Herbert Dingle v. LLC (2011)

MEMORANDUM OF DECISION

On June 1, 2009, the plaintiff, Herbert Dingle, filed a two-count complaint against the defendants, The Stop & Shop Company, LLC (Stop & Shop) and Gold Star Cleaning & Landscaping Service, LLC (Gold Star).   In his amended complaint,¹ the plaintiff alleges that he slipped and fell as a result of water on the floor of Stop & Shop's store in Meriden, causing him injuries.   In count one, the plaintiff alleges negligence on the part of Stop & Shop as the owner of the store.   In count two, the plaintiff alleges negligence on the part of Gold Star as a subcontractor responsible for cleaning the store.   On November 10, 2010, Stop & Shop filed a two-count cross complaint against Gold Star alleging claims for common-law indemnification and breach of contract.   On November 22, 2010, Gold Star filed a motion to strike the common-law indemnification claim.   For the reasons that follow, the motion to strike is denied.

“The proper method to challenge the legal sufficiency of a complaint is to make a motion to strike ․” Gulack v. Gulack, 30 Conn.App. 305, 309, 620 A.2d 181 (1993).  “The role of the trial court [in ruling on a motion to strike] [is] to examine the [complaint], construed in favor of the [pleading party], to determine whether the [pleading party has] stated a legally sufficient cause of action.”  (Internal quotation marks omitted.)  Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).  “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).

In the first count of its cross complaint entitled “Common Law Indemnification,” Stop & Shop set forth the plaintiff's negligence claim against it and Gold Star and further alleges the following.   Stop & Shop had a contract with Cleaning Services Group, Inc., which entered into a subcontractor's agreement with Gold Star. Gold Star “had the responsibility and duty to provide floor care cleaning and services” at Stop & Shop's store in Meriden.   In this regard, “[i]f the condition of the premises was defective and the plaintiff suffered injuries as alleged in his underlying [c]omplaint ․ said defective condition was directly and proximately caused by the negligence and carelessness of Gold Star ․” Because, Gold Star “was in control of floor cleaning and services that [caused] the alleged defective condition to the exclusion of ․ Stop & Shop ․” Stop & Shop “did not know of such negligence, had no reason to anticipate it and could reasonably have relied on Gold Star ․ not to be negligent.”   In its motion to strike, Gold Star argues that the above pleading is legally insufficient “because it is premised on the plaintiff successfully proving his claims against Stop & Shop, which would be fatal to Stop & Shop's cross-claim.”   This court disagrees.

“Ordinarily there is no right of indemnity or contribution between joint tort-feasors ․ Where, however, one of the defendants is in control of the situation and his negligence alone is the direct immediate cause of the injury and the other defendant does not know of the fault, has no reason to anticipate it and may reasonably rely upon the former not to commit a wrong, it is only justice that the former should bear the burden of damages due to the injury.”   Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 697, 694 A.2d 788 (1997);  see also Brett v. Homeworks Home Inspections, Inc., Superior Court, judicial district of New London, Docket No. CV 99 0552249 (February 15, 2000, Martin, J.).

Applying these principles and examining the cross complaint in the light most favorable to Stop & Shop, the motion to strike is denied.

BY THE COURT

Jack W. Fischer, Judge

FOOTNOTES

FN1. On November 17, 2009, the plaintiff filed an amended two-count complaint against the defendants.   Neither defendant objected to the amended complaint, therefore, it is the operative complaint.   See Practice Book § 10-60..  FN1. On November 17, 2009, the plaintiff filed an amended two-count complaint against the defendants.   Neither defendant objected to the amended complaint, therefore, it is the operative complaint.   See Practice Book § 10-60.

Fischer, Jack W., J.