Donald Marut v. M. Ferrara & Sons (2010)

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

FACTS

The plaintiff, Donald Marut, is an employee of Essex Machine Tool Services, LLC [“Essex”].   On September 14, 2007, a Casco Bay Transportation [“Casco Bay”] truck delivered a piece of machinery to Essex.   The delivery of the machinery was attended by Michael Ferrara, sales manager of defendant M. Ferrara & Sons, which had an equal share of interest in the machinery with Essex.   Mr. Ferrara was present so as to make payment to Casco Bay, upon delivery of the machinery.

While removing the binders holding the machinery to the truck, the Casco Bay driver asked for a pipe.   The plaintiff Marut was walking by and handed the driver a pipe which was lying on the floor.   Shortly thereafter, Marut was struck by the pipe.   Marut contends that, while the driver was unloading the truck, a chain snapped,¹ causing the pipe to strike Marut in the face.

In Count I of his amended complaint, Marut alleges that the truck was “owned and/or operated at the direction of M. Ferrara & Sons, and/or his agent and/or at their discretion.” [sic] Giving the plaintiff a favorable reading of the allegations of the complaint, Marut appears to allege that the Casco Bay driver was the agent of M. Ferrara & Sons;  that either the driver or M. Ferrara & Sons itself was using the chain (and, presumably, the pipe furnished by Marut);  that the chain and pipe were negligently used and not properly secured;  and that Marut was not advised of the danger of the situation.   Again, reading the allegations of the amended complaint in a light most favorable to the plaintiff, it appears he is claiming that, if M. Ferrara & Sons itself was not acting negligently, it is vicariously liable for the negligent acts of its alleged agent, the Casco Bay driver, and, in any event, no one informed him of the allegedly inherently dangerous situation.

The defendant, M. Ferrara & Sons, has moved for summary judgment, denying it had anything to do with the unloading of the truck, denying that the Casco Bay driver was its agent, denying that it owed Marut a duty to warn him of the allegedly inherently dangerous situation and denying that releasing of the binder constituted an inherently dangerous situation.

The defendant has submitted an affidavit of Michael Ferrara and excerpts of a deposition transcript of the plaintiff, Marut, in support of its motion.   The plaintiff has submitted the complete deposition transcript of Michael Ferrara in opposition to the defendant's motion.²

LEGAL STANDARD

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.”  Practice Book § 17-49.   In deciding a motion for summary judgment a trial court must view the evidence in the light most favorable to the nonmoving party.  Hertz Corp. v. Federal Insurance Company, 245 Conn. 374, 381 (1998).  “The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under the 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 ․ A material fact [is] a fact that will make a difference in the result of the case ․ (Internal quotation marks omitted.)  Hurley v. Heart Physicians P.C., 278 Conn. 305, 314, 898 A.2 777 (2006).

“A motion for 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. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).   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 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.”  Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995).  “[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.”  (Internal quotation marks omitted.)  Id., 752.  “[A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed.”  Id.

“A genuine issue has been variously described as a triable, substantial or real issue of fact ․ and has been defined as one which can be maintained by substantial evidence.”  (Citation omitted;  internal quotation marks omitted.)  United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364.378.  260 A.2d 596 (1969).  “[T]he ‘genuine issue’ aspect of summary judgment procedure 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.”   (Internal quotation marks omitted.)  Id., 378-79.  “Issue of fact encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them.”  (Internal quotation marks omitted.)   Id.

