Patrick Grasty v. LLC (2009)

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT

On October 30, 2008, the plaintiff, Patrick Grasty, commenced this action by service of process on the defendant, Moss Ledge Associates, LLC. In his complaint, the plaintiff alleges the following facts.   The defendant, a limited liability company with its principal office located in Westport, owns a commercial property located at 74 Largo Drive in Stamford.   The defendant is “responsible for the maintenance, safety and control of the Premises,” which is primarily a parking lot.   On February 16, 2007, the plaintiff, a business invitee, was walking in the parking lot of the subject premises.   While exiting the property, the plaintiff slipped and fell on an accumulation of snow and ice.   As a result of his fall, the plaintiff suffered numerous physical injuries, pain and discomfort, emotional distress, mental anxiety and incurred medical bills and loss of employment.   The complaint alleges a cause of action for negligence against the defendant.   Specifically, the plaintiff alleges that the defendant was negligent in that it:  (1) failed to adhere to its duty of reasonable care to ensure the safety of the property by keeping the parking lot area in a safe condition;  (2) failed to warn of the hazardous condition;  (3) created a hazardous condition by permitting the existence of ice in the parking lot;  (4) failed to inspect the premises;  (5) failed to take any precautions to protect invitees and (6) failed to remove the ice in a reasonable time.

In response to the plaintiff's complaint, the defendant filed an amended answer and two special defenses on December 4, 2008.   The defendant's second special defense is that the plaintiff's action is barred by the exclusivity provision of the Workers' Compensation Act, General Statutes § 31-284.   On July 16, 2009, the defendant filed a motion for summary judgment on the ground that there is no genuine issue of material fact that the plaintiff cannot maintain this action due to the exclusivity provision of the Workers' Compensation Act. In support of its motion, the defendant attaches three affidavits from Philip Ross, David Ross and Mitchell Ross (collectively the Ross brothers), respectively, as well documentation demonstrating that the plaintiff received workers' compensation for his injuries stemming from this incident.   On August 28, 2009, the plaintiff filed a memorandum of law in opposition to the defendant's motion.   The plaintiff's memorandum attaches the following documentation:  (1) Stamford city title records that demonstrate that the subject premises is owned by the defendant;  (2) filings from the secretary of state that show that the principal member of the defendant is Philip S. Ross and the agent for service of process is David Ross;  (3) filings with the secretary of state that show that David Ross is the principal member of Patio.com, LLC and (4) the plaintiff's W-2 statement from R & R Pool & Patio, Inc. (R & R Pool).¹  Finally, on November 2, 2009, the defendant filed a reply memorandum, with three revised affidavits from the Ross brothers, as well documentation showing that the plaintiff filed a workers' compensation claim against R & R Pool.

“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.”  (Internal quotation marks omitted.)  Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007).   The burden is on the moving party to demonstrate an absence of any triable issue of material fact and “[t]o 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 Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45].”  (Internal quotation marks omitted.)   Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).  “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).  “[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way.”  (Internal quotation marks omitted.)  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).

The defendant moves for summary judgment on the ground that it is immune from suit under the exclusivity provision of the Workers' Compensation Act. In support of its position, the defendant's memorandum of law and supporting documentation provide the following factual background.   At the time of the subject accident, the plaintiff was employed by R & R Pool, d/b/a Patio.com.² R & R Pool is owned by the Ross brothers.   In their role as the owners of R & R Pool, the Ross brothers had authority to hire, fire and direct the plaintiff's employment activities, as well as sign the plaintiff's paychecks.   The defendant, which is also owned by the Ross brothers, purchased the 74 Largo Drive property to house a warehouse and show room for Patio.com. The reason another corporate entity was created pertained to environmental concerns about the subject premises.   When the plaintiff fell and suffered his injuries, he was acting in the course of his employment with R & R Pool. As a result of his injuries, the plaintiff received workers' compensation benefits from R & R Pool.

