Opinion
FSTCV136018015
03-04-2016
Rafael Cruz v. Jose Tellus et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION OF DEFENDANT JOSE TELLUS FOR SUMMARY JUDGMENT (NO. 131)
Hon. Charles T. Lee, J.
Defendant Joseph Tellus filed this motion for summary judgment, with supporting memorandum of law, on August 10, 2015 against the one-count Third Amended Complaint dated February 2, 2015 (the complaint). Mr. Tellus claims that the complaint is barred by the applicable statute of limitations and by legal and factual insufficiency. As more fully explained below, the court grants the motion for summary judgment in favor of Mr. Tellus based on the statute of limitations for negligence and the failure to plead or adduce evidence of an agreement sufficient to establish an implied contract between the parties.
This action was commenced on or about March 18, 2013. The complaint alleges that Mr. Cruz was injured by a chainsaw while employed by Mr. Tellus to clear storm damage to trees on the property of Mr. and Mrs. Christopher Forshner at 34 Tod Lane in Greenwich, Connecticut. The Forshner defendants were granted summary judgment on June 1, 2015. Defendant Tellus brings the present motion for summary judgment claiming that the complaint, to the extent it alleges a cause of action arising out of negligent instruction by Mr. Tellus in the use of the chainsaw, is barred by the applicable statute of limitations, Gen. Stat. § 52-584, because the accident occurred on March 16, 2010 and the action was commenced on March 18, 2013, well after the two-year limitation period. Plaintiff contends that he is entitled to application of the six-year statute of limitations, Gen. Stat. § 52-576(a), because the complaint alleges a claim for breach of an implied contract between the parties. Defendant denies this and claims that the requisite allegations are not contained in the complaint and that plaintiff has submitted no proof of any agreement between the parties.
On September 4, 2015, plaintiff filed an objection to the motion for summary judgment. The motion was heard at short calendar on September 28, 2015. On October 5, 2015, defendant Tellus filed an affidavit in support of the motion. On December 7, 2015, plaintiff filed a supplemental memorandum regarding implied contract, and defendant filed a reply memorandum on December 22, 2015.
Background
The complaint alleges that Mr. Tellus operates a landscaping business with an address in Norwalk, Connecticut, and that he hired Mr. Cruz on March 16, 2010 to work on trees on the Forshner property in Greenwich, which were brought down by a recent storm. Paragraph 8 of the complaint alleges that " The defendant Tellus failed to provide proper safety instruction to the plaintiff and he was severely injured and has lost almost total use of his left hand as a result of being cut by the chain saw, which saw had been provided by the defendant Tellus." Paragraph 10 contains newly added language: " The defendant Tellus acting for himself and on behalf of the property owners, paid certain medical expenses and rent on behalf of the plaintiff in order to avoid having to pay from Workers' Compensation or for the tortious conduct; such agreement having been begun and not completed, constituting a contract under law."
The affidavit of Mr. Tellus alleges at Paragraph 6, " At no time did I ever have an agreement with the plaintiff, either oral or written, on my own behalf or anyone else's behalf to pay for plaintiff's medical expenses, as well as his rent, as a result of the injuries he suffered on March 16, 2010 at 34 Tod Lane in Greenwich." Paragraph 7 states, " I did pay approximately $10,000 to the physician who performed the surgery on the plaintiff, $85 per session to a physical therapist for various physical therapy sessions and I also paid $300 per month to assist the plaintiff for three (3) or four (4) months after the incident." Paragraph 8 states, " I made these payments to assist the plaintiff and not to avoid making a Workers' Compensation claim or liability for tortuous (sic) conduct. Again, as previously mentioned, these payments were not made pursuant to any agreement I had with the plaintiff."
