Valente v. Securitas Security Services, USA, Inc.

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
DONNA VALENTE v. SECURITAS SECURITY
SERVICES, USA, INC., ET AL.
(AC 35318)
DiPentima, C. J., and Lavine and Flynn, Js.
Argued February 10—officially released August 12, 2014
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Hon. Alfred J. Jennings, Jr., judge
trial referee.)
Daniel J. Krisch, with whom was Brian D. Rich, for
the appellant (named defendant, third party plaintiff).
Kim E. Rinehart, with whom were Tadhg A. J.
Dooley and, on the brief, Thomas F. Clauss, Jr., for the
appellees (third party defendant Affinion Group, LLC,
et al.).
Opinion
FLYNN, J. The defendant and third party plaintiff,
Securitas Security Services, USA, Inc. (Securitas),
appeals from the entry of summary judgment in favor
of the third party defendants, Affinion Group, LLC, and
Trilegiant Corporation (Affinion).1 In this appeal, Secur-
itas claims that the trial court erred by improperly ren-
dering summary judgment on its claims for (1) common-
law indemnification and (2) contractual indemnifica-
tion by Affinion. We affirm the judgment of the trial
court.
The case before us began when the plaintiff, Donna
Valente, a senior manager of Affinion, found a note in
her office signed by someone who identified himself
only as her ‘‘secret admirer.’’ After an investigation con-
ducted by Affinion, the writer was later identified as
Joseph Veneri; he was employed as an overnight secu-
rity guard by Securitas, a security services provider that
had contracted with Affinion to provide security in the
office where Valente was employed. Veneri’s note con-
tained, inter alia, a request for a pair of her underpants
and verbal descriptions of her, all of which Valente
found offensive. Veneri followed the first note with a
second such request, which Valente also found offen-
sive. The plaintiff commenced a legal action against
Securitas and Veneri in which she sought money dam-
ages. Valente did not sue her employer, Affinion. Securi-
tas filed a third party complaint in which it sought
both apportionment and common-law and contractual
indemnification from Affinion. Securitas later settled
the claim Valente had brought against it but continued
to pursue its third party claims against Affinion,
Valente’s employer, seeking apportionment, common-
law indemnification, and contractual indemnification.
The following additional facts are undisputed. In
November, 2007, the anonymous note of a sexual nature
was left on Valente’s desk. Valente reported this Novem-
ber incident to her supervisor, who, in turn, contacted
Mary Rusterholz, Affinion’s executive vice president of
support services. Rusterholz notified the manager of
Affinion’s Norwalk facility, Brian Howarth, and
instructed him to be especially vigilant of the area
around Valente’s office. Howarth, in turn, ordered that
surveillance be increased around Valente’s office and
instructed the on-site supervisor for Securitas, Leroy
Campbell, to report back to him about any unusual
activity in the area. Campbell worked the day shift dur-
ing that time; he informed all of the overnight security
guards of Hogarth’s request. In December, 2007, a sec-
ond similarly offensive note was left on Valente’s desk,
again seeking a pair of her underpants and apologizing
to her if the first note had given her offense. An investi-
gation led by Michael Brown, Affinion’s human
resources manager, was commenced to determine who
was leaving these notes for Valente. Brown met with
Valente and took steps to protect her, including giving
her a parking spot close to the building, providing her
ingress and egress access through a side door, offering
her an escort to her car, and instructing her to vary her
routine. With Valente’s permission, Affinion installed a
hidden camera in her office in late December, 2007, to
ascertain who was leaving the notes.
The motion activated security camera began
recording on December 28, 2007. It revealed that Veneri
entered Valente’s office on multiple occasions. In the
first instance, recorded December 31, 2007, Veneri is
observed sitting in a chair near the door of Valente’s
office. A recording from January 3, 2008, showed Veneri
entering Valente’s office and rummaging through her
desk drawer. Brown informed Rusterholz and Hogarth
of the tapes’ contents; Securitas, however, was not
informed at this time.
On January 6, 2008, the recording showed Veneri
enter Valente’s office and masturbate into a cup on her
desk. Upon reviewing the tape the following morning,
Brown immediately went to Valente’s office and
removed the cup before she arrived at work. Brown
then contacted Securitas, informed it of the contents
of the video recording, and instructed that Veneri
should not return to the Affinion facility or have any
contact with its employees. Subsequently, Brown
informed Valente that he believed that he had identified
the person who had left her the notes and that the
individual would no longer be permitted on the Affin-
ion premises.