The defendant argues that it was engaged in a joint venture with R & R Pool, and, therefore, that it was the plaintiff's de facto employer and, therefore, enjoyed an employer's tort immunity under the Workers' Compensation Act. The plaintiff responds by arguing that the defendant's evidence only establishes a joint venture regarding environmental issues.   Alternatively, in the event that there is a joint venture between the defendant and R & R Pool, the plaintiff argues that the defendant does not qualify as an employer under the Workers' Compensation Act because it did not exercise the requisite control over the plaintiff's employment activities.   As such, the plaintiff contends that only R & R Pool is entitled to immunity, not the defendant.

General Statutes § 31-284(a) provides in relevant part:  “An employer who complies with the requirements of subsection (b) of this section shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as provided under this chapter ․ All rights and claims between an employer who complies with the requirements of subsection (b) of this section and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment are abolished other than rights and claims given by this chapter ․” Under this statute, an employer is defined as “any person, corporation, limited liability company, firm, partnership, voluntary association, joint stock association, the state and any public corporation within the state using the services of one or more employees for pay, or the legal representative of any such employer ․” General Statutes § 31-275(10).

“The Workers' Compensation Act ․ provides the sole remedy for employees and their dependents for work-related injuries and death ․ Its purpose is to provide a prompt, efficient, simple and inexpensive procedure for obtaining benefits related to employment ․ The exclusivity provision in § 31-284(a) manifests a legislative policy decision that a limitation on remedies is an appropriate trade-off for the benefits provided by workers' compensation.”   (Internal quotation marks omitted.)  Stearns & Wheeler v. Kowalsky Brothers, 289 Conn. 1, 10-11, 955 A.2d 538 (2008).  “Under the statute, the employee surrenders his right to bring a common law action against the employer, thereby limiting the employer's liability to the statutory amount ․ In return, the employee is compensated for his or her losses without having to prove liability ․ The intention of the framers of the [Workers' Compensation Act, General Statutes § 31-275 et seq. (act) ] was to establish a speedy, effective and inexpensive method for determining claims for compensation.”   (Emphasis in original;  internal quotation marks omitted.)  Stec v. Raymark Industries, Inc., 114 Conn.App. 81, 87-88, 968 A.2d 960 (2009).   Under Connecticut law, “the workers' compensation scheme is remedial and is to be construed broadly in favor of those whom the scheme is intended to benefit.”   Ricigliano v. Ideal Forging Corp., 280 Conn. 723, 743, 912 A.2d 462 (2006).

Despite the broad scope of the Workers' Compensation Act, “only those defendants who satisfy the requisite jurisdictional standard of an employer as set forth in § 31-275(10) may successfully assert the exclusivity of the act as a bar to a common-law action by an alleged employee.”  Doe v. Yale University, 252 Conn. 641, 680, 748 A.2d 834 (2000).   Our Supreme Court has explicitly held that “a joint venture may be considered an employer for workers' compensation purposes.”  Id., 668-69.  “Whether a joint venturer is an employer under the act is therefore a question of the specific joint venturer's degree of control over the alleged employee.   The ‘right to control’ test determines the [relationship between a worker and a putative employer] by asking whether the putative employer has the right to control the means and methods used by the worker in the performance of his or her job ․ The test of the relationship is the right to control.   It is not the fact of actual interference with the control, but the right to interfere, that makes the difference between an independent contractor and a servant or agent.”   (Citations omitted;  internal quotation marks omitted.)  Id., 680-81.

In their respective affidavits attached to the motion for summary judgment and reply memorandum, the Ross brothers all attest that:  (1) “[o]n or about February 16, 2007, the plaintiff ․ was an employee of R & R Pool & Patio, Inc. d/b/a Patio.Com. Specifically, he was employed as a navigator/truck driver/warehouse laborer;” (2) both R & R Pool and the defendant are owned by the Ross brothers;  (3) the defendant is the owner of the premises located at 74 Largo Drive in Stamford;  (4) this property “contains a ware house and show room for Patio.Com;” (5) “[t]he sub]ect property ․ was purchased by [the defendant] to further the business of R & R Pool ․” (6) the property “was purchased under the name of Moss Ledge Associates, LLC [because] there were environmental issues with the property” and the Ross brothers wanted to avoid potential litigation problems;  (7) at the time of his accident at 74 Largo Drive, the plaintiff was in the course and scope of his employment with R & R Pool;  (8) as the owners of R & R Pool, each of the Ross brothers “had the direct authority to hire, fire and direct [the plaintiff's] employment activities,” work schedule, as well as the authority to sign his paychecks and (9) as a result of his injuries, the plaintiff filed a workers' compensation claim against R & R Pool.

