Opinion
No. CV 06-5006035 S
December 2, 2008
MEMORANDUM OF DECISION FACTS
The matter presently before the court arises out of an alleged incident of September 26, 2003 when the plaintiff, Robert Pellegrino, sustained injuries and damages on property located at 1155 Sasco Hill Road in Fairfield, Connecticut, owned by the defendants Bradley H. Jack and Karen S. Jack. According to the complaint dated December 7, 2006, the plaintiff, while in the employment of New York Crew Power, was a business invitee on the premises unloading and erecting stage equipment, when he was struck and injured by pallets being used in the erection of the stage. The complaint further alleges that the Jacks "gave direction to the individuals who were supervising the work of plaintiff . . . as to where on the premises the stage equipment should be unloaded, erected, and/or built."
The complaint is comprised of two counts. The first count, which is the subject of the motion for summary judgment presently before the court, alleges negligence against the Jacks; the second count is also based on negligence and is brought against the co-defendant, See Factor Industry, Inc.
On May 7, 2007, the Jacks moved for summary judgment, on the basis that they owed no duty to the plaintiff. The plaintiff filed his memorandum in opposition on April 21, 2008; the Jacks filed a reply brief on June 9, 2008. The motion was heard at the short calendar on November 10, 2008.
DISCUSSION
A "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." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "Summary judgment procedures is an attempt to dispose of cases involving sham or frivolous issues in a manner which is speedier and less expensive for all concerned than a full-dress trial." Mac's Car City, Inc. v. American National Bank, 205 Conn. 255, 261, 532 A.2d 1302 (1987).
"Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). Summary judgment is particularly "ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation . . . [T]he conclusion of negligence is necessarily one of fact . . ." (Citations omitted; internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975). "The issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment [however] because the question is one of law." Pion v. Southern New England Telephone Co., 44 Conn.App. 657, 660, 691 A.2d 1107 (1997).
"As the party moving for summary judgment, the plaintiff is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). "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." (Citation omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). "The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence." (Internal quotation marks omitted.) Pion v. Southern New England Telephone, 44 Conn.App. 657, 663, 691 A.2d 1107 (1997).
Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995). "[A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." (Internal quotation marks omitted.) Id., 752. "[A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Emphasis in original.) Id. "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.) Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). "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, 5000, 538 A.2d 1031 (1988).
In their motion for summary judgment, the Jacks take the position that they were not in possession or control of the premises at the time of the incident, as they were not present when the alleged incident occurred, had no control over the staging set up, did not direct, oversee or supervise the unloading or erecting of the staging equipment, and therefore owed no legal duty to the plaintiff.
In support of their motion, the Jacks submitted a joint affidavit. According to the affidavit, the Jacks never spoke to the plaintiff prior to the incident, and did not own the staging equipment at issue. The affidavit states that the Jacks were not home at the time of the incident, had no input as to where the staging equipment should be unloaded, erected, and/or built, did not direct, oversee, or supervise the unloading or erecting of the staging equipment on their property, and gave no direction as to the means or manner of the staging work. The affidavit further avers that the Jacks did not direct the individuals who were supervising the plaintiff on the premises, and, finally, indicates that the plaintiff never made any request to the Jacks concerning the methods or manner of the work he was performing.
The plaintiff, on the other hand, argues that the defendants, as owners of the premises, owed a non-delegable duty to the plaintiff, a business invitee.
The plaintiff also submitted his affidavit, and excerpts from the defendant Karen Jacks' deposition. The plaintiff, in his affidavit, states that he was employed by New York Crew Power, a subcontractor of the co-defendant See Factor Industry, Inc.; New York Crew was working on constructing a stage for a musical performance at the Jacks' home. According to the affidavit, the stage that was being constructed was within a tent, and both the tent and the stage were on part of the property which sloped downwards; in order to accommodate the slope, extra supports were placed under the front area of the stage to make it level with the back area. Mr. Pellegrino further avers that the slope of the property was perceptible, and that he was stuck by a deck cart loaded with staging material that tipped over and struck him while he was about to pick up planking from the ground. There were, according to the affidavit, no barriers or safety precautions to prevent the deck cart from rolling or tipping over, and the plaintiff denies touching the cart before it struck him.
