Opinion
No. CV 06 5004569
July 3, 2007
On June 20, 2006, the plaintiff employer, The Game Inc. Trackside Inc., commenced this action pursuant to the Workers' Compensation Act, General Statutes § 31-275 et seq., in negligence against the defendant, Lake Grove at Durham, Inc. In the complaint, the plaintiff alleges that its employee was injured in the course of his employment as a pit crew attendant at a go-kart raceway when a third go-kart vehicle, operated by an individual under the defendant's supervision, rear-ended one of the two spun-out go-karts to which the employee had been rendering aid.
On September 13, 2006, the defendant filed an answer and special defenses. The defendant's first special defense alleges contributory negligence by the plaintiff's employee, and its second special defense alleges contributory negligence by the plaintiff or its employee. On October 2, 2006, the plaintiff filed a motion to strike the defendant's second special defense, as well as a memorandum of law in support of the motion. The defendant filed a memorandum of law in opposition.
Practice Book § 10-39(a)(5) provides in relevant part: "Whenever any party wishes to contest . . . the legal sufficiency of any answer to any complaint . . . or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof." "[F]acts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005). "[A] plaintiff can [move to strike] a special defense . . ." Nowak v. Nowak, 175 Conn. 112, 116, 394 A.2d 716 (1978). In ruling on a motion to strike special defenses, the court must "take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, CT Page 12758 606 A.2d 684 (1992).
In its memorandum of law in support of the motion to strike, the plaintiff argues that the defendant cannot allege the negligence of the plaintiff's employer as a special defense to limit its liability based on the Supreme Court's decision in Durniak v. August Winter Sons, Inc., 222 Conn. 775, 610 A.2d 1277 (1992). The defendant counters that the special defense of contributory negligence of an employer is legally sufficient pursuant to the independent relationship exception between the defendant and employer as enunciated in Durniak. Specifically, the defendant argues that "[a]s paying customers of the plaintiff's facility, the defendant, and its clients, were business invitees . . . As such, they were owed a duty by the plaintiff to participate in the recreational activities in a reasonably safe manner." In support of its argument, the defendant relies on McGahee v. Safeway Moving, Superior Court, judicial district of Waterbury, Docket No. 0119854 (March 20, 1995, Flynn, J.) (14 Conn. L. Rptr. 349).
General Statutes § 31-293(a) permits an employer to bring an independent action to recover any amount that it has paid or has become obligated to pay as compensation to the injured employee. In Durniak, our Supreme Court held that a third-party tortfeasor may not raise the negligence of the plaintiff's employer as a special defense when the employer has intervened in the personal injury action, pursuant to § 31-293(a), to recover the workers' compensation benefits paid. Durniak v. August Winter Sons, Inc., supra, 222 Conn. 775. In a footnote, the court in Durniak remarked: "A different result might follow if the special defense alleged not merely the negligence of the employer but included some other basis for liability such as the existence of an independent relationship between the defendant and the employer." Id., 782 n. 5, citing, inter alia, Ferryman v. Groton, 212 Conn. 138, 143-45, 561 A.2d 432 (1989).
General Statutes § 31-293(a) provides in relevant part: "When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a person . . . a legal liability to pay damages for the injury, the injured employee may claim compensation under the provisions of this chapter, but the payment or award of compensation shall not affect the claim or right of action of the injured employee against such person, but the injured employee may proceed at law against such person to recover damages for the injury; and any employer . . . having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against such person to recover any amount that he has paid or has become obligated to pay as compensation to the injured employee."
As in Ferryman v. Groton, supra, 212 Conn. 138, to survive a motion to strike and come within the apparent exception to the Durniak rule, it is sufficient that a special defense that attempts to assert an independent relationship "[discloses] the essentials of either a co-owner relationship, a bailor-bailee relationship or a lessor-lessee relationship, any one of which could contain the express or implied independent, legal duty . . ." Id., 146. The court in Ferryman further explained: "When the third party, in a suit by the employee, seeks recovery over against a contributorily negligent employer, contribution [or indemnification] is ordinarily denied on the ground that the employer cannot be said to be jointly liable in tort to the employee because of the operation of the exclusive-remedy clause. But if the employer can be said to have breached an independent duty toward the third party, or if there is a basis for finding an implied promise of indemnity recovery in the form of indemnity may be allowed. The right to indemnity is clear when the obligation springs from a separate contractual relation, such as an employer-tenant's express agreement to hold the third-party landlord harmless, or a bailee's obligation indemnify a bailor, or a contractor's obligation to perform his work with due care; but when the indemnity claim rests upon the theory that a primary wrongdoer impliedly promises to indemnify a secondary wrongdoer, the great majority of jurisdictions disallow this claim." (Internal quotation marks omitted.) Id., 144-45.
