Opinion
No. CV 06-5007123 S
June 12, 2008
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #111 FACTS
The case presently before the court arises out of an incident of November 9, 2004, at property located at 125 Englewood Drive in Orange, Connecticut, and owned by the defendants, Laurie and Mark Daddio. The plaintiff, Peter Capella, alleges that he sustained a Jefferson fracture, T2-3 fracture dislocation and multiple other posterior fractures, arch fractures in the cervical and thoracic spine, and multiple rib fractures following a fall from the roof of the defendants' house while cleaning their gutters. He further alleges that he remains paralyzed from the chest down.
The complaint alleges that the defendants were negligent, as follows:
(a) IN THAT they caused or allowed and permitted said roof to be and remain in a condition of disrepair such that the same was unsafe for a worker to be on;
(b) IN THAT they caused or allowed and permitted areas of the roof to be unsafe on which to walk, but nevertheless requested that the plaintiff go up on said roof to perform requested work;
(c) IN THAT they caused or allowed and permitted the shingles of said roof to become dangerously loose and defectively affixed to said roof which rendered the same unfit for the use of workers who had to be on said roof to perform their tasks;
CT Page 9721
(d) IN THAT they permitted and/or directed the plaintiff to attempt to use said roof for the purpose of cleaning the gutters;
(e) IN THAT they maintained said property and said roof in the aforesaid conditions;
(f) IN THAT they failed to repair or remedy said conditions when the same were reasonably necessary under the circumstances;
(g) IN THAT they failed to warn the plaintiff of the aforesaid conditions;
(h) IN THAT they failed to make proper and reasonable inspection.
On June 8, 2007, the defendants moved for summary judgment, on the basis that they owed no duty to the plaintiff, and there is no genuine issue of material fact regarding the defendants' negligence. The plaintiff filed his memorandum of law in opposition on September 24, 2007, and filed supplemental memoranda on October 5, 2007 and February 11, 2008. The defendants filed a supplemental memorandum on March 27, 2008; the plaintiff filed a reply to that on April 18, 2008. The motion was heard at the short calendar on April 21, 2008.
DISCUSSION
A "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." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "Summary judgment procedures is an attempt to dispose of cases involving sham or frivolous issues in a manner which is speedier and less expensive for all concerned than a full-dress trial." Mac's Car City, Inc. v. American National Bank, 205 Conn. 255, 261, 532 A.2d 1302 (1987).
"Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). Summary judgment is particularly "ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation . . . [T]he conclusion of negligence is necessarily one of fact . . ." (Citations omitted; internal quotation marks omitted.) CT Page 9722 Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975). "The issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment [however] because the question is one of law." Pion v. Southern New England Telephone Co., 44 Conn.App. 657, 660, 691 A.2d 1107 (1997).
"As the party moving for summary judgment, the plaintiff is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citation omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). "The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence." (Internal quotation marks omitted.) Pion v. Southern New England Telephone, 44 Conn.App. 657, 663, 691 A.2d 1107 (1997).
Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995). "[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." (Internal quotation marks omitted.) Id., 752. "[A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Emphasis in original.) Id. "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.) Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). "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, 5000, 538 A.2d 1031 (1988).
In their motion for summary judgment, the defendants posit that they owed no duty to the plaintiff, an independent contractor, over whom they had no control; they also claim that they did not have actual or constructive notice of the specific defect. The defendants also argue that the plaintiff was a trespasser as to the roof and that as such, their only duty was not to intentionally, willfully, wantonly, or recklessly cause injury to the plaintiff.
In support of their motion, the defendants submitted their affidavits. The affidavits of both Mark Daddio and Laurie Daddio indicate that they never observed the plaintiff on the roof, did not witness the plaintiff commence his work on November 9, 2004, had no knowledge that he was on the roof at the time the plaintiff claims he fell and, prior to November 9, 2004, had no knowledge as to defects with the roof. Additionally, the affidavit of Mark Daddio avers that "[p]rior to the plaintiff commencing work, I requested that he not walk on the roof while cleaning the gutters."
