Opinion
No. 480783
April 6, 2004
MEMORANDUM OF DECISION RE MOTION TO STRIKE (No. 116)
The motion to strike now before the court presents a contentious issue left in the wake of Gazo v. City of Stamford, 255 Conn. 245, 765 A.2d 505 (2001). Gazo holds that although a possessor of property has a nondelegable duty to persons using that property to keep the premises in safe condition, an independent contractor hired by the possessor to maintain the property in a safe condition has a direct duty of care to users as well. The plaintiff in Gazo, who claimed injury from a slip and fall on an icy sidewalk, was allowed to file a complaint alleging negligence against both a property owner and its maintenance company. As a result of Gazo, a plaintiff injured by defective premises has the option of bringing a direct action against a maintenance company that has failed to keep the premises safe. But what if the plaintiff chooses to sue the possessor of property alone? May the possessor then turn around and file an apportionment complaint against its maintenance company seeking to hold that company directly liable for a proportionate share of the plaintiff's damages? For reasons set forth below, the answer to this question is in the negative.
The plaintiff, Brenda Adkins, claims that on August 24, 2001, she was a guest of the Marriott Hotel in Stamford. As she entered an elevator car, the elevator door "slammed closed" against her shoulder and arm. She was subsequently trapped in the elevator car for thirty minutes until she was rescued. In July 2003, she commenced this action by service of process against three defendants (collectively referred to as the "defendants"): Sodexho, Inc., the owner of the hotel; Marriott International, Inc., the hotel operator; and H.D. Realty Associates, LLC., also alleged to own the hotel.
Adkins' original complaint consisted of six counts. Counts I, II, and III claimed negligence against each of the respective defendants. Paragraph 7 of each of these counts alleged that the elevator's "malfunctioning doors" were caused by the negligence of the defendant in question. The defendants were specifically alleged to have failed to properly maintain and inspect the elevators. Paragraph 8 of each of these counts then claimed "Res Ipsa Loquitur, not intending to be bound by the [just cited] specific allegations of negligence." Counts IV, V, and VI alleged false imprisonment against each of the respective defendants.
Paragraph 7 of each of the first three counts of Adkins' most recent pleading, her First Amended Complaint, states in full that,
The elevator's malfunctioning doors were caused by the carelessness and negligence of Defendant in one or more of the following ways:
(a) IN THAT, it failed to properly maintain said elevators;
(b) IN THAT, it knew or in exercise of reasonable care should have known that the elevators were in a dangerous condition, but carelessly and negligently failed to remedy such known condition;
(c) IN THAT, it failed to properly inspect so as to discover the elevator's dangerous conditions and take the necessary remedial steps;
(d) IN THAT, it knew or in the exercise of reasonable care should have known that the dangerous condition of the elevator existed for an unreasonable period of time yet took no measures to remedy or correct same;
(e) IN THAT, it knew or in the exercise of reasonable care or inspection should have known that there were dangerous conditions and carelessly and negligently failed to correct same;
(f) IN THAT, it violated various state statutes and federal regulations in connection with the maintenance, operation and safety of the elevator as set forth by the Connecticut General Statutes, Rules and Regulations promulgated by the Department of Public Safety and OSHA in that the Defendant failed to keep the elevator reasonably safe.
Paragraph 8 of each of the first three counts of the First Amended Complaint states that,
The Plaintiff hereby pleads Res Ipsa Loquitur, not intending to be bound by the specific allegations of negligence set forth in Paragraph (6) [sic] in her Complaint:
a. IN THAT, Defendant, maintained or otherwise cared for the elevator set forth in said Complaint;
b. IN THAT, the malfunction of the doors of the elevator was not one that happens in the ordinary course of events except for the carelessness and negligence of the Defendant,
c. IN THAT, the injuries that have occurred were irrespective of any voluntary action on the part of the Plaintiff.
d. IN THAT, the circumstances of the malfunctioning doors of the elevator afforded sufficient evidence that it would not otherwise have occurred except for the want of ordinary care to [sic] Defendant;
e. IN THAT, the negligence of the Defendant was the proximate cause of the injuries and damages so sustained by the Plaintiff.
