Antonio Setubal et al. v. Loparco Associates, Inc. (2010)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (127.00)

I. Background

This case involves personal injuries arising from an accident at a residential construction site.   The individual plaintiffs, Antonio and Francisco Setubal, were performing carpentry on an unfinished wood portico roof over the front door of the residence when the roof fell causing injuries to Antonio's right arm and Francisco's head.   The defendants are various construction contractors and subcontractors working on the residential project and the homeowners.   The defendant, Eden Farms, LLC (Eden) a masonry subcontractor, has moved for summary judgment dismissing the complaint against it.

II. Facts

Most of the material facts are undisputed.   At the time of the accident the plaintiffs were on top of the roof having reached that location through a second floor window.   An Eden employee, Antonio Molina Vanegas was in a hole or trench directly underneath the roof taking measurements for the steps and stairway to the front door.   The deposition testimony of Antonio Setubal states the roof was supported by two two-by-sixes attached to the residential structure.   Setubal said the roof and the support had been built by his co-employees at Oliviera Building Contractors, LLC, and that he was aware of the condition of the roof and its support, and had been on the roof several times that day before its collapse.   Eden employees including Vanegas, are consistent in their testimony that no Eden employee touched the support beams.   Setubal testified that the masons had nothing to do with the accident, and he had no information to the contrary.

III. Scope of Review

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.”  Appleton v. Board of Education, 254 Conn. 205, 209 (2000).   Summary judgment “is appropriate only if a fair and reasonable person could conclude only one way.”  Miller v. United Technologies Corp., 233 Conn. 732, 751 (1985).  “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 judgment as a matter of law.”  Appleton v. Board of Education, supra, 254 Conn. 209.  “A material fact has been defined adequately and simply as a fact which will make a difference in the result of the cases.”  (Internal quotation marks omitted.)   United Oil Co. v. Urban Development Commission, 158 Conn. 364, 379 (1969).   The trial court, in the context of summary judgment motion, may not decide issues of material fact, but only determine whether such genuine issues exist.  Nolan v. Borkowski, 206 Conn. 495, 500 (1983).

“Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact [question] ․ a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.   It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.”  Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554 (1998).  “[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.”  Appleton v. Board of Education, supra, 254 Conn. 209.

IV. Discussion

Eden contends that the relevant facts demonstrate that it owed no duty to the plaintiffs.   An affidavit from Marshall Condon, the owner of Eden, with attached documents, shows quite clearly that Eden's responsibilities at the site had nothing to do with the portico roof or carpentry of any kind, and was limited to masonry projects including the construction of a bluestone front stoop.¹

The plaintiffs have filed no affidavits in opposition to the motion for summary judgment.   Deposition transcripts filed by the plaintiffs with their memorandum in opposition confirm the basic facts set forth above and show Mr. Vanegas as stating he did notice any support for the roof, but thought it was safe because the carpenters were working on top of it.   The plaintiffs mainly contend that summary judgment is inappropriate in negligence cases, and that questions of credibility should not be resolved in the context of a summary judgment motion.

The specifications of negligence directed at Eden include:

permitting the plaintiffs to work on unsafe scaffolding;

failing to warn of unsafe scaffolding;

failing to prepare and ensure compliance with a site safety plan;

failure to spend enough time on the site to observe activities and take corrective action;

permitting workers to undermine the safety of the scaffolding;

its site representative was inadequately trained;

failing to properly train and equip its workers;

failing to insure proper safety precautions.

The court finds that, with the exception of the specification concerning undermining the scaffolding, none of these specifications apply to Eden who was on the site for a limited time and tasked with limited responsibilities.   As to the remaining specification of negligence, there is no evidence presented that any Eden employee “undermined” the portico roof in question.   The existence of a duty in a negligence case is a question of law for the court to decide.   The court determines that Eden owed no duty to the plaintiffs concerning the condition of the portico roof, a project not within its responsibility, and which was constructed before Eden came on the site to work.   Eden had no power to control the worksite, no control over the design or construction of the roof, and no control over the activities of the plaintiffs.   See Mozeleski v. Thomas, 76 Conn.App. 287 (2003).   Although the plaintiffs do not argue this point, the court also finds that Vanegas had no duty to warn if he did not see supports for the roof.   By the plaintiffs' own testimony these were supports.   Moreover, Vanegas (who was also injured in the accident) felt the situation was safe.

Finally, the court finds no evidentiary support to raise an issue of credibility as to the affidavits or deposition testimony of Eden employees.   In opposing a motion for summary judgment it is not enough to simply contend that there are credibility issues to be resolved.   There must be an evidentiary basis for asserting that evidence is not credible, and there is no such basis here.

V. Conclusion

The fourth and ninth counts of the complaint are dismissed.

TAGGART D. ADAMS

SUPERIOR COURT JUDGE

FOOTNOTES

FN1. The Condon Affidavit is uncontradicted as to the scope of work Eden was responsible for.   The affidavit did say the date of the accident, November 9, 2005 was Eden's first day at the site, and in a later deposition Condon concluded that Eden employees delivered material to the site on November 8, 2005..  FN1. The Condon Affidavit is uncontradicted as to the scope of work Eden was responsible for.   The affidavit did say the date of the accident, November 9, 2005 was Eden's first day at the site, and in a later deposition Condon concluded that Eden employees delivered material to the site on November 8, 2005.

Adams, Taggart D., J.