The defendants state in their brief that "[t]he defendant, Mr. Daddio, requested the plaintiff to use a ladder rather than to walk on the roof as the roof was steep. (Affidavit of Mark Daddio)." However, Mr. Daddio's affidavit makes no mention of use of a ladder or that the roof was steep.
In their brief, the defendants also make reference to deposition testimony of the plaintiff to the effect that there were defective shingles in the area where he fell; no transcript or excerpts from the plaintiff's deposition were submitted by the defendants.
The plaintiff, in his September 24, 2007 memorandum in opposition, submitted the entire deposition transcript of the plaintiff.
The plaintiff, on the other hand, argues that the defendants owed a duty to exercise reasonable care to the plaintiff, a business invitee. The plaintiff admits that there can be no breach of that duty unless the defendants knew of the defective condition or were chargeable with notice of it; he argues that he has submitted evidence to show that the same condition existed since 1996 and that the defendants should, in the exercise of reasonable care, have discovered it in time to remedy it. The plaintiff argues that the rule that requires notice, whether actual or constructive, of the specific defect which caused the injury should not be utilized. He also argues that an issue of fact remains as to whether the plaintiff had permission to go on the roof and whether, therefore, a duty of care was owed by the defendants. The plaintiff submitted his affidavit which avers that neither the defendants nor anyone connected with the defendants' family ever told him it was dangerous to go on the roof and not to go on the roof. It states that when he previously cleaned the gutters for the defendants in May 2004, Mr. Daddio did not tell him not to go on the roof. The plaintiff's affidavit further indicates that because of surrounding trees, the only way to clean all the gutters was to go on the roof.
The plaintiff submitted a copy of the defendant Mark Daddio's deposition transcript, which indicates the following. Laurie Daddio grew up in the house, which the defendants acquired from her parents in 2003. Sometime prior to the plaintiff's cleaning the gutters in May 2004, Mark Daddio spoke to him on the telephone. No discussion was had regarding the plaintiff going on the roof, and Mr. Daddio had no knowledge as to whether the plaintiff went on the roof. At some point thereafter, Mr. Daddio's in-laws asked him not to have anyone go on the roof; Mr. Daddio's mother-in-law told him of someone falling off the roof. Thereafter, approximately one month before the November 9, 2004 incident, Mr. Daddio had a second phone conversation with the plaintiff, whereby he told the plaintiff not to go on the roof. He testified that he did so because of the pitch of the roof and because his in-laws had asked him not to allow anyone on the roof. Mr. Daddio testified that he does not remember telling the plaintiff about the prior fall, and he could not recall whether or not he told the plaintiff why he should not go on the roof. He denied knowledge of loose or slippery shingles.
The plaintiff also submitted the deposition transcript of Mary Jane Vitale, the defendant Laurie Daddio's mother. Mrs. Vitale testified that at some point after the defendants moved in, she told them that someone had fallen off the roof and not to have anyone go on the roof. She also testified that Mr. Daddio "was told not too long after he moved in there, you know and I probably reminded him again not too long after that, but it was clear that they should not have anybody on the roof." She testified that while blowing out the gutters, a man had fallen off a very steep section of the roof. She also testified that a year or two prior to transferring the property to the defendants in 2003, new shingles were put on the roof, over existing shingles.
She testified that the fall happened after the new roof had been put on. She also testified that she was having herself checked because she was having difficulty recalling simple things.
