Gazo v. Stamford

Decision Date30 January 2001
Docket Number(SC 16202)
Citation255 Conn. 245,765 A.2d 505
CourtConnecticut Supreme Court
PartiesMICHAEL GAZO v. CITY OF STAMFORD ET AL.

Borden, Norcott, Katz, Palmer and Vertefeuille, JS. Brenden P. Leydon, for the appellant (plaintiff).

Christopher J. Coxon, for the appellee (defendant Joseph Pierni, Jr.).

Opinion

BORDEN, J.

The two principal issues in this appeal1 are whether: (1) a plaintiff claiming injuries resulting from a slip and fall on icy and snowy property is owed a duty of care by an independent contractor hired by the possessor of the property to maintain the property in a safe condition; and (2) the plaintiff may sue the independent contractor as a third party beneficiary of the contract between the possessor of the land and the independent contractor. The trial court rendered judgment in favor of the independent contractor on both claims. We disagree with the trial court's judgment on the first claim and agree with its disposition of the second claim. Accordingly, we reverse the judgment in part.

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).2 Chase Bank filed an apportionment complaint against Joseph Pierni, Jr., doing business as Pierni Construction (Pierni). The plaintiff then filed a substitute complaint against the original defendants and against Pierni. Pierni moved: (1) for summary judgment on the apportionment complaint and the negligence count in the plaintiffs substitute complaint; and (2) to strike the breach of contract claim in the plaintiffs substitute complaint. The trial court granted both of Pierni's motions, and rendered judgment accordingly.

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 Pierni, and the plaintiff thereafter filed a substitute complaint against both the original defendants and against Pierni. In the substitute complaint, the plaintiff alleged: (1) the statutory highway defect claim against Stamford; (2) negligence, absolute public nuisance, and public nuisance arising out of negligence, against Rednick and Chase Bank; and (3) negligence, absolute public nuisance, public nuisance arising out of negligence, and breach of contract, against Pierni. The breach of contract count was based on an allegation that the plaintiff was a third party beneficiary of a contract between Chase Bank and Pierni.

Pierni 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 Pierni was that Pierni did not owe any duty of care to the plaintiff. Pierni 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 Pierni 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, Karazin, 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 Pierni on the apportionment complaint, the propriety of that ruling is not before us. Thus, this appeal stands in the same procedural posture as if the plaintiff had sued both Chase Bank and Pierni for breach of the same duty, namely, to keep Chase Bank's premises reasonably safe. Also not at issue is whether Pierni may be liable to the plaintiff on a theory of premises liability, which requires that the party to be held liable be in control of the property. That is not a basis of the plaintiffs claims.

What is at issue is the question of whether Pierni owes a direct duty of care to the plaintiff based on Pierni's contractual relationship with Chase Bank. In this context, however, not at issue is whether Pierni'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 Pierni,3 and in the plaintiffs reliance on 2 Restatement (Second), Torts § 324A (1965), which is discussed later in this opinion. Thus, we view the plaintiffs first claim as, in essence, a claim that Pierni, as Chase Bank's contractor, and having contractually assumed Chase Bank's duty of care to the plaintiff, stands in Chase Bank's shoes with respect to liability to the plaintiff.4 We begin with the plaintiffs contention that Pierni owed him a duty of care in his performance of ice and snow removal services. "The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand.... We have stated that the test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case.... The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy." (Citations omitted; internal quotation marks omitted.) Mendillo v. Board of Education, 246 Conn. 456, 483-84, 717 A.2d 1177 (1998).

We conclude that Pierni owed a direct duty of care to the plaintiff. First, the relationship between Pierni's alleged negligence and the plaintiffs injuries is direct, and well within the scope of foreseeability. Pierni 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 Pierni's position, knowing what he knew or should have known, would anticipate that severe injuries were likely to result from a slip and fall if the sidewalk was not cleared properly of ice and snow. It is not unreasonable, or beyond the scope of foreseeability, therefore, to hold Pierni accountable for the plaintiffs injuries if they were caused by Pierni's negligent performance of his contract with Chase Bank.

Second, there are valid public policy reasons for holding Pierni responsible for his conduct. Pierni's liability to the plaintiff fits comfortably within the general rule 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 Pierni 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 professional decision making from the complaints of third parties when third party intervention carried with it a substantial risk of interference with the primary purpose of the professional consultation." Jacoby v. Brinckerhoff, 250 Conn. 86, 97, 735 A.2d 347 (1999) (psychiatrist's treatment of troubled spouse should not be burdened by accountability to other spouse); see also Zamstein v. Marvasti, 240 Conn. 549, 561, 692 A.2d 781 (1997) (mental health professionals have no duty to third persons when performing sexual assault abuse evaluations of children); Fraser v....

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