Travelers Property Casualty Company of America v. Esther G. Twine et al. (2010)

MEMORANDUM OF DECISION ON MOTION TO STRIKE

This is an action by Travelers Property Casualty Co. of America (Travelers) to recover sum it paid under its insurance policy to Greenwich Medical which suffered damage when a decayed tree located on the property of Esther Twine (Twine) the defendant fell.

FACTS

The plaintiffs, Travelers Property Casualty Co. of America, commenced this action against Esther Twine and EB Trees, Inc. d/b/a Eager Beaver Tree Service (EB Trees).   In its complaint, Travelers alleges that Twine owned property located at 40 Cassidy Street, Greenwich, Connecticut bordered by property of Medical Building, Inc.'s at 49 Lake Avenue, Greenwich, CT. Travelers, an insurer authorized to conduct business in Connecticut, had issued a property policy to Greenwich Medical that covered, amongst other things, loss of business property.

In October of 2005, Twine was informed that a large tree on her property was dead or damaged, requiring attention to prevent it from becoming a hazard.   In the fall of 2006, EB Trees was contracted by the owners of 49 Lake Avenue to remove trees lining the rear of the property.   While completing the project, EB Trees noticed that the above noted tree located on Twine's property was dead, decayed or damaged and required attention to prevent it from becoming a hazard.   EB Trees inspected the tree on Twine's property and discussed with her the removal of it, but never returned to remove the tree.   On June 3, 2007, the tree on Twine's property fell onto the building where Greenwich Medical was located, causing damage to the space it rented and Travelers paid Greenwich Medical for its losses.   Travelers alleges that Twine:  failed to take reasonable precautions and allowed the tree to become a dangerous hazard.

On May 20, 2009, Twine filed an apportionment against Greenwich Medical pursuant to General Statutes § 5-102b alleging that any of the losses Travelers paid for as a result of the tree falling on the building located at 49 Lake Avenue were caused by the negligence of Greenwich Medical because Greenwich Medical represented to her that it would have the tree removed, that she reasonably relied on this representation and that Greenwich Medical took no action to remove the tree.

On August 20, 2009, Greenwich Medical filed this motion to strike Twine's apportionment complaint on the ground that it is legally insufficient because Twine had a nondelegable duty and that she may not apportion responsibility for such duty.

Greenwich Medical argues in support of its motion that Twine, as the owner of the property where the tree fell from, has a nondelegable duty to keep her property reasonably safe and such responsibility cannot be apportioned to any other parties, relying on Smith v. Greenwich, 278 Conn. 428, 899 A.2d 563 (2006), in support of its argument that the nondelegable duty doctrine applies to natural conditions on one's property.   Twine argues that whether she was the owner of 40 Cassidy Street is a fact that has not been established and denies such ownership.

I.

General Statutes § 52-572h, Connecticut's apportionment statute, provides in relevant part:  “(c) 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 non-economic damages ․” General Statutes § 52-102b provides in relevant part:  “(a) A defendant in any civil action to which § 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 ․ (b) The apportionment complaint shall be equivalent in all respects to an original writ, summons and complaint ․ The apportionment defendant shall have available to him all remedies available to an original defendant ․” Under [these] statutes, therefore, the defendant/apportionment plaintiff's ability to state a legally sufficient cause of action rests on whether the damages could be proximately caused by the negligence of more than one defendant.   Barbary v. Hager, Superior Court, judicial district of New Haven, Docket No. CV 09-5027998 (August 3, 2009, Holden, J.).

The nondelegable duty doctrine means that a party may contract out performance of a nondelegable duty, but may not contract out his ultimate legal responsibility.  Gazo v. Stamford, 255 Conn. 245, 255, 765 A.2d 505 (2001).   In Smith v. Greenwich, supra 278 Conn. 431-32, the plaintiff brought a negligence action against the defendant after she slipped and fell on ice that was on a sidewalk on the defendant's property.   The defendant filed an apportionment complaint against the snow removal contractor had hired on the grounds that the contractor was responsible for making sure the sidewalk was cleared of ice and that its negligence was the cause of the plaintiff's injuries.  Id., 432.   In rejecting the defendant's claim that a landowner may assert an apportionment complaint against an independent contractor, the court relying on the nondelegable duty doctrine stated:  “Under the general rule, an employer is not liable for the negligence of its independent contractors ․ One exception to this general rule, however, is that the owner or occupier of premises owes invitees a nondelegable duty to exercise ordinary care for the safety of such persons.”   The court went on to state that “the owner or occupier of the 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 occupier is vicariously liable for the consequences arising from the contractor's tortious conduct ․ [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.

Greenwich Medical's reliance on Smith is misguided.  Smith concerned duties that were owned to invitees that were on another's land when they were injured, not duties owned to adjoining landowners.   No Connecticut cases suggest that duties owned to adjoining landowners should be nondelegable when negligence is alleged against the apportioned party.

Apportioning liability between Twine and Greenwich Medical is in accordance with § 52-572h(c) and § 52-102b because, in its apportionment complaint, Twine alleges that Greenwich Medical is liable for the injuries sustained at 49 Lake Avenue.

II

Although it has not been raised by either party, it should be noted that at least one Superior Court case has stated that a subrogation complaint like the one in this case cannot be apportioned.   In Connecticut Life & Casualty Ins. Co. v. Kanter, Superior Court, Docket No. 322291 (July 29, 1996, Moraghan, J.) (17 Conn. L. Rptr. 272, 272-74).   The court held that based on the purpose of subrogation and the legislative intent General Statutes § 52-572h, apportionment of the subrogation complaint was inappropriate.   Since this claim was not made by the moving party, it may not be considered in this motion to strike.

Motion to strike apportionment complaint denied.

Wagner, J., J.T.R.

Wagner, Jerry, J.T.R.