DISCUSSION

It is unclear as to the exact nature of the plaintiff's allegations in the operative complaint against this defendant.   Even in giving the plaintiff the most favorable construction, his claim that the defendant owned or operated the truck is unsupported by the evidence, as is the claim that it was the defendant which used a chain which snapped, causing the pipe to strike the plaintiff.   The defendant is a sole proprietorship owned by Salvatore Ferrara.   Exhibit B, plaintiff's memorandum in opposition to motion for summary judgment, transcript of Michael Ferrara, July 15, 2010, p.7.³

From the evidentiary submissions of both parties, it is also clear that a chain did not snap.   Rather, it was claimed by the plaintiff at his deposition that the Casco Bay driver, using a pipe supplied by the plaintiff, was releasing the binder when the pipe flew through the air, striking the plaintiff.⁴

It is not the role of the court to determine the facts.   However, the above exercise is necessarily undertaken by the court so as to determine what the plaintiff's allegations are, so as to decide whether there is a genuine issue of any material fact.  Practice Book § 17-49;  United Oil Co. v. Urban Redevelopment Commission, supra.

Regardless of the viability of various allegations of the operative complaint, what remains at issue is the plaintiff's claim that the Casco Bay driver was the agent of the defendant.   Upon that claim all liability against the defendant rests.

The defendant claims proof by way of the affidavit of Michael Ferrara that the Casco Bay driver was not the agent, servant or employee of the defendant.   Exhibit B, defendant's memorandum in support of motion for summary judgment, affidavit of Michael Ferrara, ¶ 7:  “The truck driver who transported the machinery to Essex was not an employee or agent of Ferrara.   Ferrara did not control or direct the work of the driver ․”

“Affidavits filed in connection with a motion for summary judgment must be made on personal knowledge, must set forth facts which would be admissible in evidence, and must show that the affiant is competent to testify to all matters stated in the affidavit.   Mere statements of legal conclusions or that an issue of fact does exist are not sufficient to raise the issue.”  Double G.G. Leasing, LLC v. Underwriters at Lloyd's, 116 Conn.App. 417, 430-31, 978 A.2d 83 (2009), quoting United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 377, 260 A.2d 596 (1969).  (Internal citations omitted:  internal quotation marks omitted.)

Mr. Ferrara's assertion in paragraph 7 of his affidavit that the driver was not an agent of the defendant is a merely conclusory statement of law, unsupported by evidence.   It is insufficient to establish the nonexistence of agency.   The defendant has not offered any evidence of the relationship between itself and Casco Bay disproving agency.

To the contrary, there is some evidence of an agency relationship between the defendant and Casco Bay. Michael Ferrara testified that he arranged delivery by Casco Bay and testified that he was present at the time of delivery.   Exhibit B, plaintiff's memorandum in opposition to motion for summary judgment, transcript of Michael Ferrara, July 15, 2010, pp. 11-12, 15-16, 20;  Exhibit B, defendant's memorandum in support of motion for summary judgment, affidavit of Michael Ferrara, ¶ 5.

As additional evidence of an agency relationship, the defendant has both served an apportionment complaint (102.00) and impleaded Casco Bay as a third party defendant (114.00).

If there is an agency relationship, the degree of control potentially exercisable remains in dispute.   While an employer/owner may exercise a limited degree of control or give the contractor instructions on minor details without destroying the independent character of the contractor, Darling v. Burrone Bros., Inc., 162 Conn. 187, 192, 292 A.2d 912 (1972), the question of control is not, generally speaking, one susceptible to summary judgment.  LaFlamme v. Dallessio, 261 Conn. 247, 258-61, 802 A.2d 63 (2002).

Casco Bay has denied that it was responsible for the loading delivery and unloading of the machinery.   Answer to amended complaint, February 23, 2010, ¶ 4 (119.00).   Answer to third party complaint, February 23, 2010, ¶ 4 (120.00).⁵  The question of degree of control is, therefore, in dispute.

[Exceptions to the rule that the independent contractor is liable for his own acts are] “when ‘the employer retains control of the premises or supervises the work of the contractor, or where the work to be performed by the contractor is inherently dangerous, or where the employer has a nondelegable duty to take safety precautions imposed by statute or regulation ․’ “ Mozeleski v. Thomas, 76 Conn.App. 287, 291-92, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003), citing Ray v. Schneider, 16 Conn.App. 660, 664, 548 A.2d 461, cert. denied, 209 Conn. 822, 551 A.2d 756 (1988).

