David Ritch v. LTD (2012)

MEMORANDUM OF DECISION

FACTS

The Plaintiff, David Ritch, brings this action to recover for injuries sustained as a result of an incident of January 14, 2008.

On that date, at approximately 12 noon, the Plaintiff was walking at or near the southern side of Route 1 between Fairfield Avenue and Cedar Street, in Norwalk.   While he was walking, he stepped on a manhole cover, which flipped, causing the Plaintiff to fall, and sustain injury to his left knee and low back.

At the time of the incident, David Ritch was employed by Materials Testing Labs as a field technician and supervisor.   His job was to test concrete, to be used in the installation of transmission lines.

On the day of the accident, David Ritch drove to the job site, and parked his car off the road, on Connecticut Avenue.   He spoke with some workers, and walked to retrieve paperwork from concrete trucks which were waiting to make deliveries.   As he was walking back to his car he stepped on the manhole cover.

This action was commenced against five Defendants, Hall Investments, Ltd., Deering Construction, Inc., Bond Brothers, Inc., the City of Norwalk, and the State of Connecticut.

Count three of the operative complaint is directed against Bond Brothers, Inc., the general contractor, hired by the Connecticut Light & Power Company to install the underground transmission lines.

The Plaintiff alleges that Bond Brothers, Inc., “owned, possessed, leased, maintained and/or controlled” the area where he fell.

The same allegation is repeated against the other defendants in this action.

Bond Brothers has moved for summary judgment.   It claims that it was not in possession and/or control of the area where the manhole cover was located.   It further maintains that its work area is defined by an orange fence, and that the manhole cover is located outside the fence.

The Plaintiff insists that the area near the manhole cover is used by Bond Brothers and its employees as a parking area, and that it is used by Bond Brothers as a staging area.

The Plaintiff further maintains, with the assistance of expert testimony, that the job site included the area where the manhole cover is located, and that the manhole cover was within the construction zone controlled by the general contractor, Bond Brothers, Inc.

SUMMARY JUDGMENT—STANDARD OF REVIEW

A trial court may approximately render summary judgment when documentary and other evidence demonstrate that no genuine issue of material fact remains between the parties, and the moving party is entitled to judgment as a matter of law.  Daily v. New Britain Machine Co., 200 Conn. 562, 568 (1986);  Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11 (1983).   A material fact has been defined as one which will make a difference in the result.   United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379 (1969).

Connecticut Practice Book Section 17–49 provides that summary judgment “shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law.”

The party moving for summary judgment has the burden of showing the absence as to any genuine issue of all material facts.  Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105 (1994).   The burden is on the moving party to show quite clearly what the law is, and that any real doubt as to the existence of a material fact has been excluded.  Fogarty v. Rashaw, 193 Conn. 442, 445 (1984);  Yanow v. Teal Industries, Inc., 178 Conn. 262, 268 (1979).

A party opposing a motion for 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.  Connell v. Colwell, 214 Conn. 242, 246 (1990).

In deciding a motion for summary judgment, a trial court must view the evidence in the light most favorable to the nonmoving party.  Town Bank & Trust Co. v. Benson, 176 Conn. 304, 309 (1978).   The test to be applied is whether the party seeking summary judgment would be entitled to a directed verdict on the same facts.  Batik v. Seymour, 186 Conn. 632, 647 (1982).

GENUINE ISSUE OF FACT REMAINS AS TO CONTROL OF THE PROPERTY

In its motion for summary judgment, the Defendant, Bond Brothers, Inc., claims that it was not in control of the property on which the Plaintiff fell, and that it is entitled to judgment, as a matter of law.

There is no question that the Plaintiff, David Ritch, was a business invitee on January 14, 2008, and that he was acting in the scope of his employment with Materials Testing Labs. A possessor of land has a duty to an invitee to reasonably inspect the premises in order to render them reasonably safe.   The person in possession or control must warn an invitee of dangers that the invitee could not reasonably be expected to discover.  Considine v. Waterbury, 279 Conn. 859 (2006);  Morin v. Bell Court Condominium Assn., Inc., 223 Conn. 323, 327 (1992).

