DocketNumber: No. CV-97-0404649-S
Citation Numbers: 1998 Conn. Super. Ct. 14263, 23 Conn. L. Rptr. 433
Judges: JONES, J.
Filed Date: 12/7/1998
Status: Non-Precedential
Modified Date: 4/18/2021
Subsequent to the filing of the main complaint, defendants CT Page 14264 Stone and Dimeo filed a revised cross-complaint against fellow defendant Roth and Moore seeking an indemnification judgment for any liability which may result from Ms. Satula's action. As cross-claim plaintiffs, general contractor Stone and subcontractor Dimeo also seek reimbursement of expenses and costs of investigating and defending the action. They also seek attorney fees and money damages. The architectural firm of Roth and Moore responded by moving to strike the cross-claim on the ground of legal insufficiency.
A motion to strike may be filed when a party wishes to contest the legal sufficiency of the allegations of a complaint, including a cross-claim, to state a claim upon which relief may be granted. CT Practice Book Sec.
In their cross-claim, general contractor Stone and subcontractor Dimeo allege that if any liability is proven, it must be attributed to the negligent conduct of architect Roth and Moore. Stone and Dimeo allege that at all times they constructed and built the patio floor in accordance with design and construction specifications imposed upon them by Roth and Moore. They allege that Roth and Moore had exclusive control over the situation and that Roth and Moore's negligence was active, direct, and primary, while their own conduct was passive and secondary. They claim they had no reason to know of, or to anticipate, negligence on the part of Roth and Moore, and they claim that they relied on Roth and Moore not to be negligent. The court is obliged to construe the cross-complaint "in the manner most favorable to sustaining its legal sufficiency." Michaud v.Warwick,
Generally, contribution from a joint tortfeasor is not permitted Cruz v. Periu,
General contractor Stone and subcontractor Dimeo have pled the necessary four elements under the Kaplan test. However, architect Roth and Moore argues that the cross-complaint is legally insufficient on the element of exclusive control. The supreme court defined "exclusive control over `the situation' as exclusive control over the dangerous condition giving rise to the accident." Skuzinski v. Bouchard Fuels Inc, Inc.,
To support its position, Roth and Moore cite the cases ofSkuzinski v. Bouchard Fuels, Inc. supra, and Torrington CountryClub v. Ply Gem,
In Skuzinski v. Bouchard Fuels, Inc., supra, the court held that, as a matter of law, a business owner who exercised exclusive control in failing to shovel snow from a sidewalk could CT Page 14266 not have exercised exclusive control over an accident caused by an unrelated party that occurred in an adjoining public roadway. The facts in Skuzinski offered a rare example of "special circumstances" where the issue of exclusive control became a matter of law. The court ruled that any reasonable juror could not conclude that the party failing to shovel had exercised exclusive control over the roadway accident. The instant set of circumstances are not "special", nor do they offer a rare example where exclusive control is factually impossible. The architectural firm of Roth and Moore admits direct involvement in the design and specifications of the tiled patio floor which is the alleged "dangerous situation" giving rise to the accident.
In Torrington Country Club v. Ply Gem, supra, — a product liability action and not an action in negligence — the court determined that a third party defendant-architect could not have exercised exclusive control over a defectively manufactured product as a matter of law, even though the architect had specified use of the product. The architect's responsibility in that case, the court reasoned, could only have been secondary to the manufacturer of the defective product. However, the instant case provides no allegations of defectively manufactured products, nor does the present question of exclusive control involve the tile or grout manufacturers. The architectural firm of Roth and Moore asserts the impossibility of their exclusive control based only on the fact that someone else physically put the tiles and grout in place. Roth and Moore fails to provide authority to justify this assertion.
General contractor Stone and subcontractor Dimeo, on the other hand, have alleged that they performed all work in accordance with the architect's requirements. Their allegations must be accepted as true in considering this motion to strike. Accordingly, for the foregoing reasons, the court finds that the cross-claim of general contractor Stone and subcontractor Dimeo is not legally insufficient.
The motion to strike is denied.
Clarance J. Jones, Judge