Commercial Union Insurance v. Frank Perrotti & Sons, Inc.

566 A.2d 431, 20 Conn. App. 253, 1989 Conn. App. LEXIS 352
CourtConnecticut Appellate Court
DecidedNovember 21, 1989
Docket7353
StatusPublished
Cited by46 cases

This text of 566 A.2d 431 (Commercial Union Insurance v. Frank Perrotti & Sons, Inc.) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commercial Union Insurance v. Frank Perrotti & Sons, Inc., 566 A.2d 431, 20 Conn. App. 253, 1989 Conn. App. LEXIS 352 (Colo. Ct. App. 1989).

Opinion

Dupont, C. J.

This is an appeal from the trial court’s granting of directed verdicts in favor of the defendants. The plaintiff Commercial Union Insurance Company (Commercial) brought an action against the defendants, seeking reimbursement for sums paid to the city of New Haven, under a contract of insurance, for repair of a bulldozer damaged by a fire at a city landfill. The city intervened as a party plaintiff, seeking reimbursement for the cost of renting a replacement bulldozer while the damaged bulldozer was under repair.1 The trial court directed the jury to render a verdict for the defendants because the court found that the allegations in the plaintiffs’ complaints were insufficient to allege that the proximate cause of the harm to the city and to Commercial was the negligence of the defendants, and that the plaintiffs, in any event, failed to prove that their harm was caused by the defendants’ negligence. The trial court also dismissed cross complaints that had been filed by the defendants seeking indemnification from other defendants.

[255]*255The allegations of the plaintiffs’ complaints were essentially the same. One defendant, Frank Perrotti and Sons, Inc. (Perrotti), picked up trash at the premises of another defendant, K-Mart, Corporation (K-Mart).2 Unknown to the Perrotti driver, the trash in the closed container included several damaged but full fuel cans containing flammable fluid. The driver loaded them in his dumpster and proceeded to the town landfill, where the trash, including the cans, was deposited. Soon thereafter, a fire was discovered in the same pile of trash. A city bulldozer was used in an attempt to extinguish the fire by covering it with dirt, and the bulldozer itself caught fire.

Both plaintiffs stated in their pleadings that K-Mart negligently and carelessly placed several containers of flammable liquid in its trash bin; that it knew or should have known that the Perrotti driver would deposit the cans in the town landfill; that the driver transported the cans to and deposited them at the landfill in violation of city regulations, despite a notice clearly posted at the entrance to the landfill prohibiting the deposit of flammable substances therein; that, as a direct result, combustion occurred and a fire in the landfill resulted; that the bulldozer operator tried to extinguish the blaze by covering it with dirt; that the bulldozer became engulfed in flames; and that its electrical system, fuel lines and other parts therefore were destroyed.

The dispositive issues in this case are whether the allegations of the plaintiffs’ complaints are sufficient to state causes of action against the defendants, and, [256]*256if so, whether the evidence was sufficient to prove the allegations of the causes of action by a fair preponderance of the evidence.3

A verdict may be directed only where the jury could not reasonably reach any other conclusion; Boehm v. Kish, 201 Conn. 385, 389, 517 A.2d 624 (1986); Morales v. Trinity Ambulance Service, 9 Conn. App. 386, 387, 519 A.2d 90 (1986), cert. dismissed, 202 Conn. 806, 520 A.2d 1287 (1987); or where the decisive question is one of law. Lombardi v. J.A. Bergren Dairy Farms, Inc., 153 Conn. 19, 23, 213 A.2d 449 (1965); Simmons v. Southern Connecticut Gas Co., 7 Conn. App. 245, 250, 508 A.2d 785 (1986); Living & Learning Centre, Inc. v. Griese Custom Signs, Inc., 3 Conn. App. 661, 491 A.2d 433 (1985). Here, a verdict was directed in favor of the defendants, based, in part, on the court’s conclusion that the allegations in the complaints were insufficient as to causation.

In assessing the sufficiency of the allegations in the complaints, the court must consider those allegations in the light most favorable to the plaintiff. Amodio v. Cunningham, 182 Conn. 80, 82, 438 A.2d 6 (1980); [257]*257Perruccio v. Arseneault, 7 Conn. App. 389, 393, 508 A.2d 831 (1986). “The modern trend is to read the pleadings broadly and realistically rather than technically.” DeMartin v. Yale-New Haven Hospital, 4 Conn. App. 387, 390, 494 A.2d 1222, cert. denied, 197 Conn. 813, 499 A.2d 62 (1985). “ ‘What is necessarily implied need not be expressly alleged.’ ” Wright v. Brown, 167 Conn. 464, 470, 356 A.2d 176 (1975). In determining whether a pleading sufficiently states a cause of action, the facts alleged are viewed “in a broad fashion, not strictly limited to the allegations, but also including the facts necessarily implied by and fairly provable under them.” Schmidt v. Yardney Electric Corporation, 4 Conn. App. 69, 74, 492 A.2d 512 (1985).

It is true that no single allegation in either of the complaints specifies that a spark was struck at a particular moment or in a particular manner. The complaints, however, clearly allege actions by both defendants that, taken as a whole, considered in the light most favorable to the plaintiff, construed broadly and taking into account what is implied as well as what is expressly alleged, would enable the jury reasonably to infer causation.

As to K-Mart, the complaints clearly alleged that the department manager negligently instructed his employee to deposit the cans of combustible liquid in the dumpster. As to Perrotti, the complaints clearly alleged that it had violated the city’s regulations prohibiting deposits of flammable substances by wastehandlers and others in the city’s landfill.

Perrotti argues that the plaintiffs’ pleading of causation is insufficient as to it because the complaint alleged no breach of duty that would support a cause of action in negligence. It argues that it had no duty to inspect all trash before depositing it at the landfill and that its driver, therefore, could not be expected [258]*258to be aware of the presence of the cans. The complaint, however, does not rely on common law negligence, but rather upon an alleged breach of an ordinance, that, if it occurred, could have been proved to be negligence per se, so that no other breach of duty on its part would be required. See Staudinger v. Barrett, 208 Conn. 94, 101, 544 A.2d 164 (1988). If a plaintiff alleges that a statute, ordinance or regulation has been violated, thereby relying on negligence per se, and also alleges that there is a causal connection between such negligence and the injuries sustained, a cause of action has been stated. See Wu v. Fairfield, 204 Conn. 435, 438, 528 A.2d 364 (1987).

K-Mart does not argue that the allegations of the complaints are insufficient to state a cause of action as to it, but argues instead that the plaintiffs failed to prove that any negligence on its part was the proximate cause of the damages sustained by the plaintiffs. Allegations in both of the plaintiffs’ complaints were that K-Mart was negligent because it included cans of a flammable nature in its trash and rubbish collection, and that it knew or should have known that those cases would be taken to a landfill by Perrotti. Those allegations were sufficient to state a cause of action against K-Mart. See Lombardi v. J.A.

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Bluebook (online)
566 A.2d 431, 20 Conn. App. 253, 1989 Conn. App. LEXIS 352, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commercial-union-insurance-v-frank-perrotti-sons-inc-connappct-1989.