Debra Murning v. Warranton Mill Assoc. et al. (2011)

RULING ON DEFENDANTS' MOTION FOR ARTICULATION OF DECISION (# 153)

By motion dated March 30, 2011, defendants Warrenton Mills Association and REI Property and Asset Management, Inc. (“the defendants”), requested an articulation of this court's denial of their motion for summary judgment.   The motion for articulation is granted.   The defendants' motion for summary judgment was denied for the reasons stated in the court's ruling of March 14, 2011, as elaborated upon, infra.

FACTUAL BACKGROUND

The defendant Warrenton Mill Association (“Warrenton”) owns premises managed by defendant REI Property & Asset Management, Inc. (“REI”).  Both defendants moved for summary judgment on their cross claim against Stephen Adamski d/b/a SM Lawn Care (“Adamski”).   The defendants argued that Adamski is contractually bound to indemnify them and has a common-law duty to indemnify them for the personal injury claims brought by the plaintiff.   The defendants argue that on November 9, 2007, the plaintiff fell on Warrenton's premises due to stepping in a catch basin that was covered with leaves.   The defendants claim that Adamski failed to remove the leaves in accordance with a landscaping contract.

The defendants seek summary judgment in their favor based on the landscaping contract that compels Adamski to indemnify the defendants for claims “arising out of, or in connection with, or resulting from Contractor's [Adamski's] performance of its duties and obligations under this Agreement ․” The defendants argue that, pursuant to the quoted contractual language, Adamski must be held liable for the plaintiff's injuries because:  Adamski did not remove leaves from the catch basin prior to the date on which the plaintiff fell, and it was the presence of those leaves that caused the plaintiff to fall.

In his memorandum opposing the motion for summary judgment Adamski argued that there are genuine issues of material fact that require the denial of the defendants' motion.   Adamski points out that on November 7, 2007, he worked on Warrenton's premises and the site was clean when he left.   He also pointed out that the plaintiff was uncertain as to what caused her to fall.

The motion for summary judgment was heard on March 14, 2011 and was denied on that same date.   The court ruled as follows:  “The motion for summary judgment having been heard, it is hereby found that genuine issues as to material facts exist.   There exist issues of fact as to what cross-claim defendant Adamski, or did not do, relative to the premises at issue.   In addition, there exist issues of fact as to the proximate cause of the plaintiff's alleged injuries;  and there exist issues of fact as to cross-claim Adamski's level of control over the premises at issue.   The motion is therefore ordered DENIED.  PRACTICE BOOK §§ 17–44 through 17–51, Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989), Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).”

The defendants' motion for articulation states that the ruling “does not address the reasoning or basis for the denial of this claim [the defendants' motion for summary judgment].”

DISCUSSION

Summary judgment is appropriate if the pleadings, affidavits, and other proof submitted show that there are no genuine issues as to 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, the trial court must view the evidence in the light most favorable to the nonmoving party ․ The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.”  (Internal quotation marks omitted.)  Boyne v. Glastonbury, 110 Conn.App. 591, 595–96, 955 A.2d 646, cert. denied, 289 Conn. 947, 959 A.2d 1011 (2008).  “[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 ․”

“The facts at issue [in the context of summary judgment] are those alleged in the pleadings.”  (Internal quotation marks omitted.)  Arnone v. Connecticut Light & Power Co., 90 Conn.App. 188, 193–94, 878 A.2d 347 (2005).  “A material fact is a fact which will make a difference in the result of the case ․ [I]ssue-finding, rather than issue determination, is the key to the procedure ․ [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment ․ [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist.”   (Internal quotation marks omitted);  Keller v. Beckenstein, 117 Conn.App. 550, 557–58, 979 A.2d 1055 (2009).

Although the defendants acknowledge in their memorandum that the evidence must be viewed “in the light most favorable to the nonmoving party,” the defendants do not adhere to this standard.   Instead, they view the evidence in the light most favorable to themselves and ignore evidence to the contrary.   It is not at all clear that the plaintiff's injury arose “out of, or in connection with, or resulting from, contractors' performance of his duties and obligations ․” Adamski testified at his deposition that his understanding of what work was done at Warrenton's premises on November 7, 2007, was based on his review of notes in a document that said, “blow all leaves off of turfs and bed with a fall fertilizing application.”   Adamski Deposition at 68.   He made clear that those notes may not be all-encompassing as to what was done, or what was needed to be done, at Warrenton's premises.  “It—based on what is stated here, it might not be fully everything.”  Id.¹ Emphasis added.   He was asked, further, if he vacuumed leaves on that day and he replied, in part, as follows:  “if it wasn't vacuumed and we were allowed to blow the leaves into the woods, that's what was happening.   The site was clean, but it didn't warrant us to bring in the vacuum truck at the time.”   Adamski Deposition at 70.   Emphasis added.

Thus, viewing the evidence in the light most favorable to the nonmoving party, one must conclude that Adamski did all that he was obligated to do on November 7, 2007.   If “[t]he site was clean,” as he testified, than any leaves that appeared in the catch basin after he left cannot be his responsibility since, the parties agree, he was only required to remove leaves on a weekly basis.

The evidence presented demonstrates that the plaintiff is equivocal on the issue of what caused her to fall.   Although she testified that there were leaves “covering” the catch basin, she also testified, “If they weren't there, I might have had more of a chance to see it.”   Plaintiff's Deposition at 99.   Emphasis added.   She was then asked, “Are you saying that you fell because of the leaves or because of the depression in the cement near the drain.”   She replied, “I can't answer that.”  Id. Emphasis added.   Thus, genuine issues of material fact remain as to the proximate cause of the plaintiff's injuries.

For all of the foregoing reasons, the court denied the defendants' motion for summary judgment on March 14, 2011.

BY THE COURT,

John A. Danaher III

FOOTNOTES

FN1. Adamski testified, further, that the notes (on which the defendants so heavily rely) did not necessarily detail all work that was done at the site.  “No, it doesn't show you how many catch basins I literally cleaned.   It doesn't show you how many square feet of parking lot that I literally cleaned.   It's not that specific.”   Adamski Deposition at 72..  FN1. Adamski testified, further, that the notes (on which the defendants so heavily rely) did not necessarily detail all work that was done at the site.  “No, it doesn't show you how many catch basins I literally cleaned.   It doesn't show you how many square feet of parking lot that I literally cleaned.   It's not that specific.”   Adamski Deposition at 72.

Danaher, John A., J.