Opinion
No. CV05-4006617S
February 3, 2009
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #179
FACTS
Glen Bisaillon commenced this action on July 12, 2005. The complaint alleges the following facts. On August 25, 2003, Bisaillon, an employee of the City of Waterbury, went to the Wendell Cross School to reinstall a lighted exit sign that was removed during previous school renovations. Bisaillon, unaware that the wires to be reinstalled remained live with electricity, suffered various injuries when he was electrically jolted by the live wires, causing him to fall from his ladder. The City of Waterbury's motion to intervene was granted on August 15, 2005 and it became a plaintiff in the case.
The plaintiffs originally brought this action against AA Window Products, Inc. (AA), Samson Enterprises, Inc. (Samson) and Baystate Home Guard, Inc. (Baystate). AA then brought cross claims against Samson and Baystate on June 8, 2006, claiming contractual and common-law indemnification. The plaintiffs withdrew their actions against Samson and Baystate, leaving AA as the only defendant. AA maintained its cross claims against Samson and Baystate. Samson, as a cross claim defendant, filed a motion for summary judgment on the cross claim on October 21, 2008. AA, the cross claim plaintiff, filed its objection to the motion for summary judgment November 7, 2008. Samson filed a reply to AA's objection November 10, 2008. Argument was initiated during short calendar on November 10, 2008. On November 13, 2008, AA filed its own motion for summary judgment against the plaintiffs. Bisaillon filed an objection to the motion for summary judgment November 26, 2008. AA filed a reply to this objection December 8, 2008. The City of Waterbury remains a party to this action, but has filed no motions or objections on this specific matter. Additional argument was heard on both motions for summary judgment January 5, 2009.
Though dealing with counterclaims, the following language offers guidance on the survival of cross claims after the withdrawal of the action. "`The withdrawal of an action after a counterclaim . . . has been filed therein shall not impair the right of the defendant to prosecute such counterclaim as fully as if said action had not been withdrawn.' Gattoni v. Zaccaro, 52 Conn.App. 274, 280, [ 727 A.2d 706] (1999), quoting Practice Book § 10-55; see also Boothe v. Armstrong, 76 Conn. 530, 533, [ 57 A. 173] (1904). However, the right to proceed with a counterclaim after the withdrawal of the underlying complaint is not absolute, it is subject to the same substantive and procedural requirements `as if said [complaint] had not been withdrawn.' Practice Book § 10-55; Gattoni v. Zaccaro, supra. `[A] counterclaim, if proper, is an independent action' and may go forward as such. Union Carbide Corp. v. Aetna Casualty Surety Co., 212 Conn. 311, 318 [ 562 A.2d 15] (1989)." Chase Manhattan Bank Mortgage Corp. v. Saraceni, Superior Court, judicial district of Danbury, Docket No. CV 99 0335972 S (March 8, 2008, Moraghan, J.) [26 Conn. L. Rptr. 577].
Though dealing with counterclaims, the following language offers guidance on the survival of cross claims after the withdrawal of the action. "`The withdrawal of an action after a counterclaim . . . has been filed therein shall not impair the right of the defendant to prosecute such counterclaim as fully as if said action had not been withdrawn.' Gattoni v. Zaccaro, 52 Conn.App. 274, 280, [ 727 A.2d 706] (1999), quoting Practice Book § 10-55; see also Boothe v. Armstrong, 76 Conn. 530, 533, [ 57 A. 173] (1904). However, the right to proceed with a counterclaim after the withdrawal of the underlying complaint is not absolute, it is subject to the same substantive and procedural requirements `as if said [complaint] had not been withdrawn.' Practice Book § 10-55; Gattoni v. Zaccaro, supra. `[A] counterclaim, if proper, is an independent action' and may go forward as such. Union Carbide Corp. v. Aetna Casualty Surety Co., 212 Conn. 311, 318 [ 562 A.2d 15] (1989)." Chase Manhattan Bank Mortgage Corp. v. Saraceni, Superior Court, judicial district of Danbury, Docket No. CV 99 0335972 S (March 8, 2008, Moraghan, J.) [26 Conn. L. Rptr. 577].
