Opinion
No. CV-04-00875468
September 11, 2007
MEMORANDUM OF DECISION RE: MOTION FOR SUMMARY JUDGMENT #208
The first issue for the court to decide is whether plaintiff's motion for summary judgment complied with the procedure requiring permission from the court to file a motion for summary judgment and whether the nondelegable duty doctrine prohibits the defendants' apportionment complaint against an independent contractor. The second issue for the court to decide is whether the apportionment defendant has had an opportunity to respond to the plaintiff's motion for summary judgment. The court grants the plaintiff's motion for permission to file a motion for summary judgment, accepts the filing of the motion for summary judgment as of the date this opinion is filed and grants the motion for summary judgment as to the defendants' apportionment complaint.
FACTS
On May 13, 2004, the plaintiff, Rosemarie Volduro, filed a two-count complaint sounding in negligence against the defendants, Connecticut Post Mall, LLC, and Westfield Corporation, Inc. The complaint arises out of an incident in which the plaintiff alleges to have slipped and fallen on ice that had accumulated in the parking lot at the defendants' place of business in Trumbull. On September 13, 2004, the defendants filed an apportionment complaint against Snow Management, Inc. (Snow Management), alleging that it was the party responsible for maintaining the parking lot in which the plaintiff was allegedly injured. On October 15, 2004, the plaintiff filed a direct complaint against Snow Management, alleging negligence. On January 14, 2005, Snow Management filed an apportionment complaint against Ultimate Services Professional Grounds Management, Inc. (Ultimate Services), alleging that Ultimate Services was the subcontracted party that was actually responsible for snow removal at the defendants' place of business and that it is liable for a proportionate share of the plaintiff's alleged damages.
The plaintiff has also filed a direct complaint against a third party, Snow Management, Inc. For the purposes of this opinion, however, the term `defendants' shall refer only to Connecticut Post Mall, LLC and Westfield Corporation, Inc.
On May 3, 2007, the plaintiff filed a motion for summary judgment against both apportionment complaints, arguing that the apportionment plaintiffs could not apportion their potential liability pursuant to the nondelegable duty doctrine. On May 30, 2007, the defendants filed an opposition to the plaintiff's motion for summary judgment against their apportionment complaint against Snow Management. Snow Management has not filed a memorandum of law in opposition to the plaintiff's motion.
DISCUSSION
"Practice Book § 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." (Internal quotation marks omitted.) Johnson v. Atkinson, 283 Conn. 243, 253, 926 A.2d 656 (2007). "[T]he moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law." Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006).
The plaintiff argues that, since the commencement of this case, the Connecticut Supreme Court has decided Smith v. Greenwich, 278 Conn. 428, 452-53, 899 A.2d 563 (2006), which requires the court to decide the defendants' apportionment complaint in favor of Snow Management and Snow Management's apportionment complaint in favor of Ultimate Services. She contends that Smith stands for the proposition that an owner or occupier of premises has a nondelegable duty to maintain and inspect its premises and may not apportion its liability to third-party snow removal companies.
In response, the defendants first argue that the plaintiff's motion for summary judgment should be denied because she failed to comply with Practice Book § 17-44, which requires parties to acquire the court's permission before filing a motion for summary judgment after a case has been assigned to trial. Next, the defendants contend that the plaintiff's motion is untimely. They argue that the plaintiff's motion relies on Smith, which was released on June 6, 2006, and that she did not file her motion for summary judgment until May 3, 2007, which was the day that trial was set to begin. Finally, the defendants argue that, because the plaintiff has filed a direct complaint against Snow Management, Snow Management is not an apportionment defendant and the Smith case, therefore, is irrelevant.
I CT Page 15386
The court will first address whether the plaintiff's motion for summary judgment complies with Practice Book § 17-44. Practice Book § 17-44 provides in relevant part: "[A]ny party may move for a summary judgment at any time, except that the party must obtain the judicial authority's permission to file a motion for summary judgment after the case has been assigned for trial . . . The pendency of a motion for summary judgment shall delay trial only at the discretion of the trial judge." "The purpose of requiring court permission to file requests for summary judgment after trial assignment is [to] review the legitimacy of the delay in filing the request." Mips v. Becon, Inc., Superior Court, judicial district of Hartford, Docket No. CV 97 0575373 (August 2, 2000, Booth, J.). The decision to grant a motion for permission to file a motion for summary judgment lies within the sound discretion of the trial court. See Honan v. Dimyan, 52 Conn.App. 123, 127, 726 A.2d 613, cert. denied, 249 Conn. 909, 733 A.2d 227 (1999) (refusing to review trial court's decision to deny motion for permission to file motion for summary judgment on abuse of discretion standard because plaintiffs did not provide adequate record for review).
In the present case, the plaintiff delivered her motion for summary judgment to opposing counsel on May 2, 2007 and filed the motion with the court on May 3, 2007. Trial was scheduled to start on the day she filed the motion and has since been rescheduled to begin in December 2007, with jury selection scheduled to begin on December 4, 2007. Accordingly, as the case had been assigned for trial on the date that the plaintiff filed her motion for summary judgment and is currently still assigned for trial, § 17-44 requires her to obtain the court's permission before filing a motion for summary judgment.
