Opinion
No. CV 07 5002500
May 16, 2008
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
The plaintiff, James Heaslip, filed an amended four-count complaint against the defendants, Mota's Sewer Service, LLC, Mota's Sewer Service, LLC d/b/a Mota Construction Enterprise (Mota), and Domingos Santos, arising out of a construction accident wherein Heaslip was injured. Counts one and two allege negligence and strict liability under the doctrine of ultra-hazardous activity, respectively, on the part of Mota. Counts three and four allege negligence and strict liability under the doctrine of ultra-hazardous activity, respectively, on the part of Santos.
The facts of the case, as alleged in the amended complaint, are as follows. On December 7, 2004, Heaslip was working as a blaster for J J Blasting Corporation and/or Cox Drilling and Blasting Corporation (J J), a subcontractor of Santos at a residential home located at Lot #7, Nature's Lane in Shelton, Connecticut. On that date, Heaslip was struck by either an excavator bucket or a 6,000 pound blasting mat hanging from the excavator bucket. As a result, Heaslip was propelled approximately ten to fifteen feet, and sustained serious injuries. The excavator was owned by Mota and operated by one of its employees. Motions to strike the strict liability counts as to Mota and Santos were previously granted on October 15, 2007, (count two against Mota) and October 18, 2007 (count four against Santos). Now pending before the court is a motion for summary judgment as to count three (negligence) against Santos.
In a memorandum of decision granting the motion to strike count two, the court, Hurley, J., found that Heaslip failed to allege the causal link between his injuries and the alleged ultra-hazardous activity. He also found that injury inflicted by the operation of worksite equipment is not the type of harm that makes the activity of blasting ultra-hazardous. Finally, he found, "[t]he rule of strict liability for engaging in ultrahazardous activities does not apply where the person harmed has reason to know of the risk that makes the activity ultrahazardous and takes part in it or brings himself within the area which will be endangered by its miscarriage . . . In other words, the benefit of strict liability does not run to a person participating in the activity deemed to be ultrahazardous." (Internal quotation marks omitted.) Heaslip v. Mota's Sewer Service, LLC, Superior Court, judicial district of New London, Docket No. CV 075002500 (October 15, 2007, Hurley, J.T.R.) (44 Conn. L. Rptr. 271). The motion to strike count four, the strict liability claim as to Santos, was granted by endorsement three days after the memorandum of decision as to count two was issued.
"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." (Internal quotation marks omitted.) Dubinsky v. Citicorp Mortgage, Inc., 48 Conn.App. 52, 55, 708 A.2d 226, cert. denied, 244 Conn. 926, 714 A.2d 9 (1998). "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." (Internal quotation marks omitted.) Navin v. Essex Savings Bank, 82 Conn.App. 255, 258, 843 A.2d 679, cert. denied, 271 Conn. 902, 859 A.2d 563 (2004). "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." Siudyla v. ChemExec Relocation Systems, Inc., 23 Conn.App. 180, 184, 579 A.2d 578 (1990).
"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." Internal quotation marks omitted.) Johnson v. Atkinson, 283 Conn. 243, 253, 926 A.2d 656 (2007). The court may consider not only the facts presented by the parties' affidavits and exhibits, but also the "inferences which could be reasonably and logically drawn from them . . ." (Internal quotation marks omitted.) De Dominicis v. American National Fire Ins. Co., 2 Conn.App. 686, 687, 483 A.2d 616 (1984).
"It is not enough . . . for the opposing party merely to assert the existence of . . . a disputed issue . . . The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence . . . If the affidavits and the 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." (Citations omitted; 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). "[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.) Id., 290-91.
In support of his motion for summary judgment, Santos argues that there are no genuine issues of material fact and that, as a matter of law, he owed no duty of care to Heaslip. In support of this assertion, he offers evidence, by way of affidavit and deposition testimony, that he was not present on the construction site, did not direct, oversee or supervise the blasting work and that either Mota or J J, both independent contractors, assumed and exercised control of the work area, where Heaslip was injured. In his memorandum in opposition, Heaslip attaches excerpts of Santos' deposition, as well as his own, and counters that there is a genuine issue of material fact regarding the degree of control exercised by Santos over the worksite.
The court finds the following undisputed facts, based on the evidence submitted by the parties. Santos was the owner of a home under construction in Shelton, Connecticut, and hired Mota to perform excavation work at the site. Santos also hired J J Blasting, Heaslip's employer, to oversee and coordinate any necessary blasting operations. Santos' only involvement with J J was to direct it as to the extent of the ledge that he wanted blasted. Also, from time to time, Santos would visit the worksite and inspect the progress of the blasting. Heaslip was injured when an excavator operator employed by Mota lost control of the excavator while trying to position blasting mats.
