Opinion
No. MMX CV08 500 5562 S
December 18, 2009
MEMORANDUM OF DECISION
Op or about January 22, 2009, the plaintiff Arthur Shail filed an amended complaint containing four counts. Count I is entitled "Negligence as to Carabetta Management Co. and Bayberry Crest Realty Company." Count II is entitled "Breach of Lease as to Carabetta Management Co. and Bayberry Crest Realty Company." Count III is entitled "CUTPA as to Carabetta Management Co. and Bayberry Crest Realty Company." Count IV is entitled "Negligence as to Dainty Rubbish Service, Inc." Counts I, II and III contain essentially the same allegations except as set forth below. Count II (breach of lease) thus incorporates all of the allegation of Count I except for paragraph 13 which contains an allegation that the defendants, Carabetta Management Co. and Bayberry Crest Realty Co. have breached the covenants, terms and responsibilities as contained in the lease agreement with the Plaintiff:
1. Upon information and belief, at all times relevant hereto, the Defendants, Carabetta Management Co. and Bayberry Crest Realty Company, were the owner and/or landlord of an apartment complex known as Bayberry Crest, located on Plaza Drive in Middletown, CT.
2. At all times relevant hereto, Defendants Carabetta and Bayberry had possession and control of the common areas of the apartment complex, including dumpsters provided by the Defendant, Dainty Rubbish Service, Inc., for the collection and removal of garbage, rubbish and other waste incidental to the occupancy of the apartment complex.
3. At all times relevant hereto, the Plaintiff, Arthur Shail, was a 67-year-old tenant in the building located at 198 Plaza Drive, Middletown, CT.
4. On November 3, 2003, the Plaintiff entered into a written lease with Defendant Bayberry Crest Realty Company and/or with Defendant Carabetta Management Co.
5. Pursuant to § 10 of said lease, entitled "Maintenance," the landlord agreed to: (1) regularly clean all common areas of the project; (2) maintain the common areas and facilities in a safe condition; (3) arrange for collection and removal of trash and garbage; and (4) maintain all equipment in safe and working order.
6. Pursuant to C.G.S. § 47a-7, a landlord shall: (1) Comply with the requirements of Connecticut law, and all applicable building and housing codes, materially affecting health and safety; (2) do whatever is necessary to keep the premises in a fit and habitable condition; (3) keep all common areas of the premises in a clean and safe condition; (4) maintain in good order and condition all sanitary facilities supplied, or required to be supplied, by the landlord; and (5) provide and maintain appropriate receptacles for the removal of garbage, rubbish and other waste incidental to the occupancy of the dwelling, and to arrange for their removal.
7. Pursuant to Paragraph 10 of said lease, entitled "Maintenance," the tenant agreed to use all equipment in a safe manner and only for the purposes for which they were intended; to not litter the grounds or common areas of the project; to remove garbage and other waste from the unit in a clean and safe manner; to keep the premises in a safe and sanitary condition, and to comply with all laws, health and management policy requirements with respect to said premises and appurtenances; and to save the landlord harmless from all fines, penalties and costs for violations or non-compliance with any laws, requirements or regulations, and from all liability arising out of any such violations or non-compliance.
8. Pursuant to C.G.S § 47a-11, a tenant shall: Comply with all obligations imposed upon tenants by applicable provisions of any building or housing code materially affecting health and safety; remove from his dwelling unit garbage, rubbish and other wastes in a clean and safe manner to the place provided by the landlord pursuant to C.G.S. § 47a-7(a)(5), and use all sanitary and other facilities in the premises in a reasonable manner.
9. On October 29, 2006, just before 5:00 p.m., the Plaintiff left his apartment for the purpose of throwing his trash in a dumpster located in a common area of the apartment complex.
10. When the Plaintiff arrived at the dumpster, it was full and overflowing with garbage, rubbish and other waste generated by other tenants, and this condition had existed on many occasions prior to this date and time.