The plaintiff also submitted the transcript of Paul Vartelas, an expert witness in the prior lawsuit against Mrs. Vitale arising out of the earlier fall. Mr. Vartelas testified that in 1996, he inspected an area of the roof approximately four foot by four foot, and was of the opinion that that incident was caused by a shingle sliding out from under that individual, due to the shingle being improperly installed. He testified that the shingles in the area he inspected had been improperly installed, having been improperly nailed to other shingles around them. Mr. Vartelas testified, when questioned how he knew where that person had fallen, that "you can see it clear as day when you looked at the house, where there was part of the shingle missing or a full shingle." His testimony, which took place in 2000, was that in order to make it safe for the next gutter cleaner with a leaf blower, one would basically have to go along the whole roof and lift up each shingle in order to see if it was nailed properly. Mrs. Vitales' lawyer was present at the deposition of Mr. Vartelas.
The plaintiff submitted his own deposition testimony, which indicates the following. After Mark Daddio called him in May 2004, he cleaned the gutters, and physically climbed on the roof to do so. It was his general practice to ask a client if the roof was walkable; he could not specifically recall making the inquiry here, although he probably did so. When he first cleaned the gutters in May 2004, he noticed some loose shingles in the back of the house 3 or 4 feet from where he subsequently fell; typically, he would inform homeowners of such problems, although he had no specific recollection of doing so here. He testified that when he was taking a step on the roof while cleaning the gutters on November 9, 2004, a shingle slid out and caused him to fall.
He testified that if a roof was not walkable, he would do the job off the ladder if feasible. If he could not do the job off the ladder where the roof was not walkable, he would not take the job.
The plaintiff also relies on his expert disclosure of George Norboe, whereby Mr. Norboe opines that at the time of his inspection sometime after the plaintiff's fall, he visually observed from 100 feet away that both single shingles and small groups of shingles had dropped significantly. He further opined that the roof nails had completely penetrated the shingles at the time of installation, and there were shingles that were not held in place by nails at all. The disclosure indicated Mr. Norboe's opinion that the loose shingles were present for more than 10 years, and they would have been obvious at the time the defendants purchased the house in 2003. He opined that a professional roofer should have evaluated the roof.
The defendants did not object to the plaintiff's submission of the expert disclosure of Mr. Norboe, nor did they object to the plaintiff's submission of a web page showing that the defendant Mark Daddio is in a medical practice with his father-in-law Anthony Vitale. Neither party objected to the use of deposition transcripts. With respect to documents that are submitted in support of or opposition to a motion for summary judgment, the court is limited to considering documents that would be admissible at trial. City of New Haven v. Pantani, 89 Conn.App. 675, 680 (2005). The Pantani court reversed the decision of the trial court which had granted the plaintiff's motion for summary judgment, having considered uncertified, unauthenticated documents:
Practice Book § 17-45 provides in relevant part 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 . . ." That section does not mandate that those documents be attached in all cases, but we note that "[o]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202-03, 663 A.2d 1001 (1995). In fact, we have held that "Practice Book § [17-45], although containing the phase `including but not limited to,' contemplates that supporting documents to a motion for summary judgment be made under oath or be otherwise reliable . . . [The] rules would be meaningless if they could be circumvented by filing [unauthenticated documents] in support of or in opposition to summary judgment." United Services Automobile Assn. v. Marburg, 46 Conn.App. 99, 107-08, 698 A.2d 914 (1997).
Therefore, before a document may be considered by the court in support of a motion for summary judgment, "there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . ." Conn. Code Evid. § 9-1(a), commentary. Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be. In this case, the plaintiff submitted numerous exhibits in support of its motion for summary judgment. The plaintiff failed, however, either to attach an affidavit attesting to the truth and accuracy of the various submissions or to provide certified copies of any of the documents. Id. at 678-79.
