Kathleen Stern et al. v. Franklin McEwen et al. (2012)

MEMORANDUM OF DECISION RE MOTION TO STRIKE AMENDED APPORTIONMENT COMPLAINT (# 123)

FACTS

On November 12, 2010, the plaintiffs, Kathleen Stern (Kathleen) and her husband, Frederick Stern (Frederick), commenced the present ten-count action against the defendants, Franklin McEwen, Franklin McEwen, d/b/a Lyme Tavern Café, Steven Carpenteri, Steven Carpenteri as agent for Caspers Ltd. and Rebecca Cahill.   The plaintiffs filed a revised complaint on March 9, 2011, which is the operative complaint in this action.¹

On October 27, 2011, the defendants filed an amended apportionment complaint ² against Sheri Hunter in which they allege the following facts.  “[T]he plaintiffs commenced [this] action alleging injuries and damages as a result of an automobile collision on November 29, 2009 ․ [T]he plaintiffs allege that the defendants and apportionment plaintiffs caused or contributed to the subject automobile collision and that they failed to train and supervise their employee, the apportionment defendant Sheri Hunter ․ The plaintiffs further allege that said collision was caused by the negligence of the apportionment defendant Sheri Hunter ․ If the allegations of the plaintiffs' complaint are proven, as against Sheri Hunter, said collision was due to the negligence of the apportionment defendant Sheri Hunter in that [she]:  (a) Operated a motor vehicle while under the influence of an intoxicating liquor, in violation of Section 14–227a(a) of the Connecticut [G]eneral Statutes;  (b) Operated a motor vehicle while her ability to operate such [vehicle] was impaired by the consumption of intoxicating liquor, in violation of Section 14–2278a(b) of the Connecticut General Statutes;  (c) Operated a motor vehicle in a reckless manner, in violation of Section 14–222 of the Connecticut General Statutes;  (d) Operated a motor vehicle at an unreasonably fast rate of speed, in violation of Section 14–218a of the Connecticut General Statutes;  (e) Operated a motor vehicle at a speed in excess of 55 miles per hour, in violation of Section 14–219 of the Connecticut General Statutes;  (f) Failed to keep a proper lookout;  (g) Failed to properly control her vehicle;  (h) Failed to brake;  (i) Failed to swerve to avoid striking the plaintiff's vehicle;  (j) Operated her vehicle at an unreasonable speed;  (k) Operated her vehicle while distracted by speaking on a cell phone.”   Thus, the defendants request apportionment of liability between themselves and Hunter.

On November 21, 2011, the plaintiffs filed a motion to strike the amended apportionment complaint on the following grounds:  (1) apportionment of counts one through five, which are premised on alleged violations of the Dram Shop Act,³ is improper because liability for negligence cannot be apportioned with a statutory claim;  and (2) apportionment of counts six through ten, premised on the defendants' negligence in allowing their employee to become intoxicated at the workplace,⁴ is precluded as the defendants are vicariously liable for their employee's misconduct.   The motion is accompanied by a memorandum of law.   On December 8, 2011, the defendants filed an objection and memorandum of law in opposition to the plaintiffs' motion.⁵  This matter was heard on the short calendar on December 12, 2011.

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.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action.”  (Internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011).  “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).  “[G]rounds other than those specified [in the motion] should not be considered by the trial court in passing upon a motion to strike ․” (Internal quotation marks omitted.)  Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001).

Counts One Through Five

The plaintiffs argue that the comparative negligence and apportionment statute, General Statutes § 52–572h, prohibits apportionment between parties liable for negligence and parties liable under the Dram Shop Act. The defendants counter that the accident was caused by Hunter's negligence in the operation of her vehicle, and not exclusively as a result of her intoxication.   Thus, the defendants argue, they are entitled to prove that the collision was caused by other factors in defending the Dram Shop Act claims asserted against them.

Section 52–572h describes the liability of multiple tortfeasors for damages in negligence actions.   The statute provides, in relevant part, that “there shall be no apportionment of liability or damages between parties liable for negligence and parties liable on any basis other than negligence including, but not limited to, intentional, wanton or reckless misconduct, strict liability or liability pursuant to any cause of action created by statute, except that liability may be apportioned among parties liable for negligence in any cause of action created by statute based on negligence ․” (Emphasis added.)   General Statutes § 52–572h(o).

