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By: Ed Storck
In a unanimous decision, the Connecticut Supreme Court in Malisa Costanzo, Administratrix, et al v. Town of Plainfield, et al, SC 20537 (July 19, 2022), upheld the Court of Appeals’ reversal of a trial courts’ order sustaining the plaintiff’s objection to the defendant’s Apportionment Complaint seeking to apportion fault to nonparties for the drowning death a child in a pool at the subject property.
In the underlying action, the plaintiff brought suit against the town and two employees pursuant to Connecticut General Statute §52-557n(b)(8), which allows civil actions against municipalities and its employees where there is a failure to inspect or negligent inspection which constitutes a reckless disregard for health and safety. The Plaintiff alleged that the municipal employees issued a building permit for a pool before any inspection was done to ensure that a pool alarm and self-closing and self-latching gate was installed at the property. The Plaintiff further alleged that the municipal employees had notice that a pool had been installed without these required safety measures. The Defendants filed an apportionment complaint and notice of intent to seek apportionment against the prior owners of the property and their tenants arguing that they were negligent in (1) having the pool built when it did not comply with the required building codes, (2) not seeking an inspection of the pool after it was built, and (3) renting the property to the plaintiff, who had four children, knowing that the pool did not have the required safety measures.
In upholding the Appellate Court’s decision, the Court first held that the trial court’s orders dismissing the municipal defendants’ apportionment complaint and notice of intent to seek apportionment constituted a final judgment which permitted the interlocutory appellate review. The Court agreed that the order sustaining the objection to the apportionment complaint was a judgment on the entire complaint and, therefore, was appealable under Connecticut Practice Book §61-2.
As to the substance of the apportionment complaint and notice of intent to seek apportionment, the Court held that the underlying complaint was based on a cause of action created by statute as prior decisions specifically found that §52-557n(b)(8) abrogated the common-law doctrine of municipal liability. Further, the court held that apportionment was proper as §52-557n(b)(8) created two exceptions allowing municipal liability for failure to inspect, one sounding in recklessness and the other in negligence. The Court found that the language in the statute was clear that there were two separate exceptions, and the underlying complaint invoked the exception based on negligent conduct. Further, the Court held that the notice requirement in the statute did not change the nature of the conduct as it was no different than the notice requirement needed in a negligence action for injuries sustained by an invitee on another’s property. As the Plaintiff’s claim against the municipality sounded in negligence, the Defendant’s apportionment complaint was proper under Connecticut General Statutes §52-102b.
For more information on this topic, contact Ed Storck.