Opinion
HHDCV156059848S
11-04-2016
Modesto Rodriguez v. Rosalio Sanchez et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
ROBERT B. SHAPIRO, JUDGE
This matter is before the court concerning defendants Rosalio Sanchez and Galvan Sanchez's (collectively, the movants or the Sanchez defendants) motion for summary judgment. (#131.) The movants assert that the plaintiff was employed by an independent contractor performing roofing work and, as they were not in possession and control of the scaffolding from which the plaintiff fell, they owed no duty of care to him. The plaintiff asserts that a genuine issue of material fact exists, based on the movants' ownership of the property. He submitted no evidence in opposition to the movants' presentation.
The court heard oral argument on October 31, 2016. After consideration, the court issues this memorandum of decision.
I
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. 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 . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . ." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). " A material fact . . . [is] a fact which will make a difference in the result of the case . . ." (Internal quotation marks omitted.) Id., 312-13.
II
" The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . First, it is necessary to determine the existence of a duty . . . The existence of a duty is a question of law . . . Because duty is an essential element in a negligence action, the plaintiff cannot have an action in negligence unless he shows that the defendant owed a duty to the plaintiff." (Citations omitted; internal quotation marks omitted.) Silano v. Cumberland Farms, Inc., 85 Conn.App. 450, 453, 857 A.2d 439 (2004).
It is undisputed that, at the time of the alleged accident, the plaintiff was on the premises as a business invitee. " [A] duty of care to an invitee, however, only attaches if the defendant exercised possession and control over the area at the time and place the injury occurred . . . accord 2 Restatement (Second), [Torts], § 328E, p. 170 (defining 'possessor of land' for purposes of premises liability as one 'in occupation of the land with intent to control it'). [L]iability for injuries caused by defective premises . . . does not depend on who holds legal title, but rather on who has possession and control of the property . . . Thus, the dispositive issue in deciding whether a duty exists is whether the [defendant] has any right to possession and control of the property . . . Retention of control is essentially a matter of intention to be determined in the light of all the significant circumstances . . . 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." (Citation omitted; internal quotation marks omitted.) Millette v. Connecticut Post Ltd. Partnership, 143 Conn.App. 62, 70, 70 A.3d 126 (2013).
" [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." (Internal quotation marks omitted.) Silano v. Cumberland Farms, Inc., supra, 85 Conn.App. 453-54. Control is a material fact which will make a difference in the outcome of a premises liability case. See Doty v. Shawmut Bank, 58 Conn.App. 427, 433-34, 755 A.2d 219 (2000).
The circumstances in Mozeleski v. Thomas, 76 Conn.App. 287, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003), cited by the movants, were very similar to those alleged here, in that Mozeleski also involved an alleged fall by a contractor from a scaffolding at a residence where work was being performed on the premises. In the complaint here, Count One, paragraph 4, the plaintiff alleges that he " was lawfully upon said premises and while working on the roof of the house, the scaffolding he was on collapsed, causing him to fall approximately twenty (20) feet to the ground . . ."
" 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." (Internal quotation marks omitted.) Mozeleski v. Thomas, supra, 76 Conn.App. 291. " 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 . . ." (Internal quotation marks omitted.) Id., 292.
In Mozeleski, where the plaintiff and his employer erected the scaffolding while the defendant owner was not on the premises, the Appellate Court affirmed the trial court's determination, as a matter of law, that the defendant did not have possession and control. See id., 295.
Here, in his deposition testimony, the plaintiff acknowledged that, at the time of the incident, he was working as an employee of defendant Young and Son Remodeling, LLC. See defendants' Exhibit B (deposition transcript), p. 25. In his deposition testimony, Douglas Young stated that after a contract was entered into with the Sanchez defendants, they played no role in how the job was being performed before the fall happened. He agreed that they had nothing to do with how the scaffolding or staging was put up. See defendants' Exhibit A (deposition transcript), p. 40. In addition, he testified that they had no input in how safety harnesses were used or installed. He agreed that their role in the project was to hire the contractor and to pay for the roof replacement. See defendants' Exhibit A (deposition transcript), p. 41.
The plaintiff stated that he was involved in setting up the scaffolding. See defendants' Exhibit B (deposition transcript), p. 20-21. The plaintiff also testified that the homeowners did nothing to cause the accident. See defendants' Exhibit B (deposition transcript), p. 33. Also, he stated that he believed that the property was safe. See defendants' Exhibit B (deposition transcript), p. 105.
In addition, the Sanchez defendants presented their joint affidavit, in which they attest to not having directed or controlled the means and methods of the roofing repair.
The undisputed evidence in the record shows that the owners of the premises employed an independent contractor to perform work on their roof. Based on the undisputed evidence, the assumption and exercise of control over the offending area is deemed to be in the independent contractor. See Mozeleski v. Thomas, supra, 76 Conn.App. 291.
There is no genuine issue of material fact. The movants have shown that they are entitled to judgment as a matter of law. For the reasons stated above, the motion for summary judgment is granted. It is so ordered.