Szydlo v. USA
Filing
43
ORDER denying 27 and 28 Motions to Dismiss for the reasons set forth in the Memorandum of Decision attached. This action will proceed on all claims asserted in the Amended Complaint 31 and Third-Party Complaint 21 . Signed by Judge Vanessa L. Bryant on 1/12/2017. (Hudson, C)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
REGINA SZYDLO,
Plaintiff,
:
:
:
v.
:
:
UNITED STATES OF AMERICA,
:
Defendant/
:
Third-Party Plaintiff,
:
:
v.
:
:
ROMAN LANDSCAPING & FENCING, :
Third-Party Defendant.
:
CIVIL ACTION NO.
3:16-cv-0127 (VLB)
January 12, 2017
MEMORANDUM OF DECISION DENYING UNTIED STATES OF AMERICA’S
MOTION TO DISMISS [Dkt. No. 28]; DENYING ROMAN LANDSCAPING &
FENCING’S MOTION TO DISMISS [Dkt. No. 27]
Plaintiff Regina Szydlo (“Szydlo”), a resident of Norwich, Connecticut,
brings negligence claims against the United States of America (“USA”) under the
Federal Tort Claims Act, 28 U.S.C. § 1346(b), as well as against Roman
Landscaping & Fencing (“Roman”). [Dkt. No. 31.] Defendant USA moved to
dismiss Szydlo’s claim against it [Dkt. No. 28] and Szydlo opposed the motion
[Dkt. No. 37]. USA additionally filed a Reply [Dkt. No. 38] and Szydlo obtained
leave from the Court [Dkt. No. 40] to file a Sur-Reply [Dkt. No. 42].
In addition, USA filed a Third-Party Complaint against Roman seeking
indemnification and apportionment of any adverse judgment in the action against
Szydlo. [Dkt. No. 21.] Roman moved to dismiss the Third-Party Complaint [Dkt.
No. 27] and USA opposed the motion [Dkt. No. 32].
The Court discusses each Motion to Dismiss in turn. For the reasons that
follow, USA’s Motion to Dismiss Is DENIED, and Roman’s Motion to Dismiss the
Third-Party Complaint is DENIED.
I. USA’s Motion to Dismiss Szydlo’s Claims
a.
Factual Background
Szydlo filed a Motion to Amend the Complaint on July 18, 2016 [Dkt. No.
24], and filed an Amended Complaint on August 11, 2016, one day after USA and
Roman Landscaping filed their Motions to Dismiss. [Dkt. Nos. 27 (Roman’s
Motion), 28 (USA’s Motion), 31 (Amended Complaint).] In response, the Court
issued an Order granting Plaintiff’s Motion to Amend, and stating “The Court will
consider the pending motions to dismiss in light of the Amended Complaint.”
[Dkt. No. 29.]
On a motion to dismiss for lack of subject matter jurisdiction under Federal
Rule of Civil Procedure 12(b)(1), the Court accepts as true “all material factual
allegations in the complaint.” Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129,
131 (2d Cir. 1998). Unlike a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the Court also has “the power and obligation” to consider
“evidence outside the pleadings, such as affidavits,” to resolve questions of fact
and determine whether subject matter jurisdiction exists. APWU v. Potter, 343
F.3d 619, 627 (2d Cir. 2003); see also Makarova v. U.S., 201 F.3d 110, 113 (2d Cir.
2000) (stating Courts refer to evidence outside the pleadings on a motion to
dismiss for lack of subject matter jurisdiction). Accordingly, the following facts
2
are taken from the material facts alleged in Szydlo’s Amended Complaint and the
exhibits to the parties’ briefing regarding dismissal.
Throughout the relevant time period, USA had possession and control of
certain property in Gales Ferry, Connecticut. [Dkt. No. 31 (Amended Complaint)
at 1-2.] On that property was a post office open to the public (the “Post Office”),
as well as adjacent sidewalks and parking areas. Id. at 2.
Pursuant to a contract between USA and Roman, Roman “was responsible
. . . for the winter maintenance of the sidewalks/walkways and parking areas
adjacent to the post office, including the sidewalk/walkway that is the subject of
this lawsuit.” Id. at 4. The contract between USA and Roman states, in relevant
part:
The supplier will provide all necessary labor, equipment, materials,
supplies and supervision to provide snow services as listed herein.
If the accumulation of snow exceeds two (2) inches, the supplier shall
commence the snow operation without further notification, in
accordance with the schedule specified below.
The supplier will plow/remove snow from the employee parking, the
customer parking, the truck/loading dock, the sidewalks/steps/ramps,
and the sidewalks abutting the property. The entire area is an
estimated 9,000 square footage. The supplier will apply salt/sand only
when requested by the USPS . . .