The first sentence of the plaintiff's motion for summary judgment helps to resolve the issue of whether the plaintiff complied with the Practice Book's requirements. The first sentence reads: "Pursuant to the Rules of Practice and the Connecticut General Statutes, the Plaintiff in the above-entitled action requests Leave to File the Instant Motion for Summary Judgment and moves for Summary Judgment . . ." This language is sufficient to constitute a motion for permission to file the motion for summary judgment, and, therefore, the court will treat the plaintiff's pleading as both a motion for permission and a motion for summary judgment, with respect to both apportionment complaints.
Next the court will consider the argument as to whether it should grant the plaintiff's motion for permission to file a motion for summary judgment. The Appellate Court, in R.I. Waterman Property, Inc. v. Misiorski, 51 Conn.App. 659, 660, 725 A.2d 340 (1999), addressed a situation in which the plaintiff filed a motion for permission to file a motion for summary judgment as well as the motion for summary judgment simultaneously, and the trial court subsequently granted both motions simultaneously. On appeal, the court held that a trial court could not grant a motion for summary judgment at the same time as it granted a motion for permission to file that motion for summary judgment. Id., 662. In reversing the trial court's ruling, the court held that this was an error that was "truly extraordinary and . . . so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings . . . The trial court's rulings did not afford the defendants an opportunity to oppose the motion for summary judgment as provided by [Practice Book] § 17-45." (Citation omitted.) Id., 661-62.
As previously discussed, it is within the discretion of the court to permit the pendency of a motion for summary judgment to delay trial. Practice Book § 17-44. The defendants argue that the plaintiff's motion is untimely because it was filed just before trial was set to begin. "[T]he summary judgment procedure is designed to eliminate the delay and expense incident to a trial where there is no real issue to be tried . . . It 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 . . . One of the goals advanced by the summary judgment process is judicial efficiency." (Citation omitted, internal quotation marks omitted.) Ocwen Federal Bank, FSB v. Charles, 95 Conn.App. 315, 331, 898 A.2d 197, cert. denied, 279 Conn. 909, 902 A.2d 1069 (2006).
Notwithstanding that the plaintiff waited until the day before trial to file her motion for summary judgment, the court will grant her motion for permission. By doing so, not only will judicial efficiency be served, but also the requirement that the party adverse to the motion must be given an opportunity to respond to it has been met since the defendants have filed their memorandum in opposition. As a result, the court will decide the motion for summary judgment on its merits.
The court will next consider whether the nondelegable duty doctrine is applicable in this case. Generally, "an employer is not liable for the negligence of its independent contractors . . . One exception to this general rule, however, is that the owner or occupier of premises owes invitees a nondelegable duty to exercise ordinary care for the safety of such persons . . . The nondelegable duty doctrine is, therefore, an exception to the rule that an employer may not be held liable for the torts of its independent contractors." (Citations omitted, internal quotation marks omitted.) Smith v. Greenwich, supra, 278 Conn. 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 responsibility . . .
"[I]t is not a necessary implication of the nondelegable duty doctrine that the contractor to whom the performance of the duty has been assigned may not, under appropriate circumstances, also owe the same duty to a party injured by its breach . . . Instead, [the court views] the nondelegable duty doctrine as involving a form of vicarious liability, pursuant to which the party with the duty may be vicariously liable for the conduct of its independent contractor." (Citation omitted, internal quotation marks omitted.) Smith v. Greenwich, supra, 278 Conn. 457-58. "[T]herefore . . . a defendant that owns or controls property may not bring an apportionment claim against a contractor hired to carry out the defendant's nondelegable duties." Id., 460.
In the present case, as owners or occupiers of the property, the defendants had a nondelegable duty to keep their property safe and clear of snow and they may not evade liability by contracting out performance of that duty to Snow Management. The defendants have argued that, because the plaintiff filed a direct complaint against Snow Management, Snow Management is solely a direct defendant in this action and that it is not an apportionment defendant. This argument, however does not address the fact that the defendants still have an apportionment complaint pending against Snow Management. The appropriate remedy for the defendants, as the parties that are being held vicariously liable by the plaintiff, is a claim for indemnity rather than for apportionment. Smith v. Greenwich, supra, 278 Conn. 462. Accordingly, the court will grant the plaintiff's motion for summary judgment against the defendants' apportionment complaint as to Snow Management.
II
With regard to the plaintiff's motion for summary judgment as to Snow Management's apportionment complaint against Ultimate Services, as previously discussed, the court will view the plaintiff's pleading as a motion for request for permission to file a motion for summary judgment as well as a motion for summary judgment. After a review of the motion for permission, the motion for summary judgment and the brief accompanying the motions and upon consideration that Snow Management has not opposed any portion of the plaintiff's pleading, it is apparent that the plaintiff's substantive motion for summary judgment relies on the recent Supreme Court decision in Smith v. Greenwich, supra, 278 Conn. 452-53. Accordingly, the court will grant the motion for permission.
While the plaintiff is not prohibited from filing a motion for permission to file a motion for summary judgment at the same time as she files the motion for summary judgment, the court is prohibited from granting both motions at the same time if the party adverse to the motion has not had an opportunity to oppose the motion for summary judgment. R.I. Waterman Property, Inc. v. Misiorski, supra, 51 Conn.App. 662. Accordingly, the court will accept the filing of the plaintiff's motion for summary judgment and its accompanying documents as of the date of the filing of this opinion to provide Snow Management with an opportunity to oppose the motion for summary judgment, pursuant to the procedures set forth in Practice Book § 17-45.