II LLC v. III (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 132)

FACTS

In their forty-two-count complaint, the plaintiffs, Autowerkes Management II, LLC and The Autowerkes Corporation, assert claims for negligence, trespass and nuisance against the defendant, Maloyid Perkins, III, in counts one through six.   Perkins has moved for summary judgment on these first six counts on the ground that the actions complained of by the plaintiffs in all six counts were performed by an independent contractor, the co-defendant Global Industries, Inc. (Global), and thus Perkins did not owe the plaintiffs a duty of care and is not liable for any losses caused by Global.   In response, the plaintiffs contend that allegations in the first six counts of their complaint allege, in part, independent acts of negligence and negligent supervision by Perkins that are separate from the acts of Global.   Furthermore, the plaintiffs argue that there exist genuine issues of material fact with respect to whether Perkins exerted any control over Global in determining if the latter was an independent contractor rather than an agent of Perkins.

DISCUSSION

“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.”  (Internal quotation marks omitted.)  Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010).  “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.”  (Internal quotation marks omitted.)  Fiorelli v. Gorsky, 120 Conn.App. 298, 308, 991 A.2d 1105, cert. denied, 298 Conn. 933, 10 A.3d 517 (2010).

In the present case, Perkins submits his own affidavit and a copy of his contract with Global to support the conclusion that he did not exert any control over Global's actions.   Perkins maintains in his affidavit that the actions giving rise to this lawsuit, the allegedly negligent removal of asbestos, took place between January 4, 2008 and February 2, 2008.   He states that he was present at the removal site for approximately fifteen minutes on February 2, 2008.   The plaintiffs respond in an affidavit that the asbestos removal took place on just one day, February 2, 2008.   Therefore, it is clear that a material dispute of the facts exists in the evidence presented before the court.   Whether Perkins was present during the asbestos removal and, if so, whether being there for fifteen minutes is sufficient to exert control over the defendant Global's actions is a matter for the trier of fact to decide.   In addition, the plaintiffs have submitted a copy of Perkins' response to a set of interrogatories, where Perkins states that he observed a tractor trailer on the plaintiffs' property where debris was being placed.   This raises an additional issue of material fact as to whether Perkins was negligent in his supervision of Global's actions, rendering summary judgment to be inappropriate at this time.

CONCLUSION

For the foregoing reasons, the defendant Perkins' motion for partial summary judgment as to counts one, two, three, four, five and six is hereby denied.

Martin, J.

Martin, Robert A., J.