Discussion
The holdings of two Appellate Court cases are largely determinative of the outcome in this case. In Burnham v. Karl & Gelb, P.C., 50 Conn.App. 385, 388, 717 A.2d 811 (1998) (" Burnham "), the court held:
The standard of review of a trial court's decision to grant a motion for summary judgment is well established. Practice Book § 384 [now § 17-49] provides that 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." See Barrett v. Danbury Hospital, 232 Conn. 242, 250, 654 A.2d 748 (1995). " Although the moving party has the burden of presenting evidence that shows the absence of any genuine issue of material fact, the opposing party must substantiate its adverse claim with evidence disclosing the existence of such an issue." Haesche v. Kissner, 229 Conn. 213, 217, 640 A.2d 89 (1994). " It is not enough, however, for the opposing party merely to assert the existence of . . . 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 [in support of a motion for summary judgment]." . . . Water & Way Properties v. Colt's Mfg. Co., 230 Conn. 660, 665, 646 A.2d 143 (1994). Branford v. Monaco, 48 Conn.App. 216, 221-22, 709 A.2d 582, cert. denied, 245 Conn. 903, 719 A.2d 900 (1998). " In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The test is whether a party would be entitled to a directed verdict on the same facts." (Internal quotation marks omitted.) Beebe v. East Haddam, 48 Conn.App. 60, 64, 708 A.2d 231 (1998).
As to the elements of an implied contract, our Supreme Court in Brighenti v. New Britain Shirt Corp., 167 Conn. 403, 406, 356 A.2d 181 (1974) stated:
An implied contract is an agreement between the parties which is not expressed in words but which is inferred from the acts and the conduct of the parties. Corriveau v. Jenkins Bros., 144 Conn. 383, 387, 132 A.2d 67; Freda v. Smith, 142 Conn. 126, 134, 111 A.2d 679; Collins v. Lewis, 111 Conn. 299, 304, 149 A. 668; 1 Williston Contracts (3d Ed. Jaeger) s 3. The test is whether the conduct and acts of the parties show an agreement. Skelly v. Bristol Savings Bank, 63 Conn. 83, 87, 26 A. 474.
Consistent with this definition, the decision in Burnham v. Karl and Gelb, P.C., supra, 50 Conn.App. 387-88 states:
[T]o prevail on [her] claim, the plaintiff must demonstrate an actual agreement by the defendant[s] to have an employment contract with [her]. " A contract implied in fact, like an express contract, depends on actual agreement. D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 211 n.2, 520 A.2d 217 (1987); Therrien v. Safeguard Mfg. Co., 180 Conn. 91, 94, 429 A.2d 808 (1980); Brighenti v. New Britain Shirt Corporation, 167 Conn. 403, 406, 356 A.2d 181 (1974); Corriveau v. Jenkins Bros., 144 Conn. 383, 387, 132 A.2d 67 (1957)." . . . Coelho v. Posi-Seal International, Inc., 208 Conn. 106, 111-12, 544 A.2d 170 (1988). Accordingly, to prevail on [her breach of contract] claim, " which alleged the existence of an implied agreement between the parties, the plaintiff had the burden of proving by a fair preponderance of the evidence that the [defendants] had agreed, either by words or action or conduct, to undertake [some] form of actual contract commitment to [her] under which [she] could not be terminated without just cause . . . D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, at 212 n.2, 520 A.2d 217; Therrien v. Safeguard Mfg. Co., supra, at 94-95, 429 A.2d 808." . . . Coelho v. Posi-Seal International, Inc., supra, at 112, 544 A.2d 170. To survive a motion for summary judgment, the plaintiff had the burden of presenting evidence that the defendant[s] had agreed to some form of contract commitment. Reynolds v. Chrysler First Commercial Corp., 40 Conn.App. 725, 729-30, 673 A.2d 573, cert. denied, 237 Conn. 913, 675 A.2d 885 (1996).