Valente sued Veneri and Securitas for invasion of
privacy, negligence, and negligent infliction of emo-
tional distress; she also sued Securitas for negligent
supervision and Veneri for intentional infliction of emo-
tional distress and battery. Thereafter, Securitas filed
a three count apportionment and third party complaint
in which it sought apportionment and common-law and
contractual indemnification from Affinion.2 In its claim
for common-law indemnification, Securitas alleged that
Affinion’s negligence was the ‘‘direct and immediate
cause of [Valente’s] losses,’’ that ‘‘Affinion has control
over the situation that caused [Valente’s] alleged losses,
to the exclusion of Securitas,’’ and that ‘‘Securitas had
no reason to know of or anticipate that Affinion would
be negligent, and reasonably relied upon Affinion not
to be negligent.’’ In its claim for contractual indemnifi-
cation, Securitas alleged that it was entitled to indemni-
fication by Affinion, pursuant to the indemnification
clause contained in the guard services master
agreement entered into by Affinion and Securitas’ cor-
porate predecessor. The relevant provision in that
agreement provides: ‘‘[Affinion] shall indemnify,
defend, and hold harmless [Securitas] from and against
any and all losses, claims, damages, expenses, fees,
settlements, penalties and attorneys’ fees arising out of
or resulting from any third party’s claim relating to the
gross negligence or willful misconduct by [Affinion].’’
Securitas moved for summary judgment against
Valente and Affinion. Both motions were denied. There-
after, Affinion moved for summary judgment against
Securitas. The court granted Affinion’s motion for sum-
mary judgment.3 As to Securitas’ claim for common-
law indemnification, the court granted summary judg-
ment in favor of Affinion. The court held that ‘‘the dan-
gerous condition that gave rise to the plaintiff’s alleged
injuries is Veneri himself, not Affinion’s alleged [delay]
in disclosing or reporting the monitoring of Veneri on
a hidden camera. Thus . . . there are no issues of mate-
rial fact relating to the presence or absence of exclusive
control.’’ Affinion was therefore entitled to judgment
as a matter of law. As to the contractual indemnification
claim, the court first held that Securitas’ claim was
barred because it did not ‘‘allege any claim of gross
negligence or wilful misconduct against either party to
the contract,’’ as required by the contract provision
relied on by Securitas. The court further concluded that
‘‘there is no evidence whatsoever that Affinion had a
duty to report the fact of its investigation, or the find-
ings, to the employer potentially liable for the actions
of one of the people who had after-hours access to the
plaintiff’s locked office.’’ This appeal followed.
We begin by setting forth the applicable standard of
review and legal authorities relevant to Securitas’
appeal of the trial court’s grant of summary judgment.
‘‘The standards governing our review of a trial court’s
decision to grant a motion for summary judgment are
well established. Practice Book [§ 17-49] provides that
summary judgment shall be rendered forthwith if the
pleadings, affidavits and any other proof submitted
show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as
a matter of law. . . . In deciding a motion for summary
judgment, the trial court must view the evidence in the
light most favorable to the nonmoving party. . . . [T]he
scope of our review of the trial court’s decision to grant
the plaintiff’s motion for summary judgment is plenary.’’
(Internal quotation marks omitted.) Romprey v. Safeco
Ins. Co. of America, 310 Conn. 304, 312–13, 77 A.3d
726 (2013).
On a motion for summary judgment, the moving party
‘‘must make a showing that it is quite clear what the
truth is, and that excludes any real doubt as to the
existence of any genuine issue of material fact. . . . A
material fact is a fact that will make a difference in the
result of the case. . . . [T]he burden of showing the
nonexistence of any material fact is on the party seeking
summary judgment . . . . It is not enough for the mov-
ing party merely to assert the absence of any disputed
factual issue; the moving party is required to bring for-
ward . . . evidentiary facts, or substantial evidence
outside the pleadings to show the absence of any mate-
rial dispute. . . . The party opposing summary judg-
ment must present a factual predicate for his [or her]
argument to raise a genuine issue of fact. . . . Once
raised, if it is not conclusively refuted by the moving
party, a genuine issue of fact exists, and summary judg-
ment is inappropriate.
‘‘The court is required to view the facts presented
in a motion for summary judgment in the light most
favorable to the party opposing the motion. . . .
