Opinion
No. CV 030083135
March 12, 2007
MEMORANDUM OF DECISION RE DEFENDANT PREMIER MAINTENANCE, INC., MOTION FOR SUMMARY JUDGMENT #129
FACTS
On September 22, 2003, the plaintiff, Leisa Adiletta, filed a negligence complaint against Premier Maintenance, Inc. ("Premier"). Therein, the plaintiff alleges the following facts. At all relevant times, the plaintiff was an employee of PerkinElmer Instruments ("PerkinElmer"), acting within the scope of her employment. PerkinElmer occupied a portion of the building located at 710 Bridgeport Avenue in Shelton, Connecticut. The plaintiff worked on the first floor of the building. On September 10, 2001, at approximately 12:30 p.m., the plaintiff entered the first floor women's bathroom and was severely injured when she slipped and fell on water that had accumulated on the bathroom floor. Premier was responsible for cleaning and maintaining the premises in safe condition, including the first floor women's bathroom.
The plaintiff's complaint included two counts, the first of which seeks to recover from two additional defendants, Reckson Associates Realty Corporation and Reckson Operating Partnership, L.P. The second count sets forth the plaintiff's claim against Premier, which filed the motion for summary judgment presently at issue.
On December 8, 2005, Premier filed a motion for summary judgment on the grounds that it owed no duty to the plaintiff and that it was not negligent Premier has submitted a memorandum of law in support of its motion. On May 3, 2006, the plaintiff filed an objection to Premier's motion, to which Premier submitted a reply on October 23, 2006. The plaintiff filed a sur-reply on November 21, 2006. The matter was heard on the short calendar on January 22, 2007.
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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Brown v. Soh, 280 Conn. 494, 500-01, 909 A.2d 43 (2006). "[T]he `genuine issue' aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). In the context of a negligence claim, "[t]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). "[O]nly if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 479, 822 A.2d 1202 (2003).
Premier argues that it did not owe a duty of care to the plaintiff, because it did not own or possess the property on which the plaintiff allegedly was injured. Rather, Premier maintains that its only connection to the property was through its cleaning services contract with PerkinElmer, which contract defines the scope of Premier's duties. According to Premier, the plaintiff's alleged slip and fall occurred beyond the parameters of Premier's contractually created duty, and therefore, the plaintiff cannot state a viable negligence claim. Alternatively, Premier argues that even if the plaintiff could establish that Premier owed her a duty of care, she has not presented evidence sufficient to demonstrate that Premier breached such duty, and thus, Premier remains entitled to summary judgment. The plaintiff counters that Premier was obligated to perform its contractual duties with reasonable care and in such a manner that would prevent injury to persons, including the plaintiff. She further argues that summary judgment is inappropriate because there is ample circumstantial evidence from which a trier of fact could infer that Premier failed to exercise reasonable care in performing under the contract.
"The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . If a plaintiff cannot prove all of those elements, the cause of action fails." (Internal quotation marks omitted.) Gurguis v. Frankel, 93 Conn.App. 162, 167, 888 A.2d 1083, cert. denied, CT Page 9772 277 Conn. 916, 895 A.2d 789 (2006). As to the first element, "the test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case . . . The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy." (Internal quotation marks omitted.) Neuhaus v. Decholnoky, 280 Conn. 190, 217-18, 905 A.2d 1135 (2006).
"A duty to use care may arise from a contract . . ." (Internal quotation marks omitted.) Ward v. Greene, 267 Conn. 539, 547, 839 A.2d 1259 (2004). In Gazo v. Stamford, 255 Conn. 245, 249 n. 4, 765 A.2d 505 (2001), the Supreme Court indicated that the extent of an independent contractor's duty of care depends on the scope of its contractual undertaking. Thus, the court offered four reasons for holding that, under the circumstances, the independent contractor owed the injured plaintiff a direct duty of care. First, having undertaken to clear ice and snow from the sidewalk on which the plaintiff slipped and fell, the court reasoned that "the relationship between [the contractor's] alleged negligence and the plaintiff's injuries is direct, and well within the scope of foreseeability." Id., 250. Noting, therefore, that "the duty owed to the plaintiff cannot extend beyond the scope of foreseeability"; id.; the court concluded that "the potential for harm from a fall on ice was significant and foreseeable . . . [and] an ordinary person in [the contractor's] position, knowing what he knew or should have known, would anticipate that severe injuries were likely to result from a slip and fall if the sidewalk was not cleared properly of ice and snow." (Citation omitted; internal quotation marks omitted.) Id., 250-51.