A contractual promise cannot be created by plucking phrases out of context; there must be a meeting of the minds between the parties. See Bridgeport Pipe Engineering Co. v. DeMatteo Construction Co., 159 Conn. 242, 246, 268 A.2d 391 (1970); Lucier v. Norfolk, 99 Conn. 686, 699, 122 A. 711 (1923)." Christensen v. Bic Corp., 18 Conn.App. 451, 458, 558 A.2d 273 (1989). In order to support contractual liability, the defendants' representations must be sufficiently definite to manifest a " present intention on the part of the defendants to undertake immediate contractual obligations to the plaintiff." D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 202 Conn. at 214-15, 520 A.2d 217.
In Burnham, the Appellate Court affirmed the grant of summary judgment to the defendants and their dental practice against the claims of plaintiff, their former office manager, concerning, among other things, the existence of an implied contract that she would be terminated only for cause. The court held,
In the present case, the plaintiff has provided no evidence that would permit a trier of fact to draw a reasonable inference that an implied employment contract existed between the parties.
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Since the plaintiff has failed to present the necessary factual predicate to raise a genuine issue as to the existence of an implied employment contract, we conclude that the trial court properly granted the defendants' motion for summary judgment as to the plaintiff's claim of breach of contract.Id., 50 Conn.App. 388. Similarly, in Reynolds v. Chrysler First Commercial Corp., 40 Conn.App. 725, 731-33, 673 A.2d 573 (1996), the Appellate Court affirmed summary judgment for the defendant in an employment case based on an alleged implied contract, holding,
We recognize that " summary judgment is ordinarily inappropriate where an individual's intent and state of mind are implicated." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985). " The summary judgment rule would be rendered sterile, however, if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion. Indeed, the salutary purposes of summary judgment--avoiding protracted, expensive and harassing trials--apply no less to [employment termination] cases than to commercial or other areas of litigation." Id., at 998. Our Supreme Court has held " that even with respect to questions of motive, intent and good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact." Wadia Enterprises, Inc. v. Hirschfeld, supra, 224 Conn. at 250, 618 A.2d 506.
In this case, the plaintiff has provided no evidence that would permit a trier of fact to draw a reasonable inference that an implied employment contract existed between the plaintiff and the defendant.
Analysis
There is no question that plaintiff's injuries occurred on March 16, 2010 or that this action was commenced on October 18, 2013. Accordingly, any negligence claim against defendant is barred by operation of Gen. Stat. § 52-584, which provides in pertinent part, " No action to recover damages for injury to person . . . caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered . . ."
However, plaintiff claims that his complaint should be governed by the six-year statute of limitations for contracts, Gen. Stat. § 52-576(a), because he contends that he has pled a cause of action sounding in implied contract between him and defendant that Mr. Tellus paid him money to avoid using workers' compensation and to avoid liability for tortious conduct. As stated by our Supreme Court in Brighenti v. New Britain Shirt Corp., supra, 167 Conn. 406, " The test is whether the conduct and acts of the parties show an agreement."
At the outset, the court notes that it is questionable whether the complaint actually alleges an implied contract. It states only that defendant made payments to plaintiff " to avoid having to pay from Workers' Compensation or for the tortious conduct." There is no allegation of any representations by defendant or any acceptance by plaintiff forming a contract. There is only the conclusory statement of " such agreement having been begun and not completed, constituting a contract under law." The court notes that defendant did not plead a special defense of accord and satisfaction based on this putative agreement.
In moving for summary judgment, defendant submits his affidavit, in which he describes the payments he made to plaintiff to help him recover from his injuries, and repeatedly denies that there was any agreement between them. Defendant having put this evidence forward, it was incumbent upon the plaintiff to submit contradictory evidence. As stated in Burnham, supra, 50 Conn.App. 388, " To survive a motion for summary judgment, the plaintiff had the burden of presenting evidence that the defendant[s] had agreed to some form of contract commitment." Here, plaintiff has submitted no evidence in opposition to the motion for summary judgment. Accordingly, plaintiff has failed to present the necessary factual predicate to raise a genuine issue as to the existence of an implied contract, and defendant is entitled to summary judgment.
Conclusion
For the reasons set forth above, the motion of defendant Tellus for summary judgment is granted.