Opinion
No. CV 07 5014765-S
December 30, 2008
MEMORANDUM OF DECISION ON MOTIONS FOR SUMMARY JUDGMENT ( #120 AND #122)
This is an action brought by the plaintiff, Eleanor Bradley, against Highland Park Market of Farmington, LLC (Highland Park), for personal injuries the plaintiff alleges she suffered while passing through a defective automatic door at the defendant's grocery store. Highland Park subsequently brought a third-party complaint against Door Control, Inc. (Door Control), a company hired by Highland Park to occasionally service the automatic door. Highland Park's third-party complaint seeks common-law and contractual indemnity from Door Control. Eleanor Bradley subsequently amended her complaint to plead over a negligence claim against Door Control.
Door Control, Inc., now seeks summary judgment against both Highland Park (Motion #120) and Eleanor Bradley (Motion #122). For the reasons set forth below, Motion #120 is granted in part and denied in part, and Motion #122 is denied.
BACKGROUND
In her amended complaint, Eleanor Bradley alleges the following facts. On August 1, 2006, at approximately 4:00 p.m., she attempted to enter the market owned and operated by Highland Park to shop for groceries. Entrance to the market is provided through an electromechanical, automatic swinging door. The door is activated by a sensor positioned above the door and should open when a person comes within the scope of the sensor.
The automatic door through which the plaintiff tried to enter, however, would not open. The plaintiff then held the handlebar on the door and leaned her shoulder against the door in order to push the door open. As the plaintiff was pressing against the door, another person approached the entrance behind her, and the door opened rapidly and unexpectedly. The plaintiff then fell to the floor and was injured.
Eleanor Bradley further alleges that the automatic door was under the exclusive control of Highland Park and its agents, and that Highland Park negligently operated and maintained the automatic door resulting in a dangerous and defective condition that caused the injuries to her. Included among the various claims of negligence, she alleges that the sensors on the door were not installed in accordance with certain industry standards.
Highland Park asserts in its third-party complaint that it orally contracted with Door Control to inspect and service the automatic door at the premises on several separate occasions in 2006. Both Eleanor Bradley and Highland Park allege that Door Control negligently performed its service work on the door thereby causing injury to Eleanor Bradley.
An affidavit filed by Highland Park in opposition to Door Control's motion for summary judgment indicates that on February 17, 2006, Door Control had replaced a sensor on the "in door" because it was not "always working." Door Control was again at the premises, on July 31, 2006, just one day before the plaintiff's alleged fall, to service the automatic door in question. Specifically, Door Control performed work on the opening mechanism of the "in" door. The July 31, 2006 invoice from Door Control to Highland Park includes the following notation: "Entrance door squeaking — Top muntin loose — door scraping on header — resecured top muntin — replaced bad pin lock pivot (header portion) door ok @ this time."
STANDARD OF REVIEW
"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). "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). "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, 791, 936 A.2d 625 (2007).
"[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 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, 500, 538 A.2d 1031 (1988).
ANALYSIS
Door Control first asserts that it is entitled to summary judgment with respect to both counts of Highland Park's complaint seeking indemnification. Specifically, Door Control contends that there is no evidence that: (1) its negligence, rather than that of Highland Park, was the direct and immediate cause of the plaintiff's fall; (2) Door Control was in control of the automatic door to the exclusion of Highland Park; and (3) Highland Park did not know of such negligence, had no reason to anticipate it and could reasonably rely on Door Control not to be negligent. Door Control also contends that, with respect to the contractual indemnification count, there is no evidence that Door Control contractually agreed to indemnify Highland Park with respect to its work on the premises. The court agrees that Door Control is entitled to summary judgment on the contractual indemnification count, but denies the summary judgment motion in all other respects.
The court first addresses the contractual indemnification count. Both Door Control and Highland Park agree that there is no written contract between the parties and that Door Control performed its work at the premises pursuant to an oral agreement. Door Control asserts in its motion, supported by an affidavit, that the oral contract did not include an agreement that the Door Control would indemnify Highland Park for any damages caused by Door Control's negligent performance of the contract. Highland Park has not come forward with any evidence to dispute this contention. Accordingly, summary judgment must be granted to Door Control on count two of Highland Park's third-party complaint.
