Opinion
FSTCV176030762S
03-26-2018
Daniel VATAFU v. JKLR, LLC
UNPUBLISHED OPINION
POVODATOR, J.
Nature of the Proceeding
This is a lawsuit arising from an injury sustained on a worksite (new home construction)- an employee of a subcontractor was injured as a result of an allegedly defective condition existing relating to work of another subcontractor. Two of the defendants alleged to have had supervisory-type responsibility have moved for summary judgment, claiming that they are not responsible and cannot be held legally responsible for the plaintiff’s injuries.
The plaintiff sued three parties; two of the defendants have appeared and have filed motions for summary judgment that are the subjects of this memorandum of decision. The third defendant, Silver Properties, LLC, has not appeared. Recently, an additional party (the subcontractor whose work allegedly created the dangerous condition) has been brought in by way of motion to implead; this subcontractor is not directly involved in the issues presently before the court.
The plaintiff was a project manager with a subcontractor on the project, Custom F/X, a home automation company which had been hired to install electronic equipment (apparently including associated wiring). On the day of the accident, the plaintiff was on the subject premises to evaluate the interior wiring. (The house clearly was still under construction at the time.)
The plaintiff claims that he fell as he was descending one of three staircases on the premises, due to a defective condition at the bottom of the stairway he was using- generally described as a missing step/tread. He asserts that all three defendants are responsible for allowing the condition to exist and/or the failure to correct (or warn of) the condition.
As noted, the plaintiff has asserted claims of liability of three entities/parties, based on claimed supervisory responsibilities. The plaintiff has sued Silver Properties based on the contention that it was the general contractor on the project and has sued DIB based on the contention that that entity, through David Bass (its principal), was " running" the construction project. He also has sued JKLR, the entity that owned the property, and which is claimed to have had continued control over the premises during the work (" maintained, possessed, and controlled" the premises).
Defendants DIB and JKLR have moved for summary judgment, claiming that they lacked any requisite level of control to permit them to be found liable for this construction-related condition, especially given the fact that the work itself had been done by a subcontractor. The plaintiff in turn claims that there is sufficient uncertainty and conflict among the parties as to who actually was in control so as to preclude granting of summary judgment.
As noted in footnote 1, defendant Silver Properties has not filed an appearance in this proceeding; however, its principal has been deposed, and excerpts from his deposition have been submitted by the plaintiff.
Discussion
The generally-applicable standards for summary judgment are sufficiently well-established that they do not need to be recited in detail. See, e.g., Windsor Federal Savings & Loan Ass’n v. Reliable Mechanical Contractors, LLC, 175 Conn.App. 651, 658-59 (2017). (The general principles also are recited at length in the parties’ respective memoranda.) Certain finer points, however, are worthy of special mention.
As will be discussed below, of particular significance is the notion that the moving party has the burden of establishing " what the truth is" (Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015) ).
Additionally, and somewhat related to that proposition, is the notion that for a defendant to prevail on summary judgment, it must either establish a defense to the requisite level of certainty (no material issue of fact), or, must establish that the plaintiff cannot prove an essential element of his cause of action, again to the requisite level of certainty (no material issue of fact). A moving party must not only establish its position in an affirmative sense but must also negate the asserted or likely-to-be-asserted matters in avoidance of those contentions. See, e.g., Williams v. Housing Authority of the City of Bridgeport, 327 Conn. 338, 174 A.3d 137 (2017) (to obtain summary judgment based on defense of governmental immunity, defendants needed to negate applicability of potentially-applicable exception to immunity); see, also, TD Bank, N.A. v. J and M Holdings, LLC, 143 Conn.App. 340, 351 (2013) (reversing entry of summary judgment because trial court had not considered fifth special defense (in turn, because Appellate Court had concluded that that defense erroneously had been stricken) ).
Here, both moving defendants are relying upon the claim that they had no duty to the plaintiff, based on each moving party’s relationship to/involvement in the ongoing construction- or perhaps more accurately, based on the claimed limited to nonexistent relationship/involvement in the ongoing construction activities.
