Costanzo v. Town of Plainfield

344 Conn. 86

277 A.3d 772

Malisa COSTANZO, Administratrix (Estate of Isabella R. Costanzo), et al.

v.TOWN OF PLAINFIELD et al.

SC 20537

Supreme Court of Connecticut.

Argued December 17, 2021

Officially released July 19, 2022

Stephen M. Reck, North Stonington, for the appellants (plaintiffs).

Ryan J. McKone, North Haven, for the appellees (defendants).

Robinson, C.J., and McDonald, D'Auria, Mullins, Kahn and Ecker, Js.

MULLINS, J.

The apportionment statute, General Statutes § 52-572h, allows a party sued for damages resulting from personal injury, death or property damage caused by that party's negligence to file an apportionment complaint against additional parties, not named as defendants in the plaintiff's lawsuit, whose negligence caused the alleged losses. The statute expressly prohibits apportionment claims between a party liable for negligence and a party liable, among other things, "pursuant to any cause of action created by statute, except that liability may be apportioned among parties liable for negligence in any cause of action created by statute based on negligence ...." General Statutes § 52-572h (o).¹ The central issue in this certified appeal is whether the apportionment statute, by this language, permits municipal defendants whose liability is based on General Statutes § 52-557n (b) (8) to file an apportionment complaint sounding in negligence.

Section 52-557n (b) (8) renders municipal actors liable for damages and injuries that occur due to the failure to inspect or the negligent or inadequate inspection of property if (1) the municipality had notice of a hazard or violation of law (first exception), or (2) the act or omission "constitutes a reckless disregard for health or safety under all the relevant circumstances" (second exception).

Resolution of this appeal thus requires us to consider whether a claim brought under § 52-557n (b) (8) is a "cause of action created by statute based on negligence," such that apportionment is allowed under § 52-572h (o). As we explain herein, because § 52-557n (b) (8) expressly abrogates the common-law doctrine of municipal immunity, and because the first exception thereunder allows for a cause of action that we determine is based on negligence, we conclude that claims brought pursuant to that exception do qualify for apportionment.

The named plaintiff, Malisa Costanzo, the administratrix of the estate of the decedent, Isabella R. Costanzo, brought claims against the defendants, the town of Plainfield (town), and two of its employees, Robert Kerr and D. Kyle Collins, Jr., under § 52-557n (b) (8), stemming from the drowning of the decedent in a pool located on privately owned property in the town.² Thereafter, the defendants filed a notice of intent to seek apportionment against the owners of the property where the pool was located and an apportionment complaint against the former tenants of the property, who had the pool constructed. The plaintiff objected to the defendants’ efforts to seek apportionment, claiming that her complaint set forth a cause of action alleging recklessness or an intentional act under § 52-557n (b) (8), rather than negligence, and, therefore, that the apportionment statute did not apply. The trial court agreed and concluded that, "[i]f the defendants are found liable to the [plaintiff] on [the basis of] the [plaintiff's operative] revised complaint, it will be for reckless disregard for health [or] safety under all relevant ... circumstances, not for negligence." (Internal quotation marks omitted.) Therefore, the trial court issued orders sustaining the plaintiff's objections and dismissing the defendants’ apportionment complaint and notice of intent to seek apportionment. The defendants appealed to the Appellate Court, and that court reversed the orders of the trial court, concluding that the plaintiff's claims under § 52-557n (b) (8) fell within the first exception, which it held to incorporate a negligence standard. See Costanzo v. Plainfield , 200 Conn. App. 755, 770, 239 A.3d 370 (2020). Consequently, the Appellate Court determined that § 52-572h (o) authorizes apportionment in connection with such claims. See id. We agree with the Appellate Court and, accordingly, affirm its judgment.

