MARK H. TAYLOR, JUDGE.
On August 30, 2004, the plaintiff, Jeffrey Piquol, filed a single-count complaint against the defendant, Charles Street Associates, L.P., (Charles Street) alleging that the defendant, inter alia, negligently failed to remove snow and ice from the parking lot of an apartment building owned and controlled by the defendant. On December 13, 2004, the defendant filed a single-count apportionment complaint against the apportionment defendant, Tommasino's PB Landscaping (Tommasino), pursuant to General Statutes § 52-572h, alleging that the plaintiff's injuries and damages were the proximate result of Tommasino's negligent acts or omissions. On January 26, 2005, the plaintiff filed an amended complaint, which added a second count alleging negligence by Tommasino.
On November 10, 2005, Tommasino filed a motion to strike the Charles Street's apportionment complaint, accompanied by a memorandum of law. On December 5, 2005, the issue was heard on the short calendar. Charles Street filed a memorandum of law in opposition to Tommasino's motion to strike and Tommasino filed a reply in court on that date.
Tommasino moves to strike the apportionment complaint on the ground that Charles Street owes a non-delegable duty to the original plaintiff. Tommasino argues that, as the owner and party in possession and control of the area where the plaintiff fell, Charles Street has a non-delegable duty of care, which is not subject to apportionment. Tommasino, noting a split of authority among the superior courts, argues that the line of cases permitting apportionment is a more just result.
In Nieves v. Housing Authority of Stamford, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV CT Page 16545 04 0200048 (February 8, 2005, Wilson, J.) ( 38 Conn. L. Rptr. 692), the trial court addressed a similar issue. "[T]he determinative legal issue, which no appellate court has ever directly addressed, is whether a landowner's non-delegable duty to maintain its premises can be apportioned under 52-572h(c)." Superior Court decisions have consistently acknowledged the existence of a split at the trial level on the issue. The split, however, existed only prior to the Supreme Court decision in Gazo v. Stamford, 255 Conn. 245, 765 A.2d 505 (2001). All of the Superior Court decisions following Gazo have consistently held that Connecticut law does not allow such an apportionment.
Charles Street cites Jellif v. Armstrong Park Associates, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03 0193267 (March 16, 2004, Radcliffe, J.), in its memorandum in opposition to the apportionment plaintiff's motion to strike, which was decided after Gazo, but followed the minority view in refusing to strike the apportionment complaint. Other courts, discussing this holding, have stated:
"This court does not agree with this position but finds the conclusion of the court in
Adkins v. Sodexho, Inc., Superior Court, judicial district of New Haven, Docket No. CV 0480783 (April 6, 2004, Blue, J.) (
36 Conn. L. Rptr. 688), more persuasive . . . There the court stated . . . [that] under
Gazo, the obligation of the original defendants to keep the premises safe was non-delegable, those defendants are powerless as against [the] plaintiff, to avoid liability no matter how extensively they delegated their responsibility to however independent a maintenance contractor. Put another way, the [law] had the effect of imputing to them the negligence of CT Page 16547 any delegate insofar as plaintiff's rights to recover were concerned . . .
Gazo does not alter the policy of the law that an injured person, if she chooses to do so, may always look to an owner as well as any delegate . . . Under
Gazo, the option of choosing to seek recovery from a maintenance company lies with the plaintiff, not with the possessor of property." (Citations omitted; internal quotation marks omitted.)
Schachner v. Kanehl, Superior Court, judicial district of Tolland, Docket No. CV 04 5000006 (June 21, 2005, Scholl, J.) (
39 Conn. L. Rptr. 495, 498).
"In Gazo, the plaintiff had been injured by falling on an icy sidewalk on the property of a defendant that had hired an independent contractor to maintain the sidewalk free of snow and ice. The Supreme Court did not discuss the validity of the apportionment complaint filed against the independent contractor, but the answer to the issue presented to this court can, nonetheless, be inferred from the court's legal analysis in that case. The Supreme Court held that the independent contractor owed a duty of care directly to the plaintiff and, therefore, could be sued by him. The court pointed out that a landowner may contract out the performance of his non-delegable duty to an independent contractor, but he cannot contract out of his ultimate legal responsibility for the proper performance of his duty by the independent contractor; the landowner is always responsible for the proper performance of this non-delegable duty. [T]he non-delegable duty doctrine [involves] a form of vicarious liability, pursuant to which the party with the duty may be vicariously liable for the conduct of its independent contractor . . . The non-delegable duty doctrine is . . . an exception to the rule that an employer may not be held liable for the torts of its independent contractors . . . The court also noted that General Statutes § 52-572h(c) proceeds on the premise that the defendants, between or among any of whom liability is apportioned, are at least potentially liable in differing proportions. It does not apply, therefore, to a case of vicarious liability of one defendant for the conduct of another . . .
"A landowner is responsible for one hundred percent of the damages to which a plaintiff may be entitled, including those arising out of an independent contractor's negligence for which the landowner is vicariously liable. This is true regardless of whether the plaintiff may directly sue the independent CT Page 16546 contractor. There can be no apportionment of the damages due by the landowner to the plaintiff because the landowner is responsible for all of them. This interpretation is consistent with the purpose of § 52-572h, which was to change the common law of joint and several liability such that a defendant would be liable only for that portion of the damages for which he was responsible." (Citations omitted; internal quotation marks omitted.) Nieves v. Housing Authority of Stamford, supra, 38 Conn. L. Rptr. 692-93.
In the present case, the Charles Street had a non-delegable duty and it may not absolve itself of liability by contracting out the performance of that duty to Tommasino. The non-delegable duty doctrine means that a party may contract out the performance of a non-delegable duty, but may not contract out its ultimate legal responsibility. Charles Street, therefore, may not seek to apportion liability pursuant to § 52-572h. The non-delegable duty doctrine, however, does not prevent a plaintiff from suing an independent contractor for negligence.
Therefore, Tommasino's motion to strike the apportionment complaint is granted.