Costanzo v. Town of Plainfield

• Decision Date: 13 October 2020
• Docket Number: AC 42765
• Citation: 239 A.3d 370,200 Conn.App. 755
• Court: Connecticut Court of Appeals
• Parties: Malisa COSTANZO, Administratrix (Estate of Isabella R. Costanzo), et al. v. TOWN OF PLAINFIELD et al.

200 Conn.App. 755

239 A.3d 370

Malisa COSTANZO, Administratrix (Estate of Isabella R. Costanzo), et al.

v.TOWN OF PLAINFIELD et al.

AC 42765

Appellate Court of Connecticut.

Argued June 17, 2020

Officially released October 13, 2020

Ryan J. McKone, North Haven, with whom, on the brief, was James G. Williams, for the appellants (defendants).

Stephen M. Reck, North Stonington, for the appellees (plaintiffs).

DiPentima, C.J., and Alvord and Keller, Js.^*

DiPENTIMA, C.J.

This case arises out of the tragic drowning of a young child in an aboveground swimming pool. The defendants, the town of Plainfield (town), Robert Kerr and D. Kyle Collins, Jr., appeal from the trial court's orders sustaining the objections of the plaintiff Malisa Costanzo, as administratrix of the estate of the decedent, Isabella R. Costanzo,¹ to the defendants’ efforts to commence apportionment actions against the owners of the property where the pool was located and their former tenants who had the pool constructed. We agree with the defendants that the court improperly sustained the plaintiff's objections, and therefore we reverse the judgment of the trial court and remand the case for further proceedings.

The plaintiff alleged the following facts in her revised complaint dated August 28, 2018. The decedent drowned in an aboveground pool located at 86 Gelbas Road in Plainfield on June 22, 2016. At all relevant times, the town employed Kerr as a licensed building official and Collins as a licensed assistant building manager. One of their employment duties was to inspect all pools constructed in the town to ensure compliance with the State Building Code. See, e.g., General Statutes § 29-261.² The defendants issued a building permit for this aboveground swimming pool on July 25, 2013; however, Kerr and Collins, in violation of General Statutes § 29-265a,³ issued that permit without having determined if a pool alarm had been installed. The plaintiff further alleged that the State Building Code⁴ required the installation of a self-closing and self-latching gate for all new pools and that Kerr and Collins had failed to ensure the installation of such a gate prior to issuing the building permit.

The purpose of these safety features was to prevent children from drowning.

The plaintiff further alleged that Kerr and Collins were aware of these requirements and that they knew, or should have known, that an inspection of new pools was necessary to ensure compliance with these safety requirements. Finally, the plaintiff alleged that neither Kerr nor Collins had inspected or attempted to inspect the property to ensure that a pool alarm and a self-closing and self-latching gate had been installed.

On July 27, 2018, prior to the filing of the revised complaint, the defendants moved for an order directing the plaintiff's counsel to provide a copy of the release agreement between the plaintiff and the owners of 86 Gelbas Road, Jenna Prink and Bruce Prink (Prinks).⁵ The court, Auger, J. , granted the defendants’ motion on August 23, 2018.

On October 19, 2018, the defendants filed a notice of their intent to claim that the negligence of the Prinks was a proximate cause of the injuries claimed in the plaintiff's action against the defendants. See General Statutes § 52-102b(c).⁶ Specifically, the defendants maintained that, as the owners of the property, the Prinks bore the responsibility for ensuring compliance with any requirements of the State Building Code, and that the Prinks had failed (1) to schedule an inspection of the pool by the defendants, (2) to obtain a certificate of occupancy for the pool and (3) to prevent their tenants from using the pool without obtaining a certificate of occupancy. The defendants further noted that the plaintiff had rented the property in November, 2014, and that the Prinks knew that four minor children would be living on the property. Finally, the defendants set forth the instances of the Prinks’ negligence, including the failure to notify the town of the construction of the pool, the failure to seek an inspection, the failure to obtain a certificate of occupancy and the failure to warn the plaintiff of these omissions. Finally, the defendants contended that the Prinks could be liable for a proportionate share of the damages alleged in the plaintiff's complaint.