11. The Plaintiff reached up as far as he could to place his trash into the dumpster, as he was required to do by his lease.
12. As the Plaintiff attempted to place his trash in the overflowing dumpster, he was caused to lose his balance and fell to the ground with great force, suffering injuries more fully described herein.
13. The Defendants, Carabetta Management Co. and Bayberry Crest Realty Co. have breached the covenants, terms and responsibilities as contained in the lease agreement with the Plaintiff.
14. As a result of the negligence and carelessness of the Defendants as aforesaid, the Plaintiff suffered the following symptoms, injuries, damages and losses, some of which are permanent, namely:
a. Light intertrochanteric hip fracture;
b. Surgery to install an intermadullary hip screw in his right hip;
c. Contusions and pain in his right knee, thigh and hip, and;
d. Pain, suffering and emotional distress.
15. As a further result of the negligence and carelessness of the Defendants, as aforesaid, the Plaintiff was required to spend substantial sums of money for ambulance; hospital, surgical, radiology, physical therapy, rehabilitation and home health care, and he will be required to spend additional sums of money for said care in the future.
16. As a further result of the negligence and carelessness of the Defendants, as aforesaid, the Plaintiff has been unable to engage fully in his customary activities.
As set forth above, count II (breach of lease) is the same as count I (negligence) except for paragraph 13 in each count. Paragraph 13 in count I contains five allegations of negligence and carelessness (see paragraph 13 below).
Count 3 (CUTPA) is the same as count I (negligence) except for paragraph 14 set forth below:
1. Upon information and belief, at all times relevant hereto, the Defendants, Carabetta Management Co. and Bayberry Crest Realty Company, were the owner and/or landlord of an apartment complex known as Bayberry Crest, located on Plaza Drive in Middletown, CT.
2. At all times relevant hereto, Defendants Carabetta and Bayberry had possession and control of the common areas of the apartment complex, including dumpsters provided by the Defendant, Dainty Rubbish Service, Inc., for the collection and removal of garbage, rubbish and other waste incidental to the occupancy of the apartment complex.
3. At all times relevant hereto, the Plaintiff Arthur Shail, was a 67-year-old tenant in the building located at 198 Plaza Drive, Middletown, CT.
4. On November 3, 2003, the Plaintiff entered into a written lease with Defendant Bayberry Crest Realty Company and/or with Defendant Carabetta Management
5. Pursuant to § 10 of said lease, entitled "Maintenance," the landlord agreed to: (1) regularly clean all common areas of the project; (2) maintain the common areas and facilities in a safe condition; (3) arrange for collection and removal of trash and garbage; and (4) maintain all equipment in safe and working order.
6. Pursuant to C.G.S. § 47a-7, a landlord shall: (1) Comply with the requirements of Connecticut law, and all applicable building and housing codes, materially affecting health and safety; (2) do whatever is necessary to keep the premises in a fit and habitable condition; (3) keep all common areas of the premises in a clean and safe condition; (4) maintain in good order and condition all sanitary facilities supplied, or required to be supplied, by the landlord; and (5) provide and maintain appropriate receptacles for the removal of garbage, rubbish and other waste incidental to the occupancy of the dwelling, and to arrange for their removal.
7. Pursuant to Paragraph 10 of said lease, entitled "Maintenance," the tenant agreed to use all equipment in a safe manner and only for the purposes for which they were intended; to not litter the grounds or common areas of the project; to remove garbage and other waste from the unit in a clean and safe manner; to keep the premises in a safe and sanitary condition, and to comply with all laws, health and management policy requirements with respect to said premises and appurtenances; and to save the landlord harmless from all fines, penalties and costs for violations or non-compliance with any laws, requirements or regulations, and from all liability arising out of any such. violations or non-compliance.
