Amy Sanders v. LLC (2011)

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT OF CUSTOM FACILITIES, INC.

The plaintiff, Amy Sanders, brought this action on March 12, 2007 against the defendants, R.R. Hiltbrand Construction, LLC (Hiltbrand) and Custom Facilities, Inc. (Custom), making premises liability claims against each defendant in counts one and four, respectively.   Thereafter, on April 12, 2007, Crowley Ford, LLC (Crowley), an auto dealership and Ms. Sanders' employer, joined the action as an intervening plaintiff.

The allegations of count four of the complaint and the intervening complaint are as follows.   Ms. Sanders was an employee of Crowley on March 15, 2005.   While at work, she tripped on construction debris lying in the parking lot of the dealership, which was undergoing extensive reconstruction, suffering severe personal injury.   The debris was allowed to accumulate because of the carelessness of Custom, which was in charge of construction occurring in the parking lot, or of its agents or employees.   As a result of her injuries, Crowley made workers' compensation payments to Ms. Sanders and seeks reimbursement from the plaintiff's recovery.

Custom has filed the present motion, seeking summary judgment on count four of the complaint and the intervening complaint and arguing that there is no genuine issue of material fact and, as a matter of law, it had no duty to the plaintiff.

“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.)  Sherman v. Ronco, 294 Conn. 548, 553–54 (2010).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․” Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11 (2008).  “Once the moving party has met its burden ․ the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318–19 (2006).

Custom maintains that it had no duty to Ms. Sanders because, while it performed construction work on the premises, it did not do any work in the parking lot, and it had completed all of its work on the reconstruction project prior to the incident.   Moreover, it argues that Hiltbrand was responsible for the parking lot.   Thus, Custom contends that it lacked the requisite possession and control over the parking lot and cannot be liable to Ms. Sanders.   By contrast, Ms. Sanders argues that Custom was the general contractor for all of the construction work occurring on the premises of the dealership and that Hiltbrand was a subcontractor hired by Custom to perform excavation work in the parking lot.

“Generally, one does not owe a duty to entrants unless such person asserts control or possession over the property ․ 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 ․ [T]he question of whether a defendant maintains control over property sufficient to subject him to ․ liability normally is a jury question ․ Where the evidence is such that the minds of fair and reasonable persons could reach ․ different conclusions on the question [of control], then the issue should properly go to the jury for its determination ․ [P]ossession cannot be fairly construed as anything short of the exercise of dominion and control similar to and in substitution for that which ordinarily would be exerted by the owner in possession.”  (Citations omitted;  internal quotation marks omitted.)  Silano v. Cumberland Farms, Inc., 85 Conn.App. 450, 453–54 (2004).

In support of its motion, Custom submits the affidavit of Eric Wertz, its project manager, who avers that Custom neither agreed to perform any work in the parking lot nor hired anyone to do so.   Custom also submits the deposition of Robert Hiltbrand, in which he states that he was the owner of Hiltbrand, and that Ken Crowley, the president of Crowley, had hired Hiltbrand to perform construction work, including paving and storm drain work in the parking lot.   Mr. Hiltbrand also stated that he was present in the parking lot on the day of the incident, and that, to his knowledge, no employee of Custom was present.

In opposition to the motion for summary judgment, Ms. Sanders submits the deposition testimony of Mr. Crowley that he hired Custom to be the general contractor for the project because he did not want to bear the responsibility of serving as general contractor.   He denied hiring Hiltbrand or any other contractor.   He also stated that Hiltbrand was responsible for the work in the parking lot.

This evidence demonstrates that there are issues of material fact as to whether Custom served as the general contractor for the project and, therefore, might be liable to Ms. Sanders even though it had not directly caused the accumulation of debris causing her to fall.   Thus, Custom is not entitled to summary judgment simply on the basis that it did no work on the parking lot and did not hire Hiltbrand.

Even if the jury were to find that Custom was the general contractor, however, does the law of tort liability for general contractors save it from liability?   While a general contractor is generally “not liable for the torts of its independent subcontractors,” it may nevertheless be liable if it “reserve[d] in [its] contract general control over the [subcontractor] or [its] servants, or over the manner of doing the work, or if [it was] under a legal duty to see that the work [was] properly performed ․” (Internal quotation marks omitted.)  Archambault v. Soneco Northeastern, Inc., 287 Conn. 20, 53–54 (2008).

As to this issue, Ms. Sanders contends that Custom agreed by way of a contract with Crowley to assume responsibility for the safety of persons during the reconstruction project, including Ms. Sanders.   Ms. Sanders also argues that an employee of Custom performed acts during the pendency of the construction project that could be construed as Custom's actual exercise of possession and control over the parking lot.

Custom, in reply to Ms. Sanders' objection, contends that Archambault supports its entitlement to summary judgment.   Custom argues that the general contractor there had nothing more than a general duty to ensure safety, which the Supreme Court found insufficient to sustain a claim for negligence against it.   Custom contends that, even if it were the general contractor in the present case, it had no more than the same general duty to ensure safety that the Archambault court rejected.

Assuming Custom was the general contractor, and hired Hiltbrand, the evidence shows that Custom could be liable for work performed by Hiltbrand in the parking lot.   In a contract with Crowley signed by Custom's vice president and submitted by Ms. Sanders in support of her objection to the motion for summary judgment, Custom assumed the responsibility for taking “reasonable precautions for the safety of” employees on the job and other persons who might be affected by the work.¹  Custom has produced no evidence that Hiltbrand had assumed that responsibility for work done in the parking lot by way of a contract with Custom or otherwise.   Custom's argument to the contrary notwithstanding, this court finds the existence and terms of the contract between the general contractor and subcontractor in Archambault to have been the determinative factor in the Supreme Court's holding that the latter not the former was responsible for injuries suffered by a worker on the job site due to failures in safety precautions.  Archambault v. Soneco/Northeastern, Inc., supra, 287 Conn. 54–55.   See also Piwko v. Lacava Construction Co., Superior Court, judicial district of Hartford, Docket No. CV 08 5018235 (Nov. 30, 2009).

Furthermore, there is an issue of fact as to whether Custom actually exercised control over or oversaw the safety of work occurring in the parking lot.   The deposition testimony of Mr. Wertz was that no Custom employee supervised any construction occurring in the parking lot.   Mr. Crowley, however, testified that Mr. Wertz had a trailer on the site, regularly inspected the premises and ensured that debris found thereon was removed.

A reasonable juror could find, based on the contract between Crowley and Custom and Mr. Crowley's testimony regarding Mr. Wertz's activities, that Custom is at least partially liable for Ms. Sanders' injuries.   Accordingly, because there are genuine disputes as to issues of fact material to the question of Custom's liability to Ms. Sanders, the motion for summary judgment as to the fourth counts of the complaint and the intervening complaint is DENIED.

BY THE COURT

Joseph M. Shortall

Judge Trial Referee

FOOTNOTES

FN1. The court is satisfied that, for purposes of this motion, the contract was sufficiently authenticated by the deposition testimony of Mr. Crowley.   No contrary evidence was supplied by Custom.   At trial, of course, it would be up to the jury to determine which contract governed the relationship between Crowley and Custom..  FN1. The court is satisfied that, for purposes of this motion, the contract was sufficiently authenticated by the deposition testimony of Mr. Crowley.   No contrary evidence was supplied by Custom.   At trial, of course, it would be up to the jury to determine which contract governed the relationship between Crowley and Custom.

Shortall, Joseph M., J.T.R.