The moving parties correctly note that for purposes of premises liability, it is not the status as record title owner that is determinative, but rather actual possession and control that are the usual focus. This case involves construction activities, so the usual focus on possession and control needs to be broadened. The conduct of workers and supervisors, and the relationship among/between them, can be a basis for liability that is less focused on typical notions of direct control of the premises (right to control entry, duty to maintain, etc.), as the focus can shift to the parties who may have created a condition and who may have had responsibility for safety and/or the related supervision and coordination of work. In effect, a contractor working on a portion of the premises typically may be deemed to have control over that area of the premises, but when multiple contractors (subcontractors) are working more or less simultaneously, there is or may be an issue relating to responsibility for coordination or sequencing of work in a reasonably safe manner.
As stated at the outset of Section III of the brief filed by defendant DIB Consulting:
As a general rule, an employer is not liable for the negligence of its independent contractors ... The explanation for [this rule] most commonly given is that, since the employer 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 employer, is the proper party to be charged with the responsibility of preventing the risk, and bearing and distributing it ...
Connecticut courts have long held, however, that to this general rule there are exceptions, among them these: If the ... [employer] reserve[s] in his contract general control over the [contractor] or his servants, or over the manner of doing the work, or if he in the progress of the work assume[s] control or interfere[s] with the work, or if he is under a legal duty to see that the work is properly performed, the [employer] will be responsible for resultant injury.
When the evidence on the question as to who had control of the area or instrumentality causing the injury is such that the mind of a fair and reasonable [person] could reach but one conclusion as to the identity of the person exercising control, the question is one for the court, but, if honest and reasonable [persons] could fairly reach different conclusions on the question, the issue should properly go to the jury ... In addition, the contractor’s control need not be exclusive; it is sufficient if it [is] shared with another. (Internal quotation marks and citations, omitted.)
In this passage, the defendant has identified a number of circumstances in which an owner might be responsible in connection with the work of a contractor- " if the ... [employer] reserve[s] in his contract general control over the [contractor] or his servants, or over the manner of doing the work, or if he in the progress of the work assume[s] control or interfere[s] with the work, or if he is under a legal duty to see that the work is properly performed, the [employer] will be responsible for resultant injury."
This, of course, is in addition to the issue of whether, notwithstanding that work is taking place, there may not have been a general surrender of control over the premises. Thus, for example- and aside from considerations relating to possibly non-delegable duties- a property owner generally may not have surrendered control over the premises in any meaningful sense while snow-removal activities are taking place, whether on a walkway or in a parking lot. As will be discussed below, there is a question of whether the owner continued to retain control to the extent that it performed general-contractor-type functions.
The point of this discussion is that to establish the right to summary judgment, the moving party has to negate any basis for potential liability- and if it is the owner, negating the various scenarios in which an owner may be liable notwithstanding contractors performing work on the premises.
I. DIB Consulting
DIB states its position in some detail in its motion:
DIB was the consultant of a project to be performed at 112 Indian Head Road, Greenwich, Connecticut (hereinafter, " premises" ). DIB hired Silver Properties, LLC as a consultant to the general contractor at the premises. The Plaintiff was an employee of one of the subcontractors at the premises. DIB did not reserve control of any aspect of Silver Properties, LLC or the Plaintiff’s work, or actually control any aspect of Plaintiff’s work. As a consultant, DIB owed no duty to the Plaintiff, who was not an employee of DIB.
The substantive argument set forth in the supporting memorandum is brief, bordering on conclusory. After stating principles generally applicable to summary judgment, DIB argues why it believes it is entitled to judgment, in sufficient brevity that it can be quoted in its entirety. For context, the following summary of the allegations directed to it and argument why there is no possible liability are all that is presented after reciting general principles:
The allegations made against DIB are that the Defendant permitted foot traffic on the stairs even though they were not complete and were missing a bottom and riser in violation of the State Building Code and when it knew or should have known it was unsafe to do so; in that it failed to provide a handrail for the stairs in violation of the State Building Code and when it knew or should have known it was unsafe and unreasonable to do so; in that it failed to cordon off or otherwise prohibit individuals from using the stairs given the missing step and absence of an appropriate handrail when it knew or should have known it was unsafe and unreasonable to do so; in that it failed to provide warning or otherwise alert pedestrians of the hazard then and there existing. (See Plaintiff’s Complaint, Count Three, Paragraph 7.)
