Dajhon Jett v. Pay Less Auto Glass, Inc. (2010)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 108)

PROCEDURAL AND FACTUAL BACKGROUND

The plaintiff, Dajhon Jett, a minor child, commenced the present negligence action through his mother, Sylvia Taylor, by summons and complaint on July 24, 2009.   The plaintiff alleges in his revised complaint, filed on November 10, 2009, that he slipped and fell on an icy public sidewalk abutting the premises at 1090 Dixwell Avenue in the town of Hamden on December 14, 2007.   The plaintiff alleges that the defendant, Pay Less Auto Glass, Inc. (Pay Less), owned the premises at 1090 Dixwell Avenue and was negligent in its maintenance of the sidewalk.¹  The plaintiff seeks to recover damages stemming from the various injuries that allegedly resulted from the fall.

On December 3, 2009, Pay Less served an apportionment complaint on Highwood Motors, Inc. (Highwood) pursuant to General Statutes §§ 52-102b and 52-572h.   Therein, Pay Less alleges that Highwood had control over the sidewalk upon which the plaintiff fell.   Count one of the apportionment complaint alleges that the plaintiff's injuries were caused solely by Highwood's negligence.   Specifically, Pay Less alleges that Highwood was negligent in failing to:  maintain and properly remove snow and ice from the sidewalk in the area in which the plaintiff fell;  apply sand, salt or other slip preventatives to the sidewalk;  inspect the sidewalk;  and warn properly of the condition of the sidewalk.

Count two of the apportionment complaint seeks indemnification from Highwood for the plaintiff's injuries.   Count three of the apportionment complaint alleges a cause of action for breach of contract between Pay Less and Highwood.   Specifically, Pay Less alleges that Highwood breached a contract between it and Pay Less when it failed to remove snow and ice from the sidewalk.   Pay Less seeks to recover from Highwood an apportionment of liability, indemnification, and attorneys fees and costs.

On March 8, 2010, Highwood filed the present motion to strike the apportionment complaint pursuant to Practice Book § 10-39.   Therein, Highwood argues that the apportionment complaint is legally insufficient.   Highwood contends that count one of the complaint is barred by a land owner's nondelegable duty to keep its premises safe.   Highwood argues that counts two and three are legally insufficient because an apportionment complaint is not the proper procedural vehicle by which to raise a claim either for indemnification or breach of contract.   Lastly, Highwood seeks to strike Pay Less's prayer for relief seeking attorneys fees, arguing that Pay Less failed to cite a basis upon which fees could be granted.   Highwood's motion to strike was heard unopposed at short calendar on March 20, 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 ․ A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court ․ We take the facts to be those alleged in the complaint ․ and we construe the complaint in the manner most favorable to sustaining its legal sufficiency ․ Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Citations omitted;  internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).

Highwood moves to strike all three counts and the prayer for relief from Pay Less's apportionment complaint.   In its memorandum of law in support of its motion to strike Highwood argues that:  (1) count one of the apportionment complaint, which states a claim for apportionment, should be stricken because Pay Less owed a nondelegable duty to the plaintiff to keep its premises safe by protecting foreseeable third parties from slip and fall injuries;  (2) count two of the apportionment complaint, which states a claim for indemnification, should be stricken because a claim for indemnification is not properly raised in an apportionment complaint;  (3) count three of the apportionment complaint, which alleges a breach of contract, should be stricken because it is not properly brought in an apportionment complaint;  and (4) the prayer for relief for attorneys fees should be stricken because Pay Less failed to identify a contractual provision that would award attorneys fees in the event of a dispute.   The court will address these arguments in order.

Section 52-572h ²  abolished the common-law system of joint and several liability and replaced it with one that apportions liability between defendants based on their proportionate share of damages.³  Section 52-572h(c) “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.   Consequently ․ if [the apportionment defendant] were to be held liable to the plaintiff based on his contractual assumption of [the] duty of care to the plaintiff, in effect [the apportionment plaintiff's] liability would be tantamount to a form of vicarious liability for [the apportionment defendant's] conduct.”  Smith v. Greenwich, 278 Conn. 428, 459, 899 A.2d 563 (2006) (citing Gazo v. Stamford, 255 Conn. 245, 257-58, 765 A.2d 505 (2001)).

The nondelegable duty doctrine has its roots in premises liability and is akin to vicarious liability.  “[W]e 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].”  (Internal quotation marks omitted.)  Smith v. Greenwich, supra, 278 Conn. 456.  “[T]he owner or occupier of a premises owes a nondelegable 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.

