200 Conn.App. 755
Conn. App. Ct.2020Background
- A child drowned in an aboveground pool at 86 Gelbas Road; plaintiff is administratrix of the child’s estate.
- Town building officials Robert Kerr and D. Kyle Collins issued a building permit without verifying required safety features (pool alarm; self‑closing/self‑latching gate) allegedly mandated by the State Building Code and § 29‑265a.
- Plaintiff alleged the town employees knew of the pool and its noncompliance, yet failed to inspect, asserting liability under the municipal liability statute (§ 52‑557n(b)(8)) for reckless or negligent failure to inspect.
- Defendants filed a notice of intent to apportion liability against the property owners (Prinks) and an apportionment complaint against former tenants (Guerins) claiming those third parties’ negligence contributed to the harm.
- Plaintiff objected, arguing her claim alleged reckless/intentional misconduct under § 52‑557n(b)(8) so the apportionment statute (§ 52‑572h(o)/§ 52‑102b) does not apply; the trial court sustained the objections and dismissed the apportionment filings.
- Defendants appealed; the appellate court reviewed whether the complaint alleged negligence (permitting apportionment) or only recklessness (barring apportionment) and whether the trial court properly dismissed for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether apportionment is barred because the complaint pleads recklessness under § 52‑557n(b)(8) | Costanzo argued complaint pleads reckless/intentional municipal tort; § 52‑572h(o) bars apportionment when liability rests on recklessness or other non‑negligent bases | Defendants argued the complaint also pleads the first exception to § 52‑557n(b)(8) (actual notice), which is a negligence standard, so apportionment is permitted | The court reversed: complaint alleged actual notice/negligent failure to inspect under the first exception, so apportionment may proceed |
| Whether the first exception of § 52‑557n(b)(8) requires recklessness or negligence | Costanzo contended both § 52‑557n(b)(8) exceptions require recklessness | Defendants maintained the first exception (actual notice of violation or hazard) is a negligence standard and does not require recklessness | Held: the first exception is a negligence‑based exception (no recklessness element); the second exception requires recklessness |
| Whether the trial court lacked subject matter jurisdiction in dismissing apportionment filings | Trial court effectively concluded it lacked jurisdiction because it found only recklessness alleged | Defendants argued the jurisdictional ruling was incorrect because the apportionment question is procedural/substantive and the complaint alleges negligence under the actual‑notice exception | Held: appellate court concluded the lack‑of‑jurisdiction dismissal was improper and remanded to permit apportionment proceedings |
Key Cases Cited
- Grady v. Sommers, 294 Conn. 324 (2009) (general rule that municipalities are immune from negligence liability unless abrogated by statute)
- Ugrin v. Cheshire, 307 Conn. 364 (2012) (§ 52‑557n(b)(8) creates two distinct exceptions to municipal immunity)
- Williams v. Housing Authority of Bridgeport, 327 Conn. 338 (2017) (recklessness standard and jury considerations for failure‑to‑inspect claims)
- Allard v. Liberty Oil Equipment Co., 253 Conn. 787 (2000) (apportionment principles: § 52‑572h does not apply where liability is based on non‑negligent theories such as recklessness)
- Snell v. Norwalk Yellow Cab, Inc., 332 Conn. 720 (2019) (reiterating limits on apportionment when liability rests on bases other than negligence)