Opinion
No. CV03-0520066S
June 23, 2003
MEMORANDUM OF DECISION
The plaintiff brings this suit for injuries he claims to have received when boiling water spilled on him, as he attempted to provide an alternative to the hot water service that the defendant landlord allegedly failed to provide. The defendant has moved to strike each count of the plaintiff's revised complaint. Practice Book § 10-39. "The role of the trial court [is] to examine the [complaint], construed in favor of the plaintiffs, to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378 (1997); Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003).
Suits of this nature are quite common. See Annotation, 63 A.L.R.4th 883.
Turning to count one, the defendant contends that the complaint is defective because the plaintiff is described as the "significant other" of the lessee, and is not the lessee himself. It is contended that he lacks the proper standing to sue the landlord for his alleged injuries. The complaint does allege that the plaintiff is a tenant, however. Complaint, paragraphs 7, 14(a), (c). This is a sufficient allegation to survive the motion to strike. A tenant has been defined in the Landlord-Tenant Act to include a person who has the right to occupy the unit. See General Statutes § 47-1; Fitzpatrick v. Scalzi, 72 Conn. App. 774 (2002). The plaintiff has properly alleged this status in the complaint; therefore the defendant's motion to strike is denied as to the first count.
The defendant further contends that the second count is defective as it does not sufficiently allege recklessness. The recklessness of a landlord would require a state of mind that was indifferent to the safety of others and to the consequences of his actions. It is highly unreasonable conduct, an extreme departure from ordinary care, and a situation where a high degree of danger is apparent. It is not mere inattentiveness or ignorance. Craig v. Driscoll, 262 Conn. 312, 342, 343 (2003) (tavern owner serving intoxicated patron knowing he will soon be driving an CT Page 7394-ax automobile).
The plaintiff here has alleged that he informed the landlord about the hot water problem, caused by a defective furnace, that the landlord had made ineffective attempts to repair the furnace and that he was generally aware of the difficult situation of the tenants. He has not alleged, however, that the defendant knew that the tenants were forced to boil water on the stove and carry it to the bathroom. This count as pleaded does not allege the level of recklessness necessary to defeat the motion to strike, and the court grants the motion as to count two.
Count three alleges that the defendant has breached the lease by not providing hot water. The problem with this count is that the plaintiff has not alleged that he is seeking damages for breach of contract, but for his personal injuries. The Connecticut Supreme Court has emphasized that there is a distinction between contract damages for breach of a covenant of a lease and damages for the tort of negligence. Reynolds v. Land Mortgage and Trust Co., 114 Conn. 447 (1932); see also Hansen v. Huntington Realty, Inc., Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. CV 94 0539334 (January 25, 1994, Hennessey, J.).
A breach of the covenant to provide heat and hot water does not at common law give rise to tort damages. Revell v. Illinois Merchants Trust Co., 238 Ill. App. 4 (1925). The normal measure of damages for the breach of a covenant to furnish hot water is the difference between the rental value for the lease term as contracted and the rental value in its actual condition. Brewington v. Loughran, 112 S.E. 257 (N.C. 1922). The covenant to furnish hot water may be contrasted with a covenant to keep the premises in repair, where more recent decisions have allowed for tort damages. See Dial v. Mihalic, 438 N.E.2d 546 (Ill.App. 1982).
Therefore the court grants the motion to strike the third count.
BY THE COURT
Cohn, J.