The following facts and procedural history, as set forth in the opinion of the Appellate Court; see id., at 757–63, 769–70, 239 A.3d 370 ; are relevant to this appeal. "The plaintiff alleged the following facts in her revised complaint dated August 28, 2018. The decedent drowned in an aboveground pool located at 86 Glebas Road in [the town] on June 22, 2016. At all relevant times, the town employed Kerr as a licensed building official and Collins as a licensed assistant building [official]. One of their employment duties was to inspect all pools constructed in the town to ensure compliance with the [Connecticut] State Building Code [building code]. See, e.g., General Statutes § 29-261 [b].³ The defendants issued a building permit for this aboveground swimming pool on July 25, 2013; however, Kerr and Collins, in violation of General Statutes § 29-265a,⁴ issued that permit without having determined if a pool alarm had been installed. The plaintiff further alleged that the [building code]⁵ required the installation of a self-closing and self-latching gate for all new pools and that Kerr and Collins had failed to ensure the installation of such a gate prior to issuing the building permit. The purpose of these safety features was to prevent children from drowning." (Footnotes in original.) Costanzo v. Plainfield , supra, 200 Conn. App. at 757–58, 239 A.3d 370. The plaintiff also alleged that "Kerr and Collins were aware that a pool had been constructed at 86 Glebas Road," that the pool could be seen from the public road that Kerr and Collins travelled on frequently, and that "they could see that a self-closing and self-latching gate had not been installed ...." Id., at 769–70, 239 A.3d 370.

"The plaintiff further alleged that Kerr and Collins were aware of these requirements and that they knew, or should have known, that an inspection of new pools was necessary to ensure compliance with these safety requirements. Finally, the plaintiff alleged that neither Kerr nor Collins had inspected or attempted to inspect the property to ensure that a pool alarm and a self-closing and self-latching gate had been installed.

"On July 27, 2018, prior to the filing of the [plaintiff's] revised complaint, the defendants moved for an order directing the plaintiff's counsel to provide a copy of the release agreement between the plaintiff and the owners of 86 Glebas Road, Jeanna Prink and Bruce Prink (Prinks).⁶ The [trial] court, Auger , J. , granted the defendants’ motion on August 23, 2018.

"On October 19, 2018, the defendants filed a notice of their intent to claim that the negligence of the Prinks was a proximate cause of the injuries claimed in the plaintiff's action against the defendants.

See General Statutes § 52-102b (c).⁷ Specifically, the defendants maintained that, as the owners of the property, the Prinks bore the responsibility for ensuring compliance with any requirements of the [building code], and that the Prinks had failed (1) to schedule an inspection of the pool by the defendants, (2) to obtain a certificate of occupancy for the pool, and (3) to prevent their tenants from using the pool [in the absence of] a certificate of occupancy.

The defendants further noted that the plaintiff had rented the property in November, 2014, and that the Prinks knew that four minor children would be living on the property. [In addition], the defendants set forth the instances of the Prinks’ negligence, including the failure to notify the town of the [completed] construction of the pool, the failure to seek an inspection, the failure to obtain a certificate of occupancy and the failure to warn the plaintiff of these omissions. Finally, the defendants contended that the Prinks could be liable for a proportionate share of the damages alleged in the [revised] complaint.

"A few days later, the defendants filed an apportionment complaint, pursuant to § 52-102b [a],⁸ against Eric Guerin and Merissa Guerin (Guerins), former tenants of the Prinks who occupied the property in 2013 at the time the pool was built. In this one count apportionment complaint, the defendants alleged that the Guerins had prepared and submitted the application for the construction of the aboveground pool to the town. The defendants further claimed that the Guerins specifically were advised that the pool was required to have a self-closing and self-latching gate, that an inspection was necessary at the completion of the construction and that Eric Guerin had submitted an affidavit ‘[in which] he attested that he would install a [pool alarm].’ The defendants alleged that the Guerins failed to notify them that the pool had been constructed and thus that an inspection was needed. The defendants alleged that these actions amounted to negligence and, additionally, the Guerins negligently failed to obtain a certificate of occupancy for the aboveground pool and failed to notify the Prinks that (1) the aboveground pool did not comply with the requirements of the building code, (2) the town and its officials had not been notified of its [completed] construction or the need for an inspection, and (3) there was no certificate of occupancy. In conclusion, the defendants claimed that the Guerins could be liable for a proportionate share of the damages alleged in the plaintiff's complaint.

"On October 22, 2018, the plaintiff filed an objection to the defendants’ notice of intent to seek apportionment as to the Prinks. The plaintiff argued that her [revised] complaint set forth a statutory cause of action pursuant to ... § 52-557n (b) (8) alleging recklessness [or intentional conduct], and that the apportionment statute ... § 52-572h (o) ... applied only to claims of negligence. On October 25, 2018, the plaintiff filed a...