Helena Smith v. Riverview Realty & Development Corp. et al. (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (No. 140)

The motion for summary judgment now before the court moves for judgment on the claims asserted in two different pleadings:  (1) the apportionment complaint (No. 115) filed by the first-party defendant, Riverview Realty & Development Corp. (“Riverview”), seeking apportionment of damages with the third-party defendant, New Haven Partitions, Inc. (“Partitions”);  and (2) the cross claim (No. 132) filed by Riverview against Partitions seeking damages and indemnification.   For reasons briefly stated below, the motion is granted as to all claims in both pleadings.

This action was commenced by service of process on September 18, 2009 by the first-party plaintiff, Helena Smith, against Riverview.   Smith claims that on January 16, 2009, she slipped and fell on ice located at the rear of a building on a site maintained by Riverview and suffered certain injuries.

On February 8, 2010, Riverview filed an apportionment complaint against Partitions.   The apportionment complaint alleges that Partitions was working as a subcontractor for Riverview “for the purposes of providing structural improvements” at the location in question and failed to alleviate the icy condition.   It seeks apportionment of damages.

On April 13, 2010, Riverview filed a cross claim against Partitions.   The cross claim makes allegations similar to those in the apportionment complaint but adds that, under the contract between Riverview and Partitions, Partitions agreed to “at all times keep the building and premises free from debris and unsafe conditions resulting from [Partitions'] work.”   In addition, the contract states that “the prevention of accidents on or in the vicinity of its Work is [Partitions'] responsibility and that Partitions agrees to indemnify Riverview for claims and damages “resulting from the performance” of the contract.”

On November 29, 2010, Partitions filed the motion for summary judgment now before the court.   The motion was argued on March 7, 2011.

The apportionment complaint can be swiftly dealt with.   It is well established that, because of a property owner's nondelegable duty to keep the premises safe, “a property owner's liability to the [first-party] plaintiff for the wrongful conduct of an independent contractor legally cannot be apportioned.”   Smith v. Town of Greenwich, 278 Conn. 428, 461, 899 A.2d 563 (2006).   Riverview is subject to a similar doctrine, in spite of the fact that it was not a property owner.   The first-party plaintiff's claim is that Riverview, as the owner's contractor, contractually assumed the owner's duty of care to the first-party plaintiff.   Riverview thus stands in the owner's shoes with respect to liability to the first-party plaintiff.  Gazo v. City of Stamford, 255 Conn. 245, 249, 765 A.2d 505 (2001).   Under Smith, there is no reason to apportion fault between Riverview and Partitions in an apportionment proceeding.   Summary judgment must consequently be granted to Partitions with respect to the apportionment complaint.

The cross claim must now be considered.   There is no question that, in appropriate cases, a contractor such as Riverview may pursue a contractual cross claim against a subcontractor such as Partitions.  Smith, supra, 278 Conn., at 463.   Whether the contractual cross claim in question here is viable depends on the language of the contract.

The contract has been submitted by the parties.   It is a detailed, professionally prepared document in which Partitions promises to do a substantial amount of carpentry work on a development project for a total contract price of $8,865,255.   The work primarily consists of the installation of walls and roofs.   The extremely detailed contract specifications do not include any references to the removal of ice and snow.

Riverview points to two provisions in the contract that, in its view, impose liability on Partitions for the accident in question here.   Paragraph 8.8(a) requires Partitions to “at all times keep the building and premises free from debris and unsafe conditions resulting from [Partitions'] work.”   No evidence has been submitted, however, that the accident in question here was caused in any way by “debris” (the first-party plaintiff claims that she slipped on ice) or any other condition resulting from Partitions' work.

Riverview additionally points to Paragraph 8.9 of the contract, which provides that, “The prevention of accidents on or in the vicinity of its work is [Partitions'] responsibility.”   This provision makes sense only if the “accidents” in question have something to do with Partitions' work.   If Partitions' workers were, for example, dropping pieces of lumber on the worksite and the first-party plaintiff had tripped over one of those pieces, Partitions would unquestionably be responsible.   This provision does not, however, sensibly apply to conditions completely unrelated to Partitions' work.

Suppose, for example, that while the first-party plaintiff was walking in the vicinity of a building being worked on by Partitions, she had been hit by a motor vehicle driven by a drunk driver who had gone off the road.   A mishap of this description would be completely unrelated to Partitions' work.   The contract does not sensibly require Partitions to prevent “accidents” of this description.   The same is true of “accidents” caused by snow and ice.   Partitions is not responsible for the accumulation of snow and ice and, absent contract language to the contrary, has no responsibility for the removal of such accumulations.   Partitions is being paid for carpentry, not snow removal.

The correctness of this interpretation is confirmed by additional language in Paragraph 8.9.   Partitions is required to “establish a safety program implementing safety measures, policies, and standards conforming to those required or recommended by governmental and quasi-governmental authorities having jurisdiction and by [Riverview], including, but not limited to, requirements imposed by the Contract Documents.”   This language plainly focuses on safety requirements recognized with respect to the type of work required by the contract itself.   Riverview has submitted no governmental or industry standards suggesting otherwise.

The standard of review for the interpretation of contracts is well-established:

The intent of the parties as expressed in writing is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction ․ The intent of the parties is to be ascertained by a fair and reasonable construction of the written words and ․ the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the writing ․ Where the language of the writing is clear and unambiguous, the writing is to be given effect according to its terms.   A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity ․ Similarly, any ambiguity in a written instrument must emanate from the language used in the writing rather than from one party's subjective perception of the terms.

19 Perry Street, LLC v. Unionville Water Co., 294 Conn. 611, 623, 987 A.2d 1009 (2010).  (Internal quotation marks, brackets, and citation omitted.)

Under these standards, it is clear and unambiguous that the contract in question did not require Partitions to keep its worksite free of ice and snow.   Partitions was hired to do carpentry work.   The removal of ice and snow remained the responsibility of Riverview.   Under these circumstances, Riverview's cross claim against Partitions cannot succeed.

The motion for summary judgment is granted in its entirety.

Jon C. Blue

Judge of the Superior Court

Blue, Jon C., J.