255 Conn. 245 | Conn. | 2001
Opinion
The two principal issues in this appeal
The plaintiff, Michael Gazo, brought the underlying action against the defendants, the city of Stamford (Stamford), David Rednick and Chase Manhattan Bank, N.A. (Chase Bank).
The record reveals the following procedural history. The plaintiff allegedly suffered bodily injury when he slipped and fell on an icy and snowy sidewalk in Stamford on January 28, 1994. The plaintiff brought the underlying action against Stamford based on a statutory highway defect claim, and against Rednick and Chase Bank sounding in negligence, absolute public nuisance, and public nuisance arising out of negligence. The plaintiff alleged that Rednick and Chase Bank owed him a duty to keep the sidewalk clear of ice and snow, and that their failure to do so caused his injuries. Chase Bank filed an apportionment complaint against Piemi, and the plaintiff thereafter filed a substitute complaint against both the original defendants and against Piemi.
Piemi subsequently moved for summary judgment on (1) the apportionment complaint, and (2) the negligence count in the plaintiffs substitute complaint. The basis of the motion for summary judgment on both the apportionment complaint and on the plaintiffs negligence count in his substitute complaint against Piemi was that Piemi did not owe any duty of care to the plaintiff. Piemi also moved to strike the breach of contract count contained in the plaintiffs substitute complaint. The basis of the motion to strike was that the breach of contract count failed to allege that Piemi intended to assume a direct obligation to the plaintiff so as to render him a third party beneficiary of the contract. The trial court, Lewis, J., granted both the summary judgment motion and the motion to strike, concluding that “[t]he landlord’s duty to keep the premises safe cannot be delegated to a contractor obliged to remove snow and ice from the landlord’s premises.” The trial court, Kara-zin, J., subsequently rendered judgment on the motion to strike. This appeal followed.
I
We begin by delineating what is not at issue in this appeal. Because Chase Bank did not appeal from the rendering of judgment in favor of Piemi on the apportionment complaint, the propriety of that ruling is not before us. Thus, this appeal stands in the same proce
What is at issue is the question of whether Piemi owes a direct duty of care to the plaintiff based on Piemi’s contractual relationship with Chase Bank. In this context, however, not at issue is whether Piemi’s alleged duty is the same as that of Chase Bank. Implicit in the plaintiffs claim is that both Chase Bank and Pierni breached the same duty, and in the same way or ways. This is implicit in the plaintiffs allegations of negligence against Piemi,
We conclude that Piemi owed a direct duty of care to the plaintiff. First, the relationship between Piemi’s alleged negligence and the plaintiffs injuries is direct, and well within the scope of foreseeability. Piemi contracted to remove ice and snow from the sidewalk in front of Chase Bank in order for the area to be safe for pedestrians such as the plaintiff. Although the duty owed to the plaintiff cannot extend beyond the scope of foreseeability, “the potential for harm from a fall on ice was significant and foreseeable.” Burns v. Board of Education, 228 Conn. 640, 650, 638 A.2d 1 (1994). It is also reasonable to conclude that an ordinary person in Piemi’s position, knowing what he knew or should
Second, there are valid public policy reasons for holding Piemi responsible for his conduct. Piemi’s liability to the plaintiff fits comfortably within the general rale that every person has a duty to use reasonable care not to cause injury to those whom he reasonably could foresee to be injured by his negligent conduct, whether that conduct consists of acts of commission or omission. See, e.g., Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 633, 749 A.2d 630 (2000) (“[t]he ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised”); Coburn v. Lenox Homes, Inc., 186 Conn. 370, 375, 441 A.2d 620 (1982) (“[a] duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act”). There is no question that Piemi had a duty to Chase Bank under their contract to perform its contractual duties in a reasonable manner so as to prevent injury to persons using the sidewalk. It is not an unreasonable extension of that duty to go beyond Chase Bank to include those members of the public, like the plaintiff, who are injured by the breach of that duty.
In this connection, we note that in some circumstances, we have, for persuasive policy reasons, limited the reach of duties so as to preclude certain foreseeable victims from being able to recover for their breach. For example, “[o]ur common-law cases have shielded
Third, § 324A of the Restatement (Second) of Torts recognizes such a duty as a matter of policy.
