Bhinder v. Sun Co., Inc., 15820

Decision Date11 August 1998
Docket NumberNo. 15820,15820
Citation246 Conn. 223,717 A.2d 202
CourtConnecticut Supreme Court
PartiesAutar Singh BHINDER, Executor (Estate of Baljit Singh Bhinder) v. SUN COMPANY, INC.

William J. O'Sullivan, Wethersfield, for appellant (defendant).

John Morgan, with whom was Albert J. Barr, Stamford, for appellee (plaintiff).


NORCOTT, Associate Justice.

The plaintiff, Autar Singh Bhinder, the administrator of the estate of the decedent, Baljit Singh Bhinder, brought this wrongful death action against the defendant, Sun Company, Inc., alleging, inter alia, that the defendant had failed to provide adequate security to protect its employee, the decedent, from foreseeable harm from criminal assault by a third party. The dispositive issue in this appeal is whether a defendant in a negligence action may cite in a criminal assailant as an apportionment defendant. The trial court granted the plaintiff's motion to strike the defendant's apportionment complaint against the assailant because it concluded that General Statutes § 52-572h, 1 the comparative negligence statute, permits apportionment only between parties alleged to have been negligent. In this appeal, 2 the defendant argues that the trial court improperly granted the plaintiff's motion to strike the apportionment complaint because: (1) this court previously has recognized the viability of such a complaint in Bohan v. Last, 236 Conn. 670, 674 A.2d 839 (1996); (2) as a matter of statutory interpretation, the apportionment complaint falls within § 52-572h; and (3) even if we were to conclude that the text of § 52-572h does not permit apportionment between negligent and intentional tortfeasors, we should nevertheless recognize such an action as a matter of common law. We agree with the defendant's third claim and, accordingly, we reverse the judgment of the trial court.

"In an appeal from a judgment granting a motion to strike, we operate in accordance with well established principles." (Internal quotation marks omitted.) Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 696, 694 A.2d 788 (1997). "[W]e must take as true the facts alleged in the plaintiff's complaint and must construe the complaint in the manner most favorable to sustaining its legal sufficiency.... If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Citations omitted; internal quotation marks omitted.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270-71, 709 A.2d 558 (1998).

We assume as true the following facts as alleged in the plaintiff's complaint. The defendant was the owner of a Sunoco gasoline service station and convenience store (station) located at 336 Main Street in Norwalk. Nandu C. Patel and Sumitra N. Patel leased the station from the defendant and operated it pursuant to a franchise agreement (agreement) with the defendant. The defendant was responsible for the supervision of the franchisees, their agents and their employees. In addition, the defendant installed and supervised all security measures located at the station. Pursuant to the agreement, the station was to be operated twenty-four hours a day, seven days a week. The station had experienced a history of criminal incidents, including prior thefts and an armed robbery, of which the defendant was aware. The decedent was employed at the station and on April 13, 1995, he worked from 6 p.m. to 6 a.m. Sometime during that time period, an armed assailant entered the premises and shot the decedent several times in the head and chest. The assailant took several hundred dollars from the cash register and fled. The decedent was discovered by a delivery man early on the morning of April 14, and subsequently died of his injuries. Thereafter, the plaintiff brought a wrongful death action against the defendant, alleging, inter alia, that it had been aware of prior criminal activity at the station, but had negligently failed to provide adequate security, and that such negligence was the proximate cause of the decedent's death. Pursuant to General Statutes §§ 52-572h and 52-102b, 3 the defendant subsequently filed a two count apportionment complaint against Raul Garcia, Jr., the decedent's alleged assailant, 4 4 seeking apportionment of liability. 5 In both counts of the complaint, the defendant alleged that Garcia intentionally shot the decedent and was responsible for his death. The defendant alleged in the first count that Garcia acted recklessly, and in the second count that Garcia acted wilfully and wantonly. The plaintiff filed a motion to strike the defendant's apportionment complaint for failure to state a cause of action upon which relief could be granted asserting that, as a matter of law, apportionment of liability pursuant to § 52-572h applies only to parties whose conduct was negligent. The trial court agreed and granted the plaintiff's motion to strike the defendant's complaint. This appeal followed.

We first consider the defendant's argument that Bohan is authority for the proposition that a defendant in a negligence action may cite in reckless and intentional tortfeasors for apportionment of liability. The defendant's reliance on Bohan is misplaced because, unlike the present case, the allegations in the apportionment complaint in Bohan involved claims of negligence. Bohan v. Last, supra, 236 Conn. at 674, 674 A.2d 839. The plaintiff in Bohan brought a wrongful death action against a bar, which was alleged to have served alcohol to a minor who later was involved in a motor vehicle accident that led to the death of a passenger in the car the minor was operating. Id., at 672, 674 A.2d 839. The defendant thereafter sought to cite in as additional defendants bar patrons who allegedly had furnished alcoholic beverages to the minor. Id., at 673, 674 A.2d 839. This court reversed the trial court's ruling granting the plaintiff's motion to strike the defendant's third party complaint, which sounded in negligence, concluding that the complaint was cognizable if it alleged that the patrons knew or had reason to know that the individual was a minor. Id., at 681, 674 A.2d 839. Our decision in Bohan, therefore, provides no assistance to the defendant in the present case.

We next address the defendant's argument that the trial court improperly concluded that § 52-572h does not permit the apportionment of liability between negligent and intentional tortfeasors. Specifically, the defendant contends that although its apportionment complaint against Garcia alleges reckless, wilful and wanton conduct, such apportionment is permissible under the statute because the underlying action between the plaintiff and defendant remains one of negligence, which is within the scope of the statute. In opposition, the plaintiff argues that the plain language of § 52-572h provides that only negligent persons may be cited in by the defendant for apportionment for liability purposes. We agree with the plaintiff.

Our resolution of the defendant's claim is guided by well established principles of statutory construction. "The process of statutory interpretation involves a reasoned search for the intention of the legislature. Frillici v. Westport, 231 Conn. 418, 431, 650 A.2d 557 (1994). In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." (Internal quotation marks omitted.) United Illuminating Co. v. New Haven, 240 Conn. 422, 431, 692 A.2d 742 (1997). "We also note the rule of statutory construction that statutes in derogation of common law 'should receive a strict construction and [should not] be extended, modified, repealed or enlarged in its scope by the mechanics of construction.' " Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 581, 657 A.2d 212 (1995).

We begin our analysis by examining the text of the statute. Section 52-572h (c) provides in relevant part that "if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for his proportionate share of the ... damages...." Section 52-102b (a), which provides the procedural vehicle by which a defendant in a negligence action may cite in a party for apportionment of liability purposes, provides that "[a] defendant in any civil action to which section 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability...." (Emphasis added.)

"By its own terms, the comparative negligence statute [§ 52-572h] applies only to 'causes of action based on negligence.' " Durniak v. August Winter & Sons, Inc., 222 Conn. 775, 782, 610 A.2d 1277 (1992). "The language of § 52-572h is unambiguous; it provides that comparative negligence principles apply: 'In causes of action based on negligence ....' " (Emphasis in original.) Lukas v. New Haven, 184 Conn. 205, 212, 439 A.2d 949 (1981). Although the defendant correctly asserts that the underlying action is one of negligence, the trial court concluded, and we agree, that in order for a defendant to add a person to such an action for purposes of apportionment of liability, the person sought to be added must also be one who is or may be liable pursuant to § 52-572h. See id. (" §...

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