Michael Heaney v. LLC (2010)

MEMORANDUM OF DECISION

This is a decision on a motion for summary judgment filed by the defendant, Soteriou Holdings, LLC, dated March 8, 2010.

On May 12, 2008, the plaintiff, Michael F. Heany, commenced this personal injury action against Kuhn Employment Opportunities, Inc. (KEO) and Soteriou Holdings, LLC.¹ Count one of the plaintiff's amended complaint alleges the following facts against the defendant.   On October 16, 2006, at approximately 9 a.m., the plaintiff, who is legally blind, was being escorted into Tommy's Restaurant (the restaurant), which was located at 825 Saybrook Road in Middletown (the property), by a representative of KEO. While entering the restaurant, the plaintiff “was caused to trip and fall on the concrete steps located near the kitchen door entrance” of the restaurant.   At that time, the property, including the parking lot and outside walkway, was owned, controlled, possessed and/or maintained by the defendant.   Furthermore, the defendant was obligated to keep and maintain the property, including the parking lot and outside walkway.   As a result of his fall, the plaintiff suffered injuries, which were caused by the carelessness and negligence of the defendant.   On January 29, 2009, the defendant filed an answer to the amended complaint, in which it denied that it controlled, possessed and/or maintained the property.

Previously, on September 15, 2008, Tommy's Restaurant, Inc. (Tommy's Restaurant), filed a motion to intervene and intervening complaint.   In its intervening complaint, Tommy's Restaurant alleged that the plaintiff was an employee of Tommy's Restaurant who, at the time of his fall, was acting in the course of his employment.   Tommy's Restaurant further alleged that it has paid benefits to the plaintiff and to his medical providers in accordance with the Workers' Compensation Act.

On March 8, 2010, the defendant filed a motion for summary judgment as to the first count of the plaintiff's amended complaint on the ground that the defendant did not have possession or control of the property and, therefore, owed the plaintiff no legal duty to maintain the premises;  or in the alternative, on the ground that the plaintiff's action is barred by the exclusivity provision of the Workers' Compensation Act under General Statutes § 31-284(a).   The motion is accompanied by a memorandum of law.   On May 25, 2010, the plaintiff filed an objection to the defendant's motion for summary judgment and a memorandum of law in support thereof.

I

“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.”  (Internal quotation marks omitted.)  Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007).  “[T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ․ A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”   (Citation omitted;  internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact ․ 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 ․ It is not enough ․ for the opposing party merely to assert the existence of such a disputed issue.”  (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).  “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).   Moreover, “the ․ court must view the evidence in the light most favorable to the nonmoving party.”   (Internal quotation marks omitted.)  Provencher v. Enfield, supra, 284 Conn. 791.

In its memorandum of law in support of its motion for summary judgment, the defendant argues that it owed no duty to the plaintiff because, while it owns the property, it did not possess, control or maintain the area where the plaintiff fell.   Rather, the defendant contends that “the responsibilities for maintenance and upkeep of the property, including exterior walks and the parking area, rested entirely on Tommy's Restaurant.”   In the alternative, the defendant argues that the first count of the plaintiff's complaint is barred by the exclusivity provision of the Workers' Compensation Act because “the plaintiff's employer entity and the defendant landowner entity are owned by the same individuals.”   Moreover, the defendant argues that it and Tommy's Restaurant were engaged in a joint venture and that “[t]here exists such an overlapping of identity between [the defendant] and Tommy's Restaurant that to allow the [p]laintiff to maintain an action against [the defendant] would undermine the statutory workers' compensation scheme by circumventing the employer exclusivity provision.”   In support of its motion, the defendant submitted the affidavit and excerpts of the deposition testimony of Chris Soteriou (Soteriou), secretary of the defendant.

In response, the plaintiff counters that there is a genuine issue of material fact as to whether the defendant was in possession and control of the property, in particular, whether the defendant or Tommy's Restaurant was responsible for the maintenance of the property.   The plaintiff contends that the defendant has offered nothing other than a self-serving affidavit in which Soteriou attested that the defendant did not maintain control over the property and that, furthermore, the defendant admitted that it was Soteriou himself who was responsible for maintenance of the property.   With regard to the defendant's contention that the first count of the plaintiff's complaint is barred by the exclusivity provision of the Workers' Compensation Act, the plaintiff argues that its employer is Tommy's Restaurant and not the defendant landowner, which is a separate legal entity.   In support of his objection, the plaintiff submitted:  (1) the defendant's responses to the plaintiff's interrogatories;  (2) the plaintiff's amended complaint dated January 21, 2009;  (3) the defendant's amended answer to the amended complaint dated January 29, 2009;  (4) excerpts of the deposition testimony of Soteriou;  and (5) a copy of a putative insurance policy allegedly held by the defendant on the property.

II.

The defendant first claims that it did not have possession or control of the property and, therefore, owed the plaintiff no legal duty to maintain the premises.  “The general rule regarding premises liability in the landlord-tenant context is that landlords owe a duty of reasonable care as to those parts of the property over which they have retained control ․ [L]andlords [however] generally [do] not have a duty to keep in repair any portion of the premises leased to and in the exclusive possession and control of the tenant ․ 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 ․ Unless it is definitely expressed in the lease, the circumstances of the particular case determine whether the lessor has reserved control of the premises or whether they were under the exclusive dominion of the tenant, and it becomes a question of fact and is a matter of intention in the light of all the significant and attendant facts which bear on the issue.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Fiorelli v. Gorsky, 120 Conn.App. 298, 308-09, 991 A.2d 1105 (2010).  “The making of repairs by the landlord, in and of itself, may denote a retention of control or may be an indicia of limited, temporary or full control.”  Panaroni v. Johnson, 158 Conn. 92, 99, 256 A.2d 246 (1969).