The determination as to whether a duty exists, is ordinarily a question of law for the court.  Petrillo v. Kalman, 215 Conn. 377, 382 (1990);  Shore v. Stonington, 187 Conn. 147, 151 (1984).   However, under some circumstances, such as those presented here, the question of the existence of a duty involves a mixed question of law and fact.  Raboin v. North America Industries, Inc., 57 Conn.App. 535, 538 (2000).

In this case, the existence of a duty depends upon whether a particular defendant was in possession and control of the premises where the allegedly dangerous and defective condition existed, and injury to the Plaintiff occurred.

The word “control” has no legal or technical meaning.   It refers to the power or authority to manage, superintend, direct or oversee.  Panaroni v. Johnson, 158 Conn. 92, 98 (1969);  Doty v. Shawmut Bank, 58 Conn.App. 427, 432 (2000).   Liability for injuries caused by defective premises does not depend upon who holds legal title to the property.  Farlow v. Andrews Corp., 154 Conn. 220, 225 (1966).   The dispositive issue in determining the existence of a duty is whether there is a right to possession or control of the property.  LaFlamme v. Dallessio, 261 Conn. 247, 252 (2002).

Only where the evidence is such, that only one conclusion as to the identity of the person exercising control of the premises is possible, is a pure question of law presented to the court.  Darling v. Burrone Bros. Inc., 162 Conn. 187, 192 (1972);  Mozeleski v. Thomas, 76 Conn.App. 287, 294 (2003).

Based upon an examination of the affidavits submitted, and other evidence, it cannot be said, as a matter of law, that Bond Brothers, Inc. was not in control of the area where the Plaintiff fell.

The Plaintiff claims that the area in the vicinity of the manhole cover is used as a staging area, and that vehicles of employees working on the job site area routinely parked in the area.

In his affidavit, the Plaintiff maintains that employees of Bond Brothers, Inc., the general contractor, as well as subcontractors, used the area where the manhole cover is located.   He also states that materials and supplies used in the underground cable job, were stored in the area.

The Plaintiff maintains that the area in which he fell is part of the job site, notwithstanding the fact that it is located outside an orange fence which Bond Brothers, Inc. contends designates the limits of the job site area under its control.

The Plaintiff, David Ritch, reports that employees of Bond Brothers, Inc. informed him that the manhole cover was replaced following the January 14, 2008 incident.   If the manhole cover was replaced at the direction of the general contractor, that fact cannot be used to show that the area was defective.   However, any replacement or repair of the manhole cover at the direction of the general contractor would be admissible on the issue of control of the premises.  Williams v. Milner Hotels Co., 130 Conn. 507, 509–10 (1944).

In an affidavit submitted by its project manager, Alan Watson, Jr., Bond Brothers, Inc. claims that it exercised no control over the area where the manhole cover is located, and that the area is not part of the “job site” which is under its control.

The Plaintiff counters with an affidavit signed by Dr. Carl J. Abraham, a professional engineer who has been identified as an expert witness.   Dr. Abraham, siting regulations of the Occupational Safety and Health Administration (OSHA), maintains that the “job site” based on the facts presented, has been extended to encompass the area where the manhole cover is located, and the Plaintiff, David Ritch, sustained injuries.

The evidence submitted by the Plaintiff is sufficient to raise a genuine issue of material fact, as to the control of the area surrounding the manhole cover by Bond Brothers, Inc. on the day of this incident, January 14, 2008.

The issue of control represents a mixed question of law and fact, which cannot be determined by way of summary judgment.

The motion for summary judgment filed by the Defendant, and Brothers, Inc., is DENIED.

RADCLIFFE, J.

Radcliffe, Dale W., J.