[Dkt. No. 37-2 at 17-18.]
Despite the express terms of the contract, Roman consistently removed
snow and applied salt and sand without USA’s request, even where less than two
inches of snow had accumulated. Charlene Perry (“Perry”), the Officer-in-Charge
of the Post Office, explained that “during [my] four years as [Officer In Charge] of
3
the [Post Office], I did not direct, nor to my knowledge [did] anyone else on my
staff direct, Roman as to how to complete the contract and remove snow and/or
place ice and/or sand.” [Dkt. No. 28-2 at 4.] Michelle Laflamme (“Laflamme”), a
Post Office employee, confirmed that Roman plows and treats the Post Office
grounds whenever it snows, without request from her. [Dkt. No. 37-4 at 60-65.]
While Roman regularly treated the Post Office grounds, Roman did not
warn Post Office patrons of dangerous snow and ice conditions, and had “no
responsibility to place warning signs or cones to warn pedestrians of icy
conditions.” [Dkt. No. 37-3 (Perry Deposition) at 70-71 (“[T]o your knowledge, did
the USPS give any sort of responsibility to any other party, or Roman, regarding
putting warning signs or any type of warnings for customers at the Gales Ferry
post office? A. No.”)].
USA and Roman have not modified in writing the terms of their contract to
reflect Roman’s general practice of treating the Post Office grounds for winter
weather conditions without request. In fact, Perry had not reviewed the winter
weather provision of the contract prior to February 4, 2014. [Dkt. No. 37-3 (Perry
Deposition) at 61 (“. . . you had not reviewed the contract marked as Exhibit D
before the February 4, 2014 incident? A. Correct.”).] However, USA and Roman
have since reviewed and modified in writing other terms of their contract. [Dkt.
No. 37-2 at 2, 4 (written modifications dated 10/1/14).]
It snowed five inches on February 3, 2014, but did not snow on February 4,
the day Szydlo fell. [Dkt. No. 28-4 at 2.] A letter from a Consulting Meteorologist
states:
4
The low of 19 degrees [on February 4, 2014] occurred during the
predawn hours. The high that afternoon was about 35 degrees. At the
time in question (approximately 9:40am on February 4, 2014), weather
conditions in Gales Ferry included a clear sky, a temperature of 27
degrees, wind from the northeast at 8 miles per hour, and visibility of
about 7.0 miles. There was about 4.0” of snow present on untreated,
undisturbed ground surfaces. It is likely that there were also some icy
spots present on untreated surfaces. These would have begun
forming the previous afternoon.
[Dkt. No 28-5 at 2.]
Roman’s itemized bill indicates Roman plowed the Post Office property
once on February 4, 2014, administered sand once, and administered one “walk
and ice” treatment.” [Dkt. No 28-4 at 2.] The bill does not indicate what time
Roman treated the Post Office sidewalk, but Perry’s Affidavit indicates “Roman
had finished applying the snow melt and plowing before the accident occurred.”
[Dkt. No. 28-2 at 5.] Laflamme confirmed the Post Office grounds had already
been plowed and treated with Ice Melt when she arrived at work around 8:30 am
on February 4. [Dkt. No. 37-4 at 60, 67.]
On the morning of February 4, 2014, Szydlo entered the Post Office as a
customer, and at 9:40am she exited the Post Office, slipped, and fell on the
adjacent sidewalk, which Szydlo alleges was covered in ice. [Dkt. No. 31 at 2.]
Plaintiff sustained injuries including:
(a) Spiral fractural of the lateral malleolus of the right ankle;
(b) Avulsion fracture of the medical malleolus of the right ankle;
(c) Subluxation of the talus;
(d) Comminuted fracture with bleeding;
(e) Fear of the development of early onset traumatic arthritis;
(f) Permanent disability and pain; and,
(g) Fungal infection in right foot.
5
Id. at 3. Plaintiff required splinting and reduction of her dislocated joint by
emergency room physicians, surgery and orthopedic care, including surgical
placement of screws, fixation of the fibula fracture by a 6-hole plate, split therapy,
physical therapy, and medication for swelling and pain. Id. at 3. Plaintiff also
experienced, and fears she will permanently experience, “pain, discomfort,
difficulty sleeping, anxiety and a loss of restriction of motion of her right ankle”
as a result of the aforementioned injuries. Id. at 3. Plaintiff also sustained
permanent “disfigurement and scarring” to her right ankle, which caused her
“humiliation and embarrassment.” Id. at 4.
Laflamme observed one patch of ice on the sidewalk outside the Post
Office after Szydlo fell (the exact time delay between Szydlo’s fall and Laflamme’s
discovery of ice is not given). [Dkt. No. 37-4 at 45-46.] Laflamme clarified that
she was unsure whether the “slippery spot” was where Szydlo fell. Id. at 79.