8. Pursuant to C.G.S § 47a-11, a tenant shall: Comply with all obligations imposed upon tenants by applicable provisions of any building or housing code materially affecting health and safety; remove from his dwelling unit garbage, rubbish and other wastes in a clean and safe manner to the place provided by the landlord pursuant to C.G.S. § 47a-7(a)(5), and use all sanitary and other facilities in the premises in a reasonable manner.
9. On October 29, 2006, just before 5:00 p.m., the Plaintiff left his apartment for the purpose of throwing his trash in a dumpster located in a common area of the apartment complex.
10. When the Plaintiff arrived at the dumpster, it was full and overflowing with garbage, rubbish and other waste generated by other tenants, and this condition had existed on many occasions prior to this date and time.
11. The Plaintiff reached up as far as he could to place his trash into the dumpster, as he was required to do by his lease.
12. As the Plaintiff attempted to place his trash in the overflowing dumpster, he was caused to lose his balance and fell to the ground with great force, suffering injuries more fully described herein.
13. The Plaintiff's injuries were caused by the negligence and carelessness of the Defendants, Carabetta Management Co. and/or Bayberry Crest Realty Company, in one or more of the following ways, in that said Defendants:
a. Allowed a defective and unreasonably dangerous condition to exist on the premises, which presented a hazardous and dangerous condition to users of the dumpster.
b. Allowed the condition of the dumpster to violate the plaintiff's lease, as well as the building and/or safety codes.
c. Allowed the dangerous condition of the dumpster to exist for an unreasonable period of time, yet no measures were taken to provide a larger dumpster sufficient for the number of tenants, as well as for the amount of trash generated by said tenants.
d. Allowed said defective and unreasonably dangerous condition to exist for such a period of time that the Defendants knew, or in the exercise of reasonable care should have known, of its existence, and yet failed to remedy and correct this condition.
e. Knew, or should have known, that someone was likely to fall attempting to place trash in the overflowing dumpster, but failed to correct and eliminate said condition.
14. As a result of the acts and omissions of the defendants, Catabetta Management Co. and Bayberry Crest Realty Company, in connection with the business of leasing properties, said defendants have violated the Connecticut Unfair Trade Practices Act (CUTPA), C.G.S. § 14-110a et seq.
15. As a result of the negligence and carelessness of the Defendants as aforesaid, the Plaintiff suffered the following symptoms, injuries, damages and losses, some of which are permanent, namely:
a. Light intertrochanteric hip fracture;
b. Surgery to install an intermadullary hip screw in his right hip;
c. Contusions and pain in his right knee, thigh and hip, and;
d. Pain, suffering and emotional distress.
16. As a further result of the negligence and carelessness of the Defendants, as aforesaid, the Plaintiff was required to spend substantial sums of money for ambulance; hospital, surgical, radiology, physical therapy-rehabilitation and home health care, and he will be required to spend additional sums of money for said care in the future.
17. As a further result of the negligence and carelessness of the Defendants, as aforesaid, the Plaintiff has been unable to engage fully in his customary activities.
On November 16, 2009, the defendant Carabetta Management Co. moved to strike counts II and III and on December 4, 2009, the plaintiff objected to such motion to strike.
A motion to strike one or more counts of a complaint challenges the legal sufficiency of each such cause of action. As set forth in Doe v. Yale University, 252 Conn. 641, 667, 668, 748 A.2d 834 (2000), and in Gazo v. Stamford, supra, 255 Conn. at 260-61, because the issue is one of legal sufficiency, this court's decision on a motion to strike is subject to plenary review on appeal, and the trial court must take the facts to be those alleged in the complaint and construe the complaint in the manner most favorable to sustaining its legal sufficiency:
"We begin by setting out the well established standard of review in an appeal from the granting of a motion to strike. Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court's ruling on the [plaintiff's motion] is plenary. See Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232-33, 680 A.2d 127 (1996) cert. denied, 520 U.S. 1103, 117 S.Ct. 1106, 137 L.Ed.2d 308 (1997) . . . We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. Bohan v. Last, 236 Conn. 670, 674, 674 A.2d 839 (1996); see also Mingachos v. CBS, Inc., 196 Conn. 91, 108-09, 491 A.2d 368 (1985). Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. Waters v. Autuori, 236 Conn. 820, 826, 676 A.2d 357 (1996). Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged. Clohessy v. Bachelor, 237 Conn. 31, 33 n. 4, 675 A.2d 852 (1996) . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Amodio v. Cunningham, 182 Conn. 80, 83, 438 A.2d 6 (1980). Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically . . . Edwards v. Tardif, 240 Conn. 610, 620, 692 A.2d 1266 (1997)." (Citation omitted; internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 667, 748 A.2d 834 (2000).
