Opinion
No. CV 09-6003682S
December 1, 2010
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#131)
FACTS AND PROCEDURAL HISTORY
On January 22, 2009, the plaintiff, Michael Gherlone, commenced this case by service of process on the Eagle Leasing Company (Eagle Leasing). On January 28, 2009, the plaintiff served process on the second defendant, Friendship Utilities, Inc. (Friendship Utilities). The operative complaint for purposes of this motion for summary judgment alleges the following facts. On September 28, 2007, the plaintiff attempted to exit a trailer owned by the Eagle Leasing Company and in the control of Friendship Utilities, Inc. In doing so, the plaintiff fell down a set of stairs attached to the trailer resulting in injuries to the plaintiff. The first count of the complaint alleges negligence on the part of Friendship Utilities. The second count of the complaint alleges that the fall was the result of negligence on the part of Eagle Leasing.
The plaintiff filed his original complaint on February 2, 2009. On March 4, 2009, the plaintiff filed a request to amend the complaint, and the court granted that motion on March 6, 2009. On May 18, 2009, Friendship Utilities filed a request to revise the complaint, and the plaintiff did not object. On October 8, 2009, the plaintiff filed a revised amended complaint. That revised amended complaint is the operative complaint for purposes of this motion for summary judgment.
On April 5, 2010, Eagle Leasing moved to implead the third-party defendant, P P Quickset Services (P P). The court, Blue, J., granted Eagle Leasing's motion on July 26, 2010. On April 6, 2010, Friendship Utilities moved for summary judgment against the plaintiff on the grounds that there are no genuine issues of material fact, Friendship Utilities did not owe a duty to the plaintiff, and even if Friendship Utilities did owe a duty, it did not breach that duty because it did not have actual or constructive notice of the condition that allegedly caused the plaintiff's fall. Friendship Utilities filed an accompanying memorandum of law in support of the motion for summary judgment on the same day.
On April 12, 2010, the plaintiff filed a motion for extension of time to respond to the motion for summary judgment, and the court, Keegan, J., granted that motion on April 26, 2010. On April 21, 2010, the plaintiff filed an objection to the Friendship Utilities' motion for summary judgment and an accompanying memorandum of law in opposition. The court heard the matter at short calendar on November 8, 2010.
LEGAL DISCUSSION
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. 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. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such 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 under Practice Book § [17-45]." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
In support of the motion for summary judgment, Friendship Utilities first argues that it did not owe a duty of care to the plaintiff because it did not lease the trailer from which the plaintiff fell. Second, Friendship Utilities argues that, even if it had controlled the premises on which the plaintiff fell, it nevertheless had no notice of the allegedly defective condition that caused the fall.
In response, the plaintiff counters that summary judgment is precluded because there is a genuine issue of material fact as to the ownership and control of the trailer from which he allegedly fell. The plaintiff further argues that, there remains a genuine issue of material fact as to whether the possessor of the property, Friendship Utilities or P P, was on constructive notice of the alleged defect that caused the plaintiff to fall.
"Liability for injuries caused by defective premises . . . does not depend on who holds legal title, but rather on who has possession and control of the property . . . The word control has no legal or technical meaning distinct from that given in its popular acceptation . . . and refers to the power or authority to manage, superintend, direct or oversee . . . [T]he question of whether a defendant maintains control over property sufficient to subject him to . . . liability normally is a jury question. Where the evidence is such that the minds of fair and reasonable persons could reach . . . different conclusions on the question [of control], then the issue should properly go to the jury for its determination." (Citations omitted; internal quotation marks omitted.) Alfano v. Randy's Wooster Street Pizza Shop II, Inc., 90 Conn.App. 766, 773-74, 881 A.2d 379 (2005).
In this case, in order to establish liability for any defendant, the plaintiff must therefore prove, as a matter of fact, that the defendant in question had the power or authority to manage, superintend, direct or oversee the defective trailer and staircase that allegedly caused his injuries. Since control of the premises is an element of the plaintiff's cause of action, it is a material fact.
In its memorandum in support of summary judgment, Friendship Utilities fails to demonstrate, as an initial matter, that there is no genuine issue as to that material fact. Attached to its memorandum in support of summary judgment, Friendship Utilities attaches an unauthenticated copy of a contract between Eagle and P P. In its brief, it claims that "[t]he serial number on the trailer clearly matches the serial number on the contract lease from Eagle Leasing . . . to P P . . ." While the serial number on the contract is indeed clear, Friendship Utilities fails to submit any evidence with its motion to indicate the serial number that appears on the trailer. Friendship Utilities' argument in its memorandum in support of the motion for summary judgment is not evidence. Karwowsky v. Fardy, 118 Conn.App. 480, 485, 984 A.2d 480 (2009). Without a proper showing, through an affidavit or otherwise properly sworn testimony, it is impossible for the court to determine whether the serial number on the contract submitted by Friendship Utilities matches the serial number on the trailer in question. Thus, without such a showing, it is difficult to imagine how a contract between Eagle Leasing and P P for the lease of a trailer is relevant to this motion.
The plaintiff did not object to the submission of the document for purposes of summary judgment, and, indeed, the plaintiff attached what appears to be the same document to his motion in opposition to summary judgment. The court is therefore within its discretion to consider the contract for purposes of the current motion. See Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006) (ruling that the court has discretion to consider uncertified deposition transcripts submitted in support of summary judgment absent an objection by the opposing party).
Moreover, even if Friendship Utilities had met its initial burden of showing that there was no genuine issue of material fact, the plaintiff submitted sufficient evidence to overcome that initial showing. Attached to his memorandum in opposition to summary judgment, the plaintiff submits the sworn responses to a set of interrogatories propounded upon Eagle Leasing by the plaintiff. In interrogatory two, the plaintiff asked: "Identify the person(s) who, at the time of the plaintiff's alleged injury, had a possessory interest (e.g. tenants) in the premises where the plaintiff claims to have been injured." To that interrogatory, Eagle Leasing replied, under oath, "ANSWER: Not applicable as to the premises. The subject trailer was leased to Friendship Utilities, Inc." In interrogatory three, the plaintiff asks, "Identify the person(s) responsible for the maintenance and inspection of the premises at the time and place where the plaintiff claims to have been injured." To that interrogatory, Eagle Leasing replied, "ANSWER: Friendship Utilities, Inc."
Taken together, those answers represent a clear, unequivocal, sworn statement by Eagle Leasing, a defendant in this case, that Friendship Utilities was the lessor of the trailer in question at the time of the accident. Even assuming the contract submitted by Friendship Utilities does tend to show that P P leased the trailer at the time of the accident, the interrogatory answer by Eagle Leasing that the true lessor was in fact Friendship Utilities creates an issue of fact as to who controlled the trailer at the time of the accident.
Friendship Utilities further argues that, even if it had been in control of the trailer, it did not have actual or constructive notice of the alleged deficient condition. However, Friendship Utilities does not submit any "affidavits, certified transcripts of testimony under oath, disclosures, written admissions, [or] the like," as required by Practice Book § 17-45, to support its argument, but rather relies on the same unauthenticated contract that it claims demonstrates that it did not lease the trailer from Eagle Leasing. As discussed above, that contract does not meet the defendant's burden of showing that there is no genuine issue of material fact as to which defendant had control over the trailer in question at the time of the plaintiff's alleged fall, nor does it demonstrate that Friendship Utilities did not have actual or constructive notice of the alleged defective condition.
Accordingly, Friendship Utilities' motion for summary judgment is denied because a genuine issue of material fact exists as to who controlled the trailer at the time of the alleged accident.