Second, the court addressed the public policy aspect of the duty analysis. Holding the independent contractor liable, it reasoned, "fits comfortably within the general rule that every person has a duty to use reasonable care not to cause injury to those whom he reasonably could foresee to be injured by his negligent conduct whether that conduct consists of acts of commission or omission." Id., 251. Thus, the court stated that "[t]here is no question that [the contractor] had a duty to [the possessor of the property] under their contract to perform its contractual duties in a reasonable manner so as to prevent injury to persons using the sidewalk." Id. It then concluded that it would be reasonable to extend that duty to persons, such as the plaintiff, who are injured by the contractor's breach. Id. Furthermore, it observed that contractors "always have had a duty to perform their work in a nonnegligent manner . . ." Id., 254.
Third, the court adopted § 324A(b) of the Restatement (Second) of Torts in circumstances in which the defendant performed its services for consideration and in a commercial context. Id., 252. This section provides: "One who undertakes . . . to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if . . . he has undertaken to perform a duty owed by the other to the third person . . ." 2 Restatement (Second), Torts, Duties of Affirmative Action, § 324A(b), p. 142 (1965). The court reasoned in Gazo that the defendant had "contracted to perform ice and snow removal services for [the possessor of the property], which had a nondelegable duty to keep its premises safe"; id., 253; and reiterated that "[i]ce and snow removal is a type of service that is undertaken in contemplation of protecting third persons, and injuries resulting from a slip and fall are foreseeable." Id. Lastly, the court noted that it previously had recognized "an analogous duty" in the context of construction cases. Id. It concluded that there exists "no meaningful distinction between an independent contractor who has created a dangerous condition on the land . . . and an independent contractor who has agreed to perform a service that is essential to keeping foreseeable third parties safe." Id., 254.
The present case fits within Gazo's framework. Here, the plaintiff has presented evidence that Premier contracted with PerkinElmer to provide cleaning and maintenance services for the subject building, including the first floor women's bathroom. In particular, § 100.6(2)(b)(11) of the contract states that Premier's daytime roving porters must "[p]erform any and all tasks assigned, via the Maintenance Department on an `as required' basis." According to the testimony of Nick Dellolio, PerkinElmer's facilities manager, at the outset of its contractual relationship with Premier, PerkinElmer assigned specific daily tasks to the day porters. At his deposition, Dellolio produced a document, which he claimed represented a list of such duties. That document required the day porter to conduct bathroom rounds from 10:30 a.m. until noon. Bathroom rounds included making sure that the bathrooms were clean. Although this usually did not involve any "wet work," the porter would be expected to mop if he encountered a problem in the bathroom.
The plaintiff attached to her objection a copy of the contract between PerkinElmer amid Premier, as well as deposition testimony indicating that Premier was responsible for cleaning and maintaining the first floor bathrooms. Premier disputes this in its memorandum, however, claiming that Michael Korsko, an independent contractor hired by PerkinElmer to supervise Premier's work, testified that "Premier owed no duty with respect to the bathroom in question on the day of plaintiff's alleged fall." (Emphasis added.) Not only does this represent an inaccurate characterization of Korsko's testimony, but it also fails to support Premier's position. Even if Korsko in fact had testified as to the purported nonexistence of Premier's duty, such testimony would be conclusory and, thus, would not establish a genuine issue of material fact. See Buell Industries, Inc. v. Greater New York Mutual Ins., supra, 259 Conn. 557 (finding that conclusory statement in affidavit did not put material fact at issue).