In this case, Piemi contracted to perform ice and snow removal services for Chase Bank, which had a nondelegable duty to keep its premises safe. Ice and snow removal is a type of service that is undertaken in contemplation of protecting third persons, and injuries resulting from a slip and fall are foreseeable. See Burns v. Board of Education, supra, 228 Conn. 650. Under § 324A (b) of the Restatement (Second) of Torts, Piemi is subject to liability to the plaintiff for his physical injuries if the plaintiff can show that Pierni failed to exercise reasonable care when performing the duty owed by Chase Bank to the plaintiff.
Fourth, we already have adopted an analogous duty in constmction cases. See, e.g., Coburn v. Lenox Homes, Inc., 173 Conn. 567, 378 A.2d 599 (1977); Zapata v. Burns, 207 Conn. 496, 542 A.2d 700 (1988). In Coburn, a contractor was held liable to a subsequent purchaser of a house in which the contractor had installed a faulty septic system. Cobum v. Lenox Homes, Inc., supra, 569. We determined that privity was not a requirement to sustain the plaintiffs tort action. Id., 574. Moreover, we stated that “ [i]t is clear that a defectively constructed house is likely to result in damage to the owner and there is no reason why the [contractor] should not be liable for the effects of his negligence if they were
Piemi contends that, as a matter of policy, imposing liability as the plaintiff advocates would be too burdensome because independent contractors would be liable to innumerable third parties, thereby creating a disincentive to contractors from doing this kind of business. Although we agree that contractors may be hable to parties whom they could not have necessarily identified specifically when entering into the original contract, they always have had a duty to perform their work in a nonnegligent manner, and our conclusion does no more than to hold contractors liable to those parties foreseeably injured by their negligence. We are not persuaded, therefore, that extending their liability to such parties will drive contractors out of business. A more likely possibility is that it may simply increase the cost of doing business, which presumably contractors may pass on to their customers.
In this connection, Piemi also argues that liability should remain with the party most able to absorb the
Piemi also argues that the plaintiff cannot prevail under § 324A of the Restatement (Second) of Torts because he cannot prove that “his failure to exercise reasonable care increase[d] the risk of harm,” or that “the harm is suffered because of reliance of the other or the third person upon the undertaking.” Thus, Piemi focuses on subsections (a) and (c) of § 324A of the Restatement (Second) of Torts. See footnote 5 of this opinion. Piemi, however, has failed to address why § 324A (b) does not provide relief for the plaintiff.
Pierni argues further that the nondelegable duty doctrine precludes the plaintiff from being able to sue an independent contractor for its negligence because the nondelegable duty doctrine means that the property possessor is the only party that may be held liable for injuries sustained on the property. We disagree.
We agree with Pierni that the nondelegable duty doctrine means that the party with such a duty—in this case, Chase Bank—may not absolve itself of liability by contracting out the performance of that duty. Both the Appellate Court and courts of other jurisdictions have held that the nondelegable duty doctrine means that a party may contract out the performance of a nondelegable duty, but may not contract out his ultimate legal responsibility. See Ray v. Schneider, 16 Conn. App. 660, 665, 548 A.2d 461, cert. denied, 209 Conn. 822, 551 A.2d 756 (1988) (“an employer may not contract away his liability to the general public for harm
Contrary to Piemi’s suggestion, however, it is not a necessary implication of the nondelegable duty doctrine that the contractor to whom the performance of the duty has been assigned may not, under appropriate circumstances, also owe the same duty to a party injured by its breach. Piemi has not cited any cases for this proposition. In addition, both § 324A (b) of the Restatement (Second) of Torts and those cases decided elsewhere; see, e.g., Petition of Alva S.S. Co., Ltd., 616 F.2d 605, 610 (2d Cir. 1980); U.S. Security Services Corp. v. Ramada Inn, Inc., supra, 665 So. 2d 270; Brooks v. Hayes, supra, 133 Wis. 2d 247; suggest otherwise. Moreover, we see no persuasive policy reasons to attach such an implication to the doctrine as a matter of law. Instead, we view the nondelegable duty doctrine as involving a form of vicarious liability, pursuant to which the party with the duty may be vicariously hable for the conduct of its independent contractor. That vicarious liability, however, does not necessarily preclude liability on the part of the independent contractor.
Under the general rule, an employer is not hable for the negligence of its independent contractors. Douglass v. Peck & Lines Co., 89 Conn. 622, 627, 95 A. 22 (1915); W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 71, p.
Thus, the nondelegable duty doctrine simply does not address whether the person to whom the performance of the duty has been delegated—in this case Pierni—may not also be liable. That is a question that must be addressed, as we have, by analyzing it under our established jurisprudence regarding tort duties.