[I]ssue-finding, rather than issue-determination, is the
key to the procedure. . . . [T]he trial court does not
sit as the trier of fact when ruling on a motion for
summary judgment. . . . [Its] function is not to decide
issues of material fact, but rather to determine whether
any such issues exist.’’ (Internal quotation marks omit-
ted.) Vollemans v. Wallingford, 103 Conn. App. 188,
193, 928 A.2d 586 (2007), aff’d, 289 Conn. 57, 956 A.2d
579 (2008).
Indemnification involves a claim for reimbursement
in full from one on whom a primary responsibility is
claimed to rest, while apportionment, sometimes called
contribution, involves a claim for reimbursement of a
share of a payment necessarily made by the claimant
which equitably ought to be paid in part by others. See
Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 412,
207 A.2d 732 (1965). ‘‘In an action for indemnity . . .
one tortfeasor seeks to impose total liability upon
another.’’ Skuzinski v. Bouchard Fuels, Inc., 240 Conn.
694, 697 n.3, 694 A.2d 788 (1997).
I
Securitas first claims that the trial court improperly
rendered summary judgment on its claim for common-
law indemnification. We begin by reviewing our law
concerning common-law indemnification. Generally,
there is no right to indemnification between joint tort-
feasors. Kaplan v. Merberg Wrecking Corp., supra, 152
Conn. 412. Our Supreme Court in Kaplan recognized
an exception to this general rule. Id. Kaplan teaches
that indemnification is available from a third party on
whom a primary exposure of liability is claimed to rest.
Id. To hold a third party liable to indemnify one tortfea-
sor for damages awarded against it to the plaintiff for
negligently causing harm to the plaintiff, a defendant
seeking indemnification must establish that: (1) the
third party against whom indemnification is sought was
negligent;4 (2) the third party’s active negligence, rather
than the defendant’s own passive negligence, was the
direct, immediate cause of the accident and the
resulting harm; (3) the third party was in control of
the situation to the exclusion of the defendant seeking
reimbursement; and (4) the defendant did not know of
the third party’s negligence, had no reason to anticipate
it, and reasonably could rely on the third party not
to be negligent. See id., 416. ‘‘Our Supreme Court has
defined exclusive control of the situation, for the pur-
pose of a common-law indemnification claim, as exclu-
sive control over the dangerous condition that gives rise
to the accident.’’ (Internal quotation marks omitted.)
Pellecchia v. Connecticut Light & Power Co., 139 Conn.
App. 767, 775, 57 A.3d 803 (2012) (dangerous condition
held to be electric power line which electrocuted plain-
tiff), cert. denied, 308 Conn. 911, 61 A.3d 532 (2013).
Securitas claims that summary judgment was
improper on its claim for common-law indemnification
because there is a genuine issue of material fact over
what was the dangerous condition giving rise to
Valente’s injuries and whether Affinion had exclusive
control over that dangerous condition. In a two step
analysis, we first analyze whether the trial court cor-
rectly determined that Veneri was the dangerous condi-
tion. Second, we must analyze whether a reasonable
juror could have found that Affinion exercised exclusive
control over that dangerous condition. We conclude
that the trial court properly held that Veneri and his
conduct in Valente’s office was the dangerous condition
that caused Valente’s legal injury and damages, and
that no reasonable juror could find that Affinion had
exclusive control over Veneri, a Securitas employee.
A
We first consider whether Securitas has met the third
Kaplan requirement of showing that there is a genuine
issue of material fact that ‘‘primary liability’’ rests on
Affinion for the dangerous condition. See Kaplan v.
Merberg Wrecking Corp., supra, 152 Conn. 412. We con-
clude that it has not done so. The first note left in
Valente’s office in November, 2007, requested a pair of
her underpants, remarked on parts of her body and was
otherwise offensive. At the time Veneri left this first
offensive note, it was undisputed that he was a Securitas
employee and that Affinion had not commenced its
investigation. Put another way, there was no investiga-
tion by Affinion when the first note was sent to and
received by Valente. There would be no purpose in
Affinion conducting an investigation of sexual harass-
ment of one of its employees that had not yet occurred.
Veneri was a ‘‘dangerous condition’’ when he harassed
Affinion’s employee. He remained a dangerous condi-
tion after Affinion received its employee’s complaints
and subsequently took steps to protect her and investi-
gate who was harassing her.
During the oral argument of this case before this
court, it was pointed out to Securitas’ counsel that the
November, 2007 conduct ‘‘had already occurred’’ prior
to any investigation by Affinion. Counsel’s response
was that as to the conduct that had already occurred,
‘‘that goes to how much of her harm was caused by
which particular portions of the conduct.’’ That might
be relevant if Securitas was seeking contribution, i.e.,
an equitably apportioned share of the liability from
Affinion. It was not. Instead, Securitas settled its claim
with Valente and sought indemnification to place the
entire financial responsibility for the offensive acts of
its own employee, Veneri, solely on Affinion by seeking
both common-law and contractual indemnification.