Read in a light most favorable to the plaintiff, therefore, Premier's contractual duties included these additionally assigned tasks. According to the rule articulated in Gazo, Premier had a duty to perform these tasks in a reasonable manner and in such a way that would avoid injuring persons, such as the plaintiff, who could be expected to use the building facilities, including the first floor bathroom in question. See Gazo v. Stamford, supra, 255 Conn. 250-51. Also according to Gazo, this duty extended specifically to those injured by Premier's breach. Id., 251. Moreover, because Premier "performed its services for consideration and in a commercial context"; id., 252; § 324A(b) of the Restatement (Second) of Torts applies to the present case, as well. Although the icy and snowy sidewalks in Gazo arguably posed a greater risk to the safety of potential passers-by than the wet bathroom floor in the present case, Premier should have recognized that its cleaning and maintenance services nevertheless were necessary to for the protection of third persons, including the plaintiff. See also Gazo v. Stamford, supra, 255 Conn. 253. Thus, it also should have been foreseeable that failure to adequately clean the bathroom floors could result in injuries. In fact, the plaintiff has put forth evidence demonstrating that both PerkinElmer and Premier were aware of an ongoing problem with leaks throughout the building, including the bathrooms, and that these leaks occasionally led to the accumulation of water on the floors.
James Orbendorfer, Manager of Environmental Health and Safety for PerkinElmer, testified that the roof on the building was in bad repair when PerkinElmer first took possession of the property. He further testified that he personally had witnessed leaks on the first floor. Dellolio also testified that he occasionally received reports that puddles of water were present on the bathroom floors. Premier's president, Michael Diamond, testified that wet floors in the bathroom was a "problem," and that if Premier's employees did not correct it, Premier would be responsible for any resulting injuries. Furthermore, according to the testimony of Eduardo Herrara, one of Premier's day porters, leaking water was a major problem through the building, such that day porters often were required to mop offices, bathrooms and hallways.
Premier attempts to rely on the fact that pursuant to the document Dellolio produced, the porter was required to take a lunch break from noon to 12:30 p.m. and was not required to perform additional bathroom rounds until 2:30 p.m. It suggests, therefore, that any duty it might have owed the plaintiff would have been suspended at the time the plaintiff allegedly was injured, which she claims occurred at approximately 12:30 p.m. This argument is unavailing, however, because it does not affect the question of whether Premier owed a duty to fulfill its contractual obligations in a reasonable manner. Instead, it implicates whether Premier properly performed under the contract, i.e., whether it breached its duties, as determined by the terms of the contract. Accordingly, it is submitted that because Premier owed a direct duty of care to the plaintiff, the court should deny Premier's motion for summary judgment as to the issue of duty.
Whereas the existence of a duty is an appropriate matter for summary judgment; Mozeleski v. Thomas, supra, 76 Conn.App. 290; the question of whether the defendant breached its duty of care generally is not susceptible of such summary adjudication. Rather, this latter inquiry involves a determination of fact. Tarzia v. Great Atlantic Pacific Tea Co., 52 Conn.App. 136, 149, 727 A.2d 219 (1999). "If there are issues of fact, the court may not resolve them without giving the parties a full hearing." Gould v. Mellick Sexton, 66 Conn.App. 542, 556, 785 A.2d 265 (2001), rev'd on other grounds, 263 Conn. 140, 819 A.2d 216 (2003). Thus, "[s]ummary 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." (Internal quotation marks omitted.) Busque v. Oakwood Farms Sports Center, Inc., 80 Conn.App 603, 607 (2003), cert. denied, 267 Conn. 919, 8441 A.2d 1190 (2004).
Premier argues that it nevertheless is entitled to summary judgment, because the plaintiff has not presented evidence sufficient to establish that Premier breached its duty. The cases on which Premier relies, however, are inapplicable to the plaintiff's claims against it. In particular, Premier attempts to reframe the plaintiff's complaint as one based on a theory of premises liability and argues that the plaintiff has failed to demonstrate that Premier had constructive notice of the presence of water on the bathroom floor. See, e.g., Kelly v. KMart Corp., Superior Court, judicial district of Waterbury, Docket No. CV 00 0162186 (November 13, 2003, Alvord, J.); Pitruzzello v. Stop Shop Supermarket Co., Superior Court, judicial district of Middlesex, Docket No. CV 01 0093886 (September 12, 2002, Robinson, J.); Moss v. New Haven Crown CVS, Inc., Superior Court, judicial district of New Haven, Docket No. CV 98 0417730 (July 18, 2001, Silbert, J.). The plaintiff is not required to produce evidence demonstrating either actual or constructive notice in the present case, however, because her complaint does not rely upon a premises liability theory. See Gazo v. Stamford, supra, 255 Conn. 249 (clarifying that whether the defendant would be liable on a theory of premises liability was not at issue, because "[t]hat is not a basis of the plaintiff's claims"). Rather, the breach for which the plaintiff seeks to recover relates to Premier's contractual duties, not to Premier's relationship to the owner or possessor of the subject property.