Not only is the amount of control exercisable by the defendant over Casco Bay in dispute, there is an allegation of a duty to warn and a claim posited by the plaintiff that the release of the binder was inherently dangerous, bolstered by the testimony of the defendant's own witness, Michael Ferrara.   Exhibit B, plaintiff's memorandum in opposition to motion for summary judgment, transcript of Michael Ferrara, July 15, 2010, pp. 39-40.   This is a material factual issue which, if reached, remains in dispute.

The defendant has not met its burden of proof as to the non-existence of agency upon which the plaintiff's claims of liability rest.   Therefore, summary judgment is inappropriate.

CONCLUSION

The defendant's motion for summary judgment is denied.

Young, J.

FOOTNOTES

FN1. In the excerpt of the transcript provided by the defendant as Exhibit B of the defendant's memorandum in support of its motion for summary judgment, Marut denies that the chain snapped.   Transcript of Donald Marut, March 9, 2010, pp. 28-29.   In footnote 3 of his memorandum in opposition to the motion for summary judgment, the plaintiff sets forth several new theories of the mechanics of the injury, including that (1) the chain and binder were faultily affixed by the driver or another Casco Bay employee, (2) the driver incorrectly positioned the pipe on the binder or (3) the driver released the binder before the plaintiff could get out of the way.   “The pressure on the chain and binder caused the pipe to fly through the air, striking the plaintiff's head.”   These alternative theories of the plaintiff in his memorandum are not alleged in the complaint.   The court looks at the allegations of the operative complaint and the proof when determining if there is any genuine issue of material fact.  Practice Book § 17-49.   Conjecture is not proof, particularly when it is posited in the alternative..  FN1. In the excerpt of the transcript provided by the defendant as Exhibit B of the defendant's memorandum in support of its motion for summary judgment, Marut denies that the chain snapped.   Transcript of Donald Marut, March 9, 2010, pp. 28-29.   In footnote 3 of his memorandum in opposition to the motion for summary judgment, the plaintiff sets forth several new theories of the mechanics of the injury, including that (1) the chain and binder were faultily affixed by the driver or another Casco Bay employee, (2) the driver incorrectly positioned the pipe on the binder or (3) the driver released the binder before the plaintiff could get out of the way.   “The pressure on the chain and binder caused the pipe to fly through the air, striking the plaintiff's head.”   These alternative theories of the plaintiff in his memorandum are not alleged in the complaint.   The court looks at the allegations of the operative complaint and the proof when determining if there is any genuine issue of material fact.  Practice Book § 17-49.   Conjecture is not proof, particularly when it is posited in the alternative.

FN2. Neither party has submitted properly certified deposition testimony as required by P.B. § 17-46.   At oral argument, counsel agreed to waive this defect and allow the court to review the deposition transcript and excerpted transcript as if properly authenticated..  FN2. Neither party has submitted properly certified deposition testimony as required by P.B. § 17-46.   At oral argument, counsel agreed to waive this defect and allow the court to review the deposition transcript and excerpted transcript as if properly authenticated.

FN3. In his memorandum in opposition to the motion for summary judgment, the plaintiff refers to the attached deposition transcript of Michael Ferrara as “Exhibit B,” although it is not labeled as such and there does not appear to be an “Exhibit A.”.  FN3. In his memorandum in opposition to the motion for summary judgment, the plaintiff refers to the attached deposition transcript of Michael Ferrara as “Exhibit B,” although it is not labeled as such and there does not appear to be an “Exhibit A.”

FN4. See footnote 1..  FN4. See footnote 1.

FN5. However, in its answer to the third party complaint, Casco Bay also admits it was responsible for securing and removing the chains holding the machinery on the truck.   Answer to third party complaint, February 23, 2010, ¶ 6 (120.00)..  FN5. However, in its answer to the third party complaint, Casco Bay also admits it was responsible for securing and removing the chains holding the machinery on the truck.   Answer to third party complaint, February 23, 2010, ¶ 6 (120.00).

Young, Robert E., J.