Although Heaslip maintains that Santos' deposition contradicts Santos' sworn affidavit and thus creates a genuine issue of material fact as to the essential issue of control, the evidence submitted does not support this claim. Heaslip specifically cites to Santos' testimony that Santos inspected the work of the subcontractors; that Santos had the authority to remove contractors from the worksite; and that Santos gave instructions to subcontractors specifying the depth and location of excavation to be done on the property.
Santos' affidavit is, in fact, silent on the questions of inspection and his authority to remove subcontractors, and therefore, does not contradict his deposition testimony. As to his instructions regarding the extent of excavation and blasting, Santos' deposition testimony states, "I just take [the blasters] to the job and say this is what got to be done. I want [the excavation] this deep. Stay so many feet away from the property line and that's it." Santos' affidavit states "[m]y sole involvement with J J Blasting was to hire it to perform the work and to indicate to employees of that business the extent of the ledge that I wanted blasted." These two statements are not contradictory; rather, they corroborate each other.
Since there is no genuine issue of material fact which would preclude summary judgment, the remaining issue for the court to address is whether, as an owner of the premises who only directed the extent of the work to be done, Santos owed Heaslip a duty of care as alleged in count three.
Both Mota and J J are independent contractors. "An independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work . . . The general rule is that where the owner of the premises employs an independent contractor to perform work . . . the contractor, and not the owner, is liable for any losses resulting from negligence in the performance of the work . . . The basic premise is that the assumption and exercise of control is deemed to be in the independent contractor. Exceptions to that rule arise when the employer retains control of the premises or supervises the work of the contractor, or where the work to be performed by the contractor is inherently dangerous, or where the employer has a nondelegable duty to take safety precautions imposed by statue or regulation . . ." (Citations omitted; internal quotation marks omitted.) Mozeleski v. Thomas, supra, 76 Conn.App. 291-92.
Heaslip argues that Santos' deposition testimony supports Heaslip's claim that Santos maintained control over the worksite and the work of the subcontractors on the site. Specifically, Heaslip maintains that Santos controlled the site giving rise to a duty of care because he: 1) inspected the work of the subcontractors; 2) had the right to remove subcontractors from the worksite; and 3) directed subcontractors as to the extent of the blasting.
Simply, inspecting the results of work done by subcontractors does not indicate control over the worksite; it merely shows that Santos did no more than exercise his right to supervise the general result and the immediate results, from time to time, as work progressed. Darling v. Burrone Bros., Inc., 162 Conn. 187, 193, 292 A.2d 912 (1972). Similarly, the fact that Santos specified the extent of the blasting to be performed signifies no more than the furnishing of specifications for the job. The furnishing of specifications "does not demonstrate control of the manner and means of accomplishing [the task]," nor does it demonstrate control over the worksite. Id., In addition, the fact that Santos could remove subcontractors from the worksite does not, by itself, demonstrate control over the worksite. Santos' right to fire subcontractors is limited by the requirement that forty-eight hours written notice be given before the subcontractor can be terminated. This notice requirement reflects that the right to remove subcontractors is contractual in nature, rather than supervisory.
As to the second exception noted in Mozeleski v. Thomas, as previously held by Judge Hurley in granting Mota's motion to strike the claim of strict liability based on ultra-hazardous activity, Heaslip failed to allege that the ultra-hazardous activity in question, i.e., blasting, was a proximate cause of his injury. Since Heaslip did not re-plead this claim as to either Mota or Santos, he is now precluded from relying on the ultra-hazardous activity doctrine in seeking to recover from Santos on any aspect of this issue as it relates to Heaslip's claimed injury. See Heaslip v. Mota's Sewer Service, LLC, supra, 44 Conn. L. Rptr. 271. Since there is no claim of injury proximately caused by ultra-hazardous activity, Heaslip cannot rely on the inherently dangerous exception to recover from Santos. See Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 686, 804 A.2d 823 (2002) (the right of a plaintiff to recover is limited to the allegations of the complaint).
Finally, since no evidence or argument has been presented by Heaslip in his briefs opposing summary judgment that Santos had a non-delegable duty to take safety precautions at the site of the accident beyond those previously addressed, summary judgment cannot be granted on this basis. Because no exception applies, Santos owes no duty of care to Heaslip and cannot be liable for his injuries.
Accordingly, for all the foregoing reasons, Santos's motion for summary judgment is hereby granted.