However, Laflamme also testified that when she discovered Szydlo “on the
ground,” the “bottom of [Szydlo] was wet,” although Laflamme testified she did
not see “what she fell on.” Id. at 37-39. After Szydlo left the Post Office in an
ambulance, Laflamme applied additional Ice Melt to the Post Office property and
set up a caution cone to alert others of hazardous conditions. Id. at 69-70.
Plaintiff subsequently filed the instant action, alleging USA and Roman
each negligently maintained the Post Office sidewalks on the day in question, and
failed to warn Post Office patrons of hazardous conditions. Id. at 2, 5.
b.
Legal Standard
6
To establish subject matter jurisdiction in a suit against the USA or its
agencies, Plaintiff must show that the USA waived its sovereign immunity.
Lunney v. U.S., 319 F.3d 550, 554 (2d Cr. 2003). The parties agree that the Federal
Tort Claims Act, 28 U.S.C. § 1346(b)(1) (“FTCA”), waives sovereign immunity and
grants the district courts:
jurisdiction of civil actions on claims against the United States, for
money damages, . . . for . . . personal injury or death caused by the
negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or employment,
under circumstances where the United States, if a private person,
would be liable . . .
However, the FTCA contains an exception preserving sovereign immunity
for claims of negligence by an independent contractor. 18 U.S.C. § 2671 (“As
used in . . . section[] 1346(b) . . . of this title, the term ‘Federal agency’ . . . does
not include any contractor with the United States. ‘Employee of the government’
includes . . . officers or employees of any federal agency, . . . and persons acting
on behalf of a federal agency in an official capacity”); Roditis v. U.S., 122 F.3d
108, 111 (2d Cir. 1997) (“‘Employee’ under the FTCA, however, specifically
excludes ‘any contractor with the United States. . . . Thus, as a general rule,
sovereign immunity precludes suits against the United States for injuries caused
by its independent contractors.”). The parties dispute whether the independent
contractor exception applies in this case, and accordingly whether the Court has
jurisdiction over Szydlo’s claims against USA.
7
Where, as here, a defendant moves to dismiss for lack of subject matter
jurisdiction, the plaintiff bears the burden of establishing, by a preponderance1 of
the evidence, that jurisdiction exists. Tandon v. Captain’s Cove Marina, 752 F.3d
239, 243 (2d Cir. 2014); Robinson v. Gov’t of Malaysia, 269 F.3d 133, 141-42 (2d
Cir. 2001); Elliot v. U.S., No. 3:06-cv-1607, 2007 WL 2022044, at *2 (D. Conn. July 6,
2007). “[J]urisdiction must be shown affirmatively, and that showing is not made
by drawing from the pleadings inferences favorable to the party asserting it.”
Shipping Fin. Servs. Corp., 140 F.3d at 131. Rather, as stated above, the Court
has “the power and obligation” to consider evidence outside the pleadings to
resolve questions of fact in its jurisdictional analysis. APWU, 343 F.3d at 627.
c.
Analysis
USA, as the possessor of the Post Office and surrounding sidewalks and
parking lot, “owes an invitee two separate duties: the duty to inspect and
maintain the premises to render them reasonably safe, and the duty to warn of
dangers that the invitee could not reasonably be expected to discover.” Gargano
v. Azpiri, 110 Conn. App. 502, 510 (2008); see also Morin v. Bell Court Condo.
Ass’n, Inc., 223 Conn. 323, 327 (1992) (same); In re Gen. Dynamics Asbestos
Cases, 602 F. Supp. 497, 499-500 (D. Conn. 1984) (“Claims against the United
States under the FTCA are governed by state law”). The parties dispute whether
USA delegated those duties to Roman sufficiently to preclude subject matter
The Second Circuit defines a preponderance of the evidence as “to prove that
the fact is more likely true than not true.” Henry v. Dep’t of Transp., 69 F. App’x
478, 480 (2d Cir. 2003).
1
8
jurisdiction over USA for Szydlo’s claims. USA argues it delegated all duties to
inspect and maintain the premises to Roman through an unwritten contract
modification, and argues it delegated the duty to warn invitees of hazardous
conditions as encompassed within the duty to maintain the property. The Court
discusses the two arguments in turn.
i.
Unwritten Modification of Duty to Maintain
USA argues it delegated all of its duties as possessor of the Post Office
sidewalk to Roman, an independent contractor, on February 4, 2014, bringing this
action within the ambit of the FTCA exception for independent contractors.