“By its own terms, the comparative negligence statute applies only to causes of action based on negligence.  General Statutes § 52–572h(b).  Accordingly, its terms do not govern statutory causes of action that have no common law counterpart.”  (Internal quotation marks omitted.)  Durniak v. August Winter & Sons, Inc., 222 Conn. 775, 782, 610 A.2d 1277 (1992).  “Section 30–102, in relevant part, provides:  ‘If any person, by such person or such person's agent, sells any alcoholic liquor to an intoxicated person, and such purchaser, in consequence of such intoxication, thereafter injures the person or property of another, such seller shall pay just damages to the person injured ․’ The full title of the statute is ‘Dram Shop Act;  liquor seller liable for damage by intoxicated person.   No negligence cause of action for sale to person twenty-one years of age or older.’   Indeed, the Dram Shop Statutes impose strict liability, without negligence, upon the seller.”   (Internal quotation marks omitted.)   Herrera v. Adams, Superior Court, judicial district of New London, Docket No. CV 10 6004615 (February 24, 2011, Martin, J.).

In the present case, the Dram Shop Act counts against the defendants are statutory claims that are not based on negligence;  thus, apportionment of liability between Hunter and the defendants is precluded by § 52–572h(o).   Accordingly, the plaintiffs' motion to strike the defendants' amended apportionment complaint is granted as to counts one through five.

Counts Six Through Ten

The plaintiffs argue that where liability among parties is indivisible, such as vicarious liability in the employer-employee context, apportionment is improper.   The plaintiffs argue that the defendants allowed Hunter, their employee, to become intoxicated and such intoxication led to Hunter's carelessness that caused the plaintiffs' injuries.   The defendants counter that Hunter was acting outside the scope of her employment and outside her place of employment when she caused the plaintiffs' injuries.   When apportionment is possible so each party's liability is limited to the portion of the harm each caused, the defendants argue, it should be allowed.

The ground asserted in the plaintiffs' motion is predicated on the proposition that the plaintiffs' revised complaint sounds in vicarious liability against the defendants.  “[V]icarious liability is based on a relationship between the parties, irrespective of participation, either by act or omission, of the one vicariously liable, under which it has been determined as a matter of public policy that one person should be liable for the act of [another].   Its true basis is largely one of public or social policy under which it has been determined that, irrespective of fault, a party should be held to respond for the acts of another.”  (Internal quotation marks omitted.)  Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 692 n.16, 849 A.2d 813 (2004).  “[A] fundamental premise underlying the theory of vicarious liability is that an employer exerts control, fictional or not, over an employee acting within the scope of employment, and therefore may be held responsible for the wrongs of that employee.”  Id. “In determining whether an employee has acted within the scope of employment, courts look to whether the employee's conduct:  (1) occurs primarily within the employer's authorized time and space limits;  (2) is of the type that the employee is employed to perform;  and (3) is motivated, at least in part, by a purpose to serve the employer.”  Harp v. King, 266 Conn. 747, 782–83, 835 A.2d 953 (2003).

Section 52–572h “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.”  Smith v. Greenwich, 278 Conn. 428, 459, 889 A.2d 563 (2006).  “It is common ground that apportionment is inappropriate in cases of vicarious liability.   If, for example, a plaintiff is injured by a truck in a motor vehicle accident and sues the truck driver's employer, the employer cannot file an apportionment complaint against the driver.”  Adkins v. Sodexho, Inc., Superior Court, judicial district of New Haven, Docket No. 480783 (April 6, 2004, Blue, J.) (36 Conn. L. Rptr. 688, 689);  see also Reilly v. DiBianco, 6 Conn.App. 556, 569–71, 507 A.2d 106, cert. denied, 200 Conn. 804, 510 A.2d 193 (1986).   In vicarious liability situations, “[t]he negligence of the parties is indivisible because it is singular and identical.   The law imposes joint and identical responsibility for the same identical act of negligence.   The act and hence the responsibility being one and the same, it is identical, indivisible, and hence incapable of being apportioned.   This is of course contrasted to separate and distinct acts of negligence ․” Currier v. Fieldstone Village, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 99 69258 (January 19, 2000, Sullivan, J.) [26 Conn. L. Rptr. 240].

