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Tort Law Supreme Court Opinion

by Agati, Taryn


SC20537 - Costanzo v. Plainfield ("The apportionment statute, General Statutes § 52-572h, allows a party sued for damages resulting from personal injury, death or property damage caused by that party's negligence to file an apportionment complaint against additional parties, not named as defendants in the plaintiff's lawsuit, whose negligence caused the alleged losses. The statute expressly prohibits apportionment claims between a party liable for negligence and a party liable, among other things, "pursuant to any cause of action created by statute, except that liability may be apportioned among parties liable for negligence in any cause of action created by statute based on negligence . . . ." General Statutes § 52-572h (o). The central issue in this certified appeal is whether the apportionment statute, by this language, permits municipal defendants whose liability is based on General Statutes § 52-557n (b) (8) to file an apportionment complaint sounding in negligence. Section 52-557n (b) (8) renders municipal actors liable for damages and injuries that occur due to the failure to inspect or the negligent or inadequate inspection of property if (1) the municipality had notice of a hazard or violation of law (first exception), or (2) the act or omission "constitutes a reckless disregard for health or safety under all the relevant circumstances" (second exception).

Resolution of this appeal thus requires us to consider whether a claim brought under § 52-557n (b) (8) is a "cause of action created by statute based on negligence," such that apportionment is allowed under § 52-572h (o). As we explain herein, because § 52-557n (b) (8) expressly abrogates the common-law doctrine of municipal immunity, and because the first exception thereunder allows for a cause of action that we determine is based on negligence, we conclude that claims brought pursuant to that exception do qualify for apportionment.

The named plaintiff, Malisa Costanzo, the administratrix of the estate of the decedent, Isabella R. Costanzo, brought claims against the defendants, the town of Plainfield (town), and two of its employees, Robert Kerr and D. Kyle Collins, Jr., under § 52-557n (b) (8), stemming from the drowning of the decedent in a pool located on privately owned property in the town. Thereafter, the defendants filed a notice of intent to seek apportionment against the owners of the property where the pool was located and an apportionment complaint against the former tenants of the property, who had the pool constructed. The plaintiff objected to the defendants' efforts to seek apportionment, claiming that her complaint set forth a cause of action alleging recklessness or an intentional act under § 52-557n (b) (8), rather than negligence, and, therefore, that the apportionment statute did not apply. The trial court agreed and concluded that, "[i]f the defendants are found liable to the [plaintiff] on [the basis of] the [plaintiff's operative] revised complaint, it will be for reckless disregard for health [or] safety under all relevant . . . circumstances, not for negligence." (Internal quotation marks omitted.) Therefore, the trial court issued orders sustaining the plaintiff's objections and dismissing the defendants' apportionment complaint and notice of intent to seek apportionment. The defendants appealed to the Appellate Court, and that court reversed the orders of the trial court, concluding that the plaintiff's claims under § 52-557n (b) (8) fell within the first exception, which it held to incorporate a negligence standard. See Costanzo v. Plainfield, 200 Conn. App. 755, 770, 239 A.3d 370 (2020). Consequently, the Appellate Court determined that § 52-572h (o) authorizes apportionment in connection with such claims. See id. We agree with the Appellate Court and, accordingly, affirm its judgment.")