According to the contract between USA and Roman, USA delegates “snow
operation” to Roman if snow accumulation exceeds two inches, and delegates
“plow/snow removal” and “sand/salt” application in all other situations “only
when requested by the USPS.” [Dkt. No. 37-2 at 17-18.] The contract terms do
not otherwise delegate USA’s duty to “inspect and maintain the premises,” or
USA’s duty to warn invitees of dangerous conditions.2 Id.; Gargano, 110 Conn.
App. at 510.
2
Szydlo asserts in its Sur-Reply that Roman’s actions may not be used to
interpret the actual terms of the contract, which clearly indicate USA retained a
duty to request winter weather services from Roman. [Dkt. No. 42 at 3-4.] Szydlo
reasons that where a contract’s terms are clear, courts do not look to the parties’
actions to interpret them. Id. at 3-4. The Court does not interpret USA’s briefing
as arguing the contract’s terms are ambiguous and should be interpreted in light
of Roman’s actions. Rather, USA admits the written contract terms “originally
contemplated the Postal Service calling Roman to inform him when it would like
sand, salt, or ice melt,” but asserts “there was a modification of the contract
whereby Roman would apply sand, salt, or ice melt when he deemed necessary.”
[Dkt. No. 38 at 2 (emphasis added).] To the extent USA may have argued the
written contract terms should be interpreted in light of Roman’s actions, the
9
It snowed five inches on February 3, 2014, but did not snow on February 4,
the day Szydlo fell. [Dkt. No. 28-4 at 2.] Accordingly, the contract terms indicate
USA retained the duty to sand and salt the Post Office sidewalks if USA did not
request that Roman do so.3 [Dkt. No. 37-2 at 17-18.]
However, USA asserts that, while its contract with Roman did not delegate
the duty to inspect and monitor the Post Office grounds unless it snowed two
inches or more, Roman consistently plowed and removed snow and applied sand
and salt without request from USA. [Dkt. No. 28-2 at 4 (describing Roman’s
routine winter weather services, provided without USA request).] In fact, USA
asserts Roman applied “snow melt” and plowed before the accident occurred on
February 4, 2014. [Dkt. No. 28-2 at 5 (Perry Affidavit); Dkt. No. 37-4 at 60, 67
(Laflamme Deposition).] USA argues this pattern of behavior constitutes a
modification of the contract, establishing a modified agreement whereby Roman
had the duty to plow and apply sand and salt whenever necessary, even when
accumulation was under two inches.
Court agrees with Szydlo that such an interpretation is inappropriate, as the
contract terms in question are clear. HLO Land Ownership Assocs. Ltd. P’ship v.
Hartford, 248 Conn. 350, 359-69 (1999) (stating when a contract is clear and
unambiguous, evidence outside the contract is inadmissible to interpret contract
terms); Alstom Power, Inc. v. Balcke-Durr, Inc., 269 Conn. 599, 607 (2004) (same);
Leonard Concrete Pipe Co. v. C.W. Blakeslee & Sons, Inc., 178 Conn. 594, 598-99
(1979) (stating where a contract is clear and unambiguous, it “is to be given effect
according to its terms”).
3
The Second Circuit has indicated that prior snowfall does not trigger an
independent contractor’s duty to plow the following day where the contract
conveys a duty to plow only when a certain amount of snow has accumulated
that day. Haskin v. U.S., 569 F. App’x 12, 15-16 (2d Cir. 2014) (summary order).
10
Szydlo disputes USA’s modification argument. Szydlo asserts a
modification requires both parties to intend the modification, and argues USA
could not have intended to modify the contract’s winter weather provisions,
because Perry admitted in her deposition she was unaware that contract term
existed before February 4, 2014. [Dkt. No. 37-3 at 61.] Szydlo reasons that a party
cannot intend to modify a contract term of which it is unaware.
In addition, Szydlo notes that other terms of the contract were later
modified in writing, but the parties did not choose to modify the terms relating to
Roman’s winter weather duties at that time. [Dkt. No. 37-2 at 2, 4 (showing written
modifications of other contract terms).] Szydlo argues if the parties had intended
to modify that contract term, they would have done so in the way they have
modified other terms.4
4
Szydlo also argues Perry’s statements are inadmissible hearsay and may not be
used to establish Roman’s routine actions, as Perry admitted in her deposition
she did not personally see Roman provide the contemplated winter weather
services on February 3 or 4, 2014. [Dkt. No. 37-3 at 76-87 (stating Perry was not
present at the Post Office on February 3 or 4, 2014.] Szydlo correctly notes that
statements not based on personal knowledge are inadmissible. U.S. v. Stratton,
779 F.2d 820, 829 (2d Cir. 1985); State v. Sunrise Herbal Remedies, Inc., 296 Conn.
556, 573 (D. Conn. 2010). However, Perry’s general statement that “Roman
almost always came to handle snow removal” is based on personal knowledge.
