's claim that a contractor is an “independent contractor” under the law and therefore is not responsible for the independent contractor's wrongs is a special defense to be pleaded by the defendants, and that they have not pleaded that Allied was an independent contractor.   Therefore, the plaintiff argues, the complaint is not susceptible to a motion to strike on this ground.   The plaintiff further asserts that a company that employs an independent contractor may, nevertheless, be vicariously liable for the contractor's negligence in particular factual situations, several of which have been pleaded.

In the defendants' reply brief they counter that since the plaintiff's allegations posit Allied to be an independent contractor, the defendants need not raise a claim as a special defense, because it has been affirmatively alleged.   Additionally, the defendants assert that the issue of whether employer immunity from the negligence of independent contractors applies can be appropriately decided on a motion to strike and, in this case, the legal theories pleaded do not apply to the facts.   In the plaintiff's surreply brief, he reasserts that whether Allied was an independent contractor is not established by the allegations of the complaint and that the determination of whether the complaint contains the necessary factual allegations to constitute vicarious liability for an independent contractor is also inappropriate at this juncture.

“It is well established that, [u]nder the general rule, an employer is not liable for the negligence of its independent contractors.  Douglass v. Peck & Lines Co., 89 Conn. 622, 627, 95 A. 22 (1915);  W. Prosser & W. Keeton, Torts (5th Ed.1984) § 71, p. 509;  41 Am.Jur.2d, Independent Contractors § 29 (1995).”  (Internal quotation marks omitted.)  Machado v. Hartford, 292 Conn. 364, 371, 972 A.2d 724 (2009).  “The defense of independent contractor, under our modern rule of pleading, should be specially pleaded.”  Felsted v. Kimberly Auto Services, Inc., 25 Conn.App. 665, 671, 596 A.2d 14, cert. denied, 220 Conn. 922, 597 A.2d 342 (1991).  “Under our practice, when a defendant pleads a special defense, the burden of proof on the allegations contained therein is on the defendant.”  DuBose v. Carabetta, 161 Conn. 254, 262, 287 A.2d 357 (1971).

“Whether someone is an employee or an independent contractor is a question of fact, absent controlling circumstances.”  Nationwide Mutual Ins. Co. v. Allen, 83 Conn.App. 526, 533, 850 A.2d 1047, 271 Conn. 907, 859 A.2d 562 (2004).  “It has long been established that [t]he fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work ․ The test of the relationship is the right to control.”  (Citations omitted;  internal quotation marks omitted.)  Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690, 696-97, 651 A.2d 1286 (1995).  “[I]t is not the actual exercise of the right to control that distinguishes an employer from an independent contractor, but rather the employer's possession of the right to control.”   Latimer v. Administrator, 216 Conn. 237, 251, 579 A.2d 497 (1990).  “This control test is by nature a balancing test.   The determination of general control is not always a simple problem.   Many factors are ordinarily present for consideration, no one of which is, by itself, necessarily conclusive.”   Nationwide Mutual v. Pools by Design, Superior Court, judicial district of Waterbury, Docket No. CV075005600S (December 21, 2009, Gallagher, J.).

The Tanger defendants assert that the plaintiff has affirmatively alleged that Allied was an independent contractor and cite to Grecki v. New Britain, 174 Conn. 200, 201-02, 384 A.2d 372 (1978), for the proposition that, because the plaintiff has alleged in his complaint that Allied was an independent contractor, the Tanger defendants need not specially plead the defense of independent contractor, thereby making their motion to strike procedurally appropriate.   This court need not address whether Grecki would stand for the proposition that the defendants' motion to strike is procedurally appropriate because the defendants are incorrect in their assertion that the plaintiff has affirmatively alleged that Allied was an independent contractor.   As previously discussed, the determination of whether an entity is operating as an independent contractor is based on whether the Tanger defendants have retained the right to control the means and methods of Allied's work.

In the present case, the plaintiff alleges in paragraph ten of count one of his complaint that “[a]t all times mentioned herein, the Tanger defendants hired, engaged, employed or contracted with Allied to remove snow and otherwise maintain in a safe condition the property of Tanger Outlet Center,” and then in paragraph eleven the plaintiff alleges that “[a]t all times mentioned herein, the Tanger defendants controlled, administered and/or supervised the snow removal operations at the Tanger Outlet Center.”  (Emphasis added.)   Nowhere in the plaintiff's complaint are the express allegations that Allied or Heard was an “independent contractor,” nor are there any facts alleged from which the court can conclude that the Tanger defendants did not retain the right to control the means and method of Allied's work.   To make a contrary conclusion would require the court to look outside the pleadings, which is procedurally inappropriate on a motion to strike.  Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005) (In ruling on a motion to strike, the courts “are limited ․ to a consideration of the facts alleged in the complaint.   A ‘speaking’ motion to strike (one imparting facts outside the pleadings) will not be granted.”);   see also Rowe v. Godou, 209 Conn. 273, 278, 550 A.2d 1073 (1988).

In light of the conclusion that it cannot be deduced whether Allied was an independent contractor, the court need not reach the issue of whether the complaint contains the particular factual allegations necessary to satisfy the narrow exceptions to the general rule of employer immunity from the acts of an independent contractor.   For all of the foregoing reasons the motion to strike is denied.

BURGDORFF, J.

Burgdorff, Mary-Margaret D., J.