In the present case, the defendant's second special defense alleges that "[a]ny injuries, losses or damages which the plaintiff claims to have sustained as a result of the accident alleged in its complaint, were directly and proximately caused by the plaintiff's, or its employee's, own negligence and [carelessness] which was a substantial factor in producing the accident . . ." To this allegation the defendant attached a string of alleged specific failures, including, the failure to provide adequate supervision and/or staffing for their go kart track and/or facility.
Superior Court decisions somewhat are in conflict with whether an owner-business invitee relationship gives rise to indemnification rights under Ferryman so as to fall within the Durniak exception. On the one hand is McGahee v. Safeway Moving, Superior Court, judicial district of Waterbury, Docket No. 119854 (November 2, 1994, Sullivan, J.) ( McGahee I). There, the plaintiff, an employee of American Eagle, Inc., brought an action against the defendants for injuries sustained by the plaintiff when, while directing traffic at American Eagle's truck stop, he was hit by a trailer truck owned by one defendant, Safeway Moving, and operated by the other defendant, a Safeway employee. American Eagle intervened in the action to recover workers' compensation benefits that it paid to the plaintiff. The defendants filed a special defense alleging that "the plaintiff's injuries were proximately caused by the negligence and carelessness of the intervening plaintiff . . . in failing to provide a reasonably safe working environment for the plaintiff [employee]." Id. The plaintiffs moved to strike the special defense on the ground that "an alleged tortfeasor cannot assert contributory negligence against an employer who intervenes pursuant to General Statutes § 31-293(a) in an employee's negligence action." Id.
The court, Sullivan, J., granted the plaintiffs' motion, concluding that "the second special defense does not allege any basis for indemnification arising from a separate contractual relationship, as required by Ferryman v. Groton . . . The defendants have failed to offer any authority for a business invitee's right of indemnification against a business owner for the invitee's liability to third parties injured by the invitee's negligence." (Citation omitted.)
See also Hajjar v. Frederick L. Bultman, Inc., Superior Court, judicial district of Danbury, Docket No. 316244 (February 9, 1995, Leheny, J.) (13 Conn. L. Rptr. 434, 435), where the court determined: "The only duty which [the plaintiff employer] could conceivably owe to [the defendant] is to maintain its premises in a reasonably safe condition since [the defendant's employee] was a business invitee . . . The scope of the duty owed to an invitee, however, is to avoid physical harm to the particular invitee, not to indemnify." (Citations omitted.)
On the other hand is McGahee v. Safeway Moving, supra, 14 Conn. L. Rptr. 349 ( McGahee II), decided after the court's ruling in McGahee I. There, the defendants amended their previously stricken special defense to allege that "the plaintiff's accident and injury was caused by a breach of duty owed by the intervening plaintiff's employer to the defendants in that the employer failed to provide safe conditions for business invitees, thus proximately causing the accident." Id. The plaintiff's moved to strike the amended special defense.
The court Flynn, J., denied the plaintiffs' motion. The court held: "The defendants both allege they were in the position of being business invitees to whom the intervening employer as operator of the truck stop premises owed a duty. Whether there is such an independent relationship existing here which might bar or diminish the employer's recovery is something that cannot be ruled out at this juncture as a matter of law determined without evidence."
The present case is more similar to McGahee I than McGahee II. In granting the plaintiffs' motion to strike in McGahee I, the court explained that, based on Durniak and Ferryman, the defendants "have not alleged a breach of the duty owed to the third party. i.e. the defendant, arising out of the owner/business invitee relationship, but rather the second special defense alleges a breach of the employer's duty of care owed to the plaintiff employee. As such, the second special defense is insufficient because the employer cannot be said to be jointly liable in tort to the employee because of the operation of the exclusive-remedy clause." (Internal quotation marks omitted.) McGahee v. Safeway Moving, supra, Superior Court, Docket No. 119854. Likewise, the defendant in the present case has not specially pleaded a special relationship between the plaintiff employer and the defendant; instead, the defendant's second special defense alleges a breach of duty owed by the plaintiff employer to its injured employee. Thus, the defendant has not alleged an independent legal duty between the parties and its special defense is, therefore, legally insufficient.
In the alternative, even if the parties in this case carried on an owner-business invitee relationship, such a relationship cannot spring forth a duty to indemnify, in contradistinction to the relationships enunciated by the court in Ferryman, i.e., co-ownership or contract. Also, assuming that an owner-business invitee relationship can give rise to the duty to indemnify, the defendant has posited the legal conclusion in its memorandum that the parties enjoyed an owner-business invitee relationship, but such conclusions are not for the court to consider on a motion to strike unless relevant supporting facts appear in the special defense. In this case they do not.
Conclusion
For the foregoing reasons, the court hereby grants the plaintiff's motion to strike the defendant's second special defense of contributory negligence.