Securitas specifically alleged that ‘‘Affinion had con-
trol over the situation that caused the plaintiff’s alleged
losses, to the exclusion of Securitas.’’ As we explained
in Pellecchia, ‘‘the situation’’ is best understood as ‘‘the
condition of danger from which a foreseeable risk of
harm to the [plaintiff] is claimed to have arisen . . . .’’
Pellecchia v. Connecticut Light & Power Co., supra,139 Conn. App. 775. In the present case, the trial court
determined that ‘‘the dangerous condition that gave
rise to [Valente’s] alleged injuries is Veneri himself, not
Affinion’s alleged [delay] in disclosing or reporting the
monitoring of Veneri on a hidden camera.’’ Securitas
contends that this determination missed the point
because it was Veneri’s conduct that caused the plain-
tiff’s injuries, which were exacerbated by Affinion’s
delay in reporting the problems to Securitas. It argues
that the dangerous condition was Affinion’s failure to
inform it of Veneri’s behavior and the ensuing investiga-
tion. Securitas argues, therefore, that Affinion’s month-
long investigation of the harassing conduct directed
toward Valente gave it exclusive control over Veneri,
at least during that period of time. We disagree.
Contrary to assertions by Securitas, Affinion’s investi-
gation of the sexual harassment directed at Valente is
not what caused the injuries she alleged. It was Veneri’s
conduct in leaving her letters requesting that she give
him a pair of her underpants and making unwanted
offensive comments about her physical attributes that
caused her injuries, some of which occurred before
there was any investigation. To the extent that Securitas
claims that there is any meaningful distinction between
a person and a person’s conduct, it is not apparent to
us. We therefore conclude that there is no genuine issue
of material fact that the dangerous condition in this
case was Veneri and his offensive letters and acts.5
B
We next consider whether Affinion had exclusive
control over the dangerous condition, i.e., Veneri. We
agree with the trial court’s conclusion that there was no
genuine issue of material fact that Securitas exhibited
some control over Veneri, its own employee. It hired
him without input from Affinion. Securitas alone
selected him to be placed as a guard in the building
where Valente worked. It contractually had received
the right to supervise him. As such, Affinion did not
have exclusive control over the dangerous condition,
namely, Veneri and his actions.
Our Supreme Court has defined ‘‘exclusive control’’
for present purposes as ‘‘exclusive control over the
dangerous condition that gives rise to the accident.’’
Skuzinski v. Bouchard Fuels, Inc., supra, 240 Conn.
706. The trial court cited the following uncontested
facts for its conclusion that Securitas had not shown
that Affinion had exclusive control over Veneri: ‘‘Affin-
ion did not hire Veneri and did not participate in the
hiring process. Affinion did not supervise Veneri. The
guard services master agreement did not permit Affin-
ion to supervise or control the security personnel placed
in Affinion’s offices by Securitas. Securitas had its own
supervisory personnel on and off the Affinion prem-
ises.’’ Indeed, Securitas did not argue that ‘‘Affinion had
exclusive—or any—control over Veneri, or his perfor-
mance of his duties . . . .’’ In light of these facts, we
agree with the trial court that no reasonable jury could
have concluded that Affinion exercised exclusive con-
trol over Veneri, to the exclusion of Securitas. Without
‘‘exclusive control,’’ Securitas could not recover indem-
nification from Affinion. See Kaplan v. Merberg Wreck-
ing Corp., supra, 152 Conn. 416.6
Accordingly, the court’s entry of summary judgment
in favor of Affinion on Securitas’ common-law indemni-
fication claim was proper because there was no genuine
issue of material fact that Affinion lacked exclusive
control over the dangerous condition, namely, Veneri
and his actions in Valente’s office.
II
Securitas next argues that the trial court improperly
rendered summary judgment on its claim for contrac-
tual indemnification. Specifically, it argues that a jury
reasonably could find that Affinion must indemnify Sec-
uritas because Valente’s claim ‘‘relates to’’ Affinion’s
grossly negligent investigation of Valente’s allegations,
which resulted in Securitas having to pay damages to
Valente, and that, pursuant to the contract between
Affinion’s corporate predecessor and Securitas, the lat-
ter is entitled to indemnification. We are unpersuaded.
