Zappone v. Cavallo, No. CV 03-0178837 S (CT 11/19/2004)
| Decision Date | 19 November 2004 |
| Docket Number | No. CV 03-0178837 S,CV 03-0178837 S |
| Court | Connecticut Supreme Court |
| Parties | Debra Zappone v. Vito Cavallo. |
This matter is before the court on a motion to strike brought by the apportionment defendant, Mark Cloney. The apportionment defendant seeks to strike the apportionment complaint and count two of the plaintiff's amended complaint.
The plaintiff alleges that on April 14, 2002 at approximately 4:15 a.m., a fire occurred at 506 Davis Street in Oakville, Connecticut, a two-family residence owned by the defendant, Vito Cavallo. At the time of the fire the plaintiff, Debra Zappone resided at 506 Davis Street. The fire was allegedly the result of the defendant, Mark Cloney smoking near flammable materials while under the influence of illegal drugs. To escape the fire, the plaintiff had to jump approximately twenty-seven feet from a second-floor bedroom window. This action arises out of the injuries and losses the plaintiff allegedly sustained as a result of the fall.
On April 10, 2003, the plaintiff filed a one-count complaint in negligence against Cavallo. In the complaint the plaintiff alleges that Cavallo, the landlord and owner of the building, failed to install appropriate fire prevention devices, provide for alternative routes of escape in the instance of fire, and evict Cloney when Cavallo knew that Cloney had regularly and periodically engaged in one or more activities that presented a serious fire risk.
On September 15, 2003, Cavallo filed an apportionment complaint against Cloney alleging that if the plaintiff did suffer damages as a result of her fall, the damages were the "direct and proximate result of the negligence and carelessness of the apportionment defendant, Mark Cloney." The plaintiff, on October 14, 2003, amended her complaint to include an additional count, alleging negligence against Cloney. Cloney, on January 8, 2004, filed a motion to strike1 the apportionment complaint and the second count of the plaintiff's amended complaint on the ground that as a cotenant, he did not owe the plaintiff a duty of care, and, therefore, could not be liable for negligence. On May 11, 2004, Cavallo filed a memorandum of law in opposition to Cloney's motion to strike his apportionment complaint. The plaintiff did not file a memorandum of law in opposition to Cloney's motion to strike.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). When ruling on a motion to strike, "[i]t is fundamental that in determining the sufficiency of a . . . [pleading] challenged by a . . . [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the facts are taken as admitted." Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). The court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 498. "[G]rounds other than those specified should not be considered by the trial court in passing upon a motion to strike . . ." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001).
Cloney moves to strike count two of the plaintiff's amended complaint and Cavallo's apportionment complaint on the ground that the plaintiff and Cavallo fail to allege that Cloney owed a duty of care to the plaintiff and breached that duty. Cloney, therefore, argues that the negligence claims are legally insufficient.
The Supreme Court has held that the essential elements of a cause of action in negligence are well established; duty; breach of that duty; causation; and actual injury." (Internal quotation marks omitted.) Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 687 n.13, 849 A.2d 813 (2004). A duty of care can be established by a contract, a special relationship, or through a two-pronged foreseeability and public policy analysis as defined by the Supreme Court in Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 479, 823 A.2d 1202 (2003). (Internal quotation marks omitted.) Lodge v. Arett Sales Corp., 246 Conn. 563, 571, 717 A.2d 215 (1998). "The existence of duty is a question of law and [o]nly 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." (Internal quotation marks omitted.) Petriello v. Kalman, 215 Conn. 377, 382-83, 576 A.2d 474 (1990).
"[T]he 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 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 forseeability, and the second part invokes the question of policy." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 250, 765 A.2d 505 (2001).
In the present case, the plaintiff alleges that Cloney knew or should have known that smoking near flammable materials while under the influence of drugs could ignite a fire that might spread throughout the entire building, putting the plaintiff at risk to suffer bodily and other injuries. "A simple conclusion that the harm to the plaintiff was foreseeable [however] . . . cannot by itself mandate a determination that a legal duty exists . . . A further inquiry must be made, for we recognize that duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection . . . The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Assn., Inc., supra, 264 Conn. 479-80.
Next, in determining the extent of a legal duty as a matter of public policy, four factors are to be considered: "(1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions." Murillo v. Seymour Ambulance Assn., Inc., supra, 264 Conn. 480. By living in a two-family apartment building, the plaintiff has the normal expectation of an individual residing in an apartment building that she will be able to do so in a safe manner. Second, the court has a significant interest in encouraging individuals to live safely in apartments. Third, should negligence of the instant kind occur, litigation will likely ensue. Therefore, assigning a duty of care to the individual who created the peril, in this case a fire, will not increase pre-existing litigation, but will simply allow the injured party to be fully compensated for his or her loss at the expense of all responsible parties. Finally, many jurisdictions, including Connecticut, hold individuals who negligently set fires liable for their actions. See General Statutes §52-559 "Damage for Spreading Fire"; see also Marchitto v. West Haven, 150 Conn. 432, 190 A.2d 597 (1963). In addition, some jurisdictions hold that an individual who...
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