Mable v. Bass Transportation Co.

490 A.2d 548, 40 Conn. Super. Ct. 253, 40 Conn. Supp. 253, 1983 Conn. Super. LEXIS 332
CourtConnecticut Superior Court
DecidedJune 14, 1983
DocketFile 062018
StatusPublished
Cited by14 cases

This text of 490 A.2d 548 (Mable v. Bass Transportation Co.) is published on Counsel Stack Legal Research, covering Connecticut Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mable v. Bass Transportation Co., 490 A.2d 548, 40 Conn. Super. Ct. 253, 40 Conn. Supp. 253, 1983 Conn. Super. LEXIS 332 (Colo. Ct. App. 1983).

Opinion

Stoughton, J.

On or about June 13,1980, the plaintiff, James Mable, sustained injuries arising out of his employment with the Curtis Packaging Company (Curtis). In his complaint, the plaintiff sought damages on allegations that his injuries were caused by the negligent operation of a tractor trailer owned by the defendant Bass Transportation Company (Bass) and operated by the defendant William Tomlinson, a Bass employee. Specifically, Mable alleges that Tomlinson backed Bass’s truck up to a loading dock, striking a metal plate and pinning the plaintiff’s right foot between the plate and the loading dock.

By order of the court, Grillo, J., Curtis was permitted to intervene as a party plaintiff for the purpose of seeking reimbursement from the defendants to the extent of its workers’ compensation obligations to Mable. The defendants counterclaimed against Curtis, alleging that the injuries sustained by Mable resulted from the negligence of Curtis.

The intervening plaintiff moved to strike the defendants’ counterclaim on the grounds: (1) that the Workers’ Compensation Act bars such a counterclaim; and (2) that Connecticut law does not permit contribution between joint tortfeasors. The motion to strike was granted because, although the defendants alleged that the intervening employer was actively and primarily negligent, their counterclaim failed to allege any duty owed to them or a subsequent breach of such duty.

The defendants then filed an amended counterclaim containing essentially all of the allegations set forth in *255 the original counterclaim. The defendants also included a claim of breach of an independent duty of care to the defendant Tomlinson as a business invitee and a breach of duty to the defendant Bass to use reasonable care to maintain the premises in a reasonably safe condition.

The intervening plaintiff now moves to strike the amended counterclaim on the grounds: (1) that it is essentially the same counterclaim stricken previously by this court; (2) that the Workers’ Compensation Act bars the counterclaim; (3) that Connecticut law does not allow contribution or indemnity between joint tortfeasors.

A motion to strike tests the legal sufficiency of a pleading. Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 545, 427 A.2d 822 (1980). The facts alleged in a complaint are to be construed in the way most favorable to the plaintiff. Alarm Applications Co. v. Simsbury Volunteer Fire Co., supra. A motion to strike admits all well pleaded allegations and it cannot be opposed by facts outside the pleading. Kilbride v. Dushkin Publishing Group, Inc., 186 Conn. 718, 719, 443 A.2d 922 (1982).

A ruling granting a motion to strike on the ground that the complaint lacked an essential allegation does not preclude the claimant from restating the cause of action by supplying the essential allegation lacking in the complaint that was stricken. Alarm Applications Co. v. Simsbury Volunteer Fire Co., supra, 551 n.4.

The defendants allege in their amended counterclaim that the defendant Tomlinson was a business invitee to whom Curtis owed an independent duty of care. A business invitee “is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.” Corcoran v. Jacovino, 161 Conn. 462, 465, 290 A.2d 225 (1971), citing Restatement (Second), *256 Torts, § 332. A driver of a delivery truck has the status of a business invitee. Rickey v. E.H. Jacobs Mfg. Co., 142 Conn. 495, 496, 115 A.2d 336 (1955). The measure of duty of a property owner to a business invitee with respect to the condition of the property is the exercise of reasonable care to have and keep it reasonably safe for the reasonably to be anticipated uses which the invitee would make of it. Facey v. Merkle, 146 Conn. 129, 133, 148 A.2d 261 (1959); Frankovitch v. Burton, 185 Conn. 14, 20, 440 A.2d 254 (1981), and cases cited therein. If we construe the facts alleged in the amended counterclaim in the way most favorable to the pleader, the defendant Tomlinson has pleaded an independent legal relationship between himself and Curtis. This relationship alone, however, does not establish Curtis’ liability to indemnify Tomlinson for contingent economic damages arising out of the action brought by Mable.

No case has been cited which extends a property owner’s liability for breach of his duty of care to a business invitee beyond liability for physical harm to the invitee. Restatement (Second), Torts, § 343, dealing with the liability of possessors of land to invitees, begins with the phrase “[a] possessor of land is subject to liability for physical harm caused to his invitees . . . .” While the Connecticut Supreme Court has never expressly adopted § 343, it has cited with approval two of the comments thereto. See Ford v. Hotel & Restaurant Employees & Bartenders Union, 155 Conn. 24, 35, 229 A.2d 346 (1967); Darling v. Burrone Bros., Inc., 162 Conn. 187, 198, 292 A.2d 912 (1972). Moreover, the court has expressly adopted Restatement (Second), Torts, § 343, concerning licensees; see Dougherty v. Graham, 161 Conn. 248, 251, 287 A.2d 382 (1971); and Restatement, Torts, § 339, concerning trespassing children. See Greene v. DiFazio, 148 Conn. 419, 422, 171 A.2d 411 (1961); Wolfe v. Rehbein, 123 Conn. 110, 113-14, 193 A. 608 (1937). Both of these sections *257 restrict the liability of a possessor of land to physical harm to those coming onto his property. Furthermore, 65 C.J.S., Negligence § 63 (45), views a landowner’s duty of care to an invitee as extending only to the exercise of reasonable care for the invitee’s safety. The rationale behind so limiting the scope of the landowner’s duty is that “the obligation to refrain from [negligent] conduct is owed only to those who are forseeably endangered by the conduct and only with respect to those risks or hazards whose likelihood made the conduct unreasonably dangerous.

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Bluebook (online)
490 A.2d 548, 40 Conn. Super. Ct. 253, 40 Conn. Supp. 253, 1983 Conn. Super. LEXIS 332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mable-v-bass-transportation-co-connsuperct-1983.