Opinion
No. CV 06 5001733
May 25, 2010
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (152.00) BY GONZALEZ CONSTRUCTION, BLANCA GONZALEZ and JOSE CONSTRUCTION
I. Background
In this civil action the plaintiff John Pietrantuono sued Gonzalez Construction, LLC, Blanca Gonzalez and Jose Gonzalez (collectively Gonzalez) along with others arising out of injuries Pietrantuono suffered at a residential construction project when he fell from a scaffolded area 20 feet or so above the ground at the construction site located at 17 South Beach Drive, Norwalk, Connecticut. Gonzalez moves for summary judgment on the grounds that, while it placed the brackets on the side of the building at the construction site to be used to hold scaffolding, it had taken the scaffolding planking down (although leaving the brackets) and had left the construction site prior to Pietrantuono's accident. Gonzalez contends it did not have any responsibility to assure safety on the construction site and had removed all access to the brackets after its work had been substantially completed.
The plaintiff Pietrantuono was hired to install windows and exterior trim at the construction site after the rough framing by Gonzalez was completed. Gonzalez contends that the plaintiff did not ask permission to use the brackets, and the plaintiff had to find and use a ladder to access the wooden brackets for his work.
II. Scope of Review
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." Appleton v. Board of Education, 254 Conn. 205, 209 (2000). 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 (1985). "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 judgment as a matter of law." Appleton v. Board of Education, supra, 254 Conn. 209. "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.) United Oil Co. v. Urban Development Commission, 158 Conn. 364, 379 (1969). The trial court, in the context of summary judgment motion, may not decide issues of material fact, but only determine whether such genuine issues exist. Nolan v. Borkowski, 206 Conn. 495, 500 (1983).
"Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact [question] . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue." Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554 (1998). "[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Appleton v. Board of Education, supra, 254 Conn. 209.
III. Discussion
The facts of this case generally emerge from certain deposition transcripts and statements of individuals presented to the court by the various parties. The facts apparently pertinent to the adjudication of this summary judgment motion appear in deposition transcripts of Charles DeVito, the site supervisor, and the plaintiff, statements and letters as well as an affidavit from Jose Gonzalez and statements from one Lou Tassiello, the direct employer of Pietrantuano.
The plaintiff and defendants had worked together on housing construction projects on a regular basis when this accident occurred in 2004. The plaintiff's deposition describes the scene at the time of the accident as three wooden brackets attached to the frame of the house on top of which were two sixteen-foot long 2 x 10 inch wooden planks acting as the scaffolding. (Pietrantuono Deposition, 50, 51.) It should be noted that a statement submitted by Jose Gonzalez states that the wood planking had been removed when it left the job. Tassiello's statement of August 3, 2004 also indicates the planking remained on the day of the accident when both he and Pietrantuolo were working on the windows and trim. Tassiello Statement, 10, 11. This contradiction is not necessarily dispositive since the existing record indicates that Pietrantuono fell because the brackets securing the scaffolding to the house gave way. (Pietrantuono Deposition 64, DeVito Deposition 53.)
In this action Gonzalez relies heavily on Mozeleski v. Thomas, 76 Conn.App. 287, cert denied. 264 Conn. 204 (2003). In Mozeleski, the plaintiff, with the help of a coworker, used scaffolding materials left on the work-site by someone else and erected scaffolding in an improper manner. The improper erection left a hole through which the plaintiff fell injuring himself. The Appellate Court affirmed the grant of summary judgment dismissing the plaintiff's claims against the owner of the scaffolding equipment. The facts of Mozeleski are clearly distinguishable from the facts of this case. While the scaffolding owner, Thomas, permitted the plaintiff to use his scaffolding equipment, Thomas had no control over, and took no part in the incorrect construction of the scaffolding undertaken by the plaintiff. Additionally, there was no evidence that anything was wrong or defective with the scaffolding equipment. The Appellate Court held that Thomas owed no duty toward the plaintiff. Gonzalez contends that it owed no duty to Pietrantuono. That contention cannot be sustained on the existing record of this summary judgment motion. Indeed, the facts appear to point in the other direction. While Gonzalez contends they had finished work on the site, (Gonalez Affidavit, ¶ 11.) there is also evidence from Gonzalez that they were planning to come back to finish up some "back work" and to use the scaffolding brackets that remained in place. Gonzalez Statement, p. 3. In Mozeleski there was absolutely no evidence that Thomas had done anything negligently. In this case some of the evidence shows that Gonzalez left at least the brackets where they could be used by someone who had access to a ladder, and that the brackets may have been unsafe. Based on this state of facts this court cannot find, as a matter of law, that Gonzalez owed no duty of care to Pietrantuono, and the question whether that duty was violated will have to be resolved by a jury.
III. Conclusion
For the reasons stated herein, the motion for summary judgment is denied.