Jeffrey Feltman v. 64 LLC (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 135)

I

FACTS

On April 24, 2009, the plaintiff, Jeffrey Feltman, filed a three-count negligence complaint against the defendants, 64 Addison Road Associates, LLC (Addison Road), Pinney Construction Corporation (Pinney Corp.), and Norcon Group, LLC (Norcon) based on injuries sustained as a result of a defective premises.¹  The plaintiff alleges the following facts.   Addison Road entered into an agreement with Pinney Corp. for Pinney Corp. to act as the general contractor in the renovation of the premises located at 64 Addison Road, Glastonbury, Connecticut (the premises).   Thereafter, Pinney Corp. solicited Norcon to provide an estimate for sub-contract drywall services at the premises and Norcon engaged the plaintiff to estimate the drywall job.   According to the plaintiff, he was injured when he entered a bathroom on the premises and the floor gave way, causing him to fall to the floor beneath and sustain injuries.   The plaintiff alleges that all three defendants owned, controlled, possessed, managed, and/or maintained the premises.   The plaintiff also alleges that Norcon and Pinney Corp. failed to provide a safe work environment.

On January 5, 2011, Norcon filed the present motion for summary judgment (# 135) along with a supporting memorandum of law and evidentiary support.²  Norcon moves for summary judgment on count three arguing that there is no genuine issue of material fact regarding its lack of possession and control of the premises.   On February 15, 2011, Addison Road filed a memorandum of law objecting to the motion for summary judgment along with evidentiary support.   Addison Road argues that summary judgment should be denied because possession and control of the premises are not dispositive of whether Norcon breached certain duties owed to the plaintiff.   Norcon filed a reply on March 3, 2011, arguing that it did not owe the plaintiff a duty of care because the plaintiff was an independent contractor at the time he entered the premises.   The plaintiff did not file an objection to the motion for summary judgment.   The matter was heard on the March 7, 2011 short calendar.

Additional facts will be presented as necessary.   The plaintiff stated at argument that he does not oppose this motion.

II

DISCUSSIONASummary Judgment Standard

“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).  “[T]he ‘genuine issue’ aspect of summary judgment 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 ․ A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Citation omitted;  internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).

“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 ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, 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.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

“[T]he status of a party as a co-defendant [does not] preclude it from resisting a motion for summary judgment filed by a co-defendant ․ On the other hand, the fact that a defendant is a party does not necessarily mean that the defendant has a right to oppose a co-defendant's motion for summary judgment ․ The question should really be resolved by the facts of a particular case as to whether a codefendant has standing in this situation ․ The Practice Book limits opposition to a motion for summary judgment to those parties who are adverse to the movant ․ To have standing to challenge [a co-defendant's] motion for summary judgment ․ [the adverse party] must have a direct interest in the motion and the motion must have the potential to adversely affect their interests in the present action ․ An adverse party ordinarily can show that it has standing when it makes a colorable claim of a direct injury it has suffered or is likely to suffer, in an individual or representative capacity.”  (Citations omitted;  internal quotation marks omitted.)   Guercia v. Connecticut Post, LLP, Superior Court, judicial district of New Haven, Docket No. CV 03 0474056 (December 6, 2004, Zoarski, J.T.R.).³

B

Analysis

Norcon argues that it is entitled to summary judgment because there is no genuine issue of material fact regarding its lack of possession and control of the premises.   Addison Road objects arguing that summary judgment is not proper because Norcon owed additional duties to the plaintiff, in that the plaintiff has alleged that Norcon breached its duty to provide a safe work site, ensure safe working conditions, oversee the work site adequately, supervise its subcontractors adequately, supervise its independent contractors adequately, and to adequately inspect the work site.   According to Addison Road, possession and control of the premises is not dispositive of whether Norcon breached these additional duties owed to the plaintiff.   In response, Norcon argues that it has no liability to the plaintiff because the plaintiff was an independent contractor and Norcon did not have possession or control over the mechanism of the plaintiffs' injury, i.e. the premises.