In Smith v. Greenwich, 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.   In Smith, the plaintiff slipped and fell on a public sidewalk abutting a private defendant's premises.  Id., 430.   The defendant landowner served an apportionment complaint on the contractor with whom the landowner had an agreement for the maintenance of the sidewalk, wherein the landowner alleged “that, to the extent that the plaintiff suffered injuries in her fall, [the contractor] directly and proximately caused such injuries by failing to maintain and inspect the sidewalk as required under contract and by negligently performing his duties.”  Id., 454.   The trial court granted summary judgment for the contractor, finding that an apportionment complaint could not be brought against the contractor under the nondelegable duty doctrine.  Id. The Supreme Court found that the trial court properly granted summary judgment in favor of the contractor, concluding “that in such circumstances, a defendant that owns or controls property may not bring an apportionment claim against a contractor hired to carry out the defendant's nondelegable duties.”  Id., 460.

In its motion to strike Pay Less's apportionment claim, Highwood argues that the present case is analogous to Smith v. Greenwich.   This court agrees.   Pay Less's apportionment complaint improperly seeks to apportion liability from itself to Highwood as an independent contractor responsible for the conditions that caused the plaintiff to fall and suffer injury.   Under the nondelegable duty doctrine, Pay Less is vicariously liable for the negligence of Highwood.   While Pay Less may delegate the performance of its duty, it may not insulate itself from full liability.   Accordingly, the apportionment defendant's motion to strike count one of the apportionment complaint is granted.

Secondly, Highwood seeks to strike count two of the apportionment complaint because indemnification is not properly raised in an apportionment complaint.   “It is widely recognized that, when one party is vicariously liable for another party's conduct, the appropriate remedy for an innocent party who has been held vicariously liable is a claim for indemnity rather than for apportionment.”   Smith v. Greenwich, supra, 278 Conn. 462;  see also id., 465 n.10.⁴ Neither the Supreme Court nor the Appellate Court have addressed the issue of whether indemnification is properly included in an apportionment complaint.   Nevertheless, the majority of Superior Court decisions addressing this issue have concluded that it is not proper to allege an indemnification claim in an apportionment complaint.   Bradley v. Randall, Superior Court, judicial district of Windham, Docket No. CV 95 0052173 (April 8, 1996, Sferrazza, J.) (18 Conn. L. Rptr. 636), aff'd, 45 Conn.App. 924, 696 A.2d 1323, cert. denied, 243 Conn. 923, 701 A.2d 339 (1997);  LaRocca v. Charter Oak Appraisal, Superior Court, judicial district of Fairfield, Docket No. CV 08 5019677 (May 20, 2009, Tobin, J.) (47 Conn. L. Rptr. 891);  Rosario v. Orlando Annulli & Sons, Inc., Superior Court, judicial district of Hartford, Docket No. CV 07 5007896 (August 9, 2007, Wagner, J.T.R.) (44 Conn. L. Rptr. 9);  Miller v. Norwalk, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 00 0177835 (September 17, 2001, Adams, J.).

It is clear that Pay Less relied on §§ 52-102b and 52-572h in filing its apportionment complaint.   If liability is to be imposed on Pay Less vicariously due to the negligence of Highwood, it must be accomplished by impleader and third-party complaint pursuant to § 52-102a and Practice Book § 10-11.⁵  As such, the court grants the apportionment defendant's motion to strike count two of Pay Less's apportionment complaint.

Thirdly, Highwood seeks to strike count three of the apportionment complaint, which states a cause of action for breach of contract.   Highwood argues that the cause of action sounds in contract rather than negligence and, therefore, should be stricken because it is not properly brought in an apportionment complaint.  “By its own terms, [§ 52-572h] applies only to causes of action based on negligence.”  (Internal quotation marks omitted.)  Durniak v. August Winter & Sons, Inc., 222 Conn. 775, 782, 610 A.2d 1277 (1992).   It is settled that “the legislature intended § 52-102b to implement the right to apportionment that previously had been created in § 52-572h.   Indeed, by its own terms, § 52-102b operates only in conjunction with § 52-572h and its primary application is to effectuate the right to apportion liability.”   Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 25, 848 A.2d 418 (2004);  Allard v. Liberty Oil Equipment Co., 253 Conn. 787, 793-95, 756 A.2d 237 (2000) (“ ‘a civil action to which [§ ]52-572h applies,’ within the meaning of § 52-102b, means a civil action based on negligence”).