In the present case, the plaintiffs have not alleged in their revised complaint that Hunter was acting within the scope of her employment during the collision.   In paragraphs twelve through fifteen of count one, which are incorporated by reference in counts six through ten, the plaintiffs allege that Hunter “was an employee of Lyme Tavern and was working as a waitress” on the night of the incident, that Hunter “was served and/or provided alcoholic beverages” by Lyme Tavern, and “while intoxicated [Hunter] left Lyme Tavern in her motor vehicle and struck the vehicle” driven by the plaintiffs.   The revised complaint contains no allegations that Hunter's conduct occurred during her employment hours, was the type of conduct she was hired to perform or that its purpose was to serve the defendants.   Thus, the plaintiffs' revised complaint does not seek to impose vicarious liability on the defendants for Hunter's acts.

Instead, counts six through ten seek to impose liability on the defendants for their own negligent acts or omissions, including failure to supervise, failure to train, failure to establish proper procedures, failure to properly hire or screen their employees and permitting their employees to consume alcohol on the job, among other claims.   These are independent claims of direct negligence that do not depend on a successful theory of vicarious liability.   See Gutierrez v. Thorne, 13 Conn.App. 493, 499–500, 537 A.2d 527 (1988) (stating that “the several allegations of a failure to exercise due care on the part of the defendant [employer]—each an independent claim of direct negligence—do not depend upon a successful theory of vicarious liability”).   Further, the allegations against Hunter in the defendants' apportionment complaint relate solely to Hunter's negligence in driving while intoxicated, driving recklessly, driving at a high rate of speed, failing to keep a proper lookout, failing to brake and driving while speaking on a cell phone, among other claims.   Consequently, the negligence claims asserted against the defendants in the plaintiffs' revised complaint and the negligence claims asserted against Hunter in the defendants' apportionment complaint do not arise from their “mutual singular identical transgression,” but are instead “separate and distinct acts of negligence.”  Currier v. Fieldstone Village, supra, Superior Court, Docket No. CV 99 69258.

For this reason, the cases cited by the plaintiffs in their brief are inapposite.   In Reilly v. DiBianco, supra, 6 Conn.App. 557–58, the plaintiff brought an action for assault and battery against two employee tortfeasors and their employer for a beating and stabbing committed by the employees.   The complaint alleged that the employees were acting within the scope of their employment and that the employer was vicariously liable for the plaintiff's injuries.  Id. In discussing the respective liabilities of the three defendants, the court stated that “a passive defendant, liable only vicariously, is not involved in the apportionment or allocation, and remains liable for the whole, insofar as he stands in the shoes of the particular tortfeasor or tortfeasors.”  (Emphasis added.)  Id., 569.   Additionally, in Adkins v. Sodexho, Inc., supra, 36 Conn. L. Rptr. 688, a hotel guest sued two hotel owners and an operator after an elevator door at the hotel closed on her shoulder and arm.   The defendants served an apportionment complaint on the elevator maintenance company, who filed a motion to strike the apportionment complaint.  Id., 688–69.   In granting the motion, the court held that “the effects of the asserted negligence of the possessor of property and the maintenance company overlap completely.”  (Emphasis added.)  Id., 689.   Since “[n]ondelegable duties create a form of vicarious liability,” the court found that, although there may be a basis for indemnity, “there is no basis for apportionment.”  (Internal quotation marks omitted.)  Id. Lastly, in Currier v. Fieldstone Village, supra, Superior Court, Docket No. CV 99 69258, a contractor moved to strike a landlord-defendant's apportionment complaint “on the basis that the landlord's duty is non delegable and cannot be limited by apportionment.”   The court agreed, holding that “[t]he defendant property possessors cannot absolve themselves, in whole or in part, by delegating to a contractor their duty to keep the premises in reasonably safe condition ․ In circumstances such as this the negligence of the contractor is the negligence of the property possessors.   The negligence of the two are exactly the same in fact and law.”  (Emphasis added.)  Id.