Pierni also contends that “[i]f we accept [the] plaintiffs reasoning in this case, both [Chase Bank] and [Pierni] are jointly liable to the plaintiff for the same failure to maintain the property.” We disagree. Our analysis of Piemi’s liability to the plaintiff is consistent with
II
The plaintiff next claims that the trial court improperly struck the ninth count of his substitute complaint, in which he had alleged that he was a third party beneficiary of the contract between Chase Bank and Piemi.
We first consider a procedural claim made by the plaintiff, namely, that the trial court improperly granted the motion to strike on a ground not raised in the motion. We reject his claim. It is true, as the plaintiff suggests, that the trial court granted both the summary judgment motion and the motion to strike on the common ground of the nondelegable duty doctrine, which was a ground raised only in the summary judgment motion. It is also true, moreover, that the basis for the motion to strike was that the substitute complaint failed to allege sufficiently that Piemi had intended to assume a direct obligation to the plaintiff so as to render him a third party beneficiary of the contract.
We conclude, however, that under these circumstances, it is appropriate for us to consider the propriety of the grounds asserted in the motion to strike. “Although grounds other than those specified should not be considered by the trial court in passing upon a motion to strike . . . where the trial court sustains a motion to strike on erroneous grounds, if another ground is appropriate, the granting of the motion will be upheld by this court. ... Of course, the alternative ground must have been alleged in the motion to strike in some form.” (Citations omitted.) Morris v. Hartford
We next consider the plaintiff’s substantive contention, namely, that he pleaded sufficient facts to survive a motion to strike. “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 [plaintiffs 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, 108-109, 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. . . .
“The law regarding the creation of contract rights in third parties in Connecticut is . . . well settled. In Knapp v. New Haven Road Construction Co., 150 Conn. 321, 325, 189 A.2d 386 (1963), we quoted Colonial Discount Co. v. Avon Motors, Inc., 137 Conn. 196, 201, 75 A.2d 507 (1950), and reaffirmed that [t]he ultimate test to be applied [in determining whether a person has a right of action as a third party beneficiary] is whether the intent of the parties to the contract was that the promisor should assume a direct obligation to the third party [beneficiary] and . . . that intent is to be determined from the terms of the contract read in the light of the circumstances attending its making, including the motives and purposes of the parties. . . . Although we explained that it is not in all instances necessary that there be express language in the contract creating a direct obligation to the claimed third party beneficiary; Knapp v. New Haven Road Construction Co., supra, 326; we emphasized that the only way a contract could create a direct obligation between a promisor and a third party beneficiary would have to be, under our rule, because the parties to the contract so intended. Id.; see also Congress & Daggett, Inc. v. Seamless Rubber Co., 145 Conn. 318, 324, 142 A.2d 137 (1958); Pavano v. Western National Ins. Co., 139 Conn. 645, 648, 96 A.2d 470 (1953); Colonial Discounl Co. v. Avon Motors Inc., supra, 200; Byram Lumber & Supply Co. v. Page, 109 Conn. 256, 260, 146 A. 293 (1929).
“The requirement that both contracting parties must intend to confer enforceable rights in a third party rests, in part at least, on the policy of certainty in enforcing contracts. That is, each party to a contract is entitled to know the scope of his or her obligations thereunder.
We acknowledge that the plaintiff used language that ordinarily would be sufficient to plead a third party beneficiary cause of action. The plaintiff alleged that he was a customer of Chase Bank, that Chase Bank and Piemi “entered into the contract for the express purpose of making the sidewalk ... to the bank safe for . . . customers of the bank,” and that he is “a third party beneficiary of the aforesaid contract in that the parties thereto intended to create a direct benefit to business invitees such as the [p]laintiff . . . Nonetheless, despite the specificity of these allegations and the established standard of review thereof, we conclude that, as a matter of law, the plaintiff may not be considered a third party beneficiary of the contract between Chase Bank and Piemi. Put another way, the liability of Piemi to the plaintiff, if any, is based on principles of tort law, and the plaintiff may not convert that liability into one sounding in contract merely by talismanically invoking contract language in his complaint.