Perry stated in her affidavit that during her four years as the Officer-in-Charge,
she was regularly at the Post Office. [Dkt. No. 28-2 at 4 (“The majority of the time
Roman handled snow, salt, and sand before the Gales Ferry, CT Post Office
opened and before I, or my staff, arrived at work.”).] The statement that Roman
plowed the parking lot and treated the sidewalks of the Post Office before she
arrived at work is not a statement based on hearsay, as Szydlo suggests. Such a
statement is based on Perry’s own “rational perception” of the plowed parking lot
and treated sidewalk upon her arrival at the Post Office, and is admissible. Fed.
R. Evid. 701(a); see also Brady v. Chem. Const. Corp.. 740 F.2d 195, 201 (2d Cir.
1984) (“a lay witness may testify about his conclusions if they are based upon his
perceptions”).
11
“Courts do not rewrite contracts for the parties,” but will instead bind
parties to express terms of their contract absent countervailing policy
considerations. Herbert S. Newman & Partners, P.C. v. CFC Const. Ltd. P’ship,
236 Conn. 750, 760 (1996). However, parties may modify contract terms through
“mutual assent to the meaning and conditions of the modification.” Id. at 762.
The Court may infer modification “from the attendant circumstances and
conduct of the parties,” if there is evidence the parties “assent to the same thing
in the same sense.” Id. at 762. The mere “appearance of assent” is insufficient.
Hope Acad. of Milford, Inc. v. Fortier, No. CV03081072S, 2004 WL 944480, at *4
(Conn. Super. Ct. Apr. 13, 2004). Rather, both parties must “know[] or ha[ve]
reason to know that the other party may infer from his conduct that he assents”
to the modification. Id. at *4 (quoting 2 Restatement (Second), Contracts,
Conduct as Manifestation of Assent § 19, p. 55 (1981)).
The form of the parties’ other modifications may inform the Court whether
the parties intended the instant modification; where prior modifications were in
writing, parties are less likely to intend a later alleged oral modification.
Schimelman v. Katz, No. CV98063630S, 2003 WL 21659690, *3 (Conn. Super. Ct.
June 19, 2003) (noting parties’ prior modifications in writing in support of
conclusion that parties did not intend separate oral modification).
Szydlo has offered evidence that Perry, the Officer-in-Charge of the Post
Office, was unaware of any contract terms governing Roman’s winter weather
12
duties at the time of Szydlo’s fall. In addition, Szydlo has shown that when USA
and Roman chose to modify other contract terms, they did so in writing. This
evidence establishes that it is more likely than not that USA lacked the requisite
knowledge and intent to legally modify the contract’s winter weather provision
prior to February 4, 2014. [Dkt. No. 37-3 (Perry Deposition) at 61 (“. . . you had not
reviewed the contract marked as Exhibit D before the February 4, 2014 incident?
A. Correct.”); Dkt. No. 37-2 (Contract) at 3-13 (written contract modifications)].
Since Szydlo has established USA did not delegate the duty to inspect and
monitor the Post Office, the Court turns to whether USA in fact breached that
duty on February 4, 2014 by failing to provide a “reasonably safe” premises for
invitees. Gargano v. Azpiri, 110 Conn. App. 502, 510 (2008); see also Morin v. Bell
Court Condo. Ass’n, Inc., 223 Conn. 323, 327 (1992).
Laflamme stated she observed some ice on the sidewalk outside the Post
Office soon after Szydlo fell, and that she noticed the portion of Szydlo touching
the ground where she fell was “wet.” [Dkt. No. 37-4 at 45-46.] In addition, it was
27 degrees at the date and time in question, and had snowed over five inches the
day before. [Dkt. No. 28-5 at 2.] These facts are sufficient to establish that there
was at least some ice on the Post Office sidewalk on the morning of February 4,
2014. The Second Circuit has found analogous facts sufficient that “a reasonable
jury could conclude . . . that [plaintiff] was injured by the negligence of USPS
employees—specifically, their failure to detect and remove ice on the sidewalks
surrounding the Branch, or their failure to summon [the independent contractor]
to remove the ice.” Haskin v. U.S., 569 F. App’x 12, 15-16 (2d Cir. 2014) (summary
13
order) (finding subject matter jurisdiction where invitee slipped on ice outside
post office, where less than two inches of snow fell that day but it snowed
significantly the day before). The fact that Roman plowed and treated the
sidewalks after the February 3, 2014 snowfall does not require a different
conclusion. Id. at 14 (noting the independent contractor plowed and applied sand
and salt four times between the prior day’s snowfall and the day plaintiff fell).