The Jacks did not object to the plaintiff's submission of the excerpts from Mrs. Jack's deposition. With respect to documents that are submitted in support of or opposition to a motion for summary judgment, the court is limited to considering documents that would be admissible at trial. City of New Haven v. Pantani, 89 Conn.App. 675, 680 (2005). The Pantani court reversed the decision of the trial court which had granted the plaintiff's motion for summary judgment, having considered uncertified, unauthenticated documents:
Practice Book § 17-45 provides in relevant part that "[a] motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like . . ." (emphasis added). That section does not mandate that those documents be attached in all cases, but we note that "[o]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202-03, 663 A.2d 1001 (1995). In fact, we have held that "Practice Book § [17-45], although containing the phrase `including but not limited to,' contemplates that supporting documents to a motion for summary judgment be made under oath or be otherwise reliable . . . [The] rules would be meaningless if they could be circumvented by filing [unauthenticated documents] in support of or in opposition to summary judgment." United Services Automobile Ass'n. v. Marburg, 46 Conn.App. 99, 107-08, 698 A.2d 914 (1997).
Therefore, before a document may be considered by the court in support of a motion for summary judgment, "there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . ." Conn. Code Evid. § 9-1(a), commentary. Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be. In this case, the plaintiff submitted numerous exhibits in support of its motion for summary judgment. The plaintiff failed, however, either to attach an affidavit attesting to the truth and accuracy of the various submissions or to provide certified copies of any of the documents. Id. at 678-79.
However, where the opposing party does not object, a court may, but is not required to, review uncertified deposition transcripts. Barlow v. Palmer, 96 Conn.App. 88, 92 (2006) (holding that trial court did not abuse its discretion in not considering the uncertified deposition testimony submitted by both parties). This court, in the past, has taken into consideration uncertified deposition transcripts and documents, in the absence of any objection from the opposing party. See Capella v. Daddio, Superior Court, judicial district of New Haven at New Haven, Docket No. 065007123 (June 12, 2008); Carey v. Geico, Superior Court, judicial district of New Haven at New Haven, Docket No. 065003504 (May 23, 2008).
In light of the absence of any objection, the court will consider the uncertified deposition testimony submitted by the plaintiff.
Mrs. Jack, according to the excerpt of the deposition transcript submitted by the plaintiff, testified that she had no input on the specifications for the tent and stage, and expressed no requests. She testified that she hired Cal James Entertainment, Inc., and it was up to Cal James Entertainment to decide where to put the tent and stage on the six-acre field. According to her testimony, she was never given any choices about how the tent and stage should be erected. She stated that she hired Cal James Entertainment, and Jim Campagnola, and left the coordination of the events to them. She described the area as a gentle slope from the house to the field, and testified that the tent was not placed on a slope. She did not check on the progress of the work, although she did see the work upon completion.
"The existence of a duty of care is a prerequisite to a finding of negligence. The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury. The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant breached that duty in the particular situation at hand. If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant. Duty is a legal conclusion about relationships between individuals, made after the facts, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual . . ." Gomes v. Commercial Union Ins., 258 Conn. 603, 614-15 (2001) (citations omitted; internal quotation marks omitted).
"A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act." (Citations omitted; internal quotation marks omitted.) Sevigny v. Dibble Hollow Condominium, 76 Conn.App. 306, 318 (2003).
The defendants claim that they do not owe a duty to the plaintiff because they were not in possession and control of the premises at the time of the incident. The plaintiff argues that the defendants as owners of the premises owed a duty to the plaintiff, a business invitee, to keep the premises reasonably safe.
This case presents facts similar to those found in Mozeleski v. Thomas, 76 Conn.App. 287 (2003), cert denied, 264 Conn. 904 (2003). In Mozeleski, the plaintiff, a masonry worker, sought to recover for injuries he sustained in a fall from scaffolding which he and his employee had erected. Named as defendants were the owner of the home where the fall occurred and the independent contractor hired by the homeowner to perform carpentry work, who owned the scaffolding in question. The Appellate Court upheld the decision of the trial court which had granted summary judgment in favor of the defendants, on the basis that neither defendant owed a legal duty to the plaintiff. The Mozeleski court explained:
[A]n 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 premises employs an independent contractor to perform work on them, 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 over the offending area is deemed to be in the independent contractor. The explanation for [this rule] most commonly given is that, since the [owner] has no power of control over the manner in which the work is to be done by the contractor, it is to be regarded as the contractor's own enterprise, and [the contractor], rather than the [owner], is the proper party to be charged with the responsibility of preventing the risk, and bearing and distributing it . . .
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 statute or regulation . . .