Highwood argues that § 52-102b(a), inasmuch as it incorporates § 52-572h, restricts the use of an apportionment complaint to negligence actions seeking recovery for personal injury, wrongful death or property damage.   Therefore, Highwood argues, because count three of Pay Less's apportionment complaint sounds in contract, rather than tort, it must be stricken because it is raised by the wrong procedural vehicle.

Count three of Pay Less's apportionment complaint incorporates paragraphs one through seven of the second count, paragraph one of which incorporates paragraphs one through four of the first count.⁶  Additionally, count three alleges that Pay Less and Highwood were parties to a contract for maintenance of and snow removal from the sidewalk upon which the plaintiff was injured.   Count three goes on to allege that Highwood breached this contract in failing to remove snow and ice from the sidewalk.   Count three seeks monetary damages, as well as attorneys fees and expenses.   Since count three attempts to state a cause of action for breach of contract, and because such a cause of action is not properly brought in an apportionment complaint, Highwood's motion to strike count three of the apportionment complaint is granted.

Lastly, Highwood argues that the court should strike Pay Less's prayer for relief for attorneys fees because Pay Less failed to identify a contractual provision that would award attorneys fees.  “Practice Book ․ § 10-39 allows for a claim of relief to be stricken only if the relief sought could not be legally awarded.”  Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998).   It is well settled that “Connecticut case law follows the general rule, frequently referred to as the American Rule, that attorneys fees are not allowed to the prevailing party as an element of damages unless such recovery is allowed by statute or contract.”  Atlantic Mortgage & Investment v. Stephenson, 86 Conn.App. 126, 132, 860 A.2d 751 (2004).

In the present case, Pay Less neither identified nor alleged a provision in its agreement with Highwood that would award attorneys fees.   Moreover, count three of Pay Less's apportionment complaint does not allege a statutory right to attorneys fees.   Absent such grounds, attorneys fees cannot be legally awarded in this case.   Therefore, Highwood's motion to strike the prayer for relief for attorneys fees is granted.

CONCLUSION

For the foregoing reasons, the apportionment defendant's motion to strike counts one, two and three of the apportionment complaint and the prayer for relief in as much as it seeks attorneys fees is granted.

Wilson, J.

FOOTNOTES

FN1. The plaintiff further alleges that the defendant violated Hamden Town Ordinances §§ 96.26(A) and (B);  was negligent in its hiring of individuals or entities to manage, maintain and care for the premises;  and that the defendant failed to properly supervise these agents..  FN1. The plaintiff further alleges that the defendant violated Hamden Town Ordinances §§ 96.26(A) and (B);  was negligent in its hiring of individuals or entities to manage, maintain and care for the premises;  and that the defendant failed to properly supervise these agents.

FN2. General Statutes § 52-572h(c) states:  “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 such party's proportionate share of the recoverable economic damages and the recoverable noneconomic damages ․”.  FN2. General Statutes § 52-572h(c) states:  “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 such party's proportionate share of the recoverable economic damages and the recoverable noneconomic damages ․”

FN3. General Statutes § 52-102b(a) provides the procedure for serving an apportionment complaint:  “A defendant in any civil action to which section 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability.   Any such writ, summons and complaint, hereinafter called the apportionment complaint, shall be served within one hundred twenty days of the return date specified in the plaintiff's original complaint.   The defendant filing an apportionment complaint shall serve a copy of such apportionment complaint on all parties to the original action in accordance with the rules of practice of the Superior Court on or before the return date specified in the apportionment complaint.   The person upon whom the apportionment complaint is served, hereinafter called the apportionment defendant, shall be a party for all purposes, including all purposes under section 52-572h.”.  FN3. General Statutes § 52-102b(a) provides the procedure for serving an apportionment complaint:  “A defendant in any civil action to which section 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability.   Any such writ, summons and complaint, hereinafter called the apportionment complaint, shall be served within one hundred twenty days of the return date specified in the plaintiff's original complaint.   The defendant filing an apportionment complaint shall serve a copy of such apportionment complaint on all parties to the original action in accordance with the rules of practice of the Superior Court on or before the return date specified in the apportionment complaint.   The person upon whom the apportionment complaint is served, hereinafter called the apportionment defendant, shall be a party for all purposes, including all purposes under section 52-572h.”

