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Morrissey v. R.K. Southington, LLC

Superior Court of Connecticut, Judicial District of New Britain, New Britain

September 14, 2015

Mary Carol Morrissey
v.
R.K. Southington, LLC et al

MEMORANDUM OF DECISION RE APPORTIONMENT DEFENDANT'S MOTION TO STRIKE #129

Cynthia K. Swienton, J.

BACKGROUND

The plaintiff in this action brings this action against R.K. Southington, LLC, and The TJX Companies, Inc., seeking damages for injuries she allegedly sustained when she slipped and fell while exiting a TJ Maxx store located at 875 Queen Street, Southington, Connecticut, due to slippery conditions on a ramp located immediately outside the entrance to the store. The plaintiff alleges that the defendants, R.K. Southington, LLC and The TJX Companies, Inc., both owned, controlled, possessed, managed and/or maintained the premises upon which she fell. (Complaint, Count one, ¶ 3, Count two, ¶ 3.)

R.K. Southington served an apportionment company upon Louis Scionti & Sons, Inc., (Scionti & Sons), alleging that if any party was negligent, it was " due to the negligence of Louis Scionti & Sons, Inc." (Apportionment Complaint, Count one, ¶ 7). The apportionment complaint states that the plaintiff has alleged in her complaint, that " R.K. Southington, LLC owned, controlled, possessed, managed and/or maintained the premises" where she fell and was injured. The apportionment defendant, Scionti & Sons, has moved to strike the apportionment complaint, asserting that R.K. Southington is impermissibly attempting to apportion a nondelegable duty. R.K. Southington filed an objection to the motion, and the matter was heard at oral argument.

LEGAL STANDARD

" Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or any one or more counts thereof, to state a claim upon which relief can be granted, or (2) the legal sufficiency of any prayer for relief in any such complaint, counterclaim or cross complaint . . . that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39(a). " A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1269 (2006).

" [I]t is fundamental that in determining the sufficiency of [an apportionment] complaint challenged by [an apportionment] defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . The role of the trial court in ruling on a motion to strike is to examine the [apportionment complaint], construed in favor of the [apportionment plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Citation omitted; internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 116-17, 19 A.3d 640 (2011). " [P]leadings are to be construed broadly and realistically, rather than narrowly and technically . . ." (Internal quotation marks omitted.) Downs v. Trias, 306 Conn. 81, 92, 49 A.3d 180 (2012).

ANALYSIS

The issue is whether a party can seek to apportion what Scionti & Sons asserts is a nondelegable duty. Scionti & Sons argues that the nondelegable duty doctrine renders the apportionment complaint legally insufficient based upon Gazo v. City of Stamford, et al., 255 Conn. 245, 253, 765 A.2d 505 (2001). A nondelegable duty " means that the party with such a duty . . . may not absolve itself of liability by contracting out the performance of that duty." Id., p. 255. Under the nondelegable duty doctrine, " a party may contract out the performance of a nondelegable duty, but may not contract out his ultimate legal responsibility." (Citations omitted; emphasis in original.) Id.

The apportionment plaintiff, R.K. Southington, argues that the apportionment defendant's reliance on Gazo is misplaced. It relies upon Smith v. Greenwich, 278 Conn. 428, 899 A.2d 563 (2006), which limits the ability of the owner or occupier of property to bring an apportionment complaint against a third party. Under the factual circumstances presented in Smith, the property owner and contractor share one duty and its resultant liability. Our Supreme Court explained that it " view[ed] the nondelegable duty doctrine as involving a form of vicarious liability, pursuant to which the party with the duty may be vicariously liable for the conduct of its independent contractor." (Internal quotation marks omitted.) Id., 458. The court held:

[T]he owner or occupier of a 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 or occupier is vicariously liable for the consequences arising from that 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." (Emphasis added.) Id., 460.

The factual situation in Smith is not what is presented here. In Smith, the property owner sought to apportion in a party with which it contracted to undertake the property owner's duty to maintain the premises. In the present case, the allegations in the apportionment complaint are that " the plaintiff, [Mary Carol Morrissey], alleged that R.K. Southington, LLC, owned, controlled, possessed, managed and/or maintained the premises" where she allegedly fell and was injured. The apportionment complaint contains no express allegations that R.K. Southington owned, occupied or controlled the premises or even the relationship between R.K. Southington and Scionti & Sons.

Under Connecticut law " [a] possessor of land who, having leased a part of the land, is under a duty to maintain in reasonably safe condition the part retained by him, and . . . is subject to the same liability to the lessee, and to others upon the retained part of the land with the consent of the lessee, for physical harm caused by the negligence . . . in failing to maintain such part of the land in reasonably safe condition . . ." (Emphasis added.) Restatement (Second) Torts § 421 (1965); see also Fiorelli v. Gorsky, 120 Conn.App. 298, 308, 991 A.2d 1105, cert. denied, 298 Conn. 933, 10 A.3d 517 (2010); Baldwin v. Curtis, 105 Conn.App. 844, 849, 939 A.2d 1249 (2008).

" The general rule regarding premises liability in the landlord-tenant context is that landlords owe a duty of reasonable care as to those parts of the property over which they have retained control . . . [L]andlords [however] generally [do] not have a duty to keep in repair any portion of the premises leased to and in the exclusive possession and control of the tenant." (Citation omitted; ...


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