‘‘The law governing the construction of contracts is
well settled. When a party asserts a claim that chal-
lenges the trial court’s construction of a contract, we
must first ascertain whether the relevant language in
the agreement is ambiguous. . . . A contract is ambig-
uous if the intent of the parties is not clear and certain
from the language of the contract itself. . . . Accord-
ingly, any ambiguity in a contract must emanate from
the language used in the contract rather than from one
party’s subjective perception of the terms. . . . When
the language of a contract is ambiguous, the determina-
tion of the parties’ intent is a question of fact . . . .
‘‘Similarly, [w]e accord the language employed in the
contract a rational construction based on its common,
natural and ordinary meaning and usage as applied to
the subject matter of the contract. . . . Where the lan-
guage is unambiguous, we must give the contract effect
according to its terms. . . . Where the language is
ambiguous, however, we must construe those ambigu-
ities against the drafter. . . . Moreover, in construing
contracts, we give effect to all the language included
therein, as the law of contract interpretation . . . mili-
tates against interpreting a contract in a way that ren-
ders a provision superfluous.’’ (Citations omitted;
internal quotation marks omitted.) Ramirez v. Health
Net of the Northeast, Inc., 285 Conn. 1, 13–14, 938 A.2d
576 (2008).
The relevant contract provisions put the relationship
between Affinion and Securitas in context. The contract
requires Affinion to indemnify Securitas ‘‘from and
against any and all losses, claims, damages, expenses,
fees, settlements, penalties and attorneys’ fees arising
out of or resulting from any third party’s claim relating
to the gross negligence or willful misconduct by [Affin-
ion].’’ (Emphasis added.) A second provision of the
contract requires Securitas to indemnify Affinion ‘‘from
and against any and all losses, claims, damages,
expenses, fees, settlements, penalties and attorneys’
fees arising out of or resulting from any third party’s
claim relating to (i) the gross negligence or willful mis-
conduct by [Securitas], its employees or agents . . . .’’
In effect, these bilateral indemnification provisions
aspire contractually to place financial responsibility on
each contracting party for acts of gross negligence and
wilful misconduct committed by each party’s own
employees.
The trial court proceeded to render summary judg-
ment on Securitas’ contractual indemnification claim
because ‘‘the complaint fails to allege any claim of gross
negligence or wilful misconduct against either party to
the contract.’’
It has not been argued by Securitas, nor would it be
the subject of reasonable debate, that Affinion commit-
ted any acts of intentional or wilful misconduct that
would entitle Securitas to indemnification from Affinion
for Veneri’s sexual harassment of Valente. Instead, Sec-
uritas argues that summary judgment was inappropriate
on its contractual indemnification claim because ‘‘a jury
reasonably could find that Valente’s suit against Securi-
tas is a claim by a third party ‘relat[ed] to’ the gross
negligence of Affinion.’’ We disagree.
‘‘Our Supreme Court has defined gross negligence as
very great or excessive negligence, or as the want of,
or failure to exercise, even slight or scant care or slight
diligence . . . . It has defined wilful misconduct as
intentional conduct designed to injure for which there
is no just cause or excuse.’’ (Citation omitted; internal
quotation marks omitted.) PIC Associates, LLC v.
Greenwich Place GL Acquisition, LLC, 128 Conn. App.
151, 158–59, 17 A.3d 93 (2011).7
Our review of both the complaint and the record
reveals that Securitas has failed to establish the exis-
tence of a genuine issue of material fact as to whether
Affinion acted in a grossly negligent manner, within
the scope of the contractual indemnification provision.
Rather, the record before us demonstrates, convinc-
ingly, that Affinion diligently and thoroughly investi-
gated the claims of harassment by Valente. The details
of Affinion’s prophylactic and investigatory efforts,
described previously, need not be repeated. Therefore,
given Affinion’s efforts, no reasonable jury could have
found that the manner in which Affinion investigated
the sexual harassment of Valente was grossly negligent.
Even though, after Veneri left his first letter, Affinion
notified Campbell to have his guards keep an eye on
Valente’s office, there is no provision in the contract
between Affinion’s corporate predecessor and Securi-
tas that would obligate Affinion to report to Securitas
the details of its investigation of Valente’s complaints.
