Salvatore Ortiz v. Richard Christian et al. (2010)

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT BY DEFENDANTS RICHARD CHRISTIAN AND ADVANCED SANITATION LLC

The defendants, Richard Christian and Aadvanced Sanitation LLC have moved for summary judgment on the First, Second and Third Counts of the plaintiff's complaint dated March 3, 2009, a personal injury action based on an alleged infection plaintiff contracted from a portable toilet unit at his work site.   At the oral argument of this motion the plaintiff's counsel represented that he had brought the action against Richard Christian in error and would withdraw the action and on December 21, 2009, the plaintiff did file a withdrawal of the action as to Richard Christian.   Therefore, during the course of this opinion the word defendant will refer to Aadvanced Sanitation LLC only.

Factual Background

The plaintiff has alleged that while he was employed by a subcontractor at a Dress Barn Construction site in Rocky Hill, Connecticut, he contracted an infection as a result of using a portable toilet maintained by the defendant.   The portable toilet was located at the construction site and was provided by the defendant pursuant to a contract with defendant Argonaut, Inc., the general contractor for the job.

The First Count of the complaint alleges negligence of the defendant based on a violation of Connecticut General Statutes § 19a-211.   The Second Count alleges a violation of an OSHA regulation, 19 C.F.R.1926(b)(2).   The Third Count alleges a public nuisance.

Discussion of the Law and Ruling

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 ․ 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.”   (Citations omitted;  internal quotation marks omitted.)  Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 251-52, 819 A.2d 773 (2003).  “A material fact ․ [is] a fact which will make a difference in the result of the case ․ Finally, the scope of our review of the trial court's decision to grant the plaintiff's motion for summary judgment is plenary.”  (Citation omitted;  internal quotation marks omitted.)   H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 560, 783 A.2d 993 (2001).   Summary judgment is “designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried.”  Wilson v. City of New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).

In the First Count the plaintiff alleges negligence based on a violation of Connecticut General Statutes § 19a-211, which provides:

Any owner or person having the care, custody or control of any building, room or premises maintained for or used by the public, who allows any toilet in any such building, room or premises or connected therewith to be in an insanitary condition, shall be fined not more than one hundred dollars for each offense.   The director of health of each town, city or borough shall inspect each such toilet and cause the same to be maintained in a sanitary condition and shall make complaint of any failure to maintain any such toilet in such condition to a prosecuting officer having jurisdiction.   The failure of any director of health to perform his duty under the provisions of this section shall be cause for his removal.

The defendant argues that § 19a-211 does not apply to the portable toilet at issue here.

“When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ․ In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply ․ In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered ․ The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.”  (Internal quotation marks omitted.)  State v. Fernando A., 294 Conn. 1, 13, 981 A.2d 427 (2009).

State v. Ancona, 120 Conn.App. 324, 327 (2010).

The plain language of the statute indicates that it applies to toilets 1) located in buildings, rooms or premises that are 2) used by the public.   The portable toilet in question was not within a building, room or premises.   The defendant has presented evidence that the toilet in question was provided to Argonaut, Inc. for its use, and was not open to the public.   Therefore § 19a-211 does not apply and cannot fasten any liability on the defendant.   Summary judgment is hereby entered on the First Count of the Complaint.

The Second Count alleges negligence based on the violation of 19 C.F.R.1926.20(b)(2) for failing to inspect the unit frequently and regularly so as to have discovered the alleged condition.   The regulation cited is an OSHA regulation and when considered with the regulation immediately preceding it in the Code of Federal Regulations, clearly applies to the plaintiff's employer.   29 C.F.R.1926.(b)(1) provides:  “It shall be the responsibility of the employer to initiate and maintain such programs as may be necessary to comply with this part.”  29 C.F.R.1926.20(b)(2) provides:  “Such programs shall provide for frequent and regular inspections of the job sites, materials, and equipment to be made by competent persons designated by the employers.”

The defendant was not the plaintiff's employer.   Therefore summary judgment may enter on the Second Count as it is based on a regulation which does not apply to the defendant.   Moreover, the plaintiff has not addressed the Second Count in his Memorandum in Opposition to Summary Judgment and the court assumes that he has conceded that the defendant has no liability under that count.

The Third Count alleges private nuisance based on violations of Connecticut General Statutes § 19a-211 and 29 C.F.R.1926(b)(2).   Under Connecticut law, a plaintiff claiming public nuisance must prove that “(1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property;  (2) the danger created was continuing one;  (3) the use of the land was unreasonable or unlawful;  and (4) the existence of the nuisance was a proximate cause of the plaintiff's injuries.  State v. Tippets-Abbott-McCarthy-Stanton, 204 Conn 177, 183, 527 A.2d 688 (1987).   The plaintiff also must prove that “the condition or conduct complained of interfered with a right common to the general public.”  Id.;  Keeney v. Old Saybrook, 237 Conn 135, 162, 676 A.2d 795 (1996).

As stated above, the defendant has submitted uncontradicted evidence that the portable toilet at issue was leased to Argonaut, Inc. for its use, and was not open to the public.   Moreover, the use of a portable toilet on a construction site as a matter of law is not an “unlawful or unreasonable” use of land.   Summary judgment may enter in favor of the defendant on the Third Count.

By the court,

Aurigemma, J.

Aurigemma, Julia L., J.