However, where the opposing party does not object, a court may, but is not required to, review uncertified deposition transcripts. Barlow v. Palmer, 96 Conn.App. 88, 92 (2006) (holding that trial court did not abuse its discretion in not considering the uncertified deposition testimony submitted by both parties). See also American Home Assurance Company v. Scalise, Superior Court, Judicial District of New Britain, Docket No. 98 0491778 (December 18, 2000, Shapiro, J.) [28 Conn. L. Rptr. 647] (where the defendant did not object to the plaintiff's submission of an uncertified, unauthenticated copy of portions of a professional liability insurance policy, the court considered the document, ultimately granting the plaintiff's motion for summary judgment); Grant v. Yale University, Superior Court, Judicial District of New Haven, Docket No. 99 0430454 (March 27, 2003, Licari, J.) (where there was no objection from the opposing party, the court considered uncertified copies of letters, interoffice memorandum, employer's statement of earnings, portions of a collective bargaining agreement, and portions of a deposition transcript); Langner v. Stop Shop, Superior Court, Judicial District of New Haven, Docket No. 95 0377385 (January 27, 2000, Licari, J.) (the court considered uncertified, unauthenticated documents filed by both movant and non-movant, where neither party objected to the other party's documents.)
In light of the absence of any objection, the court will consider both the expert disclosure submitted by the plaintiff and uncertified deposition testimony submitted by both parties.
The defendants, in their supplemental memorandum of March 27, 2008, offered excerpts of Mr. Norboe's deposition testimony, and argue that Mr. Norboe "admits that he has no basis for stating that the defendants had notice of any dangerous and defective condition on the roof of their home." The excerpts provided do not substantiate that argument, although Mr. Norboe did testify that a person not experienced with roofing, looking at the roof from the ground, would not be put on notice that roof was dangerous and defective in 2004.
The plaintiff subsequently filed additional excerpts from the Norboe deposition, wherein Mr. Norboe testified, inter alia, that his inspection revealed that there were patches throughout the entire roof with dropped shingles and shingles which were not fastened to the roof at all, that an entire corner of the roof was in that condition. He also opined that based on the lines on the shingles showing fading and discoloration, the shingles had been in that condition for eight to ten years.
The plaintiff filed a final brief, with supporting documentation, on April 18, 2008. Included is a sworn affidavit of Brian Hanson, owner of a roofing company. According to the affidavit, before the first fall in 1996, he was asked by the Vitales to examine the roof because of shingles that were slipping out. His examination revealed that the roof was totally improperly installed, the nailing was improper, and nothing besides their own weight was holding the shingles in place. Dr. Vitale was "completely disgusted" with his recommendation the roof could not be repaired and that a completely new roof would need to be installed; as a result, Mr. Hanson did not write up an estimate.
The plaintiff states in his reply brief that instead of having the roof re-done by a professional roofer, he had his brother-in-law do some minor work; this is not substantiated by any supporting documentation.
"The existence of a duty of care is a prerequisite to a finding of negligence. The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury. The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant breached that duty in the particular situation at hand. If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant. Duty is a legal conclusion about relationships between individuals, made after the facts, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual . . ." Gomes v. Commercial Union Ins., 258 Conn. 603, 614-15 (2001) (citations omitted; internal quotation marks omitted).
"A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act." (Citations omitted; internal quotation marks omitted.) Sevigny v. Dibble Hollow Condominium, 76 Conn.App. 306, 318 (2003).
The defendants claim that they do not owe a duty to the plaintiff because the plaintiff was an independent contractor who was injured primarily through his own negligence. The plaintiff argues that the independent contractor cases cited by the defendants have no application here, where there is no claim made by an injured third party; the plaintiff maintains that the issue is one of control over the roof.
