DocketNumber: No. CV 96-0130546
Citation Numbers: 2000 Conn. Super. Ct. 4834
Judges: HODGSON, JUDGE.
Filed Date: 3/9/2000
Status: Non-Precedential
Modified Date: 7/5/2016
The grounds raised in the motion are 1) that the challenged count fails to state a cause of action and 2) that it is the law of the case that the defendant did not owe the plaintiff any duty of care.
In the count at issue, the plaintiffs allege plaintiffs Donald Mazza and Patricia Mazza occupied a condominium unit directly below a unit owned by defendant John Capone, that all condominium owners were required to maintain adequate heat during winter months, that the defendant had represented to John Capone that it would not shut off the electricity to his unit but would contact him prior to any planned shutoff, that the defendant shut off the power in January 1994, and that frozen pipes in the Capone unit caused damage to the Mazzas' unit. The plaintiffs claim that their losses were caused by "the negligence and carelessness of the Defendant, CL P, in that it a) failed to continue to provide electrical power to the Capone unit, when it had specifically indicated it would continue to do so, when it knew or should have known that the result would be a flood not only of the Capone unit but also the Plaintiffs' unit; and b) failed to send any overdue electrical bills to Capone as requested, when it knew or should have known that this would result in a nonpayment of bills and a subsequent termination of electrical service to the Capone unit."
Standard of Review
The function of a motion to strike is to test the legal sufficiency of the allegations of a complaint to state a claim upon which relief can be granted. Sherwood v. Danbury Hospital, CT Page 4835
In adjudicating a motion to strike, the court must construe the facts alleged in the complaint in the manner most favorable to the plaintiff Bohan v. Last,
Law of the case
The movant asserts that the same claim that the plaintiffs make in the fifth count of the revised complaint was previously stricken by the court, Kulawiz, J., when that claim was included in a prior version of the complaint. The defendant has not identified the count of the earlier complaint that it claims sets forth the same claim but asserts in a conclusory manner that because Judge Kulawiz granted a motion to strike all claims against CL P in the prior complaint, the present count must also be stricken.
The defendant fails to recognize that after a motion to strike has been granted, pursuant to Practice Book §
The first count of the complaint filed on March 18, 1997, which Judge Kulawiz struck, sets forth a claim that CL P had been negligent in shutting off electrical power to the Capone unit for John Capone's failure to pay his electric bill, and that it was foreseeable that the shutoff would cause damage to other units, including the plaintiffs'.
The only allegations in the present complaint that differ from the allegations in the first count of the prior complaint are the paragraphs in which the plaintiffs allege that the defendant agreed to advise John Capone of a shutoff before it enacted one. The gravamen of both counts, however, is that CL P had a duty of care to the plaintiffs that precluded it from shutting off electricity in the Capone unit, that it breached that duty of care, and that its breach proximately caused the plaintiffs to suffer damages and losses. The plaintiff has not pleaded any new allegations that support the existence of a duty of care toward the plaintiffs.
Judge Kulawiz ruled that the plaintiffs failed to set forth any basis for concluding that the CL P owed a duty of care to refrain from cutting off services to a non-paying customer if to do so would create a risk of property damage to third parties. She noted that the existence of a cause of action in negligence depends not simply on the element of foreseeability of harm, but on the existence of a duty of care. It remains the law, as cited by Judge Kulawiz, that "the conclusion that a particular injury to a particular plaintiff or class of plaintiffs possibly is foreseeable does not, in and of itself, create a duty of care."Waters v. Autuori,
Judge Kulawiz determined that Connecticut has never recognized a public policy to prevent a provider of services from discontinuing those services out of considerations of possible consequences for third parties. The plaintiff has not cited any recognition of any such obligation, either in Connecticut or CT Page 4837 elsewhere. To recognize such a duty would shift the cost of the conduct of an occupant of a multi-occupant residence to the utility company. It seems doubtful that such a shift in responsibility will be recognized as the public policy of this state. The new allegations concerning promises made to Mr. Capone do not support the existence of a duty of care toward the plaintiffs.
This court concludes that the operative allegations of the fifth count are a repetition of the operative assertions of the first count of the complaint, and that Judge Kulawiz's conclusion on the legal inadequacy of this claim of liability based on negligence is the law of the case.
Legal Adequacy
Even if the present fifth count were viewed as diferent from all stricken counts in the prior complaint, this court finds that the claim asserted by the plaintiff in the fifth count of the present complaint is a claim of negligence without a legal basis, as no duty of care toward the plaintiffs in regard to policies of terminating services to customers is supported by the allegations of the count. To state a cause of action in negligence, as is explained above, a plaintiff must allege breach of a duty of care. The existence of a duty of care derives from the foreseeability of harm and from a public policy of recognizing a duty toward persons in the plaintiff's situation. Mendillo v.Board of Education, supra,
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 positon, 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.
See Lodge v. Arett Sales Corp. , supra,
The existence of a duty of care 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. Mendillo v. Board of Education, supra,
While utilities have been recognized as having a duty of care with regard to their construction practices and operation of dangerous facilities; Citarella v. United Illuminating Co.,
The plaintiff has not identified any regulations, standards or other indications of public policy that would support a finding that such obligations should be imposed. The public policy favoring compensation for parties who suffer losses because of negligent maintenance of premises by others is served by the existence of a cause of action against the negligent property owner.
The court finds that the plaintiff has failed to state a legally cognizable. cause of action against CL P.
Conclusion
The motion to strike the fifth count of the revised complaint is granted.
Beverly J. Hodgson
Judge of the Superior Court CT Page 4839