“In a negligence action, the plaintiff must meet all of the essential elements of the tort in order to prevail.   These elements are:  duty;  breach of that duty;  causation;  and actual injury ․ Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action.   The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual.”  (Citation omitted;  internal quotation marks omitted.)   LaFlamme v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63 (2002).  “[T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law ․ If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant.”  (Citation omitted;  internal quotation marks omitted.)  Mozeleski v. Thomas, 76 Conn.App. 287, 290–91, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003).

“In order to assess the duty owed to the plaintiff, it is first necessary to establish the point from which that duty flows ․ Liability for injuries caused by defective premises ․ does not depend on who holds legal title, but rather on who has possession and control of the property.”  (Citations omitted.)  LaFlamme v. Dallessio, supra, 261 Conn. 251.   Moreover, “although ordinarily a general contractor is not responsible for the torts of its independent subcontractors, one of the exceptions to that rule of nonliability applies where the general contractor retains or assumes control of the work involved ․ Where the evidence on the question as to who had control of the area or instrumentality causing the injury is such that the mind of a fair and reasonable man could reach but one conclusion as to the identity of the person exercising control, the question is one for the court, but, if honest and reasonable men could fairly reach different conclusions on the question, the issue should properly go to the jury ․ In addition, the contractor's control need not be exclusive;  it is sufficient if it be shared with another.”   (Citations omitted;  internal quotation marks omitted.)  Van Nesse v. Tomaszewski, 265 Conn. 627, 631, 829 A.2d 836 (2003).   Thus, the dispositive issue in deciding whether a duty exists is whether Norcon had any right to possession and control of the premises.

“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.”  (Citations omitted;  internal quotation marks omitted.)   Doty v. Shawmut Bank, 58 Conn.App. 427, 432–33, 755 A.2d 219 (2000).   “[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.”  (Internal quotation marks omitted.)  Silano v. Cumberland Farms, Inc., 85 Conn.App. 450, 454, 857 A.2d 439 (2004).

In support of its motion, Norcon submits the affidavit of Michael Hryb, the principal and managing member of Addison Road, and excerpts from the depositions of the plaintiff, Martin Kenney, the principal of Norcon, and Craig Pinney, the principal of Pinney Corp. This evidence supports the following facts.   The premises, a vacant factory building with structural problems, was owned by Addison Road. Kenney and Pinney were working together to develop the premises.   Norcon is a company which subcontracted for work throughout Connecticut.   Norcon was not the owner the premises and did not have responsibility for upkeep of the building by contract or otherwise.   The plaintiff estimated construction jobs or projects for Norcon and prepared bids for contracts as an independent contractor.⁴  Some of the maintenance of the premises was subcontracted to Pinney Corp.⁵ Kenney authorized Pinney Corp. to allow potential subcontractors to access the premises provided that they were accompanied by someone from Pinney Corp. Pinney brought various subcontractors to the premises to submit bids.   Norcon was one of the subcontractors that Pinney was seeking bids from.   Pinney requested a quote from Norcon.   The plaintiff met with Dan Sullivan, who the plaintiff understood to be acting as Addison Road's agent, and Pinney on the morning of December 5, 2007, to discuss a drywall bid.   At that time, the plaintiff received permission from Sullivan and Pinney to enter the premises and perform an inspection.   The plaintiff was told by Sullivan that the doors were open, he could go into the building at any time and the building was secure and safe.⁶  Thereafter, on December 5, 2007, the plaintiff did enter the premises to obtain the dimensions and other information needed to prepare a bid.   Hyrb, the principal of Norcon, never visited the premises and Norcon did not have a contract with Addison Road or Pinney.   Hyrb did not give the plaintiff any information about the premises because he had never seen it and knew nothing about it.   Norcon did not have the authority to grant the plaintiff permission to enter the premises and did not do so.   Norcon did not have knowledge of the condition of the premises or the power to remedy, repair or change any conditions which existed at the time of the plaintiff's injury.