It is patently clear that DIB exercised no control and did not interfere in any way with the work performed by Silver Properties, LLC. DIB has no power or control over the manner in which work was to be done by the Plaintiff. See Exhibit A. The Plaintiff can provide no evidence to support any claim that DIB acted in any way that would suggest that the Plaintiff was an employee, agent, or public contractor of DIB.
IV. CONCLUSION
There is no genuine issue of material fact that the Plaintiff, Daniel Vatafu, performed the work as an employee of the independent contractor of DIB. Simply put, DIB did not exercise any dominion or control over any work performed with regards to framing the Premises and is not liable as a matter of law for negligence of [an] independent contractor. Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 517-18, 825 A.2d 72 (2003).
Exhibit A, referenced in the paragraph preceding the conclusion, is an affidavit of Mr. Bass, identified as the owner and managing member of DIB. It is here that the concept of " what the truth is" (Ferri, supra ) comes into play.
The affidavit in its substantive entirety is the starting point, and is brief enough to permit recitation in full:
1. I am currently employed by DIB Consulting, Inc.;
2. In my capacity as owner and managing member of DIB Consulting, Inc., I am able and have the authority to attest to the following;
3. At sometime prior to December 31, 2014, DIB Consulting, Inc. entered into an oral agreement (" Agreement" ) with Silver Properties, LLC;
4. DIB Consulting, Inc. and Silver Properties, LLC have a 15-year working history regarding consultation services;
5. Pursuant to the Agreement, DIB Consulting, Inc. did not reserve general control over Silver Properties, LLC and its employees or over the manner of doing the work;
6. At no time did DIB Consulting, Inc. exercise any control over or interfere with the work performed by Silver Properties, LLC or its employees;
7. Silver Properties, LLC and/or its employees were general contractors with regards to the work performed at 112 Indian Head Road, Greenwich, Connecticut;
8. DIB Consulting, Inc., did not issue any written contracts, make any payments, supervise workers and did not assign contractor services.
There is no recitation in this affidavit as to the duties that DIB originally assumed/undertook with respect to the project, prior to engagement of Silver Properties. There is no recitation as to the duties that did or may have remained with DIB after its agreement with Silver Properties. For example, there is nothing in this affidavit that tends to negate an overarching supervisory responsibility with respect to the project, or the safety aspects of the project, accountable only to the owner.
Perhaps simplistically: is it the implicit claim of DIB that it had no responsibility with respect to the project, once it entered into the oral agreement with Silver Properties? That contention, in turn, would seem to mean that the owner had engaged DIB solely as a " middleman" such that DIB was hired for the sole purpose of engaging a general contractor, with no residual duties once a general contractor was engaged.
The court will return to this later in connection with the discussion of the plaintiff’s response, but the court cannot help but note that this affidavit does not go so far as to state, explicitly, that DIB retained no responsibilities with respect to the project once Silver Properties was hired, but if any responsibilities were retained, summary judgment would seem to require negation of any retained duties/responsibilities that might be pertinent to the claims being made in this complaint. Thus, even without regard to other submissions, it is doubtful that this submission establishes " what the truth is" (Ferri, supra ) with sufficient certainty and clarity to warrant summary judgment.
II. JKLR
Defendant, JKLR, LLC also has moved for summary judgment. The premise for that contention is relatively straightforward- " JKLR was not in possession and control of the staircase where the Plaintiff claims that he fell on December 31, 2014, and thus, did not owe him any duty." (An obvious question raised by this narrow definition of the issue: Is the sole focus on the precise defect, or is there a broader issue as to whether there was a responsibility to other subcontractors on the premises, doing other work, that might have- even if incidentally- implicated this area of the premises?)