Much of the case law cited by the defendants arises in the context of whether an owner or general contractor has sufficient control over a subcontractor so as to become liable to third parties for the negligence of the subcontractor in the performance of his work. The defendants do cite to Mozeleski v. Thomas, 76 Conn.App. 287 (2003), cert denied, 264 Conn. 904 (2003), which does not involve a third party. In Mozeleski, the plaintiff, a masonry worker, sought to recover for injuries he sustained in a fall from scaffolding which he and his employee had erected. Named as defendants were the owner of the home where the fall occurred and the independent contractor hired by the homeowner to perform carpentry work, who owned the scaffolding in question. The Appellate Court upheld the decision of the trial court which had granted summary judgment in favor of the defendants, on the basis that neither defendant owed a legal duty to the plaintiff. The Mozeleski court explained:
[A]n independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work. The general rule is that where the owner of premises employs an independent contractor to perform work on them, the contractor, and not the owner, is liable for any losses resulting from negligence in the performance of the work . . . The basic premise is that the assumption and exercise of control over the offending area is deemed to be in the independent contractor. The explanation for [this rule] most commonly given is that, since the [owner] has no power of control over the manner in which the work is to be done by the contractor, it is to be regarded as the contractor's own enterprise, and [the contractor], rather than the [owner], is the proper party to be charged with the responsibility of preventing the risk, and bearing and distributing it . . .
Exceptions to that rule arise when "the employer retains control of the premises or supervises the work of the contractor, or where the work to be performed by the contractor is inherently dangerous, or where the employer has a nondelegable duty to take safety precautions imposed by statute or regulation . . ."
The owner may exercise a limited degree of control or give the contractor instructions on minor details without destroying the independent character of the contractor.
Although the exceptions to the general rule of nonliability of an owner of premises for the torts of its independent contractor inure to the benefit of innocent third parties, those exceptions do not inure to the benefit of an independent contractor, such as the plaintiff, who is injured primarily because of his negligence or the negligence of those he employed. Id. at 291-94.
"The law could perhaps be better summarized by stating that an employer or general contractor is not vicariously liable for the torts of its independent contractor and is not directly liable to an employee of the independent contractor unless it is at fault based on its control of the premises, its negligent hiring, or on any of the other exceptions listed . . ." Mazurek v. Great American Ins. Co., CV010177433, Superior Court, Judicial District of Waterbury (October 29, 2004, Schuman, J.).
In Mozeleski, the evidence was uncontroverted that the defendants exercised no control over the scaffolding and that the cause of the plaintiff's fall was his improper assembly of the scaffolding.
The Mozeleski case is distinguishable from the present case because, simply put, the plaintiff in Mozeleski created and controlled the condition which ultimately harmed him, while the plaintiff here did not create, construct, repair or maintain the shingles or the roof. The plaintiff in the present case was in no way responsible for the condition of the shingles and the roof; the evidence suggests that any ability or obligation to maintain and control the condition of the shingles and the roof rested on the defendants, not on the plaintiff.
With respect to the issue of control over the manner in which the work was to be done by the plaintiff, the affidavits of the parties establish that the issue remains in dispute and open for interpretation. The affidavit of Mr. Daddio, which indicates that he told the plaintiff not to walk on the roof while cleaning the gutters, suggests that Mr. Daddio was exercising the power of controlling the manner in which the plaintiff was to clean the gutters. On the other hand, the plaintiff's affidavit denies that Mr. Daddio ever told him not to go on the roof (and further indicates that the only way to access all the gutters was to go on the roof).
The plaintiff correctly points out that the issue is one of control of the premises. "The legal responsibility for maintaining premises in a reasonably safe condition depends on who has possession and control of those premises. The word `control' has no legal or technical meaning distinct from that given in its popular acceptation . . . and refers to the power or authority to manage, superintend, direct or oversee. Where the evidence is such that the minds of fair and reasonable persons could reach but one conclusion as to the identity of the person exercising control, the question is one for the court . . ." Id. at 294 (citations omitted; internal quotations omitted).