DISCUSSION
"Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "[A]ny party may move for summary judgment upon any counterclaim or cross complaint as if it were an independent action." Practice Book § 17-44. "However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; internal quotation marks omitted.) Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983). "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." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007).
1. The Defendant's Motion for Summary Judgment
The defendant, AA, has moved for summary judgment against the plaintiff, Bisaillon. The defendant argues that it hired subcontractors to work on the Wendell Cross School project. The defendant argues that these subcontractors should be considered independent contractors, because it had no control over these subcontractors (including Samson) and their actions. The defendant argues that because it had no control over these subcontractors, it cannot be legally responsible for their alleged negligent conduct. Further, the defendant argues that they had no employees on the Wendell School job site that performed any physical work. Without control of the subcontractors onsite or any employees performing physical work on site, the defendant argues that it could not have been the cause of the accident and asks summary judgment be granted in its favor.
The plaintiff argues that summary judgment should be denied because there remain genuine issues of material fact. The plaintiff argues that whether the subcontractors used by the defendant were independent contractors and whether the defendant had a duty to inspect the site is a genuine issue of material fact. Further, the plaintiff argues that the defendant never gave up control of the Wendell School job site and remained liable for the actions of the subcontractors in its contract with the City of Waterbury.
"As a general matter . . . a general contractor is not liable for the torts of its independent subcontractors. [ Douglass v. Peck Lines Co., 89 Conn. 622, 627, 95 A. 22 (1915).] [Courts] have long held, however, that to this general rule there are exceptions, among them these: If the work contracted for be unlawful, or such as may cause a nuisance, or is intrinsically dangerous, or in its nature is calculated to cause injury to others, or if the contractee negligently employ an incompetent or untrustworthy contractor, or if he reserve in his contract general control over the contractor or his servants, or over the manner of doing the work, or if he in the progress of the work assume control or interfere with the work, or if he is under a legal duty to see that the work is properly performed, the contractee will be responsible for resultant injury. Norwalk Gas Light Co. v. Norwalk, 63 Conn. 495, 28 A. 32; Lawrence v. Shipman, 39 Conn. 586; Alexander v. Sherman's Sons Co., [ 86 Conn. 293, 85 A. 514 (1916)]; St. Paul Water Co. v. Ware, 83 U.S. (16 Wall.) 566 [ 21 L.Ed. 485 (1873)]; Creed v. Hartmann, 29 N.Y. 591. So, too, the contractee or proprietor will be liable for injury which results from his own negligence. Lawrence v. Shipman, [ supra, 590].' Douglass v. Peck Lines Co., supra, 627." Pelletier v. Sordoni, 264 Conn. 509, 518, 25 A.2d 72 (2003)
Pelletier provides a clear distinction between independent subcontractors and those still under the control of the general contractor. If a general contractor assumes control of the work, interferes with the work or if he under a legal duty to see that the work is properly performed, then the performing party will not be considered an independent subcontractor and the contractee will be responsible for any resultant injury. Pelletier v. Sordoni, supra, 264 Conn. 518. It is not clear based on the facts alleged whether the subcontractors hired by the defendant ever reached the status of or could be considered independent subcontractors. The defendant continued to inspect the work of the subcontractors, performed measurements, responded to problems at the job site and did not hire an independent inspection company. (Plaintiff's Deposition of Stephen Del Rosso). Further, the defendant sent a memorandum to the City of Waterbury stating "[a]s we discussed please have your electricians [the plaintiff] complete electrical work disturbed by our window replacement project." (Plaintiff's Appendix J.) This memorandum alone raises a genuine issue of material fact, because the defendant is recognizing, and possibly taking responsibility for, disturbed electrical work associated with the defendant's work on the Wendell Cross School. Also, the defendant had a contract with City of Waterbury providing that the defendant assumed all risk in the performance of the Wendell Cross School job. This established a legal duty for the defendant to see that the work at Wendell Cross School was to be properly completed. (Plaintiff's Appendix G.) Therefore, whether the defendant was negligent in performing this duty remains a genuine issue of material fact.
