1999 Conn. Super. Ct. 12154 | Conn. Super. Ct. | 1999
The defendant Rhoades has now filed a motion for summary judgment claiming as a matter of law there is no liability on his part to the plaintiff because he owed no duty to the plaintiff. This motion really is addressed to the pleadings and their legal sufficiency. The plaintiff responds to the legal issue raised by the defendant Rhoades and says Rhoades did in fact owe a duty of reasonable care to the plaintiff and those in like situation because of Rhoades's "affirmative undertaking to perform work on the property where the plaintiff was injured." The standards to be applied on summary judgment are well known. Factual issues if dispositive cannot be resolved by the court. But neither party has filed documents, affidavits or depositions in this matter and the court will give the complaint that factual reading which is most favorable to the plaintiff's position.
To support its position, the defendant has referred to several cases that stand for the proposition that where a plaintiff falls and is injured on ice and snow, the person in possession and control of the premises cannot bring in for apportionment purposes the person or company it hired for snow and ice removal. Fullerton v. Wawa, Inc. 1998 WL 918014; Princev. Waldbaums, 1998 WL 811388; Fuda v. Judd Square Associates, 1997 WL 536286; Wood v. Chalet Suisse International, 1995 WL 317058;Lobovitz v. Nemeth, 1998 WL 175948; Brancero v. Thames RiverAssoc., 1998 WL 886552; Stockton v. Corporate Center WestAssociates, 1997 WL 80661.
It is true that several of these cases base their position on the view that since a snow removal contractor does not owe a duty to the injured plaintiff, the contractor cannot be brought in for apportionment purposes — after all, the defendant in possession and control of the premises has a non-delegable duty to keep the premises safe. The court agrees only with the result reached by these cases. It is in fact true that a party in possession and control of premises has a non-delegable duty to persons injured on those premises, "the possessor is ordinarily the party responsible for the reason that the person in possession is in a position of control and is best able to prevent harm."Connecticut Law of Torts, Wright, Fitzgerald, Ankerman, § 46, Page 108, cf Mark v. Clinch,
It is for this reason that the court believes snow removal contractors cannot be brought in for apportionment purposes. It is not necessary to reach this position to say that because the party in possession and control has a non-delegable duty that cannot be apportioned, no other party can be subject to suit or be found to have a "duty" to an injured person — they are two analytically distinct questions.
The only result of saying that the possessor of land has a duty to an injured party that cannot be apportioned and that a CT Page 12157 person or entity hired by the possessor of the land to remove snow also has such a duty would be that the injured party would have a claim against either.
That is, whether the party hired to perform snow removal has a duty to the injured party is a separate question of substantive law having nothing to do with the non-delegable duty that is owed by the possessor of the land to that injured party.
The question here then is what does the present substantive law say about the duty of an independent contractor to an injured party — or more exactly, a party injured in the manner set forth in the complaint.
The traditional rule in this area was set out in Bogoratt v.Pratt Whitney Aircraft Co.,
"Where the work of an independent contractor is completed, turned over to, and accepted by the owner, the contractor is not liable to third persons for damages or injuries subsequently suffered by reason of the condition of the work, even though (the independent contractor) was negligent in carrying out the contract."
As noted in Minton v. Krish,
As Minton points out, Coburn v. Lenox Homes, Inc.,
The court in Coburn said the privity requirement should only apply to contract actions and not claims based on tort. Id., 574. The court implicitly rejected the theory of control in Coburn. The contractor had completed his work two years before the CT Page 12158 plaintiff in that case bought the house in which he was injured and five years before the contractor was held liable for negligence. See Minton,
The Coburn court and Minton rejected also the third reason for the traditional rule. As Minton said at 34 Conn. App. at page 366:
"Coburn repudiated the theory of knowledge and acceptance that supported the rule . . . an owner would no longer be charged with knowledge and acceptance of a contractor's negligence."
But seemingly, Minton went beyond the explicit if not the implicit reasoning in Coburn.
Thus in Coburn, the court, in part, based its position rejecting the knowledge and acceptance rule on the fact that the owner who contracted the work out might not be in a position to discover "hidden defects," i.e. the contractor's negligence. But in referring to contractor liability for negligently built structures, Minton quoted from Prosser and went to a straight foreseeability test, see Minton, at 367. The Prosser quote is that "It is now the almost universal rule that the contractor is liable to all those who may foreseeably be injured by the structure, not only when he (sic) fails to disclose dangerous conditions known to him (sic) but also when the work is negligently done." Torts (5th Ed.) § 104A, p. 723.
The Minton court, in effect, adopted and referred to Section 385 of Restatement (Second) Torts.
§ 385. Persons Creating Artificial Conditions on Land on Behalf of Possessor: Physical Harm Caused After Work has been Accepted
One who on behalf of the possessor of land erects a structure or creates any other condition thereon is subject to liability to others upon or outside of the land for physical harm caused to them by the dangerous character of the structure or condition after his work has been accepted by the possessor under the same rules as those determining the liability of one who as manufacturer or independent contractor makes a chattel for the use of others. CT Page 12159
And Minton concludes with a ringing endorsement of the application of a foreseeability test to this area . . . "the trial court's ruling in favor of the defendant on its motion for summary judgment must be reversed. The defendant's liability is not precluded by the fact that his work had been completed and accepted. Rather his liability hinges on foreseeability of injury to the plaintiff." Minton,
There is an obvious tension in the Prosser formulation and the Restatement rule on the one hand, they both refer to situations where the dangerous condition is created by the independent contractor but justify this on foreseeability grounds. But if foreseeability is the test, what possible difference could it make whether the dangerous condition is created by the contractor or results from his or her failure to negligently remove a dangerous condition on the land which the contractor had agreed to remove? If foreseeability is viewed from the perspective of the contractor, as Prosser and the Restatement and Coburn and Minton now demand, what difference should there be between a situation where a snow removal contractor piles snow so as to severely limit visibility or plows the snow and ice in such a way to create, for example, dangerous compacted ridges and a situation where the contractor fails to put enough abrasive material down or remove enough snow because the plow blade was set too high? Should liability be imposed in the first situation, but not in the second? If so why? The silliness of the distinction is underlined in a case like Kragel v. Wal-MartStores, Inc.,
The court has reviewed the first Appendix to the Restatement as it applies to Section 385, this volume collects cases to December, 1963. The court has examined the other Appendix volumes which discuss cases from 1964 through June, 1998. Apart fromKragel v. Wal-Mart, supra, only two possibly relevant cases were discovered. In Masciangelo v. Dolente,
In any event, in light of the foregoing discussion, the court will not grant the motion for summary judgment.
Corradino, J.