Carol Davis v. Jennifer Freedman and Carlo Fraioli (2010)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 122

FACTUAL BACKGROUND

On May 25, 2007, the plaintiff, Carol Davis, commenced this action by service of process against the defendants, Jennifer Freedman, d/b/a Beads in the Loft (the defendant) ¹ and Carlo Fraioli.²  In her complaint, the plaintiff alleges the following facts.   At all times relevant to this action, the defendant “owned, leased, controlled, maintained and/or possessed” a retail jewelry store located at 3 Lewis Street in Greenwich.   On June 8, 2005, the plaintiff, who was lawfully on the premises as a business invitee, fell on the steps of the defendant's jewelry store and injured her left knee.   According to the complaint, the plaintiff's fall was caused because the entrance to the store maintained a stairway without railings.   The plaintiff alleges that “Jennifer Freedman, was aware of the dangerous and defective condition of the entrance because she and/or her employees actually created the dangerous and defective condition by designing the entrance” and that the defendant and her employees “should have been aware of the dangerous and defective condition of the entrance of the store because the entrance step constituted an obvious tripping hazard for customers attempting to enter the Premises.”   Specifically, the plaintiff contends that her fall was caused by the negligence and carelessness of the defendant, her agents, servants and/or employees in that the defendant:  (1) constructed, installed or maintained the front entrance of the store in a manner that provided no warning of its dangerous and defective condition;  (2) failed to inspect the entrance of the store to discover that the step was approximately seven inches lower than the threshold;  (3) caused, allowed and permitted the front entrance to the interior of the store to become unsafe, defective and dangerous;  (4) failed to warn the plaintiff of the dangerous and defective condition;  (5) failed to exercise due care to keep the entrance of the premises reasonably safe;  (6) failed to construct or maintain a sufficiently safe method of ingress/egress to the store and (7) failed to construct and maintain a stairway with a handrail.   As a result of the defendant's negligence the plaintiff alleges that she suffered serious physical injuries, incurred medical treatment and corresponding expenses, as well as experienced lost earning capacity and emotional distress.³

In addition to the present matter, the plaintiff has also brought a case titled Davis v. Carousel Bead Co, Inc., d/b/a Beads in the Loft (the Carousel Bead case), which is docketed as CV 07 5004232.   The factual allegations in that case are virtually identical to those in the present matter, except that this case alleges negligence against an individual, whereas the Carousel Bead case alleges negligence against a corporation.   Consequently, the defendant brought a motion to consolidate the two cases, which was granted by the court, Karazin, J., on May 19, 2008.

On April 30, 2010, the defendant filed the motion for summary judgment that is presently before the court, as well as a memorandum of law in support of her motion.   The defendant moves for summary judgment as to count one on the ground that there is no genuine issue of material fact that the defendant cannot be held liable in her individual capacity.   In support of her motion the defendant attaches:  (1) a copy of the writ, summons and complaint in the present case;  (2) a copy of the defendant's answer and special defense in the present case;  (3) a copy of the writ, summons, and complaint in the Carousel Bead case;  (4) a copy of the answer and special defense in the Carousel Bead case;  (5) the defendant's sworn affidavit;  (6) a copy of the certificate of incorporation from the Carousel Bead Company;  (7) a copy of the assignment of lease for the subject premises depicting Carlo Fraioli as the landlord and the Carousel Bead Company as the new tenant;  (8) a certified excerpt of the transcript from the defendant's deposition and (9) a Concord business inquiry print out indicating that the defendant is the president of the Carousel Bead Company.

The plaintiff filed a memorandum of law in opposition to the defendant's motion on May 13, 2010.   Attached to the plaintiff's opposition memorandum are:  (1) the plaintiff's sworn affidavit;  (2) an internet print out from the defendant's website purportedly indicating that the defendant's business is named Beads in the Loft;  (3) an internet print out indicating that the defendant is the “store owner and founder” of Beads in the Loft;  (4) a certificate of assumed trade name filed on the Greenwich land records indicating that Jennifer Freedman was operating a business known as Beads in the Loft and (5) a certified transcript of proceedings before Judge Tobin on March 3, 2008.   Following the parties' argument at short calendar on June 22, 2010, the defendant filed an additional affidavit on June 25, 2010.   On July 2, 2010, the plaintiff filed a further objection commenting on the applicability of this affidavit.

DISCUSSION

“Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and 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).  “[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ․ [A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party.”  (Citations omitted;  internal quotation marks omitted.)   Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).   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).

The defendant argues that she is entitled to judgment as a matter of law because there is no basis for holding her liable in her individual capacity.   Specifically, the defendant contends that she is the principal of the Carousel Bead Company, which does business under the name Beads in the Loft. In her complaint, the plaintiff alleges that the event that caused her injuries occurred at the Beads in the Loft store.   The defendant contends that there are not allegations in the complaint that could justify piercing the corporate veil under either the identity or the instrumentality rule.   As a result, the defendant argues that she cannot be held personally liable for the conduct alleged by the plaintiff.