In seeking summary judgment, this defendant not only relies upon an affidavit from its principal, but also excerpts from the deposition of the plaintiff. Before addressing the substance of this defendant’s arguments, the court will briefly " circle back" to the arguments of the codefendant, DIB.
Paragraph 5 of the affidavit of Mr. Bass, the principal of DIB, states: " Pursuant to the Agreement, DIB Consulting, Inc. did not reserve general control over Silver Properties, LLC and its employees or over the manner of doing the work." The reference to " reserve general control" seemingly implies that DIB hired Silver Properties and in so doing, did not " reserve general control." However, the affidavit submitted on behalf of JKLR by its principal, affirmatively asserts- unambiguously- a reversal of that relationship. Paragraph 5 of the JKLR affidavit states:
After JKLR purchased the Premises, it underwent a substantial renovation. JKLR hired Silver Properties, LLC (" Silver Properties" ) as the general contractor. Silver Properties hired DIB Consulting, Inc. (" DIB" ) to be on the Premises daily to oversee the construction, including the staircase where the Plaintiff alleges that he fell. JKLR paid Silver Properties and DIB for its services on the project.
This suggests that the properly-framed issue is not solely whether DIB " reserved" any level of control but rather whether it assumed some level of control, either by virtue of its relationship with Silver Properties or its relationship with the owner on a more direct level.
Returning to the claim directed to JKLR, the affidavit of Mr. Brown, submitted in support of the JKLR Motion for summary judgment, states that he was not on the premises on the date of the subject accident, nor was anyone else from his organization (" anyone on behalf of JKLR" ). As previously noted, he further states that Silver Properties was hired as the general contractor, and that Silver Properties in turn hired DIB " to be on the Premises daily to oversee the construction." The affidavit then goes on to describe the hiring of a subcontractor to install the staircase that more precisely was involved in this accident. The affidavit concludes with several paragraphs asserting that neither the affiant nor JKLR were in possession or control of the premises or otherwise responsible for conditions on the site, and that instead possession and control were attributable to other entities, specifically identifying Silver Properties and/or DIB and/or NYBS (the entity responsible for installation of the staircase).
There is an assertion that NYBS had been hired by Silver Properties. (NYBS is the subcontractor recently brought in via motion to implead.)
Facially, then, JKLR at least arguably has submitted a prima facie basis for non-responsibility for this incident- it was not on site on the day of the accident, it had hired a general contractor who in turn had hired another entity to oversee the construction, and the subcontractor responsible for installation of the staircase where the incident occurred had been hired by the entity it has described as the general contractor.
III. The Plaintiff’s Response
In opposing both motions, the plaintiff has submitted excerpts from depositions of Mr. Brown (principal of JKLR), Mr. Bass (principal of DIB), and Mr. Silver (principal of Silver Properties- the non-appearing defendant). As already identified in the previous section, there is a material factual issue as to whether Silver Properties or DIB was the general contractor or otherwise had project management responsibilities. While not definitive, presumably the owner of the property is competent to identify the party who it believes/believed was the general contractor on a project, and the affidavit submitted on behalf of JKLR would appear to be sufficient to create a material issue of fact as to whether DIB’s claim of lack of responsibility is entitled to credence, free from any question (material issue of fact).
Also as noted above, JKLR’s submission in support of its motion does seem to suffice insofar as it claims that it had engaged a general contractor and/or site supervisor and was not on the premises on the day of the accident. However, the deposition testimony of Mr. Silver and the deposition testimony of Mr. Bass (as submitted by the plaintiff) indicate a greater level of involvement by JKLR and its principal. According to Mr. Bass, Mr. Silver (through his entity) may have located/identified appropriate subcontractors, but it was Mr. Brown who actually hired them (see, e.g., Bass deposition at page 25)- and Mr. Brown was the principal of JKLR, the owner.
