2007 Ct. Sup. 16952
No. CV 05 4003703 SConnecticut Superior Court Judicial District of Stamford-Norwalk at Stamford
October 5, 2007
MEMORANDUM OF DECISION RE MOTION 131, MOTION FOR SUMMARY JUDGMENT
RICHARD A. ROBINSON, JUDGE.
The plaintiff alleges in her complaint that the defendant Eduardo Guiza was doing business as E.G. Contractors, a home improvement contracting company with a principle place of business in Cos Cob, Connecticut. On or about May 23, 2003 the defendant and his company were employed as contractors for home improvements on the plaintiff’s property. On the aforementioned date the plaintiff was walking down the interior steps in her home when she suddenly fell as the result of stepping on a piece of pipe that had been left at the bottom of the stairs. The plaintiff alleges that the pipe had been placed there by the defendants or his agents, servants and/or employees.
On April 5, 2007 the defendant filed a Motion for Summary Judgment asserting that summary judgment should enter in this matter for reason that the plaintiff has a non-delegable duty to keep the subject premises safe and said duty cannot be allocated to a contractor. The defendant further argues that the plaintiff has named the wrong party. Specifically the defendants argue that the plaintiff filed her complaint against Eduardo Guiza d/b/a E.G. Contractors, however, the plaintiff actually contracted with E.G. Contracting, Inc.
Applicable Standards
Before addressing the merits of the defendant’s motion, a brief review of the standards for the granting of a Motion for Summary Judgment is warranted.
“Summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) CT Page 1695 Orkney v. Hanover Ins. Co., 248 Conn. 195, 201, 727 A.2d 700 (1999).
Section 17-45 of the Connecticut Practice Book concerns the proceedings for motions for summary judgment. It provides that: “A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like. The motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion and the supporting materials, unless the judicial authority otherwise directs. The adverse party [prior to the day the case is set down for short calendar] shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already a part of the file, shall be filed and served as are pleadings.”
Discussion
The Plaintiff Has Named the Wrong Party
The moving defendant asserts that summary judgment should enter for reason that the plaintiff has named the wrong party. The Summons in the instant action indicates that the name of the defendant is “Guiza Eduardo, d/b/a E.G. Contractor. The State Marshal’s Return indicates that the instant action was commenced when the State “GUIZA, EDUARDO, d/b/a E.G. CONTRACTOR, 20 COGNEWAUGH RD., COS COB, CT” at his usual place of abode.
The defendant filed an affidavit in support of the Motion for Summary Judgment. It provides that “any work that I performed at the plaintiff’s home was on behalf of E.G. Contracting, Inc.”
Affidavits containing self-serving and unsubstantiated statements are not competent evidence. See Washington v. Blackmore, Superior Court, judicial district of New Britain, Docket No. CV 06 5000704 (September 22, 2006, Robinson, J.).
In addition to the affidavit the defendant filed a copy of the contract that he alleges was the basis of the contractual relationship between the subject parties. It is entitled “CONTRACTOR AGREEMENT.” It provides in pertinent part that “THIS AGREEMENT made the 29-day of November 29, 2002 (sic) by and between E.G. Contractor, Inc., hereinafter called the Contractor and Teresa Downey hereinafter called the owner.” Despite the contract originally stating that it was “by and CT Page 16954 between E.G. Contractor, Inc., hereinafter called the Contractor and Teresa Downey,” the signature lines are signed by “EG Contractors[1]
— Eduardo Guiza” and Teresa Downey, signing on a line stating “Mr. or Mrs. Downey.”
The defendants also submitted a document entitled:
“CERTIFICATE OF INCORPORATION E.G. CONTRACTING INC.”
The document goes on to state that the undersigned incorporator hereby forms a corporation under the Stock Corporation Act of the State of Connecticut. FIRST: The name of the corporation is E.G. CONTRAC ING INC.” (Emphasis added.)
The defendants essentially argue that the plaintiff did not contract with Mr. Guiza, but with E.G. Contractor, Inc.; however, the Certificate of Incorporation filed submitted by the defendants is not of a Corporation named E.G. Contractors, Inc., but of a corporation named “E.G. Contracting, Inc.” Based on the information before it, this court cannot ascertain whether there ever was a legally created Connecticut Corporation by the name of E.G. Contractors, Inc. In light of this fact and the general ambiguities of what entity or person had actually contracted with the plaintiff, the court finds that the moving party has failed to meet his burden of proof to show that there are no genuine issues of material fact as to issue of whether he is the proper defendant in this matter and the motion for summary judgment for reason that the plaintiff has named the wrong party is therefore denied.
Plaintiff has a Non-Delegable Duty to Keep the Subject Premises Safe and Said Duty Cannot be Allocated to a Contractor
The plaintiff alleges in her complaint that her injuries were and losses were caused by the defendants and or his agents/servants’ and/or employee’s negligence in that they failed to maintain proper lighting; disconnected the electricity in the room that the pipe was located; placed a pipe in an area of egress when in the exercise of reasonable care they should not have done so; failed to warn the plaintiff of the condition then and there existing; failed to discover the defective condition when in the exercise of due care they should have; failed to remedy the defective condition when in the exercise of due care they should have.
The defendant argues that “the plaintiff has a non-delegable duty to keep the subject premises safe and said duty cannot be allocated to a contractor.” Our Supreme Court in Smith v. Greenwich, 278 Conn. 428, CT Page 16955 899 A.2d 563 (2006), held that an apportionment complaint may not be filed against a snow removal contractor because Connecticut upholds the nondelegable duty doctrine requiring that “The owner or occupier of premises owes invitees a nondelegable duty to exercise ordinary care for the safety of such persons.” Id., 458. “[U]nder the nondelegable duty doctrine, the party with such a duty may not absolve itself of liability by contracting out the performance of that duty . . . [T]he nondelegable duty doctrine means that a party may contract out the performance of a nondelegable duty, but may not contract out his ultimate legal responsibility.” Id., 457.
This court notes that the plaintiff does not allege that she is an on the premises, but an owner of the premises. The court further notes that the subject defendant was not brought into this matter as an apportionment defendant, he was directly sued by the plaintiff. Based on the status of the pleadings the court finds that the nondelegable duty doctrine is not applicable.
“Liability for injuries caused by defective premises . . . does not depend on who holds legal title, but rather on who has possession and control of the property.” LaFlamme v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63 (2002). Ordinarily, control is a question of fact. Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 704, 694 A.2d 788 (1997).
It is well settled law that “[w]here the evidence on the question as to who had control of the area or instrumentality causing the injury is such that the mind of a fair and reasonable man could reach but one conclusion as to the identity of the person exercising control, the question is one for the court, but, if honest and reasonable men could fairly reach different conclusions on the question, the issue should properly go to the jury.” (Internal quotation marks omitted.) Van Nesse v. Tomaszewski, 265 Conn. 627, 631, 829 A.2d 836 (2003).
Whereas there are genuine issues of material fact as to the issue of control over the premises the motion for summary judgment is denied.
Conclusion
For all of the foregoing reasons the motion for summary judgment is denied. So ordered.
CT Page 16956