Our Supreme Court recently held that ‘‘[t]here can be
no actionable negligence . . . unless there exists a
cognizable duty of care.’’ (Internal quotation marks
omitted.) Cannizzaro v. Marinyak, 312 Conn. 361, 366,
A.3d (2014). Insofar as Securitas failed to estab-
lish that Affinion had a duty arising out of contract or
a relationship of the parties to inform it of all of the
details of Affinion’s investigation of Valente’s harass-
ment complaint while the investigation was ongoing,
Securitas cannot prove that Affinion was grossly negli-
gent, thereby entitling it to contractual indemnification
from Affinion. See footnote 4 of this opinion.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Affinion is a holding company of Trilegiant Corporation. For present
purposes, we will refer to them jointly as Affinion. The claim against the
other defendant, Joseph Veneri, was withdrawn by the plaintiff.
2
Securitas’ apportionment claim is not raised in this appeal. The trial
court rendered summary judgment in favor of Affinion on Securitas’ appor-
tionment claim. Securitas subsequently filed a motion to reargue and for
reconsideration. Upon reconsideration, the trial court determined that its
previous ruling on the apportionment count was erroneous and denied
Affinion’s motion for summary judgment on this count. Securitas and Affin-
ion then filed a stipulation with the trial court that Affinion had no exposure
to damages under this count because Valente did not assert any claim for
damages against Affinion. Judge Mintz declined to rule on the stipulation
when it was presented to him. Our Supreme Court has determined that a
trial court’s refusal to consider a party’s motion is a final judgment for
purposes of appeal. See Ahneman v. Ahneman, 243 Conn. 471, 478, 706
A.2d 960 (1998).
3
Subsequent to the entry of summary judgment in favor of Affinion,
Securitas and Valente settled the underlying action. Securitas and Valente
filed a stipulation of dismissal, with prejudice, on Valente’s claims against
Securitas, ‘‘[p]ursuant to an agreement between the . . . parties . . . .’’
Valente later withdrew her claims against Veneri.
4
‘‘[T]he essential elements of a cause of action in negligence are well
established: duty; breach of that duty; causation; and actual injury. . . .
Duty is a legal conclusion about relationships between individuals, made
after the fact, and [is] imperative to a negligence cause of action. . . . Thus,
[t]here can be no actionable negligence . . . unless there exists a cognizable
duty of care. . . . [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 posi-
tion, 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.’’
(Internal quotation marks omitted.) Cannizzaro v. Marinyak, 312 Conn.
361, 366, A.3d (2014).
In the present case, the trial court based its common-law indemnification
ruling on the third Kaplan requirement: exclusive control over the dangerous
condition. That notwithstanding, additionally, we conclude that as a matter
of law, Affinion had no duty to inform Securitas of every detail of its investiga-
tion of Valente’s harassment. As such, Securitas would be unable to satisfy
the first Kaplan requirement for common-law indemnification (proving that
Affinion was negligent) because Affinion had no legal duty to further notify
Securitas. Affinion’s duty was to protect its employee, Valente, from a hostile
work environment, particularly from sexual harassment from an
unknown actor.
5
The procedural posture of the present case distinguishes it from our
decision in Pellecchia. This court reviewed Pellecchia upon the trial court’s
grant of a motion to strike the third party complaint. We reversed the trial
court’s judgment because the third party plaintiff had sufficiently pleaded
the essential elements of common-law indemnification. Pellecchia v. Con-
necticut Light & Power Co., supra, 139 Conn. App. 776. On a motion to
strike, the trial court must examine the party’s pleadings to determine if
that party has pleaded a legally cognizable claim. See id., 774. If it has, the
motion to strike should be denied. Id.
6
Securitas’ assertion that it had no notice of the investigation is belied
by the undisputed fact that Securitas’ employee, Campbell, admitted in his
deposition that after the first note was left for Valente, Affinion asked
Campbell to ‘‘keep an eye out for any suspicious activity’’ in the wing of
the building where Valente worked and to ‘‘report to [Affinion] anything
out of the ordinary that [he] saw.’’ Furthermore, to the extent that Securitas
argues that had Affinion notified it sooner of its investigation of Veneri,
Securitas could have prevented or at least ameliorated Valente’s injuries, this
would be a potential basis for an apportionment claim. Securitas, however,
abandoned its apportionment claim in the trial court; see footnote 2 of this
opinion; and is now seeking to be fully indemnified by Affinion.
7
Our Supreme Court has held that Connecticut does not recognize a cause
of action for gross negligence as being distinct from simple or ordinary
negligence. See Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314,
337, 885 A.2d 734 (2005). That notwithstanding, although our law does not
recognize a separate tort action for gross negligence, parties may freely
contract to indemnify for gross negligence and claim damages for an
alleged breach.