Ronald Visini et al. v. Home Depot U.S.A., Inc. et al. (2011)

MEMORANDUM OF DECISION

The issue before the court is whether to grant defendant Johnny's Sweeping Services' motion for summary judgment as to counts two and five of the plaintiff's amended complaint and on co-defendant USM, Inc.'s cross complaint on the ground that there is no genuine issue of material fact in that Johnny's Sweeping Services did not have a contractual or other duty to maintain the area where the plaintiff was injured.

I

FACTS

On March 29, 2010, the plaintiff, Ronald Visini, filed a six-count amended complaint against the defendants, Home Depot U.S.A., Inc. (Home Depot), USM Inc. (USM),¹ and Gary Newman d/b/a Johnny's Sweeping Services (Johnny's).   The plaintiff alleges that on February 4, 2008, he was shopping at Home Depot.   After exiting the store and while still on the Home Depot property, the plaintiff slipped and fell on ice, sustaining a broken hip.   Counts two and five of the amended complaint, alleging negligence and loss of consortium, respectively, are directed at Johnny's.   The amended complaint alleges that Johnny's was hired to keep a portion of the exterior grounds of the Home Depot free of ice and snow, that Johnny's owed the plaintiff a duty to ensure that the grounds were free of ice and snow and it breached this duty resulting in the plaintiff's injuries.

On March 29, 2010, USM filed a cross complaint against Johnny's seeking contractual and common law indemnification.   According to USM, Home Depot contracted with USM to perform maintenance services, including snow and ice removal from Home Depot's premises.   USM contracted with Johnny's to perform snow and ice removal services at a variety of locations, including the subject Home Depot.   USM alleges that if the plaintiff sustained injuries and damages as alleged, then the injuries and losses were caused by the negligence and carelessness of Johnny's.   Therefore, count one seeks contractual indemnification pursuant to the provisions contained in the contract between USM and Johnny's.   Count two seeks common law indemnification and alleges that Johnny's was in exclusive control of the snow and ice removal activities, that USM did not have reason to know of or anticipate Johnny's negligence and could reasonably rely upon Johnny's not to be negligent, and any negligence of USM was passive or secondary to that of Johnny's.

On December 22, 2010, Johnny's filed the present motion for summary judgment (# 160) on counts two and five of the plaintiff's amended complaint and on USM's cross complaint on the ground that there is no genuine issue of material fact in that Johnny's did not have a contractual or other duty to maintain the area where the plaintiff was injured.   On February 7, 2011, the plaintiff filed an objection to the motion for summary judgment.   Likewise, on February 14, 2011, Home Depot and USM jointly filed an objection to Johnny's motion for summary judgment.

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).

B

Analysis

Johnny's argues that it is entitled to summary judgment as to counts two and five of the plaintiff's amended complaint because it had no control over and did not have a duty to maintain the area where the plaintiff fell.   Johnny's also argues that because USM's cross claim is based upon a theory of contractual or common law indemnity and Johnny's had no control or duty with regard to the area in question, summary judgment should enter in Johnny's favor on the cross complaint as well.   Johnny's contends that the contract between itself and USM specifically precluded Johnny's from clearing any sidewalk associated with the garden center.   According to Johnny's, the subject sidewalk is adjacent to the garden center and Johnny's was instructed by the contract not to maintain this area.   Therefore, Johnny's argues that it had no contractual duty to maintain the area where the plaintiff fell and cannot be held liable to the plaintiff, nor is it contractually liable to USM as it did not breach any contractual duty.   Moreover, Johnny's argues that because it had no duty to maintain the subject sidewalk and had nothing to do with the sidewalk maintenance, it could not have had exclusive control over the activity and therefore, it cannot be held liable to USM under a theory of common law indemnification.

In support of its argument, Johnny's submits the affidavit of Newman,² an authenticated copy of the contract between itself and USM, and excerpts from the uncertified deposition transcript of the plaintiff.³  Johnny's directs the courts attention to Newman's affidavit attesting that Johnny's never maintained the sidewalk where the plaintiff allegedly fell and that Johnny's never cleaned the sidewalks at the Home Depot, but only maintained the parking lot in accordance with the contract.   The plaintiff also directs the court to the provision at issue in the contract between USM and Johnny's which states:  “This Amendment sets forth the specifications ․ that detail the snow plowing, snow removal, ice removal, and de-icing services for Home Depot retail stores ․ The services will include the removal of snow and ice from all driving aisles, sidewalk areas (EXCEPT THOSE SIDEWALKS DIRECTLY IN FRONT OF THE BUILDING RUNNING FROM THE FRONT DOORS ACROSS THE FRONT OF THE BUILDING AND ANY AREAS ASSOCIATED WITH THE GARDEN CENTER ).”  (Emphasis in original.)

The plaintiff objects arguing that there is a genuine issue of material fact regarding the scope of Johnny's contractual obligation.   The plaintiff contends that the contract provision is ambiguous because it states that Johnny's is responsible for cleaning all sidewalk areas, with an exception for areas associated with the garden center, but the word “area” is undefined.   Moreover, the plaintiff directs the court's attention to the deposition testimony of Home Depot's store manager, John Moniz, in which Moniz testifies that Johnny's had previously removed snow and ice from the sidewalk at issue on several occasions.⁴

Likewise, in addition to reiterating the plaintiff's arguments, Home Depot and USM contend that the parenthetical exception in the contract appears to exclude Johnny's from maintaining the actual garden center but not the sidewalk adjacent to the garden center.

After a review of all the relevant facts, the court finds that there is a genuine issue of material fact concerning whether Johnny's had an obligation to maintain the sidewalk area adjacent to the garden center where the plaintiff allegedly fell.   Accordingly, the motion for summary judgment is denied.

BY THE COURT,

Roche, J.

FOOTNOTES

FN1. USM is also known as United States Maintenance, Inc..  FN1. USM is also known as United States Maintenance, Inc.

FN2. Gary Newman is the owner and principal of Johnny's.   His affidavit authenticates the contract between Johnny's and USM..  FN2. Gary Newman is the owner and principal of Johnny's.   His affidavit authenticates the contract between Johnny's and USM.

FN3. Where uncertified deposition transcripts are submitted without objection in support of or in opposition to a motion for summary judgment, the court may, in its discretion, choose to consider or exclude them.   Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).   In the present case, neither party has objected to the submission of uncertified deposition transcripts and the court will exercise its discretion to consider them..  FN3. Where uncertified deposition transcripts are submitted without objection in support of or in opposition to a motion for summary judgment, the court may, in its discretion, choose to consider or exclude them.   Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).   In the present case, neither party has objected to the submission of uncertified deposition transcripts and the court will exercise its discretion to consider them.

FN4. The plaintiff submits excerpts from an unauthenticated deposition transcript..  FN4. The plaintiff submits excerpts from an unauthenticated deposition transcript.

Roche, Vincent E., J.