A few days later, the defendants filed an apportionment complaint, pursuant to General Statutes § 52-102b,⁷ against Eric Guerin and Merissa Guerin (Guerins), former tenants of the Prinks who occupied the property in 2013 at the time the pool was built. In this one count apportionment complaint, the defendants alleged that the Guerins had prepared and submitted the application for the construction of the aboveground pool to the town. The defendants further claimed that the Guerins specifically were advised that the pool was required to have a self-closing and self-latching gate, that an inspection was necessary at the completion of the construction and that Eric Guerin had submitted an affidavit "wherein he attested that he would install a [pool alarm]." The defendants alleged that the Guerins failed to notify them that the pool had been constructed and thus that an inspection was needed. The defendants alleged that these actions amounted to negligence and, additionally, the Guerins negligently failed to obtain a certificate of occupancy for the aboveground pool and failed to notify the Prinks that (1) the aboveground pool did not comply with the requirements of the building code, (2) the town and its officials had not been notified of its construction or the need for an inspection and (3) there was no certificate of occupancy. In conclusion, the defendants claimed that the Guerins could be liable for a proportionate share of the damages alleged in the plaintiff's complaint.

On October 22, 2018, the plaintiff filed an objection to the defendants’ notice of intent to seek apportionment as to the Prinks. The plaintiff argued that her complaint set forth a statutory cause of action pursuant to General Statutes § 52-572n(b)(8) alleging recklessness, and that the apportionment statute, General Statutes § 52-572h(o), applied only to claims of negligence.

On October 25, 2018, the plaintiff filed a similar objection to the defendants’ apportionment complaint directed against the Guerins.

The court, Cole-Chu, J. , held a hearing on November 19, 2018. At the outset, it noted that the objection to the apportionment complaint "could reasonably be construed as a motion to strike." In his argument, the plaintiff's counsel stated that he had not pleaded a negligence cause of action in the revised complaint but rather an intentional or reckless tort pursuant to General Statutes § 52-557n(b)(8), and, as a result, the apportionment statute was inapplicable. He also indicated that the complaint was based on the second exception to municipal immunity contained in § 52-557n(b)(8)⁸ with respect to property inspections. The defendants’ counsel took the position that the complaint alleged negligence, and not recklessness; he acknowledged that claims of recklessness are not subject to apportionment.

On March 19, 2019, the court issued an order sustaining the plaintiff's objection to the defendants’ notice of intent to pursue apportionment as to the Prinks. Specifically, it agreed with the plaintiff's contention that the complaint did not allege negligence such that the apportionment statute did not apply. The court stated that, "[i]f the defendants are found liable to the [plaintiff] on the revised complaint, it will be for reckless disregard for health and safety under all relevant [alleged] circumstances, not for negligence." (Internal quotation marks omitted.) In a separate order, the court dismissed the defendant's notice to seek apportionment, stating that, in sustaining the plaintiff's objection, it had essentially held "that it has no subject matter jurisdiction over the proceedings the defendants attempted ... to set in motion."

The court also sustained the plaintiff's objection to the apportionment complaint filed against the Guerins. It again concluded that the plaintiff had alleged recklessness against the defendants and that therefore the apportionment statute was inapplicable. The court also issued a separate order dismissing the apportionment complaint against the Guerins on the basis of the lack of subject matter jurisdiction.⁹ This appeal followed. Additional facts will be set forth as necessary.

On appeal, the defendants claim that the trial court erred in precluding their efforts to seek apportionment.

Specifically, they argue that the plaintiff's revised complaint implicated both exceptions to municipal immunity contained in § 52-557n(b)(8) and that the first exception employs a negligence, not recklessness standard. As a result, they argue, apportionment is not prohibited pursuant to § 52-572h(o). The defendants further contend that the cause of action recognized in § 52-557n(b)(8) is not excluded from apportionment pursuant to § 52-102b. We agree with the defendants that the plaintiff's revised complaint sets forth allegations that fall within the first exception of § 52-557n(b)(8) and that that exception contains a negligence standard. The trial court erred in sustaining the plaintiff's objections to the defendants’ efforts to seek apportionment.

In order to resolve this appeal, we must review the relevant statutes and legal principles regarding municipal liability and apportionment, as they apply to the allegations contained in the plaintiff's revised complaint. "As a matter of Connecticut's common law, the general rule ... is that a municipality is immune from liability for negligence unless the legislature has enacted a statute abrogating that immunity." (Internal quotation marks omitted.) Grady v. Town of Somers , 294 Conn. 324, 334, 984 A.2d 684 (2009) ; see also Spears v. Garcia , 263 Conn. 22, 28, 818 A.2d 37 (2003). "The tort liability of a municipality has been...