Mr. Silver made this explicit. At page 14 of his deposition, Mr. Silver stated that he helped the principal of JKLR in that he " lined up subcontractors for him, helped him bid it out. I helped him hire a site superintendent ..." He later explained that the site supervisor was DIB, and that it had been hired by the owner. He further stated that " DIB was paid directly from JKLR and contracted directly with JKLR just like every subcontractor on the job." At page 18 of his deposition, he specifically identified JKLR as the general contractor for the project.
The plaintiff claims that its evidentiary submissions, summarized above, create a material issue of fact as to who was in charge of the project- who was responsible for overall supervision and safety. (Implicit in his argument is that if the defendants are to be believed, no one may actually have been in charge of coordination and safety.)
IV. Synthesis of Positions of Parties
As demonstrated above, there is much uncertainty as to the precise nature of the role of DIB in the project. There is evidence that its principal was on site virtually daily, providing on-site supervision of the subcontractors (per the testimony of the owner’s principal). DIB has not adequately explained how status as an on-site supervisor would not be sufficient to raise a material issue of fact as to its potential responsibility in connection with this incident. The generality of its denials do not (adequately) refute the more finely detailed evidence.
JKLR has cited a number of cases in support of its position, but none of them are apposite. The defendant cites Pellino v. Kornelak, D.N. HHD-CV15-6056757S, Judicial District of Hartford (Nov. 3, 2015, Huddleston, J.) and Raymond v. St. Vincent’s Medical Center, D.N. MMXCV116004986S (Jul. 25, 2013) in its brief, but both cases involve claims directed to the owner of property on which construction activity was occurring, solely as an owner. In a footnote, two additional cases are cited, Annes v. D & D Builders, LLC, D.N. CV020172631, Judicial District of Waterbury (Agati, J., Mar. 9, 2004) , and Burgess v. W & M Properties of Connecticut, Inc., D.N. CV 030398812, Judicial District of Fairfield at Bridgeport (Doherty, J., Jan. 28, 2005). Annes also involved a claim directed to the property owner, and Burgess involved a claim against the property manager, but a manager with no evidence-supported involvement with the actual construction work (i.e., no evidence that it was managing the construction-type work).
Here, JKLR is claimed to have retained a general contractor’s level of control over the project by virtue of acting as the general contractor. While a general contractor may have limited responsibility for the precise manner in which work is performed by a subcontractor by virtue of the subcontractor being an independent contractor, there is at least arguably an implicit reserved responsibility for coordination of work by subcontractors (including safety concerns), to the extent that a general contractor does or may determine the appropriate sequencing of work. JKLR has not addressed any role that it may have had with respect to status as a general contractor or otherwise having some direct level of involvement in the work.
Given its " dual-status" as owner and general contractor, JKLR’s arguments directed solely to status as owner necessarily cannot establish non-liability in its role as general contractor. The court is limited to deciding a motion for summary judgment based on the arguments presented by the moving party, Greene v. Keating, 156 Conn.App. 854 (2015), and the failure to address this issue, for which there appears to be, at a minimum, a material issue of fact, is fatal to JKLR’s motion.
Conclusion
Returning to the court’s citation to Ferri, neither of the moving parties has established " what the truth is" with the required level of clarity and certainty- who was in charge, who hired whom (and for what roles/purpose), etc. Rather, there has been an exercise of finger-pointing in all directions, established by deposition testimony and affidavits. The level of control that may have been retained by JKLR, and the level of responsibility/control assumed by DIB (and/or Silver Properties), are very much in issue, based on the submissions of the parties. Neither defendant has cited authority for the proposition that during a construction project involving independent contractors, it is possible to have no one responsible for overall safety concerns, and that only the subcontractor who actually created an allegedly-dangerous condition may be held responsible (or, if such a scenario can exist, how/why this situation fits within the scope of such a concept). To the extent JKLR may have retained control via its (claimed) functioning as a general contractor, that presents a somewhat unusual twist on the usual analysis, and JKLR has not acknowledged, much less addressed, the possible consequences of its retention of such a role. It has not established the negative- that it did not have such a role- to the requisite level of certainty (no material issue of fact).
For all these reasons, then, the court denies both motions for summary judgment.