Even if she had based her claim on a premises liability theory, the plaintiff nonetheless would not have been required to demonstrate constructive notice in light of Fuller v. First National Supermarkets, Inc., 38 Conn.App. 299, 661 A.2d 110 (1995). There, the Appellate Court explained that despite the general rule that for a business invitee to recover on a negligence claim, she must allege and prove either actual or constructive notice of the particular defect at issue, "[i]f the plaintiff . . . alleges an affirmative act of negligence, i.e., that the defendant's conduct created the unsafe condition, proof of notice is not necessary." (Internal quotation marks omitted.) Id., 301. In Fuller, the court regarded as an affirmative act of negligence the defendant's conduct in allowing the accumulation of pricing stickers on the supermarket floor. Id., 302-03. Similarly, the plaintiff in the present case alleges that Premier was affirmatively negligent in causing or allowing the water to accumulate on the bathroom floor. Thus, the allowance of such accumulation constitutes an affirmative act of negligence, the allegation of which excuses the plaintiff from having to prove constructive notice. See also Tuile v. Stop Shop Cos., Inc., 45 Conn.App. 305, 308, 696 A.2d 363 (1997) ("[i]t is well established that a plaintiff does not have to prove that a defendant had actual or constructive notice of a dangerous condition when the plaintiff claims that the defendant's employees created the condition").
On the other hand, insofar as the plaintiff alleges that Premier's negligence stems from its failure to make a proper and reasonable inspection of the bathroom, the plaintiff concedes that she must demonstrate constructive notice in order to prevail. The court need not address this issue for purposes of the present motion for summary judgment, however, because the plaintiff's complaint survives the motion on the plaintiff's alternative theory of negligence arising out of Premier's contractual duties.
Moreover, as the summary judgment movant, the burden is on Premier to demonstrate that no issues of material fact exist. "The courts are in entire agreement that the 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." (Internal quotation marks omitted.) Zeilinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006). In asserting that there is no evidence that it acted negligently, Premier relies in part on Dellolio's testimony that the first floor women's bathroom had been cordoned off for repairs on the date on which the plaintiff allegedly was injured, and that consequently, Premier's employees were not expected to enter that bathroom on that date. To bolster Dellolio's account, Premier further cites to the testimony of Michael Korsko, whom PerkinElmer had hired to supervise Premier's work. Korsko also testified that the bathroom was closed on the date in question, and he further testified that prior to that date, Premier's employees had been instructed specifically not to enter that bathroom for any reason.
The plaintiff, however, has presented evidence to contradict the testimony of both Dellolio and Korsko. Wayne Cullen, operations manager for Premier, testified to making daily visits to the building between 11 a.m., and 11:30 a.m., including throughout September 2001. He further testified that he did not observe any taped-off areas. Moreover, one day porter, Estuardo Herrera, testified in an affidavit that he never received instructions not to enter any of the bathrooms in the building. The plaintiff also points out that Korsko was responsible for Premier's nighttime crew, had no responsibility with respect to the daytime porters, generally did not arrive at work until after 4 p.m. and had no direct knowledge as to what occurs in the building during the day. As to Dellolio, the plaintiff notes that he could not testify to having seen the bathroom closed before the plaintiff allegedly slipped and fell therein. Nor could he testify that he saw the bathroom closed on the date of the plaintiff's alleged injury, or thereafter, despite his testimony that he walks through the building throughout each day.
Given these inconsistencies in the evidence, Premier has not met its burden to demonstrate the absence of any genuine issues of material fact as to whether Premier breached its duty to use reasonable care in performing its obligations under the contract for cleaning and maintenance services.
CONCLUSION
In light of the foregoing, the defendant's motion for summary judgment is denied, because it owed the plaintiff a duty of care and there remain genuine issues of material fact as to whether it breached such duty.