Virtually all of these attestations are supported by the evidence attached to the plaintiff's memorandum of law in opposition.   The plaintiff's evidence corroborates the Ross brothers' contentions the plaintiff was employed by R & R Pool and that the 74 Largo Drive property is owned by the defendant.   According to the filings from the secretary of state, the defendant's owner is Philip S. Ross and its agent for service of process is David Ross. The member and agent for service of process of Patio.com, LLC is listed as David Marshal Ross. Given the filings with the secretary of state and the Ross brothers' attestations, there is no question that both R & R Pool d/b/a Patio.com and the defendant are owned by the three Ross brothers.   Notably, the plaintiff does not dispute the fact that he filed for, and received, workers' compensation benefits from R & R Pool, that he was operating in the scope of his employment with R & R Pool when he was injured or that the Ross brothers exercised supervisory control over the plaintiff.

In his memorandum of law in opposition, the plaintiff raises three principal arguments as to why the defendant is not entitled to summary judgment.   The first is simply that the defendant and R & R Pool are separate entities.   This simply begs the question.  “So long as the employer and the alleged tortfeasor are one, the plaintiff is limited to the benefits provided by workmen's compensation.”  Ridolfi v. Ridolfi, 178 Conn. 371, 377, 423 A.2d 77 (1979).   The ultimate issue is whether the defendant and R & R Patio were operating as a joint venture.   The plaintiff's second and third arguments in opposition to summary judgment attempt to address this question.   In his memorandum in opposition, the plaintiff argues that the defendant's evidence only establishes a joint venture in regard to environmental issues and that the fact that the Ross brothers signed the plaintiff's paychecks “does not equate to the entity Moss Ledge Assoc., LLC, being the plaintiff's employer as well.”   The defendant's reply memorandum responds by noting that the plaintiff does not dispute that the Ross brothers, who are the owners of both the defendant and R & R Pool, had the “authority to hire, fire and direct [the plaintiff's] employment activities,” as well as his work schedule.   Furthermore, in their revised affidavits, the Ross brothers attest that they purchased the 74 Largo Drive property in order to further the business of R & R Pool. Specifically, the property held a warehouse and showroom for Patio.com. None of the plaintiff's evidence disputes these contentions.

When determining whether the defendant has produced sufficient evidence to satisfy the joint venture test from Doe v. Yale University, supra, 252 Conn. 641, two Superior Court opinions are instructive.   In Milton v. Fulmer, Superior Court, judicial district of New Haven, Docket No. CV 02 0467452 (May 9, 2005, Devlin, J.) (39 Conn. L. Rptr. 299), the court granted summary judgment for the defendant under the following facts.   The plaintiff, an employee at a Kentucky Fried Chicken restaurant, suffered a workplace injury and collected workers' compensation benefits against his employer.   He brought suit against the owner of the building, who was also the sole stockholder in the Kentucky Fried Chicken corporation that employed the plaintiff.   In an effort to defeat summary judgment, the plaintiff argued that his corporate employer and the defendant were two separate entities.   When addressing this factual scenario, Judge Devlin noted that “[n]either our Supreme Court nor our Appellate Court have spoken on the application of the exclusive remedy provisions of Connecticut's Workers' Compensation Act to a defendant who is both a landowner and sole shareholder of a corporate employer ․ [Nevertheless,] ․ [the defendant] is the sole stockholder of the corporation that employed the plaintiff.   He took an active role in the business and had the authority to hire, fire and direct the plaintiff's job activities.   If viewed in terms of reverse piercing the corporate veil, [the defendant] is appropriately considered plaintiff's employer for purposes of the Workers' Compensation Act.” (Citations omitted.)  Id., 301-02.