In response, the plaintiff argues that her complaint contains allegations that the defendant personally committed or participated in the tortious conduct that led to the plaintiff's injuries.   The plaintiff contends that she is not alleging claims against the defendant based on piercing of the corporate veil.   Rather, the plaintiff alleges that the defendant personally committed negligent acts.   Consequently, the plaintiff argues that the defendant's argument in favor of summary judgment is irrelevant.   Additionally, the plaintiff argues that there is an outstanding issue of fact regarding whether the defendant operated Beads in the Loft in her individual capacity or as an officer of the Carousel Bead Company.

Notably, the motion presently before the court is the second summary judgment motion filed in this case.   In her previous motion for summary judgment, the defendant argued that she could not be held personally liable because she only acted in her capacity as an owner and officer of the Carousel Bead Company.   On March 3, 2008, the court, Tobin, J., denied the defendant's motion from the bench.   Judge Tobin stated that:  “This is not a piercing of the corporate veil case near as I can figure.   The way this case is postured it alleges the negligence of an individual person ․ [H]ow can I make a determination that she was not negligent when she doesn't address the issue of her negligence in the moving papers.   She just addresses the fact that she was doing business under a corporate form ․ Given the fact that there is a claim here of personal negligence against the defendant and that is not addressed [as] the key basis of liability, I don't see how I can grant a motion for summary judgment.”

The defendant's renewed motion for summary judgment presents virtually the same argument as the one previously denied by Judge Tobin.   Moreover, the defendant has only offered two new exhibits in support of this motion, which are her deposition transcript and the Concord print out showing the corporate organization of the Carousel Bead Company.   Following the argument at short calendar, however, the plaintiff did submit an additional affidavit dated June 25, 2010.   Given the similarities between the previously denied motion and this one, the plaintiff has moved for the attorneys fees and costs incurred in the researching, drafting, filing and arguing of this memorandum of law in opposition.

“It is black letter law that an officer of a corporation who commits a tort is personally liable to the victim regardless of whether the corporation itself is liable.”  Kilduff v. Adams, Inc., 219 Conn. 314, 331-32, 593 A.2d 478 (1991).  “It is also true that an officer of a corporation does not incur personal liability for its torts merely because of his official position.   Where, however, an agent or officer commits or participates in the commission of a tort, whether or not he acts on behalf of his principal or corporation, he is liable to third persons injured thereby.”  Scribner v. O'Brien, Inc., 169 Conn. 389, 404, 363 A.2d 160 (1975).  “[T]he issue of whether a corporate officer has committed or participated in the wrongful conduct of a corporation is a question of fact ․” Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 142, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S.Ct. 1913, 164 L.Ed. 664 (2006).

In her complaint, the plaintiff clearly alleges that the defendant personally committed negligent acts.   As a result, the defendant is not entitled to judgment as a matter of law simply because she was acting in her role as president of the Carousel Bead Company.   When denying the defendant's previous summary judgment motion, Judge Tobin noted that the defendant's moving papers failed entirely to address the plaintiff's allegations of personal negligence against the defendant.   The new exhibits offered in support of this motion also fail to demonstrate that the defendant did not personally engage in tortuous acts.   The Concord print out merely establishes, once again, that the defendant is the president of the Carousel Bead Company.   Furthermore, the excerpt from the defendant's deposition only contains a long colloquy indicating that the defendant is the president of the Carousel Bead Company, which does business as Beads in the Loft. Although the defendant does aver in her June 25, 2010 affidavit that she “did not construct the step on which the Plaintiff claims to have tripped,” this attestation is directly contrary to the allegations of the complaint.   Therefore, this contention made in the defendant's June 25, 2010 affidavit is a disputed fact that precludes the court from entering summary judgment in the defendant's favor.   The court denies the defendant's motion for summary judgment.   Additionally, the plaintiff has failed to demonstrate that this motion was vexatious, per se, therefore, the court also denies the plaintiff's request to award attorneys fees and cost.

THE COURT

Brazzel-Massaro, J.

FOOTNOTES

FN1. As she is the only defendant who is party to the motion for summary judgment that is presently before the court, Jennifer Freedman, d/b/a Beads in the Loft will hereinafter be referred to as “the defendant.”.  FN1. As she is the only defendant who is party to the motion for summary judgment that is presently before the court, Jennifer Freedman, d/b/a Beads in the Loft will hereinafter be referred to as “the defendant.”

FN2. Carlo Fraioli has not filed an appearance in this matter..  FN2. Carlo Fraioli has not filed an appearance in this matter.

FN3. Count two alleges similar claims against Carlo Fraioli.   Only count one is directed against the defendant..  FN3. Count two alleges similar claims against Carlo Fraioli.   Only count one is directed against the defendant.

Brazzel-Massaro, Barbara, J.