Irma Cruz v. Walter Vaselka et al. (2010)

MEMORANDUM OF DECISION ON MARTIN LAVIERO CONTRACTOR, INC.'s MOTION FOR SUMMARY JUDGMENT

The plaintiff Irma Cruz has filed a civil action against five defendants alleging that they were responsible for personal injury she sustained on June 2, 2007, at a public park in the City of Bristol.   The defendants Vaselka and Swicklas are city employees who are alleged to be responsible for overseeing safety and maintenance activities at the park.   The defendants Martin Laviero Contractor, Inc. (“Laviero”), and Melnick Metal Works, Inc., are alleged to have constructed a new sign at the park entrance and to have constructed and maintained temporary fencing around the construction site.   The plaintiff alleges that while using the park she became entangled in a portion of the temporary fencing that had partially collapsed and that she injured herself as a result.

The defendant Laviero moves for summary judgment, appending documents that purport to establish that it had nothing to do with either constructing or maintaining the temporary fencing that caused the plaintiff's injury.   For reasons stated below, Laviero's motion is granted.

THE STANDARDS FOR SUMMARY JUDGMENT

In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.  Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000).   The party seeking summary judgment has the burden of showing the absence of any genuine issue of material fact, such that the party is entitled, under principles of substantive law, to a judgment as a matter of law.  Id.

In ruling on a motion for summary judgment, the court's function is not to decide the 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).   Summary judgment is appropriate only if a fair and reasonable person could conclude only one way, based on the substantive law and the undisputed material facts.  Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995).

In supporting or opposing summary judgment, Conn. P.B. § 17-45 requires that a party file affidavits and other documentary evidence sufficient to establish or refute the existence of a disputed issue of fact.   Unadmitted allegations in the pleadings are not considered competent evidence and do not constitute proof of a material fact.  New Milford Savings Bank v. Roina, 38 Conn.App. 240, 245, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995).   Rather, in moving for or opposing summary judgment, a party must submit documentation that would form the basis for evidence admissible at trial.  Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997).   See also Conn. P.B. § 17-46.

Conn. P.B. § 17-48 states that the court shall enter judgment if it determines that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.

THE UNDISPUTED FACTS

Among other documents submitted by Laviero in support of its motion for summary judgment is an affidavit from Gregory Laviero, Vice President of the company, who states that his company was a subcontractor retained by Melnick to participate in installing a new sign at the park.   Laviero was hired only to pour the concrete footings, which it did between May 8 and May 11, 2007, after which, its work completed, it left the job site and did not return.   Laviero avers that it was hired only to install the concrete footings and that it did not install the temporary fencing and was never responsible for maintaining the temporary fencing.

In her opposition to summary judgment, the plaintiff has appended none of the types of papers anticipated by Conn. P.B. § 17-45, such as affidavits, certified copies of deposition transcripts, and the like.   All that is attached, aside from a memorandum of law, is a copy of the plaintiff's unverified Amended Complaint dated October 9, 2009.   The defendant's documents stand alone, establishing the undisputed facts-the only facts-before the court in this case.¹

At oral argument on this motion, the plaintiff requested additional time to conduct supplemental discovery in order to refute the facts presented by Laviero.   The court denies that request for three reasons.   First, such an oral motion is disfavored when made at the last minute during the course of oral argument, not having been presented to the court or the opponent in writing ahead of time.   Second, the plaintiff has had ample time to conduct discovery related to this motion.   This incident occurred in June of 2007.   This action was commenced with a return date of July 14, 2009.   Laviero's motion for summary judgment was filed on May 5, 2010.   The plaintiff requested and was granted an extension of time to respond to the motion until June 25, 2010.   No further motions for extension of time were requested thereafter.   Further time to respond to Laviero's motion is not warranted under these circumstances.   Third, the discovery that the plaintiff desires to conduct is the deposition of Gregory Laviero, whose affidavit has already been submitted in support of summary judgment.   It seems highly unlikely that a deposition of Mr. Laviero will yield any disputed material facts on the issue of whether Laviero had anything to do with the fence.

CONCLUSION

Laviero has carried its burden of showing that there are no material facts in dispute regarding its lack of involvement with the fencing on which the plaintiff fell.   Laviero is entitled to judgment as a matter of law.   The Motion for Summary Judgment is granted.

Patty Jenkins Pittman, Judge

FOOTNOTES

FN1. The lack of evidence submitted by the plaintiff extends to the most basic circumstances surrounding this incident.   The plaintiff has not established that she was at that park on June 2, 2007, or that she became entangled in a collapsed fence, or that she was injured as a result.   The court, and evidently the opponent, assume these facts to be true for the sake of argument..  FN1. The lack of evidence submitted by the plaintiff extends to the most basic circumstances surrounding this incident.   The plaintiff has not established that she was at that park on June 2, 2007, or that she became entangled in a collapsed fence, or that she was injured as a result.   The court, and evidently the opponent, assume these facts to be true for the sake of argument.

Pittman, Patty Jenkins, J.