Todd Symecko v. Turner Construction Co. (2011)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (NO. 119)

Facts and Procedural History

This action arises from an incident that occurred on August 21, 2009, when the plaintiff, Todd Symecko, was injured on a construction site in New Haven, Connecticut.   On March 12, 2010, the plaintiff filed a single-count complaint against Turner Construction Company (“Turner”), the general contractor in charge of the construction site where he was injured.   The plaintiff was a welder employed by Walter D. Sullivan Company, one of Turner's sub-contractors.   Specifically, the plaintiff alleges that he was injured when he leaned on a guardrail that failed or was not properly installed or secured, causing him to fall approximately ten feet into an open elevator shaft and sustain severe injuries.

On September 7, 2010, Turner filed a single-count apportionment complaint against United Associates Local 777 (“Local 777”), the plaintiff's union.   On November 3, 2010, the plaintiff filed a motion to strike Turner's apportionment complaint, along with a memorandum in support.   On April 13, 2011, Turner filed its memorandum in opposition.   The parties appeared for oral argument at short calendar on April 18, 2011.

Discussion

“[A] motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court ․ [The court must] construe the complaint in the manner most favorable to sustaining its legal sufficiency ․ [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).

As a preliminary matter, the plaintiff argues that he has standing to challenge the apportionment complaint that Turner filed against Local 777.   The court agrees.   If the apportionment complaint is proven then any recovery of the plaintiff will be reduced in a proportionate manner.

On the merits, the plaintiff argues:  “Turner, despite having filed an ‘apportionment complaint,’ is not seeking to apportion its fault between it and the union.   Instead, Turner is seeking to hold the union liable for any damages found in favor of the plaintiff against Turner as a result of the construction site fall down.   If the defendant wishes to have the union pay for this loss, it should seek to file its own action against the union in order to assert the claims it wishes to adjudicate.”   Turner counters that its apportionment complaint is proper.

Section 52–102b(a) governs the addition of a person as a defendant for apportionment of liability purposes and in pertinent part, provides “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 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.”

Additionally, § 52–572h(c), in relevant part, states:  “In a negligence action to recover damages resulting from personal injury ․ 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 ․”

“[Section 52–572h(c) ] replaced the common-law rule of joint and several liability with a system of apportioned liability that holds each defendant liable for only his or her proportionate share of damages ․ That provision, however, 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.”  (Citation omitted;  internal quotation marks omitted.)  Smith v. Greenwich, 278 Conn. 428, 459, 899 A.2d 563 (2006).

In the present case, Turner alleges the following in its apportionment complaint.  “[T]he plaintiff was intoxicated at the time of the alleged accident and had a blood alcohol content of .219% immediately after the accident ․ the plaintiff is a chronic abuser of alcohol ․ the plaintiff became a member of United Associates Local 777 on May 18, 1995 and was a union member on August 21, 2009 ․ Local 777 furnished the plaintiff to Walter D. Sullivan, Inc. For the purpose of having Walter D. Sullivan hire the plaintiff to perform work at the site ․ If the plaintiff sustained the damage claimed in connection with the complaint, which Turner denies, then said damages were or may have been caused, in whole or in part, by the negligence of United Associates Local 777 as it knew or should have known that the plaintiff union member was a chronic abuser of alcohol and was not competent to perform inherently dangerous work at the site as he could injure himself or others ․ To the extent the plaintiff recovers damages ․ Local 777 is or may be liable for a proportionate share of such damages pursuant to C.G.S. §§ 52–102b and 52–572h ․ Turner seeks an apportionment of liability as to United Associates Local 777 pursuant to C.G.S. §§ 52–102b and 52–572h.”   From these allegations there is a permissible inference that on the date in question that the Union knew or should have known of the plaintiff's intoxication.

For the purposes of the motion to strike, Turner has sufficiently alleged that the plaintiff's damages were proximately “caused, in whole or in part, by the negligence of United Associates Local 777 as it knew or should have known that the plaintiff union member was a chronic abuser of alcohol and was not competent to perform inherently dangerous work at the site as he could injure himself or others.”   Moreover, Turner explicitly alleges that Local 777 is “liable for a proportionate share of such damages pursuant to C.G.S. §§ 52–102b and 52–572h” and specifically, “seeks an apportionment of liability as to United Associates Local 777 pursuant to C.G.S. §§ 52–102b and 52–572h.”   As such, the court is not persuaded by the plaintiff's argument that Turner is not seeking to apportion fault between it and the union.

Conclusion

For all of the foregoing reasons, the plaintiff's motion to strike Turner's apportionment complaint against Local 777 is hereby denied.

Cosgrove, J.

Cosgrove, Emmet L., J.