Opinion
No. CV 03 0180781 S
December 20, 2004
MEMORANDUM OF DECISION
This matter is before the court on the defendant's motion for summary judgment which claims that it is entitled to judgment as a matter of law because at the time of the plaintiff's alleged fall, it did not possess or maintain the premises.
On September 26, 2003, the plaintiffs, Gerard and Julie Marcil, filed a two-count complaint pursuant to General Statutes § 52-593 against the defendant, General DataComm Industries, Incorporated. In the first count Gerard Marcil alleges that he was injured when he slipped and fell due to an accumulation of ice in a parking lot "located on the premises of General DataComm Industries/General DataComm Incorporated." In the second count, Julie Marcil alleges loss of consortium due to the injury to her husband.
General Statutes § 52-593 provides, in relevant part, that "[w]hen a plaintiff in any civil action has failed to obtain judgment by reason of failure to name the right person as defendant therein, the plaintiff may bring a new action and the statute of limitations shall not be a bar thereto if service of process in the new action is made within one year after the termination of the original action."
The fall around which this complaint centers occurred on February 4, 1999. Gerard Marcil filed a claim pursuant to the Workers' Compensation Act, General Statutes § 31-275 et seq. He also filed, in March of 2000, an action against General DataComm, Incorporated seeking recovery for the injuries that he allegedly sustained as a result of the fall. The defendant in the first action, General DataComm, Incorporated (GD Inc.), is the wholly owned operating company of the defendant in the present action, General DataComm Industries, Incorporated (GD Industries). The first action was resolved on May 5, 2003, when the court, Gallagher, J., granted GD Inc.'s motion for summary judgment "absent objection, for reason that the plaintiff failed to name the correct party."
See Marcil v. General DataComm, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 00 0158520. Both parties in the present action have referenced this prior litigation and have submitted copies of papers from the court file. A court may properly take judicial notice of relevant court files. See State v. Carey, 228 Conn. 487, 497, 636 A.2d 840 (1994).
GD Industries is a publicly-held parent company according to an affidavit submitted in support of this summary judgment motion.
Since the initiation of the present action, the Marcils filed an amended complaint dated December 19, 2003, in response to GD Industries' request to revise. Also, on March 8, 2004, GD Inc. was permitted by order of the court, Agati, J., to intervene in this action as a co-plaintiff.
Now before the court is a motion for summary judgment on all counts which was filed by GD Industries on July 26, 2004, pursuant to Practice Book § 17-44. GD Industries argues that it is entitled to summary judgment as a matter of law because it did not maintain or possess the premises where the fall allegedly occurred and because the claims are barred by the statute of limitations. GD Industries filed a memorandum of law in support of the motion for summary judgment. This was accompanied by the sworn affidavit of William Henry who is identified as the vice president and chief financial officer of both GD Inc. and GD Industries, responses to interrogatories submitted in the first litigation, and GD Inc.'s answers to GD Industries' requests for admissions in connection with the present litigation. On August 19, 2004, the Marcils filed a memorandum of law in opposition to the motion for summary judgment with exhibits including copies of papers submitted in the first action, the commercial lease agreement for the premises where the fall occurred and admissions made by GD Industries in the present litigation. The matter was heard at short calendar on August 30, 2004.
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 . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Lombardo's Ravioli Kitchen, Inc. v. Ryan, 268 Conn. 222, 237, 842 A.2d 1089 (2004). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . To succeed on a motion for summary judgment, [t]he movant must show 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." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). "A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
GD Industries argues that it did not possess or control the premises and therefore, as a matter of law, owed no duty of care upon which liability may be based. GD Industries also argues that this action is barred by the statute of limitations because § 52-593 on which the Marcils rely to toll the statute of limitations should not apply where the party responsible for maintaining the property (GD Inc.) was in fact named in the first suit. Both of GD Industries' arguments rely on its assertion that GD Inc. rather that GD Industries exclusively possessed and maintained the premises. In support of this motion for summary judgment, GD Industries has submitted GD Inc.'s answers as intervening plaintiff to GD Industries' requests for admission in which GD Inc. states that its employees plowed, shoveled and treated the parking lot at issue and were exclusively responsible for such maintenance. In its answers, GD Inc. also states that its parent company, GD Industries, did not possess or control the property.
"A party's response to a request for admissions is binding as a judicial admission unless the judicial authority permits withdrawal or amendment." East Haven Builders Supply, Inc. v. Fanton, 80 Conn.App. 734, 744, 837 A.2d 866 (2004). "[A] statement or admission by one party [however] cannot be considered an admission of another party." Recalde v. Emhart Industries, Inc., Superior Court, judicial district of Milford, Docket No. CV 96 0053222 (Feb. 4, 1999, Corradino, J.) ( 24 Conn. L. Rptr. 126); see also Bimler, Fleming, Tirrell v. Stop Shop, Superior Court, judicial district of New London at Norwich, Docket No. CV 96 110028 (Jan. 22, 2003, Corradino, J.) ( 34 Conn. L. Rptr. 112) (noting that "[i]t is difficult to understand how what is said by one plaintiff can be said to be an admission binding another plaintiff"). Thus, GD Inc.'s representations in its responses to GD Industries' requests for admissions are evidence of its control but they do not bind the Marcils nor negate all other evidence that may be submitted by the Marcils.
In opposition to this motion for summary judgment, the Marcils have submitted a lease agreement for the premises which lists GD Industries as the tenant and specifies that the "Tenant shall at its own cost and expense keep, maintain and take care of the demised premises . . ." They have also submitted admissions by GD Industries that this is indeed the lease regarding the premises where Gerard Marcil alleges that he was injured. The Marcils further submitted a motion for summary judgment dated April 3, 2002, from the first litigation against GD Inc. in which GD Inc. represented to the court that "it is clear that [GD Inc.] was not in possession or control of the premises. The lease agreement clearly states that [GD Industries] was in possession and control of the premises and responsible for all maintenance and repairs." While "[j]udicial admissions are conclusive only in the judicial proceedings in which they are made . . . [i]n subsequent proceedings such prior judicial admissions are . . . evidential admissions, to be used as evidence to prove a matter in dispute in the subsequent trial." (Citation omitted; internal quotation marks omitted) Live Wire v. Southwire Co., Superior Court, judicial district of New London, Docket No. 543340 (Dec. 28, 1998, Martin, J.) ( 23 Conn. L. Rptr. 644); see also Dreier v. Upjohn Co., 196 Conn. 242, 244, 492 A.2d 164 (1985) (statements contained in withdrawn or superseded pleadings may be admissible as evidential admissions by the party who made them).
"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." (Internal quotation marks omitted.) Doty v. Shawmut Bank, 58 Conn.App. 427, 432, 755 A.2d 219 (2000). The Marcils have thus submitted some evidence that GD Industries did have a degree of possession or control of the premises.
"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." Plouffe v. New York, N.H. H.R. Co., 160 Conn. 482, 488, 280 A.2d 359 (1971). Moreover, "[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.) Doty v. Shawmut Bank, 58 Conn.App. 427, 432-33, 755 A.2d 219 (2000). The question of who possessed or controlled the premises is a material fact that will make a difference in the outcome of this case and GD Industries has failed to meet its burden of bringing forward sufficient evidentiary facts or substantial evidence outside the pleadings to establish the absence of a material dispute as to its possession or control of the premises.
Based on the foregoing, the GD Industries' motion for summary judgment on all counts is hereby denied.
Matasavage, J.