On October 27, 2003, the defendants, pursuant to Conn. Gen. Stat. § 52-102b(a), served an apportionment complaint on the apportionment defendant, Schindler Elevator Corp. (Schindler). The apportionment complaint was filed on December 31, 2003. That pleading claims that, "If the plaintiff's injuries resulted from any negligence they would have resulted all or in part from the negligence of . . . Schindler."
Paragraph 6 of the Apportionment Complaint alleges in full that,
If the plaintiff's injuries resulted from any negligence they would have resulted all or in part from the negligence of the apportionment defendant, Schindler Elevator Corporation, in one or more of the following ways:
a. In that it failed to properly maintain the elevators and the elevator doors.
b. In that it failed to inspect and discover that the elevator and/or the elevator door was in a dangerous condition.
c. In that it failed to exercise reasonable care in the performance of its work so as to ensure that the elevators were in proper working order.
d. In that it violated its contract with the apportionment plaintiff to maintain the elevator doors in a safe and working condition.
e. In that it failed to ensure that the elevator was in safe working condition prior to putting the elevator back into service.
On January 20, 2004, pursuant to Conn. Gen. Stat. § 52-102b(d), Adkins served her First Amended Complaint on Schindler. That pleading, filed on February 4, 2004, contains a new Count IV directed against Schindler. (The subsequent false imprisonment counts against the original defendants are thereafter renumbered.) Count IV contains allegations of negligence and res ipsa loquitur textually identical to those directed against the original defendants in paragraphs 7 and 8 of Counts I, II, and III and adds a new specification of negligence (inserted as paragraph 8(e)) that Schindler "was under a contractual obligation with codefendant's [sic] to maintain the elevator in a safe working order."
On February 27, 2004, Schindler filed the motion to strike now before the court. The motion seeks to strike the entire apportionment complaint on the ground that the original defendants "had a non-delegable duty to keep the premises, including the elevators, reasonably safe, and they may not seek to apportion responsibility for that duty to Schindler, an independent contractor." The motion was argued on April 5, 2004.
The issue of whether a possessor of property, named as a defendant in a negligence action, may bring an apportionment complaint against its maintenance company has not been addressed by Connecticut's appellate courts and has divided the Superior Court judges who have considered it. Most unofficially reported Superior Court decisions considering the subject hold that apportionment may not be sought in these circumstances. After a full consideration of the issue, I find the majority view persuasive.
According to the governing statute, the purpose of adding a person as a defendant for apportionment of liability purposes is to "add a person who is or may be liable pursuant to section 52-572h for a proportionate share of the plaintiff's damages as a party to the action." Conn. Gen. Stat. § 52-102b(f). Under Conn. Gen. Stat. § 52-572h(f)(4), the finder of fact at trial must specify "the percentage of negligence that proximately caused the injury, death or damage to property in relation to one hundred percent, that is attributable to each party whose negligent actions were a proximate cause of the injury, death or damage to property including settled or released persons under subsection (n) of this section."
"Where a factual basis can be found for some rough practical apportionment, which limits a defendant's liability to that part of the harm of which that defendant's conduct has been a cause in fact, it is likely that apportionment will be made." PROSSER AND KEETON ON THE LAW OF TORTS 345 (5th ED. 1984). Apportionment is a sensible procedure where the findings required by Conn. Gen. Stat. § 52-572h(f)(4) can be made. Thus, in the familiar context of a three-car accident, where the plaintiff is struck first by vehicle A and then by vehicle B, the jury can consider the evidence and specify the negligence of each party proximately causing the plaintiff's injuries. Such apportionment might be possible in an elevator accident case like the present one given slightly different facts. Suppose Adkins claimed not only that the elevator door had malfunctioned but that the Marriott personnel were subsequently negligent in not rescuing her in a timely manner. Under those circumstances, at least some of Adkins' damages would be entirely attributable to the original defendants, and apportionment could be made on that basis. See Mas v. Two Bridges Associates, 554 N.E.2d 1257, 1261-62 (N.Y. 1990). In this case, however, Adkins claims that all of her injuries are attributable to "[t]he elevator's malfunctioning doors." In these circumstances, the effects of the asserted negligence of the possessor of property and the maintenance company overlap completely. While there may be a basis for indemnity in this scenario, there is no basis for any apportionment of damages between the two. PROSSER AND KEETON, supra, at 346.