Despite the icy conditions on February 4, USA would not have had a duty
to maintain the premises at the time of Szydlo’s fall if the weather at that time
presented an ongoing hazardous condition. Connecticut recognizes an
exception to premises liability when the dangerous condition is ongoing, such as
when ice is in the process of thawing and re-freezing due to fluctuating
temperatures. Riccio v. Harbour Village Condo. Ass’n, Inc., 281 Conn. 160, 165
(2007) (stating premises liability exists where snow has melted and re-frozen, and
the re-frozen ice has “existed for such a length of time that the defendants
should, in the exercise of reasonable care, have discovered it in time to remedy
it”); see also Kraus v. Newton, 211 Conn. 191, 197 (1989) (stating the possessor of
a premises “may await the end of a storm and a reasonable time thereafter before
removing ice and snow from outside walks and steps”).
However, the meteorological report provided indicates there was no
precipitation on February 4, 2014, and states the temperature remained below
freezing from the predawn hours to the afternoon. [Dkt. No. 28-5 at 2.] At the
time of Szydlo’s fall, the temperature was 27 degrees. Id. Accordingly, the Court
has insufficient evidence to conclude there was an ongoing weather condition
14
exempting USA from a duty to maintain the premises. Rather, the weather report
provided indicates any ice present on the sidewalk at 9:40am was present before
the Post Office opened, and could have been discovered through reasonable
diligence by Ms. Laflamme when she entered the building that morning. See
Kraus, 211 Conn. at 196-97 (citing Sheehan v. Sette, 130 Conn. 295 (1943) (finding
premises owner liable for plaintiff’s injury where “the jury could reasonably have
found that the steps had been slippery for almost five hours”)).
Accordingly, the evidence establishes that USA owed a duty to monitor the
Post Office sidewalks and keep them clear of ice on the date and time in question.
Szydlo has also sufficiently established at this stage that USA did not modify its
contract with Roman to delegate the duty to inspect and maintain the premises.
USA’s Motion to Dismiss Szydlo’s Claims arising from the failure to inspect and
maintain the Post Office premises is accordingly DENIED.
ii.
The Duty to Warn
In addition, USA argues it delegated the duty to warn invitees of hazardous
conditions along with the duty to maintain the premises. [Dkt. No. 42 at 4.] While
the contract terms do not explicitly state Roman shall warn Post Office patrons of
hazardous conditions, USA argues “the duty to warn of dangerous conditions is
inherently encompassed within the general transfer of the responsibility to
maintain the building and ensure the safety of its inhabitants.” Id. In support of
its position, USA cites Basher v. U.S., No. 5:92-cv-186, 1995 WL 646343, *1-3 (D.
Conn. Mar. 14, 1995), which determined the federal government had delegated
duties to maintain the courthouse premises and warn of unsafe conditions to an
15
independent contractor. The Basher court found delegation of both duties was
“the only reasonable construction of the contract between [the independent
contractor] and the United States.” Id. at *3.
Szydlo responds that the duties to inspect and maintain the premises and
to warn invitees of dangers on the property are two separate duties, and the
distinct duty to warn is not “encompassed” in a delegation of the duty to maintain
and inspect the premises. [Dkt. No. 42 at 6 (citing Gargano, 110 Conn. App. at 510
(“A possessor of land owes an invitee two separate duties: the duty to inspect
and maintain the premises . . . , and the duty to warn.”).]
The Court agrees with Szydlo that the duties to maintain a premises and to
warn invitees of hazardous conditions therein are distinct. See generally Morin v.
Bell Ct. Condo. Ass’n Inc., 223 Conn. 323, 327 (1992) (“A possessor of land has a
duty to an invitee to reasonably inspect and maintain the premises in order to
render them reasonably safe. In addition, the possessor of land must warn an
invitee of dangers that the invitee could not reasonably be expected to
discover.”) (internal citations omitted). Courts routinely analyze the two duties
distinctly. See, e.g., Popow v. Stratford, 3:07-cv-1620, 2010 WL 537752, *9 (D.
Conn. Feb. 12, 2010) (stating a possessor of land has separate duties to inspect
and maintain the premises and to warn invitees of dangers therein, and analyzing
duty to warn separate from duty to maintain); Gargano, 110 Conn. App. at 510-11
(finding the property owner had no duty to warn the invitee in question of a
known hazard, but did owe a duty to maintain the premises in a reasonably safe
condition).
16
The Court also notes that Connecticut law enforces contract terms
according to their plain language, and does not “torture words to import
ambiguity where the ordinary meaning leaves no room for ambiguity.” HLO Land
Ownership Assocs. Ltd. P’ship v. Hartford, 248 Conn. 350, 357 (1999).