FN4. A “party is entitled to indemnification, in the absence of a contract to indemnify, only upon proving that the party against whom indemnification is sought either dishonored a contractual provision or engaged in some tortious conduct ․ [I]f a claim for indemnification is grounded in tort, reimbursement is warranted only upon proof that the injury resulted from the active or primary negligence of the party against whom reimbursement is sought ․ Such proof requires a plaintiff to establish four separate elements:  (1) that the other tortfeasor was negligent;  (2) that his negligence, rather than the plaintiff's, was the direct, immediate cause of the accident and injuries;  (3) that he was in control of the situation to the exclusion of the plaintiff, and (4) that the plaintiff did not know of such negligence, had no reason to anticipate it, and could reasonably rely on the tortfeasor not to be negligent.”  (Citations omitted;  internal quotation marks omitted.)  Burkert v. Petrol Plus of Nagatuck, Inc., 216 Conn. 65, 74, 579 A.2d 26 (1990).   Count two appears to state adequately a claim for common-law indemnification but must be stricken as discussed infra..  FN4. A “party is entitled to indemnification, in the absence of a contract to indemnify, only upon proving that the party against whom indemnification is sought either dishonored a contractual provision or engaged in some tortious conduct ․ [I]f a claim for indemnification is grounded in tort, reimbursement is warranted only upon proof that the injury resulted from the active or primary negligence of the party against whom reimbursement is sought ․ Such proof requires a plaintiff to establish four separate elements:  (1) that the other tortfeasor was negligent;  (2) that his negligence, rather than the plaintiff's, was the direct, immediate cause of the accident and injuries;  (3) that he was in control of the situation to the exclusion of the plaintiff, and (4) that the plaintiff did not know of such negligence, had no reason to anticipate it, and could reasonably rely on the tortfeasor not to be negligent.”  (Citations omitted;  internal quotation marks omitted.)  Burkert v. Petrol Plus of Nagatuck, Inc., 216 Conn. 65, 74, 579 A.2d 26 (1990).   Count two appears to state adequately a claim for common-law indemnification but must be stricken as discussed infra.

FN5. Practice Book § 10-11 provides, in pertinent part:  “(a) A defendant in any civil action may move the court for permission as a third party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to such defendant for all or part of the plaintiff's claim against him or her.   Such a motion may be filed at any time before trial and such permission may be granted by the judicial authority if, in its discretion, it deems that the granting of the motion will not unduly delay the trial of the action or work an injustice upon the plaintiff or the party sought to be impleaded.   The writ, summons and complaint so served shall be equivalent in all respects to an original writ, summons and complaint, and the person upon whom it is served, hereinafter called the third party defendant, shall have available to him or her all remedies available to an original defendant, including the right to assert setoffs or counterclaims against the third party plaintiff, and shall be entitled to file cross complaints against any other third party defendant.   The third party defendant may also assert against the plaintiff any defenses which the third party plaintiff has to the plaintiff's claim and may assert any claim against the plaintiff arising out of the transaction or occurrence which is the subject matter of the plaintiff's claim against the third party plaintiff ․“(c) A third party defendant may proceed under this section against any persons not a party to the action who is or may be liable to such defendant for all or any part of the third party plaintiff's claim against him or her.”.  FN5. Practice Book § 10-11 provides, in pertinent part:  “(a) A defendant in any civil action may move the court for permission as a third party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to such defendant for all or part of the plaintiff's claim against him or her.   Such a motion may be filed at any time before trial and such permission may be granted by the judicial authority if, in its discretion, it deems that the granting of the motion will not unduly delay the trial of the action or work an injustice upon the plaintiff or the party sought to be impleaded.   The writ, summons and complaint so served shall be equivalent in all respects to an original writ, summons and complaint, and the person upon whom it is served, hereinafter called the third party defendant, shall have available to him or her all remedies available to an original defendant, including the right to assert setoffs or counterclaims against the third party plaintiff, and shall be entitled to file cross complaints against any other third party defendant.   The third party defendant may also assert against the plaintiff any defenses which the third party plaintiff has to the plaintiff's claim and may assert any claim against the plaintiff arising out of the transaction or occurrence which is the subject matter of the plaintiff's claim against the third party plaintiff ․“(c) A third party defendant may proceed under this section against any persons not a party to the action who is or may be liable to such defendant for all or any part of the third party plaintiff's claim against him or her.”

FN6. Therefore, the negligence allegations from count one and the indemnification claim from count two are incorporated into count three, which purports to state a cause of action for breach of contract..  FN6. Therefore, the negligence allegations from count one and the indemnification claim from count two are incorporated into count three, which purports to state a cause of action for breach of contract.

Wilson, Robin L., J.