Ismael Torres v. Bashar Betros (2012)

MEMORANDUM OF DECISION

The plaintiff brings this action in negligence to recover damages allegedly sustained by Ismael Torres while on property owned by the defendant, Bashar Betros, located at 39 Doral Lane in Southington.   In his one-count amended complaint, dated March 14, 2012,¹ the plaintiff alleges that on March 17, 2010, he was on said property as a business invitee of the defendant to perform general maintenance and/or repairs, including but not limited to gutter cleaning, and that while attempting to clean the gutters of the property the plaintiff fell off the roof and onto the ground sustaining injuries.   Torres alleges in his complaint that the injuries were caused by the negligence of the defendant.²

On December 3, 2010, the defendant filed an answer and special defense to the plaintiff's original complaint denying negligence and asserting in his special defense that any injuries sustained by the plaintiff were caused by his own negligence.   On January 24, 2012, the defendant filed a motion for summary judgment and the plaintiff filed an objection thereto.   The matter was heard at short calendar on March 19, 2012.

DISCUSSION

“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.”  (Internal quotation marks omitted.)  Provencher v. Enfield, 284 Conn. 772, 790–91, 936 A.2d 625 (2007).  “[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 ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).   Moreover, the “court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)   Provencher v. Enfield, supra, 791.

“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.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

The defendant seeks the entry of a summary judgment on the grounds that as a matter of law, the defendant owed no duty to Torres because a homeowner does not owe a duty to an independent contractor for negligent performance of work done by the contractor.   In particular, the defendant argues that the undisputed material facts show that the defendant was not present at the time of the plaintiff's fall, that the defendant did not direct or oversee the plaintiff's work, that the plaintiff did not ask for any safety device and that Torres was injured due to his own negligent performance of his own work.

In support of his motion, the defendant submitted the following evidence:  (1) excerpts from the plaintiff's deposition transcript, dated July 29, 2011;  (2) an affidavit from the defendant, dated December 16, 2011;  and (3) a copy of a police report, dated March 17, 2010.

In response, the plaintiff claims that this case falls within two exceptions to the general rule that a homeowner is not liable for the negligence of his independent contractor.   In particular, the plaintiff contends that the defendant retained supervision or control over the plaintiff's work and that the work was intrinsically dangerous.   Torres claims the defendant supplied him with the ladder he used to get on the roof and directed him to use the ladder in order to climb onto the roof to remove leaves from the gutter.   With regard to whether the work was intrinsically dangerous, Torres further claims that a special danger arose from his climbing on top of the roof when he had no proper training, experience or safety equipment.   In support of his objection, the plaintiff submitted the following evidence:  (1) a copy of the plaintiff's deposition transcript, dated July 29, 2011;  and (2) an affidavit from the plaintiff, dated March 13, 2012.

“The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury.”   (Internal quotation marks omitted.)  Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 593, 945 A.2d 388 (2008) (Pelletier III ).  “Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner.”   (Internal quotation marks omitted.)  Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984).   Nevertheless, “[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, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003).  “[O]nly if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand.”  (Internal quotation marks omitted.)  Pelletier III, supra, 593.

“[A]n 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 ․ The general rule is that where the owner of premises employs an independent contractor to perform work on them, the contractor, and not the owner, is liable for any losses resulting from negligence in the performance of the work ․ The basic premise is that the assumption and exercise of control over the offending area is deemed to be in the independent contractor.”  (Citation omitted;  internal quotation marks omitted.)  Mozeleski v. Thomas, supra, 76 Conn.App. 291;  see also Darling v. Burrone Bros., Inc., 162 Conn. 187, 195–96, 292 A.2d 912 (1972).  “The explanation for [this rule] most commonly given is that, since the [owner] has no power of control over the manner in which the work is to be done by the contractor, it is to be regarded as the contractor's own enterprise, and [the contractor], rather than the [owner], is the proper party to be charged with the responsibility of preventing the risk, and bearing and distributing it.”  (Internal quotation marks omitted.)  Mozeleski v. Thomas, supra, 291–92;  see also Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 517–18, 825 A.2d 72 (2003) (Pelletier II ), quoting 2 Restatement (Second), Torts § 409, comment (b), p. 370 (1965).