Similarly, in Sullivan v. Conniff, Superior Court, judicial district of New Haven, Docket No. CV 02 0463372 (August 17, 2004, Arnold, J.) (37 Conn. L. Rptr. 704), the court ruled that an owner of the premises on which the plaintiff was injured who was both the president and stockholder of the plaintiff's corporate employer was the plaintiff's employer for the purposes of the Workers' Compensation Act. In Sullivan, the court determined “that the defendant was in the position of employer and that the plaintiff was his employee.   The plaintiff was hired, employed, directed and controlled in his job activities by [the defendant,] an owner and President of Conniff Restoration, Inc. to assist Conniff in his business and the plaintiff's paychecks were signed by him.   Conniff Restoration, Inc.'s services encompasses a wide variety of services, including occasional landscaping, and the plaintiff, in his capacity as an employee, was directed by Raymond Conniff to go to [the place where he was injured in order] to perform landscaping tasks.   Significantly, the plaintiff was enabled to receive workmen's compensation benefits for his injuries because the defendant, as employer, maintained workmen's compensation insurance coverage for his employees, including the plaintiff.”  Id., 706-07.

Like the defendants in Milton and Sullivan, the Ross brothers own the plaintiff's employer, R & R Pool, and, through the defendant company, they also own the property where the plaintiff was injured.   The plaintiff does not dispute that his employer, R & R Pool, had the authority to hire, fire and direct the plaintiff's employment activities, and that the Ross brothers could sign the plaintiff's paychecks.   Furthermore, it is undisputed that the plaintiff was acting within the scope of his employment with R & R Pool when he sustained his injury and that he has already received workers' compensation benefits from R & R Pool. While the plaintiff argues that the defendant has only demonstrated a joint venture for environmental purposes between itself and R & R Pool, this contention is undermined by the undisputed attestations of the Ross brothers that they purchased to provide a warehouse and showroom for Patio.com. The plaintiff has failed to raise any genuine issues of material fact as to whether the defendant is entitled to immunity under the exclusivity provision of the Workers' Compensation Act. Therefore, summary judgment is granted in favor of the defendant.

BY THE COURT

Bruce L. Levin

Judge of the Superior Court

FOOTNOTES

FN1. None of the documentation attached to the plaintiff's memorandum of law in opposition is certified or otherwise authenticated.   Likewise, the affidavits offered in support of the defendant's motion do not directly authenticate the defendant's additional evidence.   Under Connecticut law, “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.”  (Internal quotation marks omitted.)   New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).   Despite this rule, a court has discretion to consider unauthenticated documentary evidence when no objection has been raised by the opposing party.  Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).   Because either party has objected to this uncertified evidence, the court considers it in ruling on the motion for summary judgment.   See, e.g., Palmieri v. Lee, Superior Court, judicial district of New Haven, Docket No. 405641 (November 24, 1999, Levin, J.)..  FN1. None of the documentation attached to the plaintiff's memorandum of law in opposition is certified or otherwise authenticated.   Likewise, the affidavits offered in support of the defendant's motion do not directly authenticate the defendant's additional evidence.   Under Connecticut law, “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.”  (Internal quotation marks omitted.)   New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).   Despite this rule, a court has discretion to consider unauthenticated documentary evidence when no objection has been raised by the opposing party.  Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).   Because either party has objected to this uncertified evidence, the court considers it in ruling on the motion for summary judgment.   See, e.g., Palmieri v. Lee, Superior Court, judicial district of New Haven, Docket No. 405641 (November 24, 1999, Levin, J.).

FN2. In the defendant's memorandum of law in support of its motion, as well as the first series of affidavits, the defendant incorrectly contends that the plaintiff was employed by Patio.com. This mistake is corrected in the defendant's reply memorandum and revised affidavits, which make it clear that the plaintiff's employer was R & R Pool, d/b/a Patio.com..  FN2. In the defendant's memorandum of law in support of its motion, as well as the first series of affidavits, the defendant incorrectly contends that the plaintiff was employed by Patio.com. This mistake is corrected in the defendant's reply memorandum and revised affidavits, which make it clear that the plaintiff's employer was R & R Pool, d/b/a Patio.com.

Levin, Bruce L., J.