Piotr Filipek v. LLC (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (187.00)

I. Background

This civil action arises out of a fall resulting in injuries to the plaintiff Piotr Filipek while he was working on a ladder in connection with the construction of a new residence located at 2 Birch Lane, Greenwich, Connecticut owned by Tom and Laura Feda. The construction project was overseen by the defendant Samaha Builders, LLC which was either the general contractor or construction manager.   The defendant S.J. Thaler Construction, LLC (Thaler) was the siding and trim work subcontractor.   Thaler subcontracted that work to Paul's Building and Construction Corp. (“Paul's”) which in turn subcontracted the work to I.J. Construction, Inc. (“I.J.”).  Filipek was employed by I.J. on March 27, 2008 when while working on the siding and trim at the Fedas' residence, the step ladder he was using tipped backward causing him to fall about thirteen feet.

Filipek brought this action against Samaha, Thaler, and Paul's.   Thaler brought an apportionment complaint against the Fedas, and subsequently Filipek instituted a direct claim against the Fedas.   Both the Thaler apportionment complaint and the Filipek direct complaint allege that Filipek's fall was due wholly or in part, to the Fedas' negligence.

The Fedas now move for summary judgment in their favor on both the Thaler apportionment complaint and the Filipek direct complaint.   Filipek did not file any opposition to the Fedas' motion, and through his attorney in open court consented to the granting of the Fedas' motion.   Thaler opposes the motion, and argument was heard on November 21, 2011.

II. Scope of Review

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.”  Appleton v. Board of Education, 254 Conn. 205, 209 (2000).   Summary judgment “is appropriate only if a fair and reasonable person could conclude only one way.”  Miller v. United Technologies Corp., 233 Conn. 732, 751 (1985).  “The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to judgment as a matter of law.”  Appleton v. Board of Education, supra, 254 Conn. 209.  “A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Internal quotation marks omitted.)   United Oil Co. v. Urban Development Commission, 158 Conn. 364, 379 (1969).   The trial court, in the context of summary judgment motion, may not decide issues of material fact, but only determine whether such genuine issues exist.  Nolan v. Borkowski, 206 Conn. 495, 500 (1988).

“Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact [question] ․ 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.   It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.”  Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554 (1998).  “[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.”  Appleton v. Board of Education, supra, 254 Conn. 209.

III. Discussion

The undisputed material facts are that Filipek was employed by I.J. and was performing trim and siding work at the Fedas' residence, work which had been initially contracted to Thaler, then to Paul's and finally to I.J. There is no dispute that the Fedas did not provide any tools or equipment, including the step ladder, in connection with the trim and siding work.   Thaler admits it received no tools or equipments from the Fedas and did not consult with them about the job.   In affidavits the Fedas state they were not on the site when the accident occurred, and gave no directions as to the method to be used to accomplish any of the siding or trim work.   In another affidavit, Dave Samaha, the principal of the defendant Samaha, states that the Fedas did not supervise or direct any of the subcontractors on the job site and specifically did not direct or supervise Filipek's work.   These affidavits are not disputed.

The Fedas contend that the Thaler apportionment complaint against them must fail because they owed no duty toward the plaintiff Filipek.   It is well recognized that a claim of negligence requires three elements:  a duty of care owed by the defendant to the plaintiff, breach of that duty, and damages.   The issue of whether a duty of care existed is a question of law and therefore is appropriately decided in the context of a summary judgment motion.  Pion v. Southern New England Telephone Co., 44 Conn.App. 657, 660 (1997).   The Connecticut Supreme Court has recognized as a general rule that the employer is not liable for the negligence of its independent contractor when the employer lacks control of the manner in which the independent contractor did the work.   Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 517–18 (2003).   There may be exceptions to this general rule when an employer retains control of or supervises the work.  Mozelski v. Thomas, 76 App. 287, 292, cert. denied 264 Conn. 904 (2003).

In opposition to the motion for summary judgment, Thaler contends that there is an unresolved question of material fact as to whether the Fedas exercised control over the work being done on their residential construction project.   Thaler points to deposition testimony of Samaha that places both Fedas at the construction site on a fairly regular basis and indicates Mr. Feda bought material for the job.   This testimony does not create a fact dispute about the issue of control over how the work was accomplished.   Samaha testified that Mr. Feda arranged through a lumber yard to pay for, and deliver lumber to the site;  that Mr. Feda visited the site after work and assisted in clean-up, and Mrs. Feda often visited the site with her children.

Thaler has submitted no affidavits in opposing this motion.   Not a single individual who worked on this project, including the plaintiff or anyone from I.J., Paul's or Thaler itself has given any evidence that one or both of the Fedas had anything to do with controlling, supervising or directing the work of siding and trim at the job site.

Thaler points to its own responses to the Fedas' requests for admission wherein Thaler states it received no instructions directly from the Fedas, but rather from Samaha but was unable “to form a reply” concerning whether the direction given to subcontractors it hired was coming indirectly from the Fedas, through Samaha.   Thaler Responses to Requests for Admissions Nos. 3 and 4. This bootstrapping effort to create an issue of fact about control fails.   The admissions do not present any evidence of control, but merely conjecture.   Indeed, Thaler's admission concedes it has no information about the issue direction or control.  “No one from S.J. Thaler Construction, LLC was present for any conversations that may have taken place between the Fedas and any other subcontractors working on the job.”  Id., No. 4. This point was conceded at oral argument of the motion.

The mere fact that an owner of premises observes “the progress of work” on a job site “is not sufficient to establish control.”  Mozeleski v. Thomas, supra, 76 Conn.App. 293.   The court determines that there are no material facts at issue, and as a matter of law the Fedas are entitled to summary judgment dismissing the Thaler apportionment complaint, and the Filipek direct complaint against them.

SO ORDERED.

TAGGART D. ADAMS

JUDGE TRIAL REFEREE

Adams, Taggart D., J.T.R.