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. The crucial question in that case would be the relationship between the driver and the employer. If the requisite relationship exists, the jury would not be asked to separate the conduct of employer and driver as sources of harm.
Adkins has not sued the original defendants on a traditional theory of vicarious liability. No one contends that the original defendants are liable to the plaintiff on the ground that they employed a tortious maintenance company. But Gazo teaches us that, "Nondelegable duties create a form of vicarious liability . . . In vicarious liability situations, the law has broadened the liability for that fault by imposing it upon an additional, albeit innocent, defendant . . . namely the party that has the nondelegable duty." 255 Conn. at 257. Here, as in the case of traditional vicarious liability, there is no basis for apportionment.
Because, under Gazo, the obligation of the original defendants to keep the premises safe was nondelegable, those defendants are "powerless as against plaintiff, to avoid liability no matter how extensively they delegated their responsibility to however independent a maintenance contractor. Put another way, the [law] had the effect of imputing to them the negligence of any delegate insofar as plaintiff's rights to recover were concerned." Rogers v. Dorchester Associates, 300 N.E.2d 403, 408 (N.Y. 1973). Gazo does not alter the policy of the law that an injured person, if she chooses to do so, "may always look to an owner as well as any delegate." Id. at 410. Under Gazo, the option of choosing to seek recovery from a maintenance company lies with the plaintiff, not with the possessor of property.
This does not mean that Schindler is necessarily off the hook. The pleadings refer to a contract between Schindler and the original defendants. The terms of that contract are not before the court, but depending on what the contract says, Schindler may be liable to the original defendants in indemnity. Rogers v. Dorchester Associates, supra. That issue must necessarily be left for another day. Apportionment, however, is inappropriate in this setting.
There is some tension between the analysis here and that of Bhinder v. Sun Co., 246 Conn. 223, 717 A.2d 202 (1998). Bhinder, as is well known, holds that, in a case where a property owner fails to provide adequate security to protect its employee from foreseeable harm from a criminal assault by a third party, the owner may bring an apportionment complaint against the assailant. In this setting, the Supreme Court was undeterred by the prospect of apportioning responsibility for an indivisible injury between a property owner with what Gazo was later to term a nondelegable duty of care and a third-party tortfeasor.
Bhinder's holding, insofar as it relates to misconduct other than negligence has been overruled by the legislature; see Conn. Gen. Stat. § 52-572h(o); but Bhinder apportionment presumably remains viable when a third party's misconduct consists of negligence alone. In the context of the present case, for example, if another hotel guest had negligently dropped a banana peel on the lobby floor and Adkins, after slipping on it, sued the hotel, the hotel could have brought a Blinder-like apportionment complaint against the maladroit guest. There would be obvious problems in determining a basis for apportionment in this situation, but these are problems with which Bhinder is willing to live. In the banana peel case, however, the tortfeasors (the hotel and the maladroit guest) act independently of each other in a way that the tortfeasors in this case (the hotel and the maintenance company) do not. The tortfeasors in the banana peel case are potentially liable in differing proportions. In this case, as Gazo explains, the hotel is vicariously liable for its servant's tortious conduct. 255 Conn. at 258. As a matter of policy, the hotel is entirely liable to the plaintiff here in a way that the hotel in the banana peel case is not. Whether indemnity is appropriate in this case will depend on facts not now before the court, but the original defendants cannot bring an apportionment complaint.
The motion to strike is granted.
Jon C. Blue Judge of the Superior Court