The owner may exercise a limited degree of control or give the contractor instructions on minor details without destroying the independent character of the contractor.
Although the exceptions to the general rule of nonliability of an owner of premises for the torts of its independent contractor inure to the benefit of innocent third parties, those exceptions do not inure to the benefit of an independent contractor, such as the plaintiff, who is injured primarily because of his negligence or the negligence of those he employed. Id., at 291-94.
"The law could perhaps be better summarized by stating that an employer or general contractor is not vicariously liable for the torts of its independent contractor and is not directly liable to an employee of the independent contractor unless it is at fault based on its control of the premises, its negligent hiring, or on any of the other exceptions listed Mazurek v. Great American Ins. Co., CV010177433, Superior Court, Judicial District of Waterbury (October 29, 2004, Schuman, J.).
In Mozeleski, the evidence was uncontroverted that the defendants exercised no control over the scaffolding and that the cause of the plaintiff's fall was his improper assembly of the scaffolding. In the present case, the evidence is also uncontroverted that the defendants exercised no control over the tent or staging work. The plaintiff in Mozelski created and controlled the condition which ultimately harmed him; here, the plaintiff was a subcontractor hired to unload and erect stage equipment who was allegedly injured when a deck cart loaded with staging material tipped over. No evidence was presented to ever suggest that the defendants here had any ability or obligation to maintain or control the deck cart, its placement, or the work of the people engaged in the location and erection of the tent and stage. The affidavits of the Jacks, and the testimony of Mrs. Jack, established that the defendants neither retained nor exercised any control over the manner in which the work was to be done; the plaintiff has presented no evidence to the contrary.
"The legal responsibility for maintaining premises in a reasonably safe condition depends on who has possession and control of those premises. 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. Where the evidence is such that the minds of fair and reasonable persons could reach but one conclusion as to the identity of the person exercising control, the question is one for the court . . ." Id. at 294 (citations omitted; internal quotations omitted).
The plaintiff takes the position that the defendants owe the plaintiff, a business invitee, a non-delegable duty. "Whether the plaintiff was on the premises as an independent contractor or as patron would not affect the theory of the cause of action, for the duty owed to each is the same." (Citations omitted). Schaller v. Roadside Inn, Inc., 154 Conn. 61, 66 (1966). In Schaller, the plaintiff worked for one of the defendants as a cook and bartender. The complaint alleged that the plaintiff was a business invitee; in response to a motion, the plaintiff indicated he was an independent contractor. One evening, he finished work, and remained on the premises to watch a show and have a drink. While leaving, he fell into a trench that had been dug by the other defendant. The court noted that "the plaintiff must be considered a business visitor in either capacity [of independent contractor or patron]." See also Curran v. McCall, 4 Conn.App. 531, 534 (1985) (defendant homeowner owed duty to exercise reasonable care in providing safe passage through her home to plaintiff, a furnace repairman, where plaintiff, while walking through inadequately lit basement in effort to access the furnace, was injured by a dangling wire); Romenici v. Trumbull Electric Mfg. Co., 145 Conn. 691, 693 (1958) (defendant business premises owner owed duty "to use reasonable care to see that the premises were constructed and maintained so as to be reasonably safe," where defendant's employee suggested that plaintiff, who was servicing a soda machine at defendant's premises, use a hand truck to transport the syrup, plaintiff was injured when struck by hand truck which rolled off platform, and where hand truck had fallen off the platform previously).
The court agrees generally with the plaintiff's argument that the defendants as the owners of the premises, owe a duty to business invitees such as the plaintiff to maintain the premises in a reasonably safe condition. That duty, however, is not implicated in this action. Here, the plaintiff's cause of action against the defendants is for damages arising from work performed by an independent contractor which was not controlled by the plaintiff directly or indirectly. The Romenici case, which was cited by the plaintiff, is distinguishable because in Romenici, the defendant's employee suggested that the plaintiff use a hand truck to service soda machines located on an imperceptible slope, when hand trucks had previously fallen off the platform on previous occasions; the court in Romenici found that the defendant knew or reasonably should have known of the dangerous situation and should have taken reasonable precautions to prevent injury to the plaintiff. Here, there is no evidence that the defendants suggested that its independent contractor place the deck cart in an unsafe position, without taking precautions to prevent it from tipping over. The defendants have met their burden of establishing the absence of any genuine issue of material fact. For the foregoing reasons, the defendants' motion for summary judgment is granted.