Although ordinarily—indeed, in most cases—in reviewing a motion to strike, the court must take the plaintiffs allegations at face value, that mle 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
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. An action in contract is for the breach of a duty arising out of a contract; an action in tort is for a breach of duty imposed by law. “[W]hen the claim is one for personal injury, the decision usually has been that the gravamen of the action is the misconduct and the damage, and that it is essentially one of tort, which the plaintiff cannot alter by his pleading.” W. Prosser, Torts (3d Ed. 1964) § 94, pp. 642-43. It is clear that the gravamen of the plaintiffs third party beneficiary contract theory is in reality a tort arising out of a contract. “It is true, of course, that out of a contractual relationship a tort liability, as in negligence, may arise.” Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 410, 207 A.2d 732 (1965); see also Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 475, 427 A.2d 385 (1980) (“[t]he argument that contract rights . . . may yet give rise to liability in tort ... is not a novel one”). This is manifest from the fact that the plaintiffs allegations of liability
The plaintiff is seeking compensation for injuries suffered from a fall on ice and snow, purportedly because of Piemi’s negligence. The recovery the plaintiff seeks for his personal injuries is generally understood as tort damages. Although the duty between Pierni and the plaintiff may have arisen because of the contract between Chase Bank and Pierni for snow and ice removal, the plaintiff is not seeking damages for that breach, but rather for Piemi’s negligence in the performance of the contract.
In light of these circumstances, it simply would not make sense to permit the plaintiff to recover under a contract theory. “The general rule of damages in a breach of contract action is that the award should place
Putting the plaintiff in as good a position as he would have been in had the contract been performed would not compensate this plaintiff. The usual recovery for breach of a contract is the contract price or the lost profits therefrom. See, e.g., Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 32, 662 A.2d 89 (1995) (“[t]his court has consistently applied the general damage formula of Hadley v. Baxendale [9 Ex. 341, 354, 156 Eng. Rep. 145 (1854)] to the recovery of lost profits for breach of contract”); Loda v. H. K. Sargeant & Associates, Inc., 188 Conn. 69, 82, 448 A.2d 812 (1982) (“ ‘[t]he measure of damages for breach of contract of sale is the difference between the contract price and the value of the property at the time of the breach of the contract’ ”); Kunian v. Development Corp. of America, 165 Conn. 300, 315, 334 A.2d 427 (1973) (“its complaint . . . stated an action on the contract and that as a result the measure of damages is the contract price”).
The plaintiff does not seek the contract price paid by Chase Bank for the work done by Piemi or any lost profits. Instead, the plaintiff seeks recovery for his physical and mental pain and suffering, lost wages and medical bills resulting from Pierni’s negligence. Although contract damages ordinarily consist of consequential losses; see, e.g., General Statutes § 42a-2-715 (2); Tolland Enterprises v. Scan-Code, Inc., 239 Conn. 326, 332, 684 A.2d 1150 (1996) (“a breach of the accord by the plaintiff entitled the defendant to specific performance of the accord and any consequential damages”); 3 Restatement (Second), Contracts § 347 (b) (1981); they ordinarily do not encompass such losses as pain
Furthermore, as the plaintiff candidly admitted in oral argument before this court, the only practical difference between the plaintiffs negligence and contract claims is that different statutes of limitations would apply to the two claims. The law should not permit him to recast what is essentially a tort claim as a contract claim solely to gain the potential advantage of a longer statute of limitations.
Common sense also informs us that the plaintiffs 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). Although, as a matter of law, a duty to the plaintiff may be imposed on Piemi, it simply defies common sense and reality to think that, despite the plaintiff’s allegation, Chase Bank and Piemi, when they formed their contract, actually intended that every passerby on the sidewalk would be a party to that contract. In sum, where, as in this case, the plaintiffs allegations of both liability and damages sound in tort, and the only practical effect of permitting a contract claim to lie would be to extend the tort statute of limitations, and common sense strongly counsels otherwise, the plaintiff may not be permitted to transform his tort claim into a contract claim merely by alleging that it is such a claim.
Policy considerations also guide our decision. The plaintiff relies on the concepts of foreseeability and business invitee status to substantiate his claim that he was an intended beneficiary of the contract. Our conclusion that the plaintiff has a tort claim of action under § 324A (b) of the Restatement (Second) of Torts
The plaintiffs position also would extend contract obligations far beyond reasonable expectations. The plaintiff argues that service contracts that benefit the public are enforceable by members of the public as intended third party beneficiaries. Limiting the group of intended beneficiaries to “business invitees,” as the plaintiff suggests, however, would be arbitrary. We can see no reason why, on the facts of this case, a service contract like the one between Chase Bank and Piemi, namely, to keep a sidewalk clear of ice and snow, rationally could be construed as intended to benefit only those pedestrians who happen to be customers of the bank, but not pedestrians who happen to walk by the bank. Thus, the plaintiffs claim asks a fact finder to construe such a contract as intended to benefit an unusually broad category of third party beneficiaries. Absent a truly compelling reason why contract liability should be so expanded, we decline to do so.