Accordingly, where USA has clearly delegated some of its duties to maintain and
inspect the Post Office, the Court will not read into that delegation an intent to
delegate the separate duty to warn. See generally Leonard Concrete Pipe Co.,
178 Conn. at 598-99 (“Where the language of the contract is clear and
unambiguous, the contract is to be given effect according to its terms.”); see
also, e.g., Bodner v. U.S. Auto Ass’n, 222 Conn. 480, 488 n.4 (1992) (stating, in
dicta, a duty voluntarily taken via contract is enforceable).
USA’s citation to Basher is inapposite. In Basher, the court found
delegation of the duties to maintain the courthouse premises and warn invitees of
dangerous conditions was the “only reasonable construction of the contract”
where the contract terms were significantly broader than the contract terms at
issue here. In Basher, the contract stated the independent contractor had “the
overall responsibility for the administration of this contract. He alone, without
delegation, is authorized to take actions on behalf of the Government to amend,
modify, or deviate from the contract terms,” and is responsible for “inspecting
the work to ensure compliance with the contract requirements.” 1995 WL 646343,
at *1. The court in Basher found the United States had delegated the duty to warn
not because it had delegated the duty to perform some maintenance, but because
it had broadly delegated “overall responsibility” for maintaining the premises. Id.
17
In contrast, USA’s contract with Roman delegates specific duties to plow
and apply sand and salt only under certain conditions. As discussed supra, the
duties to maintain the Post Office grounds delegated in USA’s contract with
Roman are narrow enough that they do not even encompass the duty to inspect
and maintain the premises in all circumstances, let alone the separate duty to
warn invitees of hazardous conditions.
Nor has the duty to warn been separately delegated to Roman through
unwritten modification. Roman does not regularly warn Post Office patrons of
dangerous snow and ice conditions. [Dkt. No. 37-3 (Perry Deposition) at 70-71
(“[T]o your knowledge, did the USPS give any sort of responsibility to any other
party, or Roman, regarding putting warning signs or any type of warnings for
customers at the Gales Ferry post office? A. No. . . . Q. So you would agree with
me that Roman had no responsibility to place warning signs or cones to warn
pedestrians of icy conditions? A. Correct.”)].
Plaintiff has met its burden to establish USA retained a duty to warn
patrons of hazardous conditions on the Post Office grounds. Plaintiff has also
established at this juncture that USA breached that duty on February 4, 2014, as
Laflamme observed at least one “slippery spot” soon after Szydlo fell, and did not
place warning signs around the property when she opened the Post Office that
morning. [Dkt. No. 37-4 at 77-79 (stating Laflamme observed a “slippery spot”);
Id. at 70 (stating Laflamme put a caution cone outside the Post Office after Szydlo
fell).] Accordingly, USA’s Motion to Dismiss Szydlo’s claim arising from the
failure to warn is DENIED.
18
II. USA’s Claims Against Roman
a.
Factual Background
In addition to Plaintiff’s claims against USA and Roman, USA filed a thirdparty action against Roman seeking indemnification and apportionment. The
brief statement of facts alleges Szydlo slipped and fell outside the Post Office on
February 4, 2014. [Dkt. No. 21 at 2.] On the day of the alleged fall, Roman was
“solely responsible for removing snow and/or ice and applying sand and salt” at
the Post Office, pursuant to a contract between Roman and USA.5 Id. at 3.
b.
Legal Standard
To survive a Motion to Dismiss under Federal Rule of Civil Procedure
12(b)(6), the complaint must plead “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A
claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court must
“accept[] all factual allegations as true and draw[] all reasonable inferences in
favor of the plaintiff” when deciding a motion to dismiss. Litwin v. Blackstone
Grp., L.P., 634 F.3d 706, 715 (2d Cir. 2011).
5
USA further explains the timeliness of the Third-Party Complaint, stating Szydlo
filed her Complaint against USA on February 16, 2016, and USA filed its Answer
on March 29, 2016. Id. at 2. The parties agreed they should be allowed to add
additional parties to the litigation until June 3, 2016, which the Court approved,
and USA filed its Third-Party Complaint against Roman on June 2. Id. at 2-3.
19
c.
Analysis
Roman moves to dismiss count two of USA’s Third-Party Complaint, which
seeks apportionment of any judgment against USA. [Dkt. No. 27-1]. Count two
states: “Should Szydlo prove at trial that her alleged injuries and damages were
caused by negligence, and that the United States of America is found liable to
Szydlo for her injuries, the United States of America is entitled to apportionment
of liability from Roman under Connecticut General Statutes § 52-102b.” [Dkt. No.
21 at 6.]
Connecticut’s apportionment statute states:
In a negligence action to recover damages resulting from personal
injury, wrongful death or damage to property occurring on or after
October 1, 1987, if the damages are determined to be proximately
caused by the negligence of more than one party, each party against
whom recovery is allowed shall be liable to the claimant only for his
proportionate share of the damages.