In the present case, the plaintiff's cause of action against the defendants is for damages arising from an alleged breach of duty owed by the defendants as owners of land. "Whether the plaintiff was on the premises as an independent contractor or as patron would not affect the theory of the cause of action, for the duty owed to each is the same." (Citations omitted). Schaller v. Roadside Inn, Inc., 154 Conn. 61, 66 (1966). In Schaller, the plaintiff worked for one of the defendants as a cook and bartender. The complaint alleged that the plaintiff was a business invitee; in response to a motion, the plaintiff indicated he was an independent contractor. One evening, he finished work, and remained on the premises to watch a show and have a drink. While leaving, he fell into a trench that had been dug by the other defendant. The court noted that "the plaintiff must be considered a business visitor in either capacity [of independent contractor or patron]." See also, Curran v. McCall, 4 Conn.App. 531, 534 (1985) (defendant homeowner owed duty to exercise reasonable care in providing safe passage through her home to plaintiff, a furnace repairman, where plaintiff, while walking through inadequately lit basement in effort to access the furnace, was injured by a dangling wire); Romenici v. Trumbull Electric Mfg. Co., 145 Conn. 691, 693 (1958) (defendant business premises owner owed duty "to use reasonable care to see that the premises were constructed and maintained so as to be reasonably safe," where defendant's employee suggested that plaintiff, who was servicing a soda machine at defendant's premises, use a hand truck to transport the syrup, plaintiff was injured when struck by hand truck which rolled off platform, and where hand truck had fallen off the platform previously).
The defendants also argue that the plaintiff, having been specifically told not to go onto the roof by Mr. Daddio, was a trespasser with respect to the roof and therefore, the defendants' only duty to the plaintiff was not to cause injury intentionally, or by willful, wanton or reckless conduct, none of which is alleged in the complaint. The plaintiff counters that he was not a trespasser and that he has raised an issue of material fact by virtue of his counter affidavit, which indicates that neither the defendants nor anyone connected with the defendants' family ever told him not to go on the roof.
A trespasser is a person who enters on the property of another without any right, lawful authority or an express or implied invitation or license. Black's Law Dictionary, 5th Ed., 1983. "The status of an entrant on another's land, be it trespasser, licensee or invitee, determines the duty that is owed to the entrant while he or she is on a landowner's property." Salaman v. City of Waterbury, 246 Conn. 298, 304-05 (1998) (citations omitted). "It is well established that a possessor of land is under no duty to keep his or her land reasonably safe for an adult trespasser, but has the duty only to refrain from causing injury to a trespasser intentionally, or by willful, wanton or reckless conduct." Maffucci v. Royal Park Ltd., 243 Conn. 552, 558 (1998) (citation omitted; internal quotations omitted).
In the present matter, the status of the plaintiff is a question of fact for the jury. The affidavit of the plaintiff indicates that he was not told by the defendants not to go on the roof. It states further that the only way to clean all the gutters was to go on the roof, and that the plaintiff had previously cleaned the defendants' gutters only six months before by going on the roof. Additionally, a prior gutter cleaner had fallen off the roof, and Mrs. Vitale told the defendants of that fall. Viewing the evidence in the light most favorable to the plaintiff, the affidavit raises a genuine issue of material fact as to the plaintiff's status and, therefore, the scope of the duty owed to the plaintiff. The plaintiff's testimony that in order for him to do the job for which he was hired, he would have to walk on the roof, is uncontroverted. Whether the defendants should have reasonably anticipated the plaintiff's presence on the roof and had a duty to exercise reasonable care in providing safe passage and access to the plaintiff is a question for the jury. "An invitation usually includes the use of such parts of the premises as the visitor reasonably believes are held open to him as a means of access to or egress from the place where his purpose is to be carried out. Whether an invitee exceeded the limits of the invitation depends upon whether his use of the premises went beyond that which the owner might reasonably have contemplated." Ford v. Hotel and Restaurant Employees and Bartenders Union, 155 Conn. 24, 33-34 (1967) (citations omitted). "[A]n invitee enters upon an implied representation or assurance that the land has been prepared and made ready and safe for his reception. He is therefore entitled to expect that the possessor will exercise reasonable care to make the land [reasonably] safe for his entry, or for his use for the purposes of the invitation. He is entitled to expect such care not only in the original construction of the premises, and any activities of the possessor or his employees which may affect their condition, but also in inspection to discover their actual condition and any latent defects, followed by such repair, safeguards, or warning as may be reasonably necessary for his protection under the circumstances." Id., at 35 (citation omitted). See also, Knapp v. Connecticut Theatrical Corp., 122 Conn. 413, 416 (1937) ("A business invitation includes an invitation to use such part of the premises as the visitor reasonably believes are held open to him as a means of access to or egress from the place where the business is to be transacted").