Viewed in the light most favorable to the plaintiff, there remains genuine issues of material fact as to whether the defendant continued to be liable for problems on the site, the independence of the subcontractors and whether the defendant was negligent as to the disturbed electrical work. Therefore, the defendant's motion for summary judgment is denied.
2. Cross Claim Defendant's Motion for Summary Judgment
Samson, a cross claim defendant, argues in its motion for summary judgment that there is no evidence that it removed the exit sign, performed any electrical work, was in control of the premises or was negligent at the time of the injury. AA, the cross claim plaintiff/defendant, counters that there remains a general issue of material fact as to who removed the exit sign without capping the electrical wires (the alleged cause of the plaintiff's injuries) and whether Samson was liable under the indemnification clause of the contract between AA and Samson.
The depositions of Bisaillon and Samuel Palumbo, president of Samson, state that work was done by Samson in the area where Bisaillon was injured. (Cross Claim Plaintiff's Exhibit A and B.) However, Samson alleges that it completed all work at Wendell Cross School two months prior to the date of the plaintiff's injury. AA Windows does not dispute the end date of Samson's work, but claims that because Samson completed prior work close to the area of the incident, then there remains a genuine issue of material fact.
"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 procedure is especially 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.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975). "Although the issue of causation generally is a question for the trier of fact . . . the issue becomes one of law when the mind of a fair and reasonable person could reach only one conclusion, and summary judgment may be granted based on a failure to establish causation." (Internal quotation marks omitted.) Abrahams v. Young Rubicam, Inc., 240 Conn. 300, 307, 692 A.2d 709 (1997). "While [a party's] deposition testimony is not conclusive as a judicial admission; General Statutes § 52-200; it is sufficient to support entry of summary judgment in the absence of contradictory competent affidavits that establish a genuine issue as to a material fact." Collum v. Chapin, 40 Conn.App. 449, 450 n. 2, 671 A.2d 1329 (1996).
The cross claim plaintiff's case is based on indemnification, arguing that if negligence is found against AA, then Samson is responsible for the damages because Samson performed work in the area of the accident and signed an agreement, indemnifying AA from any negligence committed by Samson. (Defendant's cross claim.) However, the cross claim defendant, Samson, through its memorandum, exhibits and deposition testimony represents that Samson completed its work at the Wendell School sometime before June 21, 2003. (Cross claim defendant's Exhibit G and Exhibit I.) The plaintiff's injury did not occur until August 26, 2003. (Plaintiff's Revised Complaint.) The cross claim plaintiff does not dispute this fact in any pleading or objection.
Viewing the evidence in the light most favorable to the non-moving party (AA), there remains no genuine issues of material facts as to the cross claim. Samson finished their work at the Wendell Cross School two months prior to the plaintiff's injury and did not return. AA does not offer any additional hypothesis as to how Samson could be the cause, through negligence or otherwise, of the plaintiff's injury. Further, Samson argues, and AA does not dispute, that Samson completed work near the exit sign at issue, but never completed work inside the building, thus it would not be possible for Samson to be responsible for the injuries to the plaintiff. The mind of a fair and reasonable person could not find a genuine issue of material fact as to causation. Samson has satisfied its burden, showing there is no genuine issue of material fact. Samson's motion for summary judgment is granted.
CONCLUSION
The defendant's motion for summary judgment is denied, as there remains genuine issues of material fact as to the claims brought by the plaintiff, Bisaillon, against the defendant, AA. Further, the cross claim defendant's motion for summary judgment is granted as to all counts. Looking at the evidence in the light most favorable to the non-moving party (AA), there are no genuine issues of material fact and the cross claim defendant (Samson) has satisfied its burden and is entitled to judgment as a matter of law.