The court next turns to Door Control's motion as it relates to Highland Park's common-law indemnification claim. With respect to common-law indemnification, the Connecticut Supreme Court has noted on numerous occasions that "[o]rdinarily there is no right of indemnity or contribution between joint tort-feasors . . . Where, however, one of the defendants is in control of the situation and his negligence alone is the direct immediate cause of the injury and the other defendant does not know of the fault, has no reason to anticipate it and may reasonably rely upon the former not to commit a wrong, it is only justice that the former should bear the burden of damages due to the injury . . . Under the circumstances described, we have distinguished between `active or primary negligence,' and `passive or secondary negligence.' . . . Indemnity shifts the impact of liability from passive joint tortfeasors to active ones." (Citations omitted; internal quotation marks omitted.) Kyrtatas v. Stop Shop, Inc., 205 Conn. 694, 697-98, 535 A.2d 357 (1988)." Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 697, 694 A.2d 788 (1999).
As the case law makes clear, Highland Park must establish four separate elements to prove entitlement to common-law indemnification from Door Control: "(1) that [Door Control] was negligent; (2) that [Door Control's] negligence, rather than [Highland Park's], was the direct, immediate cause of the accident and injuries; (3) that [Door Control] was in control of the situation to the exclusion of the [Highland Park]; and (4) that the [Highland Park] did not know of such negligence, had no reason to anticipate it, and could reasonably rely on [Door Control] not to be negligent." Kyrtatas v. Stop Shop, Inc., 205 Conn. 694, 698, 535 A.2d 357 (1988).
With respect to the first element of this cause of action, Door Control does not seriously challenge the fact that there is competent summary judgment evidence regarding Door Control's alleged negligence in failing to repair adequately the automatic door in question. Indeed, the evidence submitted tends to demonstrate that Highland Park hired Door Control to repair the automatic door just one day before Eleanor Bradley was injured by the door, thereby creating a strong inference that Door Control did not competently perform its work on the door.
The second element of the cause of action requires Highland to establish that Door Control's negligence, rather than Highland Park's, was the direct and immediate cause of Eleanor Bradley's injuries. The evidence in the record raises a genuine issue of material fact regarding this element because, construing the evidence in favor of the non-moving party, the trier of fact could reasonably infer that Highland Park acted appropriately in hiring Door Control to repair the door as soon as Highland Park knew it was not functioning properly, and then reasonably relied on Door Control to perform the repair work in a non-negligent fashion. In light of the fact Eleanor Bradley was injured within approximately thirty-one hours of the repair work, it also would also be reasonable for the trier of fact to assume that Highland Park, which does not appear to possess the same expertise or knowledge regarding the operation and maintenance of automatic doors, was not negligent in failing to discover that the door was still functioning improperly. Accordingly, there is a genuine issue of material fact regarding whether Door Control's negligence, rather than that of Highland Park's, was the direct and immediate cause of the accident and injuries.
The third element, as noted above, requires that Highland Park raise a genuine issue of material fact regarding whether Door Control was "in control of the situation to the exclusion of" Highland Park. With respect to this prong, Door Control's claim that it did not have exclusive control of the situation has some surface appeal in light of the fact that Door Control was not on the premises at the time of the alleged accident and that Highland Park obviously owns both the store and the automatic door. This assertion, however, must fail because the "situation" at issue is not the store or the automatic door alone, but rather the proper operation and functioning of that door.
The Supreme Court has defined "exclusive control over the situation" to mean "exclusive control over the dangerous condition that gives rise to the accident." Skuzinski v. Bouchard Fuels, Inc., supra, 240 Conn. 706. The dangerous condition that gave rise to the accident is not the mere automatic door itself, which, if functioning properly, would not be expected to injure patrons entering the premises. Instead, under the circumstances in this case, the dangerous condition that gave rise to the accident is the alleged improper repair of the opening mechanism on the automatic door, including, but not limited to, the alleged improper placement or use of sensors on the door. Here, there is a genuine issue of material fact that Door Control had control over this condition to the exclusion of Highland Park because Door Control had exclusively performed work on the opening mechanism of the door within a short period of time before the accident. There is no evidence that Highland Park hired any other entity or person to perform the repair work. Moreover, the trier of fact could certainly infer from the fact that Highland Park hired an outside entity to perform the repair work that it did not itself possess the necessary knowledge or expertise itself to repair the door, and thus could not have exercised control over the dangerous condition.
The essence of Door Control's argument is that because Highland Park is the owner of the premises and has daily control over the operation of the market, it cannot seek indemnification for work done at the property by an independent contractor who has left the property after performing work negligently. A brief review of case law regarding premises and independent contractor liability demonstrates that this argument is not in accordance with Connecticut law.