In opposition to Norcon's motion for summary judgment, Addison Road submits the plaintiff's deposition transcript.   Addison Road directs the court's attention to the following facts.   Norcon paid the plaintiff a weekly salary of $2200;  the plaintiff performed a multitude of duties for Norcon, including estimating and selling projects, managing, ordering materials and handing out payroll checks;  the plaintiff was handed a fax from the secretary at Norcon requesting a quote at the premises;  the plaintiff discussed the request for the quote with Hyrb;  the plaintiff was instructed by Hyrb to estimate the job;  the plaintiff went to the premises on behalf of Norcon to estimate the cost of installing drywall;  after the plaintiff finished taking measurements, he headed towards the bathroom to relieve himself despite having reason to believe that the bathroom was not functional;  and as the plaintiff stepped into the bathroom, the floor gave way, causing him to fall to the mechanical room below.

Although it appears that Addison Road is attempting to argue that summary judgment is not proper because there is a genuine issue concerning whether the plaintiff is an independent contractor or an employee of Norcon, Addison Road fails to provide an affidavit or any other evidence to refute Norcon's evidence, and the plaintiff's assertion, that the plaintiff is an independent contractor.   Moreover, Addison Road does not provide any legal argument or citations to case law in support of such a finding.   Additionally, Addison Road does not provide any evidence which demonstrates the existence of a dispute over Norcon's possession, control or ownership of the premises.

As such, Norcon has satisfied its burden of showing that there is no genuine issue of material fact regarding its lack of possession or ownership of the premises, and thus its lack of duty to the plaintiff.   Accordingly, the motion for summary judgment is granted.

Brian T. Fischer, J.

FOOTNOTES

FN1. Counts one and two are directed at Addison Road and Pinney Corp., respectively.   Count three is directed at Norcon..  FN1. Counts one and two are directed at Addison Road and Pinney Corp., respectively.   Count three is directed at Norcon.

FN2. On January 3, 2011, the court, Silbert, J., granted Norcon's motion for permission to file summary judgment pursuant to Practice Book § 17–44..  FN2. On January 3, 2011, the court, Silbert, J., granted Norcon's motion for permission to file summary judgment pursuant to Practice Book § 17–44.

FN3. Norcon does not challenge Addison Road's standing to object to the motion for summary judgment..  FN3. Norcon does not challenge Addison Road's standing to object to the motion for summary judgment.

FN4. “An independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work.”  (Internal quotation marks omitted.)  Mozeleski v. Thomas, supra, 76 Conn.App. 291.   In his deposition, the plaintiff testified that he worked for Norcon as an independent contractor, that he received a weekly paycheck from Norcon but did not have an employment contract, and that he occasionally used a free desk at Norcon's office.   The plaintiff also testified that he did not work from Norcon's office everyday but rather was on his own and made his own appointments..  FN4. “An independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work.”  (Internal quotation marks omitted.)  Mozeleski v. Thomas, supra, 76 Conn.App. 291.   In his deposition, the plaintiff testified that he worked for Norcon as an independent contractor, that he received a weekly paycheck from Norcon but did not have an employment contract, and that he occasionally used a free desk at Norcon's office.   The plaintiff also testified that he did not work from Norcon's office everyday but rather was on his own and made his own appointments.

FN5. Kenney testified in his deposition that Pinney Corp. was instructed to identify problem areas on the floors and to put up yellow tape and signs.   Kenney also testified that his company, “Lexington Partners, essentially managed [the premises], and I use that word very loosely.   It was an abandoned building.”.  FN5. Kenney testified in his deposition that Pinney Corp. was instructed to identify problem areas on the floors and to put up yellow tape and signs.   Kenney also testified that his company, “Lexington Partners, essentially managed [the premises], and I use that word very loosely.   It was an abandoned building.”

FN6. The plaintiff indicated in his deposition that “secure and safe” were not the exact words used..  FN6. The plaintiff indicated in his deposition that “secure and safe” were not the exact words used.

Fischer, Brian T., J.