The defendants also argue that there can be no breach of a duty resting upon them unless they knew of the specific defective condition or were chargeable with notice of it. They claim that their affidavits establish that they had no knowledge of any defective condition, and that they had no knowledge that the plaintiff was planning on going on to the roof. They argue that they had no reason to inspect the roof, and that there was no evidence to show that a defect existed at all, particularly in the area of the fall.
The affidavits of the defendants do not, contrary to the defendants' representations, state that the defendants had no knowledge that the plaintiff was planning on going on to the roof. Instead, they merely indicate that at the time the plaintiff claims he fell, they had no knowledge that the plaintiff was on the roof, the affidavits are silent as to whether the defendants knew he was on the roof at any other time, and are silent as to whether the defendants knew what the plaintiff's plan was with respect to the roof.
The plaintiff counters by pointing to Mr. Daddio's testimony that the reason he told the plaintiff not to go on the roof was because his mother-in-law told him that someone had fallen off before and that no one should go on the roof, as well as the testimony of the two experts as to the existing conditions, in support of his position that he has satisfied his burden with respect to notice of the specific defect. The plaintiff also argues that the rule requiring notice of a specific defect should not be utilized in premises liability cases, despite the fact that this court is bound by the doctrine, which remains the current law. For the reasons outlined below, however, this court finds that viewing the evidence in the light most favorable to the plaintiff, the jury could reasonably conclude that the defendants should have known of the particular defect at issue.
Mr. Daddio testified at his deposition that he told the plaintiff not to go on the roof because of the pitch of the roof and because his in-laws had asked him not to allow anyone one on the roof.
In a premises liability case, there can be no breach of the duty resting on the defendants unless they knew of the defective condition or were chargeable with notice of it. Cruz v. Drezek, 175 Conn. 230, 235 (1978). On the issue of actual notice, the only evidence submitted were the statements of the defendants which indicate that they had no knowledge of any defects with the roof; the plaintiff does not argue that the defendants had actual notice. With respect to constructive notice, the defendants were under the duty to make reasonable inspections of the premises remaining in their control to discover possible defects therein. Id. However, our law requires that the notice, whether actual or constructive, be of the very defect which resulted in the plaintiff's injury. As explained by the court in Cruz:
We have repeatedly stated that the notice, whether actual or constructive, must be notice of the very defect which occasioned the injury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it . . . On the question of notice, the trier's consideration must be confined to the defendants' knowledge of the specific condition causing the injury, and such knowledge cannot be found to exist from a knowledge of the general or overall conditions obtaining on the premises. Circumstantial evidence is, of course, also available on the question of notice or knowledge of the specific defects, keeping in mind that in an ordinary civil action the party upon whom rests the burden of proof as to a fact or issue has sustained that burden if the evidence, considered fairly, induces in the trier's mind a reasonable belief that it is more probable than otherwise that the fact or issue is true. In many cases, including this case, circumstantial evidence is the only evidence available to a party to prove a fact material or essential to his cause of action.
Id. at 235-36.
In Cruz, the plaintiff was injured following a fall from a third floor porch with a defective railing. The court held that the evidence, while contradicting, considered most favorably to the plaintiffs, reasonably supported the jury's conclusion that there was a specific defective condition with the front porch railing which caused the plaintiff's fall and which could have been discovered had the defendants performed a reasonable inspection. In Cruz, the evidence showed, inter alia, old and rotted railing insecurely attached to the posts and rusted nails; the defendant had purchased the house approximately two months before the incident and had visually inspected the porch including its railings and banisters which he claimed were fine. The court noted that "[t]his was a third-floor porch, and the greater the likelihood of danger, the greater the amount of care required in making an inspection of the premises to meet the standard of due care." Id. at 238. The court, while recognizing that the notice must be of the very defect which occasioned the injury, found that on the evidence, including reasonable inferences, the jury could have reasonably concluded that defendants were chargeable with notice of the specific condition of defective railing insecurely attached to the posts.