There is no evidence that a written lease existed between the defendant and Tommy's Restaurant.   In the present case, there is a genuine issue of material fact as to whether the defendant retained control over the area where the plaintiff fell sufficient to establish a duty and subject it to premises liability.   In his affidavit, Soteriou attested that the defendant “does not maintain or control the premises” but that Tommy's Restaurant, a tenant on the property who pays rent to the defendant, “is responsible for all maintenance and repairs to the property” and that “[a]ll maintenance, upkeep and repair costs for the premises are paid by Tommy's Restaurant.”   In his deposition testimony, Soteriou further testified that Tommy's Restaurant “maintains the steps” on the property and “does the inspections of the premises.”

The defendant, however, has provided no additional evidence to prove that, at the time of the plaintiff's fall, Tommy's Restaurant, as opposed to the defendant, was responsible for maintenance and repairs to the property.   Furthermore, in answer to the plaintiff's interrogatories, the defendant identified Soteriou himself as the person “responsible for the maintenance and inspection of the premises at the time and place where the plaintiff claims to have been injured.”   Soteriou testified to the same in his deposition.   Soteriou further testified that, at the time of the plaintiff's fall, he owned fifty percent of the defendant and seventeen percent of Tommy's Restaurant.   Moreover, Soteriou attested that he was the secretary of the defendant and the general manager of Tommy's Restaurant.   Therefore, to the extent that Soteriou was the individual responsible for maintenance and inspection of the property, there is a genuine issue of material fact as to whether he was serving in his capacity as an agent for the defendant or Tommy's Restaurant.   Therefore, the court denies the motion with respect to that claim.

III.

The defendant next claims that the plaintiff's complaint is barred by the exclusivity provision of the Workers' Compensation Act, because the plaintiff's employer entity and the defendant landowner entity are owned by the same individuals.  ‘Connecticut's statutory scheme for workers' compensation provides a framework for an employee who sustains a work-related injury to receive prescribed benefits without having to prove fault.   In return, the employee is barred from bringing a third party claim against either a fellow employee or the employer.”  Roy v. Bachmann, 121 Conn.App. 220, 224, 994 A.2d 676 (2010);  see also § 31-284(a).²  “The trade-off between an employee who sustains a work-related injury and the employer does not prevent such an employee from bringing an action against a third party tortfeasor.”   Roy v. Bachmann, supra, 224.

Therefore, “those defendants who satisfy the requisite jurisdictional standard of an employer as set forth in [General Statutes] § 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).  Section 31-275(10) states in relevant part:  “ ‘Employer’ means 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 ․”

In the present case, it is undisputed that the plaintiff's employer was Tommy's Restaurant and not the defendant.   Soteriou attested that he was “the general manager of Tommy's Restaurant with the responsibility for directing and overseeing all Tommy's Restaurant employees,” and that he “hired [the plaintiff] to work at Tommy's Restaurant” and “signed [the plaintiff's] paychecks.”   Soteriou further attested that the plaintiff “received workers' compensation benefits from Tommy's Restaurant as a result of his fall.”   Soteriou even attested, and the defendant admitted in its memorandum, that the defendant “does not have any employees.”

The defendant further argues, however, that it is engaged in a joint venture with Tommy's Restaurant or that there is such an overlapping identity between the two entities that to allow the plaintiff to maintain an action against the defendant would undermine the statutory workers' compensation scheme because an employer cannot be sued as the owner or occupier of land.   While “a joint venture may be considered an employer for workers' compensation purposes;” Doe v. Yale University, supra, 668-69;  “[i]t remains the burden of the party asserting the exclusivity of the act to prove that a joint venture existed ․” Id., 684.  “[A] joint venture ․ exists where two or more parties combine their property, money, efforts, skill or knowledge in some common undertaking ․ The relationship between contracting parties cannot amount to a joint venture unless the parties so intend.”  (Citations omitted;  internal quotation marks omitted.)  Id., 672-73.

Soteriou testified that he and his mother were the sole owners of both the defendant and Tommy's Restaurant, and attested that the purpose of both entities was “to ensure the profitability and sustainability of the food service business operated on the [property].”   The defendant, however, provides no other evidence for the proposition that the defendant and Tommy's Restaurant were engaged in a joint venture or that they intended to form a joint venture.   To the contrary, Soteriou attested that Tommy's Restaurant is a tenant of the defendant and pays rent to the defendant on a monthly basis.   Moreover, Soteriou testified that the rent is deposited in a bank account owned by the defendant.   Therefore, at minimum, there is a genuine issue of material fact as to whether the defendant and Tommy's Restaurant were engaged in a joint venture.

For the foregoing reasons, the motion for summary judgment is denied.

Matasavage, J.

FOOTNOTES

FN1. Since the present motion for summary judgment was filed by Soteriou Holdings, LLC, hereinafter it will be referred to as “the defendant.”.  FN1. Since the present motion for summary judgment was filed by Soteriou Holdings, LLC, hereinafter it will be referred to as “the defendant.”

FN2. Section 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 ․”.  FN2. Section 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 ․”

Matasavage, Paul, J.