Opinion
No. CV03 0285825-S
September 13, 2004
MEMORANDUM OF DECISION RE MOTION TO STRIKE # 116
This action results from a two-car accident between the plaintiff, Antonio Sabino, and the defendants, Galit and Sushil Sharma, which occurred in the parking lot of the Home Depot, Inc. and Price Reit, Inc., of North Haven, Connecticut on the morning of October 16, 2002. On October 20, 2003, the plaintiff filed a two-count complaint asserting negligence claims against each of the defendants. On January 12, 2004, the defendants filed an apportionment complaint against Home Depot, Inc. and Price Reit, Inc. (hereinafter the apportionment defendants). Thereafter, the apportionment defendants filed a cross claim seeking indemnity from the defendants (hereinafter the apportionment plaintiffs).
On February 5, 2004, the plaintiff filed a four-count amended complaint including claims of negligence against the apportionment defendants.
Before the court is the apportionment plaintiffs' motion to strike the apportionment defendants' cross claim. The movants assert that the cross claim is legally insufficient because they, as business invitees, could not have had exclusive control of the parking lot.
"It is fundamental that, in determining the sufficiency of a complaint challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). "[I]f facts provable in the [cross] complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, supra, 268 Conn. 292.
The apportionment plaintiffs claim in their apportionment complaint "that the injuries allegedly incurred by the plaintiff were the result in whole or in part, of the negligence of the apportionment defendant[s]." They further allege that the apportionment defendants "designed, maintained or operated" the parking lot where the accident occurred in a negligent manner. They allege that the design, maintenance or operation of the parking lot created hazards because, among other things, the lot lacked proper directional signs, failed to provide appropriate stop signs, failed to direct the flow of traffic, and failed to create un-obscured sight lines.
The apportionment defendants in their cross claim for indemnity allege that it was the apportionment plaintiffs' "active and primary negligence" that factually and proximately caused the plaintiff's injuries. They also claim that the apportionment plaintiffs had exclusive control of the situation giving rise to the accident, that the apportionment defendants had no reason to anticipate or know of the apportionment plaintiffs' negligence, and that the apportionment defendants could reasonably rely on the apportionment plaintiffs not to be negligent. The apportionment defendants allege that the apportionment plaintiffs, among other things, operated their vehicle at an unreasonable rate of speed, failed to grant approaching vehicles the right-of-way, failed to keep an appropriate lookout and crossed the roadway without the right-of-way.
"Ordinarily there is no right of indemnity or contribution between joint-tortfeasors." (Internal quotations marks omitted.) Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 697, 694 A.2d 788 (1997). Nevertheless, under circumstances similar to those presented in this case, the Supreme Court has "distinguished between `active or primary negligence,' and `passive or secondary negligence.' . . . Indemnity shifts the impact of liability from passive joint tortfeasors to active ones." (Internal quotation marks omitted.) Id.
The four separate elements required to establish a common-law claim for indemnity are: (1) that the other tortfeasor was negligent; (2) that [that] negligence, rather than [the apportionment defendants'], was the direct, immediate cause of the accident and injuries; (3) that [the other tortfeasor was] in control of the situation to the exclusion of [the apportionment defendants]; and (4) that [the apportionment defendants] did not know of such negligence, had no reason to anticipate it, and could reasonably rely on the other tortfeasor not to be negligent." (Internal quotations marks omitted.) Skuzinski v. Bouchard Fuels, Inc., supra, 240 Conn. 698.
In their memorandum of law in support of their motion to strike, the apportionment plaintiffs argue that "the situation" that gave rise to the car accident is solely the design or operation of the parking lot. They argue that their motion to strike the cross claim should be granted because it was the apportionment defendants who had exclusive control of the operation of the parking lot and as such had exclusive control of "the situation." They argue that as business invitees of the apportionment defendants, they could in no way have had exclusive control of the design or operation of the parking lot. Further, they argue that in this case, as in Skuzinski v. Bouchard Fuels, Inc., supra, 240 Conn. 705, "the question of exclusive control is one of the rare examples in which the issue may properly be decided as a question of law."
The apportionment defendants argue in opposition to the motion to strike that exclusive control of the situation was vested with apportionment plaintiffs, since it was they who operated the automobile that caused the accident. They also argue that the issue of exclusive control should not be resolved on a motion to strike, because it is a question of fact and not a question of law. Skuzinski v. Bouchard Fuels, Inc., supra, 240 Conn. 704. They argue that since they have pleaded sufficient facts in their cross claim, and that since the court must take as true the facts pleaded in the cross claim, the motion to strike must be denied.
Like the argument of the third party defendants in Hartt v. Schwartz, Superior Court, judicial district of New Haven, Docket No. CV 331912 (December 3, 1997, Blue, J.) ( 21 Conn. L. Rptr. 52), the apportionment plaintiffs in the present case misconstrue "the precise meaning of the term `exclusive control' in our jurisprudence . . . [T]he `exclusive control' required by our case law is not exclusive control of the premises but exclusive control of `the situation.'" (Citations omitted.) The Supreme Court has defined "exclusive control over `the situation' as exclusive control over the dangerous condition that gives rise to the accident." Skuzinski v. Bouchard Fuels, Inc., supra, 240 Conn. 706.
In the present case, the apportionment plaintiffs claim that "the situation" giving rise to the accident was the design and operation of the parking lot, while the apportionment defendants claim that "the situation" was the negligent operation of the apportionment plaintiffs' vehicle. Construing the allegations of the cross claim in the light most favorable to the third-party defendants, the question for this court then becomes whether, if these allegations were proven, a reasonable juror could find that the apportionment defendants had met their burden of proving that the apportionment plaintiffs were in exclusive control of the situation surrounding the accident. Since the question could be answered in the affirmative, the apportionment defendants' cross claim is legally sufficient. This case, therefore, does not present "a `rare example' whereby the question of exclusive control may properly be decided as a question of law." Compare Skuzinski v. Bouchard Fuels, Inc., supra, 240 Conn. 705. See also Hartt v. Schwartz, supra; Saucier v. 5-D's Skating Center, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 96 131232 (January 7, 1998, Shortall, J.) ( 23 Conn. L. Rptr. 433); CT Page 14366 Satula v. Yale University, Superior Court, judicial district of New Haven, Docket No. CV 97 0404649 (December 7, 1998, Jones, J.).
Accordingly, the apportionment plaintiffs' motion to strike is denied.
BY THE COURT
Tanzer, Judge