Klahr v. Kustopoulos, 138 Conn. 653 (1952) also involved a fall from a porch resulting from a collapsed railing. In Klahr, the railing became detached at all four of the points where it had been affixed to the two upright posts, the ends of the top rail and the posts where they had been attached were rotted and decayed, the rails were rusted and had disintegrated heads, and the defendants had not performed inspections to ascertain the condition of the premises. The court found that the findings of the trial court supported its conclusion that a reasonable inspection would have disclosed the unsafe condition, even though the decayed condition of the railing would not have been apparent on visual observation alone.
Here, the "very defect" which the plaintiff claims caused his injuries are the improperly fastened shingles on the defendants' roof. Evidence has been submitted whereby a jury could reasonably conclude that the defendants were chargeable with notice of the particular defect — the improperly installed shingles on the roof: before the first fall in 1996, the defendant Laurie Daddio's parents, from whom the defendants obtained the house, were told by their own roofer that a completely new roof needed to be installed, because the roof was totally improperly installed and nothing besides their own weight was holding the shingles on; her parents had asked that roofer to examine the roof because shingles were slipping off it; her father, with whom Mark Daddio practices, was disgusted with the idea of installing a new roof, after that examination, a worker cleaning the gutters in 1996 for the defendant Laurie Daddio's parents slipped off the roof and was injured because of a defective, improperly installed shingle; the attorney for Laurie Daddio's mother, Mrs. Vitale, was present at the deposition of the expert who testified that the 1996 fall was caused by the defective, improperly installed shingle and that in order to make it safe for the next gutter cleaner, the whole roof would have to be examined, with each individual shingle lifted up; Mrs. Vitale told the defendants that someone had fallen off the roof; Mrs. Vitale reminded Mr. Daddio twice not to have anyone on the roof; it was clear, according to Mrs. Vitale, that no one should go on the roof; neither the defendants nor their family members ever told the plaintiff not to go on the roof, the plaintiff went on the roof to clean the gutters at the request of Mr. Daddio in March 2004; the plaintiff noticed loose shingles then; the only way to clean all the gutters was to go on the roof; the defendant went on the roof to clean the gutters in November 2004 at which time he was injured when he slipped on the roof on a defective, improperly attached shingle; and the expert examination of George Norboe, after the plaintiff's fall, revealed that the loose shingles were present for more than ten years, they would have been obvious at the time the defendants purchased the home in 2003, the dropped shingles were noticeable from 100 feet away, there were shingles that were not held in place at all, and a professional roofer should have inspected the roof.
The evidence is uncontroverted that the defendants' family members, the Vitales, from whom the defendants purchased the home, knew of the defective condition of the roof and shingles, and knew that a prior worker cleaning the gutters had fallen off this roof. The evidence is also uncontroverted that the defendants were told by Mrs. Vitale that someone had fallen off the roof and not to allow anyone to go on the roof. The opinion of the plaintiff's expert was that the roof should have been inspected by a professional. The defendants have submitted no evidence regarding inspections, with the exception of the deposition testimony of Mr. Norboe that an inexperienced person, looking at the roof from the ground, could not tell visually that the roof was dangerous and defective in 2004. The defendants' conclusory, self-serving statements that they had no knowledge of any defects, even if accepted by a jury, do not allow the defendants to turn a blind eye to defects that could have been discovered had they conducted a reasonable inspection.
The plaintiff has raised a genuine issue of material fact as to whether the defendants should have known of the defective condition of the shingles on the roof.
For the foregoing reasons, the defendants' motion for summary judgment is denied.