Unlike the cases cited above, the negligence of the defendants and the negligence of Hunter are not identical.   Rather, the present case is more analogous to a hypothetical posed by Judge Blue in Adkins:  “Suppose [the plaintiff] claimed not only that the elevator door had malfunctioned but that the [hotel] personnel were subsequently negligent in not rescuing her in a timely manner.   Under those circumstances, at least some of [the plaintiff's] damages would be entirely attributable to the original defendants, and apportionment could be made on that basis.”  Id. Here, the claims asserted in the plaintiffs' revised complaint relate to the defendants' failure to properly supervise their employees, while the claims asserted in the apportionment complaint relate to Hunter's negligence in operating her motor vehicle.   These independent acts of negligence are not identical and the defendants can be found liable without a successful showing of vicarious liability.   Since at least some of the plaintiffs' damages can be attributed solely to the defendants, apportionment is proper in this case.

Accordingly, the plaintiffs' motion to strike the defendants' amended apportionment complaint is denied as to counts six through ten.

CONCLUSION

For the foregoing reasons, the plaintiffs' motion to strike the defendants' amended apportionment complaint is hereby granted as to counts one through five.   The plaintiffs' motion to strike the defendants' amended apportionment complaint is hereby denied as to counts six through ten.

Martin, J.

FOOTNOTES

FN1. On March 31, 2011, the defendants filed a motion to strike counts three, six, eight and nine of the revised complaint.   This court denied the motion as to all four counts.   Stern v. McEwen, Superior Court, judicial district of New London, Docket No. CV 10 6006881 (October 14, 2011, Martin, J.) [52 Conn. L. Rptr. 817]..  FN1. On March 31, 2011, the defendants filed a motion to strike counts three, six, eight and nine of the revised complaint.   This court denied the motion as to all four counts.   Stern v. McEwen, Superior Court, judicial district of New London, Docket No. CV 10 6006881 (October 14, 2011, Martin, J.) [52 Conn. L. Rptr. 817].

FN2. The defendants filed their original apportionment complaint on February 24, 2011.   The plaintiffs filed a motion to strike the apportionment complaint on March 9, 2011, which was granted by this court “because the apportionment complaint [did] not allege adequately what, if any, acts of negligence Hunter committed ․” Stern v. McEwen, Superior Court, judicial district of New London, Docket No. CV 10 6006881 (October 14, 2011, Martin, J.).   This court did not decide “whether the original complaint, if attached, would remedy these omissions.”  Id..  FN2. The defendants filed their original apportionment complaint on February 24, 2011.   The plaintiffs filed a motion to strike the apportionment complaint on March 9, 2011, which was granted by this court “because the apportionment complaint [did] not allege adequately what, if any, acts of negligence Hunter committed ․” Stern v. McEwen, Superior Court, judicial district of New London, Docket No. CV 10 6006881 (October 14, 2011, Martin, J.).   This court did not decide “whether the original complaint, if attached, would remedy these omissions.”  Id.

FN3. Count one is a Dram Shop Act claim brought by Kathleen;  count two is a loss of consortium claim brought by Frederick;  count three is a bystander emotional distress claim brought by Frederick;  count four is a Dram Shop Act claim brought by Frederick and count five is a loss of consortium claim brought by Kathleen.   In each of these counts the plaintiffs seek to recover “damages pursuant to Section 30–102 of the Connecticut General Statutes.”.  FN3. Count one is a Dram Shop Act claim brought by Kathleen;  count two is a loss of consortium claim brought by Frederick;  count three is a bystander emotional distress claim brought by Frederick;  count four is a Dram Shop Act claim brought by Frederick and count five is a loss of consortium claim brought by Kathleen.   In each of these counts the plaintiffs seek to recover “damages pursuant to Section 30–102 of the Connecticut General Statutes.”

FN4. Count six is a negligence claim brought by Kathleen;  count seven is a loss of consortium claim brought by Frederick;  count eight is a bystander emotional distress claim brought by Frederick;  count nine is a negligence claim brought by Frederick and count ten is a loss of consortium claim brought by Kathleen..  FN4. Count six is a negligence claim brought by Kathleen;  count seven is a loss of consortium claim brought by Frederick;  count eight is a bystander emotional distress claim brought by Frederick;  count nine is a negligence claim brought by Frederick and count ten is a loss of consortium claim brought by Kathleen.

FN5. The defendants also filed an answer, special defense and cross claim on December 8, 2011.   The plaintiffs filed a reply on December 23, 2011..  FN5. The defendants also filed an answer, special defense and cross claim on December 8, 2011.   The plaintiffs filed a reply on December 23, 2011.

Martin, Robert A., J.