Gazo v. Stamford, supra, 255 Conn. at 260-61.
However, as the Supreme Court set forth in Gazo after acknowledging the foregoing, while the general rule is that the trial court must take the plaintiff's allegations at face value, that rule is not absolute:
Although ordinarily — indeed, in most cases — in reviewing a motion to strike, the court must take the plaintiff's allegations at face value, that rule is not absolute. We have, on occasion, looked beyond the specific language of a pleading to discern its real underlying basis. See, e.g., Allard v. Liberty Oil Equipment Co., 253 Conn. 787, 800, 756 A.2d 237 (2000) ("[the defendant] cannot . . . convert its apportionment claim against [the third party defendant] into something other than a product liability claim simply by alleging only negligent misconduct"). In our view, this is an appropriate case in which to pierce the pleading veil. Thus, in the present case, we look beyond the language used in the complaint to determine what the plaintiff really seeks. Just as "[p]utting a constitutional tag on a nonconstitutional claim will no more change its essential character than calling a bull a cow will change its gender"; State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982); putting a contract tag on a tort claim will not change its essential character . . .
Gazo v. Stamford, supra, 255 Conn. at 262-63. See also Flagg Energy Development Corp. v. General Motors Corp., 244 Conn. 126, 147-48, 709 A.2d 1075 (1998); Welton v. Ferrara, 2009 Ct.Sup. 6682, 6694-95, 47 Conn. L. Rptr. 655, No. CV-07-5014334 S, Judicial District of New Haven at New Haven (Keegan, J., April 9, 2009) and Heibeck v. Chrysler, LLC, 2008 Ct.Sup. 15457, 15460-61, 46 Conn. L. Rptr. 451, No. CV-07-5006908, Superior Court, Judicial District of Waterbury at Waterbury (Upson, J., September 24, 2008). Thus with respect to count II putting a contract tag on a negligence claim will not change its essential character as a negligence claim, and with respect to count III putting a CUTPA tag on a negligence claim also will not change its essential character as a negligence claim, especially based on the above pleadings.
Additionally in Gazo the Supreme Court pointed out that a judge's common sense is to be applied in evaluating a pleading:
. . . Common sense also informs us that the plaintiff's contract claim is in reality his negligence claim cloaked in contract garb. "It is an abiding principle of jurisprudence that common sense does not take flight when one enters a courtroom." State v. Zayas, 195 Conn. 611, 620, 490 A.2d 68 (1985) . . .
Gazo v. Stamford, supra, 255 Conn. at 266; see also Liberty Mut. Ins. v. Lone Star Indus., Inc., 290 Conn. 767, 803 fn 37, 967 A.2d 1 (2009).
The plaintiff's first, second and third counts are pled as negligence counts. Pelletier v. Galske, 105 Conn.App. 77, 79, 936 A.2d 689 (2007); Amendola Amendola, LLC v. Mayer, 2009 Ct.Sup. 15896, 15899-15900, No. CV08 5016870, Superior Court, Judicial District of Fairfield at Bridgeport (Arnold, J., October 1, 2009). The plaintiff may be able to allege legally sufficient counts setting forth claims for breach of lease and CUTPA, but he has not done so in the counts set forth above. The motion by the defendant Carabetta Management Co. to strike counts II and III is granted.