2011 Ct. Sup. 5607
No. CV 08 5017790Connecticut Superior Court Judicial District of New Haven at New Haven
February 22, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #128
BRIAN T. FISCHER, J.
FACTS
On February 7, 2008, the plaintiffs, Salvatore and Robin Zenobi, filed a six-count complaint against the defendants, May Department Store Company, Westland Properties, Inc. (Westland) and Trumbull Shopping Center 2, LLC (Trumbull). This suit arises in connection with Salvatore Zenobi falling while performing work on premises owned by Trumbull. On April 22, 2008, the plaintiffs filed an amended complaint against the defendants in which Salvatore Zenobi alleged negligence against each defendant and Robin Zenobi alleged loss of consortium against each defendant. On May 1, 2008, Salvatore Zenobi withdrew his action against May Department Store Company. On October 20, 2008, LVI Services, Inc. (LVI), Salvatoren Zenobi’s employer, filed a motion to intervene as a co-plaintiff and to file an intervening complaint which was granted on November 3, 2008. On November 18, 2008, LVI filed its intervening party complaint to collect reimbursement from the amounts it paid under the Workers’ Compensation Act. On December 12, 2008, Westland and Trumbull filed an answer, special defenses and a counterclaim against LVI. On June 9, 2009, LVI filed an answer and special defenses to the counterclaim. On October 2, 2009, both plaintiffs withdrew their claims against Westland. On February 5, 2010, the plaintiff, Robin Zenobi, withdrew her claims against Westland and Trumbull.[1]
On May 11, 2010, Trumbull withdrew its counterclaim against LVI.
On September 8, 2010, the defendant filed a motion for permission to file a motion for summary judgment which was granted on September 20, 2010. On November 4, 2010, the parties agreed to a stipulation of the following relevant facts. On and prior to October 11, 2006, the premises were owned by the defendant. On October 5, 2006, the defendant entered into a contract with LVI to perform asbestos removal on the premises. CT Page 5608 On October 11, 2006, LVI employees were on the premises inspecting the space pursuant to the terms of the contract. On October 11, 2006, the plaintiff was an employee of LVI and was performing work within the scope of his employment. On October 11, 2006, no agents or employees of the defendant were on the premises. On October 11, 2006, there was an opening in the floor, where the plaintiff was performing his work, with one or two plywood boards over it. The plaintiff walked on the board or boards, fell through the opening and suffered injuries.
On November 5, 2010, the defendant filed a motion for summary judgment, attached a memorandum of law in support thereof and submitted an agreed upon stipulation of certain facts and a copy of the contract between the parties. On November 15, 2010, the plaintiff filed a request to amend its complaint and an amended complaint.[2] On November 24, 2010, the plaintiff filed a memorandum of law in opposition to the motion for summary judgment and attached the plaintiff’s sworn affidavit and a partial transcript of the deposition of Douglas Blackwood. On December 17, 2010, the defendant filed a reply to the plaintiff’s objection to the motion for summary judgment. This court heard oral argument on this matter on December 20, 2010.
DISCUSSION
“Summary judgment is a method of resolving litigation when 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 . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.” (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). “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.) Sherman v. Ronco, 294 Conn. 548, 554, 985 A.2d 1042 (2010). “[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party.” (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). “The facts at issue [in the context of’ summary judgment] are those alleged in the pleadings.” CT Page 5609 (Internal quotation marks omitted.) Keller v. Beckenstein, 117 Conn.App. 550, 557, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009). “In ruling on a motion for summary judgment, the court’s function is not to decide issues of material fact, but rather to determine whether any such issues exist.” Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact . . . The courts hold the movant to a strict standard . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45].” (Internal quotation marks omitted.)Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008). “An important exception exists . . . to the general rule that a party opposing summary judgment must provide evidentiary support for its opposition, and that exception has been articulated in our jurisprudence with less frequency than has the general rule. On a motion by the defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint . . . It necessarily follows that it is only [o]nce [the] defendant’s burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial.” (Internal quotation marks omitted.)Baldwin v. Curtis, 105 Conn.App. 844, 850-51, 939 A.2d 1249 (2008).
In its motion for summary judgment, the defendant argues that there is no genuine issue of material fact that none of the exceptions to general contractor nonliability apply and that the defendant did not have a nondelegable duty to the plaintiff. The defendant, the general contractor, further maintains that it did not have control over LVI, the subcontractor; LVI’s employees, including the plaintiff, or the means or methods of the work involved. The defendant argues that LVI controlled the plaintiff and the means and methods of his work; and that such control is derived from: (1) the provisions of the contract between the defendant and LVI; and (2) LVI’s status as an independent contractor.
In its memorandum of law in opposition to the motion for summary CT Page 5610 judgment, the plaintiff counters that there exists a genuine issue of material fact as to whether the defendant retained any control over the jobsite. The plaintiff asserts that the defendant had a nondelegable duty to inspect the jobsite based upon premises liability principles. The plaintiff argues that there is a genuine issue of material fact as to whether a reasonable inspection of the jobsite prior to allowing LVI access would have uncovered the defect. The plaintiff also argues that there is an issue of material fact as to whether the defendant exercised any level of control over LVI which would invoke one of the exceptions to general contractor nonliability.