Conn. Gen. Stat. § 52-572h(c).6
However, Roman notes that Connecticut’s apportionment statute “does not
apply . . . when the two defendants are a servant and his master who is
vicariously liable for his servant’s tortious conduct.” Gazo v. Stamford, 255
Conn. 245, 255 (2001)). Roman argues USA and Roman fall into the vicarious
liability exception.
6
Conn. Gen. Stat. § 52-102b, which USA cites as the statutory basis for its
apportionment claim, creates a cause of action for a party to seek apportionment
under Section 52-572h. Section 52-572h, quoted above, substantively describes
when apportionment is appropriate.
20
Roman asserts property owners, including USA, retain a non-delegable
duty “to exercise ordinary care for the safety of [invitees]” as the “owner or
occupier of [the] premises.” Smith v. Greenwich, 278 Conn. 428, 458 (2006).
Because the duties to maintain the Post Office premises and to warn patrons of
dangerous conditions are “non-delegable,” Roman asserts USA retained
vicarious liability for any negligence by Roman in fulfilling those duties, and may
not seek apportionment of any adverse judgment. [Dkt. No. 27-1 at 3 (citing
Flanagan v. Greystone Park Condo., CV020459590S, 2002 WL 31875349, at **2-3
(Super. Ct. Conn. Dec. 2, 2002) (“The non-delegable duty doctrine, which places a
duty on the landowner or possessor to keep the premises in a reasonably safe
condition, involves a form of vicarious liability . . . in direct contrast to separate
and distinct acts of negligence contemplated under General Statutes § 52-572h,
and thus, vicarious liability and apportionment are, therefore, necessarily
inconsistent.”)].
USA responds that the FTCA states the federal government is not liable for
the negligence of its independent contractors. [Dkt. No. 32.] USA asserts the
FTCA’s exemption from liability for independent contractors’ negligence places
USA’s claims against Roman in a different category from other premises liability
actions, and accordingly the “Court does not need to address the Connecticut
state law cases.” Id. at 1.
As the Court discussed at length above, whether USA delegated all
relevant duties to Roman is in dispute. However, taking USA’s Third Party
Complaint in the light most favorable to USA, as the Court is constrained to do
21
when evaluating a motion to dismiss, USA has alleged that “Roman, pursuant to
the contract [with USA], was solely responsible for removing snow and/or ice and
applying sand and salt at the Gales Ferry Post Office” on the day of Szydlo’s
alleged fall. [Dkt. No. 21 at 3.]
Accordingly, the question for the Court at this stage is whether the FTCA
does in fact circumvent Connecticut’s non-delegable duty doctrine, as USA
asserts. The Supreme Court has addressed the issue:
Congress . . . could have left the determination as to whose negligence
the Government should be liable for under the Federal Tort Claims Act
to the law of the State involved, as it did with other aspects of liability
under the Act. But it chose not to do this, and instead incorporated
into the definitions of the Act the exemption from liability for injury
caused by employees of a contractor.
Logue v. U.S., 412 U.S. 521, 528 (1973).
Accordingly, while “[c]laims against the United States under the FTCA are
governed by state law,” (In re Gen. Dynamics Asbestos Cases, 602 F. Supp. 497,
500 (D. Conn. 1984)), “any state law nondelegable duty cannot, on its own,
override the United States’ sovereign immunity from suits for injuries caused by
its independent contractors.” Roditis, 122 F.3d at 111 (collecting cases); see also
Berkman v. U.S., 957 F.2d 108, 112-13 (4th Cir. 1992) (“[T]he FTCA exception for
independent contractors preempts state law nondelegable duties.”).
Beyond honoring Congressional intent, the Second Circuit has also noted
state non-delegable duties may not override the FTCA because it “would result, in
cases such as this, in a form of strict liability against the United States for injuries
caused by its independent contractors.” Roditis, 122 F.3d at 111. This would
22
contravene the FTCA, which “precludes government liability absent a negligent
act, and, thus, does not extend to liability without fault.” Id. at 112 (quoting
Dalehite v. U.S., 346 U.S. 15, 44 (1953)).
Accordingly, assuming at the motion to dismiss stage that USA’s
allegations against Roman are true, and USA delegated all relevant duties to
Roman on February 4, 2014, Connecticut’s non-delegable duty doctrine does not
preclude USA’s apportionment claim. Roman’s Motion to Dismiss is accordingly
DENIED.
III. Conclusion
For the foregoing reasons, USA’s Motion to Dismiss is DENIED. Roman’s
Motion to Dismiss is DENIED. This action will proceed on all claims asserted in
Szydlo’s Amended Complaint and USA’s Third Party Complaint.
IT IS SO ORDERED
_________/s/______________
Vanessa L. Bryant,
United States District Judge
This 12th day of January, 2017
23
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