Opinion
No. CV 03-0822175
July 29, 2004
MEMORANDUM OF DECISION ON MOTIONS FOR SUMMARY JUDGMENT
The defendant Delores Dunn d/b/a Delores Masonry and Trucking Service has moved for summary judgment as to counts 8 and 9 in an action with an original return date of January 14, 2003. The present defendants were added to the action by an amended complaint with a return date of March 23, 2004. Paragraph 8 of the amended complaint purports to state a cause of action "in ordinary negligence" against the defendant. Paragraph 9 makes similar claims against the defendant on behalf of the plaintiff's wife as a loss of consortium claim.
Other defendants in the action include Phillip Montgomery and Andrea Montgomery, the owners of the residential home where the accident had occurred and Robert Alexander and Emelda Alexander d/b/a AA Remodeling who were working on the house. The plaintiff, Joaquin Gonsalves, was hoisted up onto a scaffolding and when the scaffolding broke he plunged to the ground and sustained injuries. The defendant involved in counts 8 and 9, Delores Dunn, owned the scaffolding. The plaintiff claims that Delores Dunn was negligent in the following ways:
(a) The scaffolding was rented or leant without proper instructions; (b) the scaffolding was rented or leant without the proper safety mechanisms to prevent the injury sustained by Joaquin Gonsalves; (c) the scaffolding did not have footplates, that should have been on the bottom pieces of the scaffolding that rested directly on the deck. The scaffolding had not been properly anchored or fastened to the building, which would have prevented it from falling over. The scaffolding did not have the necessary tie wires or 2 x 4s or metal straps; (d) in that they failed to maintain the scaffolding in a safe and hazard free condition for use by the chimney repair men, one of which was a plaintiff, Joaquin; (e) in that they failed to recognize in a timely manner that the scaffolding was in need of repair; (f) in that although they knew or, in the exercise of reasonable care should have known of the hazardous condition of the scaffolding, they failed to warn the repairmen, including the plaintiff Joaquin Gonsalves of the hazardous condition of the elevator (sic); (g) in that although they knew or in the exercise of reasonable care should have known of the hazardous condition of the scaffolding they failed to correct the condition; (h) in that they permitted the scaffolding to remain in a condition of disrepair for an unreasonable length of time.
The affidavit of defendant Delores Dunn makes it clear that she had no control over the scaffolding or the site of the job at the time that the accident occurred. She does concede that she allowed Robert Alexander of AA Remodeling to borrow the scaffolding. She did not charge AA a rental fee and she had no other involvement with the scaffolding until it was returned to her in a damaged condition on July 5, 2002. Ms. Dunn's claim of lack of control is not contested by the plaintiffs.
The facts of the instant case are remarkably similar to the facts in Mozeleski v. Thomas, 76 Conn.App. 287 (2003). In Mozeleski the appellate court affirmed the trial court's determination that the owner of the scaffolding who had no control over the job owed no legal duty to the injured party and accordingly the summary judgment in favor of the owner/defendant was affirmed. However, in Mozeleski the only dispute appeared to be an argument over whether the owner of the scaffolding had any control over the site. The appellate court noted that the undisputed evidence showed that the owner of the scaffolding had no control.
It is clear that the defendant Ms. Dunn had no more control over the scaffolding in the instant case than the defendant had in Mozeleski.
If the plaintiff here is to escape summary judgment, it must be on a pure negligence claim having nothing to do with control. The plaintiff would have to show that the defendant, Ms. Dunn, failed to maintain the scaffolding in a safe and hazard free condition for use by the injured party and that the defendant had a duty to do so. The plaintiff has submitted an affidavit from one Joseph Beatty. Paragraphs 6 thru 10 of that affidavit are the only material which could be argued to support the plaintiff's claim of negligence by the defendant Ms. Dunn. Those paragraphs read as follows:
6. The scaffolding was in such a mangled state that I was unable to determine what pieces, if any, were missing from the scaffold.
7. The scaffold was so utterly destroyed on impact that I could not determine the age and condition of the scaffold.
8. From the fallen scaffolding, I could see that there were no footplates that should have been on the bottom pieces of the scaffolding.
9. The scaffolding was not properly anchored or fastened to the building.
10. I was unable to tell if the scaffold had its entire cross members properly in place before the fall because of its mangled condition.
In determining whether there is an issue of fact in determining this defendant's negligence "it is not enough . . . for the opposing party merely to assert the existence of such a disputed issue." Buell Industries Inc. v. Greater New York Mutual Insurance Co., 259 Conn. 527, 550 (2002). "The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence." Pion v. Southern New England Telephone Company, 44 Conn.App. 657, 663 (1997). "If the affidavits and other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof." 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn.App. 563, 569 (1994).
The court finds that the counter affidavit by the plaintiff contains no assertion which would support a claim that the scaffold was loaned in a dangerous condition known or which should have been known to the defendant Ms. Dunn. The plaintiff's counter affidavit does not support the claim of Ms. Dunn's negligence nor does it support a claim that Ms. Dunn owed a duty to the plaintiffs.
The motion for summary judgment in favor of the defendant Delores Dunn d/b/a Delores Masonry and Trucking is granted.
Kevin E. Booth, J.