In its reply brief, the defendant argues that it did not have a nondelegable duty to the plaintiff to inspect the jobsite because LVI had control over the jobsite. The defendant further argues that, under the terms of the contract, the plaintiff had a duty to inspect and be aware of all jobsite conditions prior to work commencing.
“As a general rule, an employer is not liable for the negligence of its independent contractors.” (Internal quotation marks omitted.)Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 517 (2003). “The premise underlying the general rule that an independent subcontractor is liable for losses resulting from negligence in the performance of its work is that the assumption and exercise of control over the offending area is deemed to be in the independent contractor.” (Internal quotation marks omitted.) Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 599, 945 A.2d 388 (2008). “This same rule applies, as a general matter, to general contractors as employers of independent subcontractors: a general contractor is not liable for the torts of its independent subcontractors.” Pelletier v. Sordoni/Skanska Construction Co., supra, 264 Conn. 518. “[Courts] have long held, however, that [t]o this general rule there are exceptions, among them . . . if [the general contractor] reserve in his contract general control over the contractor or his servants,” (Internal quotation marks omitted.) Id., “or assumes control of the work involved.” Van Nesse v. Tomaszewski, 265 Conn. 627, 631, 829 A.2d 836 (2003).
The basic tenets of premise liability provide that: “To establish duty, the plaintiff must have evidence of control.” Montelli v. Hawthorne Ridge Associates, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 040411700 (April 1, 2005, Dewey, J.). “Where the evidence on the question as to who had control of the area or instrumentality CT Page 5611 causing the injury is such that the mind of a fair and reasonable [person] 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 [persons] could fairly reach different conclusions on the question, the issue should properly go to the jury . . . In addition, the [sub]contractor’s control need not be exclusive; it is sufficient if it be shared with another [subcontractor].” (Internal quotation marks omitted.)Pelletier v. Sordoni/Skanska Construction Co., supra, 286 Conn. 599.
In the present case, the defendant submits evidence to establish that the defendant did not have control over LVI, LVI’s employees, the work involved or the jobsite. In particular, the stipulated facts include the following: the parties entered into a contract for the work involved, the plaintiff was on the jobsite acting within the scope of his employment with LVI and no agents or employees of the defendant were present at the jobsite. The terms of the contract provided establish that LVI controlled the means and methods of the plaintiff’s work. Specifically, Appendix A, 3(b)(ii) of the contract provides in relevant part: “[LVI] shall be solely responsible for construction means, methods, techniques, sequences and procedure . . . [LVI] shall evaluate the jobsite safety thereof and except as stated below, shall be fully and solely responsible for the jobsite safety of such means, methods, techniques, sequences or procedures.” Appendix A, 11(b)(I)(1) of the contract provides in relevant part: “[LVI] shall take all reasonable and necessary precautions for the safety and security of, and shall provide all reasonable necessary protection to prevent damage, injury, or loss to: (a) all employees on the Work and all other persons who may be affected thereby . . .”
The plaintiff provides a partial transcript of the deposition of Douglas Blackwood and the plaintiff’s sworn affidavit to support his argument that the defendant retained control over LVI, the work involved and the jobsite. The deposition provides a characterization of an area as both a raised shelf and as a walkway through.[3] The affidavit establishes that two unidentified men, not LVI employees, were on the jobsite when the plaintiff was injured.
The deposition establishes that there is a discrepancy as to the description of the area in which the plaintiff fell, but it is not sufficient to establish that the defendant controlled LVI, the work involved or the jobsite. The plaintiff’s affidavit CT Page 5612 establishes that two unidentified individuals were on the jobsite, but the identity of these two men are of no moment because the stipulation of facts establishes that the two men were not the defendant’s employees or agents. Thus, the presence of the two men is not sufficient to establish that the defendant had control over LVI, LVI’s employees, the work involved or the jobsite. Neither of these documents is sufficient to establish that there is a genuine issue of material fact that the defendant maintained control over LVI, LVI’s employees, the work involved or the jobsite. The contract language provided establishes that LVI had a duty to ensure the safety of its employees on the jobsite, control over the jobsite, control over the means and methods of the work, and control over its employees. The evidence provided establishes that the defendant did not control the subcontractor, LVI’s employees, the work involved or the jobsite. Therefore, none of the exceptions to general contractor nonliability apply to the present facts and the defendant did not owe the plaintiff a nondelegable duty to maintain or to inspect the jobsite.
Even viewing the evidence in the light most favorable to the plaintiff, the defendant satisfies its burden of proving that no genuine issue of material fact exists as to whether the defendant had control over LVI, LVI’s employees, the work involved, or the jobsite. Accordingly, the evidence that the plaintiff submits does not prove the existence of any genuine issue of material fact. Therefore, the defendant is entitled to judgment as a matter of law because: (1) the plaintiff’s claim does not fit into the stated exception to the general rule of general contractor nonliability; and (2) the defendant did not owe the plaintiff a nondelegable duty to inspect.
For the foregoing reasons, the court grants the defendant’s motion for summary judgment.
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