It is true, as Door Control argues, that Highland Park as an owner of the premises has a nondelegable duty to maintain the premises in a reasonably safe condition for its patrons. The existence of that nondelegable duty, however, does not compel the conclusion that it has exclusive control over the situation or that an independent contractor who negligently performs work at the premises is relieved of an obligation to indemnify the premises owner if that negligence causes harm.
As the Connecticut Supreme Court has recognized, in premises liability cases, "the nondelegable duty doctrine means that the party with such a duty . . . may not absolve itself of liability by contracting out the performance of that duty . . . [A] party may contract out the performance of a nondelegable duty, but may not contract out his ultimate legal responsibility . . . It 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, we view 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. That vicarious liability, however, does not necessarily preclude liability on the part of the independent contractor." (Citations omitted; emphasis added.) Gazo v. Stamford, 255 Conn. 245, 255-56, 765 A.2d 505 (2001).
In circumstances where the premises owner is vicariously liable for the negligence of the independent contractor, the court has recognized that the appropriate remedy for an innocent party "is a claim for indemnity rather than for apportionment." Smith v. Greenwich, 278 Conn. 426, 462, 899 A.2d 563 (2006). Accordingly, Door Control may be obligated to indemnify Highland Park for work it performed on the premises even though Highland Park is the owner of the premises, has ultimate control over the property in general and has a nondelegable duty to care for the safety of invitees on its premises.
Finally, with respect to the fourth element of a common-law indemnification claim, the court concludes that there are genuine issues of material fact regarding whether Highland Park had any knowledge of Door Control's alleged negligence, had any reason to anticipate it and could reasonably rely on Door Control not to be negligent. Given the short duration of time between Door Control's repair activities and the accident, the trier of fact could certainly conclude that Highland did not know, and could not have been expected to know, that Door Control had not adequately repaired the door. (Door Control does not argue that Highland Park could have reasonably expected that Door Control would perform its work negligently.)
As a result, the court concludes that there is a genuine issue of material fact with respect to all of the elements of Highland Park's common-law indemnification claim against Door Control. Accordingly, Door Control's motion for summary judgment as to count one of Highland Park's third-party complaint is denied.
The court next turns to Door Control's motion for summary judgment (#122) as to count two of Eleanor Bradley's amended complaint dated April 7, 2008. In count two of her amended complaint, she alleges that Door Control negligently serviced or failed to repair the automatic door thereby causing injury to her. Door Control contends that it is entitled to summary judgment with respect to this claim because it did not have possession or control over the premises at the time the plaintiff sustained her injuries; and (2) the undisputed facts demonstrate that Door Control lacked any notice of the defective condition that caused the plaintiff's injuries. These claims are without merit and warrant little additional discussion.
First, it is not a necessary predicate of Eleanor Bradley's negligence against Door Control that Door Control had possession and/or control of the premises when the injury occurred. The case law makes clear that even though a premises owner owes a nondelegable duty to business invitees to make the premises reasonably safe, an independent contractor to whom that duty is contracted also may be liable to business invitees who are foreseeably injured as a result of the independent contractor's negligence. See, e.g., Gazo v. Stamford, supra, 255 Conn. 256 (independent contractor responsible for snow and ice removal owes duty of care to business invitees on the owner's premises). Such a duty exist regardless of whether the independent contractor is actually present at the premises at the time the injuries occurred as long as the independent contractor's negligence is the direct and proximate cause of the plaintiff's injuries. See, e.g., Minton v. Krish, 34 Conn.App. 361, 367, 642 A.2d 18 (1994) (rejecting the traditional "accepted and completed" which typically absolves an independent contractor of negligence liability once the work is accepted by the premises owner and the independent contractor has left the property). In this cases, there are genuine issue of material fact regarding whether Door Control negligently performed its contractual duty to repair the automatic door that allegedly injured the plaintiff.
Door Control's argument that there is no evidence that it had actual or constructive notice of the dangerous condition also fails. In this case, Eleanor Bradley has alleged, among other things, that Door Control failed to comply with industry standards regarding the installation and positioning of sensors for the automatic door's opening mechanism. If the plaintiff's allegations are correct — and Door Control has not contradicted them with competent summary judgment evidence — then Door Control certainly would have constructive notice, if not actual notice, of a dangerous condition that could cause injury to the users of the door. These allegations alone, uncontradicted, are enough to create a genuine issue of material fact with respect to notice of the defective condition.
To summarize, Door Control's motion for summary judgment as to count two of Eleanor Bradley's amended complaint is denied. Door Control's motion for summary judgment as to Highland Park's complaint is granted in part and denied in part.