The plaintiff also relies on 2 Restatement (Second), Contracts § 313, illustration (5) (1981).
The judgment is reversed with respect to the granting of the summary judgment motion on the plaintiffs substitute complaint alleging negligence against Piemi and the case is remanded for further proceedings according to law; the judgment is affirmed with respect to the granting of the motion to strike the plaintiffs third party beneficiary breach of contract claim against Piemi.
In this opinion the other justices concurred.
The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-2.
Rednick was the record owner of the property abutting the sidewalk where the plaintiff fell. Chase Bank was the tenant in possession of the property abutting the sidewalk where the plaintiff fell. Neither Stamford, Rednick nor Chase Bank is a party to this appeal.
The plaintiffs allegations of negligence against Pierni are that Pierni’s “obligation to maintain the sidewalk” free of ice and snow arose pursuant to a contract with Chase Bank, and the plaintiffs specifications of negligence against Piemi are identical to those he makes against Chase Bank.
This point bears some emphasis, because it may well be that, depending on the nature and scope of Piemi’s contractual undertaking with Chase Bank, the plaintiff may not be able to establish successfully Piemi’s breach of Chase Bank’s duty of care to the plaintiff. Thus, for example, at one end of the liability spectrum, if Piemi’s contractual undertaking was simply to clear the premises of ice and snow reasonably soon after a snowstorm ended—a typical, albeit not exclusive contractual undertaking of a snow plowing contractor—and the plaintiffs slip and fall resulted from a subsequent thawing and refreezing hours later, presumably Piemi would not be liable to the plaintiff, although Chase Bank might well continue to be liable. At the other end of the spectrum, according to the plaintiff’s claim against Piemi, if Piemi’s contractual undertaking had been to perform the entirety of Chase Bank’s duty to keep its premises safe, then presumably Piemi would be liable in such an instance. There are, of course, numerous points
Section 324A of the Restatement (Second) of Torts provides: “Liability to Third Person for Negligent Performance of Undertaking
“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
“(a) his failure to exercise reasonable care increases the risk of such harm, or
“(b) he has undertaken to perform a duty owed by the other to the third person, or
“(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.” Only § 324A (b) is involved in this case.
We need not, and do not, consider whether the same conclusion should apply when the service is performed without consideration or in a noncommercial context.
In count nine of the plaintiffs substitute complaint, paragraph thirteen, the plaintiff alleged that Pierni was liable because: “The Plaintiffs injuries and damages were caused by the negligence or carelessness of the defendant or its agents, servants or employees in one or more of the following respects: (a) In that they caused or allowed, and permitted the sidewalk to be and remain in a dangerous, defective, and unsafe condition; (b) In that they caused or allowed and permitted the sidewalk to be and remain covered with large mounds of old ice and snow, when the same was dangerous to the plaintiff and others; (c) In that they caused, allowed and permitted the sidewalk area to be blocked with an accumulation of ice and snow, when
In count nine of the plaintiffs substitute complaint, paragraphs seven through twelve, the plaintiff alleged the following damages: a right leg fracture; blood clots; severe shock to his entire nervous system; severe physical, mental and emotional distress; extreme pain and suffering; depression; lethargy; loss of appetite; nervousness; fear of death; embarrassment; limitation of activities; inconvenience; disability; limitation of motion; the inability to perform household, recreational and normal duties, activities and functions; lost wages; permanent partial destruction of earning capacity; fear of future medical complications; and the expenditure of money, and possible future expenditures, for medical care and treatment, physical therapy, hospitalization, surgical care and treatment, therapeutic care and treatment, pharmaceutical expenses, medical devices, ambulatory care, radiological treatment and diagnostic treatment.
Illustration (5) of § 313 of the Restatement (Second) of Contracts provides: “A, a municipality, owes a. duty to the public to keep its streets in repair. B, a street railway company, contracts to keep a portion of these streets in repair but fails to do so. C, a member of the public, is injured thereby. He may bring actions against A and B and can recover judgment against each of them.”