McAvoy v. Highgate Condominium Association, Inc.

Joseph McAvoy v. Highgate Condominium Association, Inc. et al.

No. UWYCV186041284S

Superior Court of Connecticut, Judicial District of Waterbury, Waterbury

January 15, 2020

UNPUBLISHED OPINION

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Gordon, Matthew D., J.

MEMORANDUM OF DECISION REGARDING MOTION TO STRIKE CROSS COMPLAINT ALLEGING COMMON-LAW INDEMNIFICATION AND BREACH OF CONTRACT (NO. 143)

Matthew Dallas Gordon, J.

This is a negligence action in which the plaintiff, Joseph McAvoy claims that he was injured on January 24, 2018, when he slipped and fell on an icy condition while walking from his condominium unit toward the parking area of the condominium complex owned, controlled, and possessed by the defendant Highgate Condominium Association, Inc. The plaintiff sued Highgate and Highgate’s property management company, CMPM Inc., as well as Highgate’s snow removal contractor, Brooks Landscaping, LLC, alleging that all three entities were negligent in several respects, including (1) exposing a pipe from which water flowed unabated; (2) failing to divert the water emanating from the pipe so that the water did not flow across the walkway and adjacent grassy area where the plaintiff allegedly fell; and (3) failing to apply adequate salt, sand, or any other abrasive material to the icy condition.

On September 30, 2019, Highgate and CMPM filed a six-count cross complaint against Brooks alleging common-law indemnification (counts one and four), breach of contract for failing to remediate the icy condition (counts two and five); and breach of contract for failing to maintain adequate general liability insurance coverage (counts three and six).

Brooks has now filed a motion to strike counts one and four of the cross complaint claiming that as an independent snow removal contractor it could not as a matter of law be found in exclusive control of either the property or the situation giving rise to the plaintiff’s injury to the exclusion of Highgate or CMPM. Brooks has also moved to strike counts two and five of the cross complaint claiming that its snow removal contract with Highgate did not require it to repair the pipe from which water was allegedly flowing, or to remove snow or ice from the grassy area where the plaintiff allegedly fell.

For the reasons explained, the motion to strike is denied.

I APPLICABLE LEGAL STANDARD

The rules applicable to ruling on a motion to strike are well settled. "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 ... 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 ... Because a motion to strike is essentially a procedural motion that focuses solely on the pleadings, a reviewing court cannot consider material outside of the pleading that is being challenged by the motion ... Nevertheless, [a] complaint includes all exhibits attached thereto." (Citations omitted; internal quotation marks omitted.) A.C. Consulting, LLC v. Alexion Pharmaceuticals, Inc., 194 Conn.App. 316, 325 (2019). "Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Citation omitted; internal quotation marks omitted.) Sempey v. Stamford Hospital, 194 Conn.App. 505, 511 (2019).

In ruling on a motion to strike, "[t]he role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff has] stated a legally sufficient cause of action." Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged ... 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 ... Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016).

II ANALYSIS

A Common-Law Indemnification

"To hold a third party liable to indemnify one tortfeasor for damages awarded against it to the plaintiff for negligently causing harm to the plaintiff, a defendant seeking indemnification must establish that: (1) the third party against whom indemnification is sought was negligent; (2) the third party’s active negligence, rather than the defendant’s own passive negligence, was the direct, immediate cause of the accident and the resulting harm; (3) the third party was in control of the situation to the exclusion of the defendant seeking reimbursement; and (4) the defendant did not know of the third-party’s negligence, had no reason to anticipate it, and reasonably could rely on the third party not to be negligent ... Our Supreme Court has defined exclusive control of the situation, for the purpose of a common-law indemnification claim, as exclusive control over the dangerous condition that gives rise to the accident." (Citations omitted; footnote omitted; internal quotation marks omitted.) Valente v. Securitas Security Services, USA, Inc., 152 Conn.App. 196, 204-05, 96 A.3d 1275 (2014).

The general rule is that questions involving exclusive control should not be resolved by a motion to strike because the issue of control generally presents a question of fact. Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 704, 694 A.2d 788 (1997). "Nonetheless, special circumstances may give rise to the question of whether, in light of the facts alleged in the third-party complaint, any reasonable juror could find that the third-party defendants had exclusive control of the situation. Under such circumstances, this issue becomes a question of law." Id., 705.

Brooks relies on Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003), for the proposition that "[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." Id., 498, quoting Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992). According to Brooks, its motion to strike should be granted because the cross complaint filed by Highgate and CMPM fails to allege any facts to support the claim that Brooks was in control of the situation to the exclusion of Highgate as the owner and occupier of the property, and CMPM as the property manager. The court does not find this argument persuasive for two reasons.

First, the language relied on by Brooks from Fort Trumbull appears to have received little attention, presumably because our Supreme Court has since clarified that in deciding whether to grant or deny a motion to strike, a trial court should construe the allegations of the challenged pleading broadly and realistically, rather than narrowly and technically. See Geysen v. Securitas Security Services USA, Inc., supra, 322 Conn. 385. Second, and more significantly, the court concludes that the cross complaint filed by Highgate and CMPM does include factual allegations sufficient to support a claim of common-law indemnification. For example, the cross complaint alleges that "Pursuant to the Contract, Brooks Landscaping was obligated to perform ongoing grounds maintenance and snow and ice removal services at the premises, including all areas surrounding Building A ." Cross Compl., counts one and four, ¶9. (Emphasis added.) The cross complaint further alleges that "Brooks Landscaping was in control of the situation (the allegedly dangerous icy condition that gave rise to the alleged fall) to the exclusion of Highgate [and CMPM]" and that "[i]f the plaintiff’s injuries and damages were caused by the negligence or carelessness of Highgate [and CMPM], which is denied, then it was Brooks Landscaping’s active negligence in failing to remediate the allegedly dangerous icy condition that was the direct and immediate cause of the plaintiff’s alleged fall and the resulting harm, rather than any passive negligence that may be attributed to Highgate [and CMPM]." Cross Compl., counts one and four, ¶¶17, 18. Finally, the cross complaint alleges that "Highgate [and CMPM] did not know of Brooks Landscaping’s negligence, if any, had no reason to anticipate such negligence, and reasonably could rely on Brooks Landscaping not to be negligent." Cross Compl., counts one and four, ¶19. The court finds these allegations, when combined with the other detailed factual allegations set forth in the cross complaint, establish a legally sufficient claim for common-law indemnification, especially when the court reads the allegations of the cross complaint broadly and realistically, rather than narrowly and technically, in accordance with Geysen v. Securitas Security Services USA, Inc., supra .

Brooks next contends that the common-law indemnification claims in counts one and four of the cross complaint must be stricken because the icy condition described in the plaintiff’s complaint did not result from snow, freezing rain and/or sleet, but instead resulted from water emanating from a broken underground pipe, a condition and situation that according to Brooks, no reasonable jury could find was within the exclusive control of Brooks as a snow removal contractor to the exclusion of the owner, occupier, and/or manager of the property.^[1] The court disagrees and concludes that although an owner or occupier of premises has a nondelegable...