“Exceptions to that rule arise when the [owner] retains control of the premises or supervises the work of the contractor, or where the work to be performed by the contractor is inherently dangerous, or where the [owner] has a nondelegable duty to take safety precautions imposed by statute or regulation ․” (Internal quotation marks omitted.)  Mozeleski v. Thomas, supra, 76 Conn.App. 292;  see also Pelletier II, supra, 264 Conn. 518.

In this case the parties allege opposing underlying facts that are necessary for the court to make a determination of whether or not the plaintiff was in fact an “independent contractor.”   The defendant, by way of affidavit, claims the plaintiff was in control of the means and methods of his own work and further attests that he did not represent himself at any time as the plaintiff's supervisor nor did he direct the plaintiff as to how to perform the work.   The defendant further claims that the evidence shows that he was not present when the plaintiff set up the ladder, did not give instructions or assist in setting up the ladder and was not asked for any safety equipment in connection with the work.   In support of his position the defendant points out that the plaintiff stated in his deposition that the defendant was not present on the property at the time of his fall, did not tell him where to place the ladder or how to set up the ladder and did not tell him how to clean the gutters.

However, in support of his objection to the motion Torres submitted an affidavit wherein he attests that he “was told by [the defendant] to climb on top of his home's roof in order to clean the leaves from the gutters.”   This claim raises a genuine issue of material fact as to whether the defendant had exercised sufficient control over the work of the plaintiff.

For the foregoing reasons this court finds that a genuine issue of material fact exists and it should therefore be submitted to a jury for determination.   Accordingly, the defendant's Motion for Summary Judgment is denied.

BY THE COURT

Denise D. Markle, Judge

FOOTNOTES

FN1. The plaintiff originally filed a one-count complaint on November 5, 2010.   The plaintiff filed a request to amend his complaint “for the purpose of conforming the facts to the alleged negligence allegations.”   The defendant has not objected to the plaintiff's request to amend.   Therefore, the amended complaint, dated March 14, 2012, is the operative complaint.   See Practice Book § 10–60(a)..  FN1. The plaintiff originally filed a one-count complaint on November 5, 2010.   The plaintiff filed a request to amend his complaint “for the purpose of conforming the facts to the alleged negligence allegations.”   The defendant has not objected to the plaintiff's request to amend.   Therefore, the amended complaint, dated March 14, 2012, is the operative complaint.   See Practice Book § 10–60(a).

FN2. In particular, the plaintiff alleges that the defendant:  (1) knew or should have known that the work performed by the plaintiff posed a serious risk of injury yet failed to remedy the condition;  (2) failed to oversee and monitor the work performed by the plaintiff;  (3) failed to properly inspect the work done by the plaintiff;  (4) allowed the plaintiff to attempt to clean the gutters in an unsafe manner;  (5) allowed the plaintiff to perform the work without insuring that the plaintiff was appropriately trained and competent;  and (6) failed to warn the plaintiff of the dangerous and unsafe condition despite the fact that he knew or should have known of the serious risk of injury to persons cleaning the gutters from the edge of the roof..  FN2. In particular, the plaintiff alleges that the defendant:  (1) knew or should have known that the work performed by the plaintiff posed a serious risk of injury yet failed to remedy the condition;  (2) failed to oversee and monitor the work performed by the plaintiff;  (3) failed to properly inspect the work done by the plaintiff;  (4) allowed the plaintiff to attempt to clean the gutters in an unsafe manner;  (5) allowed the plaintiff to perform the work without insuring that the plaintiff was appropriately trained and competent;  and (6) failed to warn the plaintiff of the dangerous and unsafe condition despite the fact that he knew or should have known of the serious risk of injury to persons cleaning the gutters from the edge of the roof.

Markle, Denise D., J.