Carlos Pillco v. LLC (2013)

MEMORANDUM OF DECISION RE MOTION FOR ENTRY OF NONSUIT (# 133)

STATEMENT OF CASE

The defendant, LVI Environmental Service, Inc. (LVI), moves for a judgment of nonsuit pursuant to Practice Book § 17–31 against the cross claimant, Turner Construction, on grounds that Turner Construction's revised complaint filed on February 13, 2013, did not contain proper revisions so as to comport with LVI's request to revise filed November 21, 2012.   LVI states that its sixth request to revise requested a revision of count two, paragraph 8, which read:  “LVI was in control of the situation causing injury to Carlos Pillco to the exclusion of Turner.”   The requested revision was that Turner make a more complete and particular statement regarding LVI's control of the situation or delete the allegation.   LVI claims that the subject paragraph in Turner's revised complaint does not comply with the requested revision, and that the new allegation simply restates Turner's theory of LVI's negligence.   LVI argues that there is no further explanation of what “situation” LVI was alleged to control.   LVI argues that the “situation” could refer to the dumpster, the debris chute, or the entire work site and that this allegation does not clarify of what “situation” Turner alleges over which LVI was in exclusive control.   Turner did not file an objection to the motion for nonsuit.   The motion for nonsuit was scheduled on this court's April 22, 2013, nonarguable calendar.

DISCUSSION

“Practice Book § 10–35 permits a party to file a Request to Revise to obtain revisions to an adversary's pleadings.   Revisions may be sought to obtain a more complete or particular statement of the allegations.  Grimes v. Housing Authority, 242 Conn. 236, 255 n.11, 698 A.2d 302 (1997).   Whether a more particular statement is required is within the trial court's discretion.   Cervino v. Coratti, 131 Conn. 518, 520, 41 A.2d 95 (1945).   The test is not whether the pleading discloses all that the adversary desires to know in aid of its own cause;  rather, the test is whether the pleadings disclose the material facts which constitute the cause of action ․ Its purpose is not to supply a party with all that might be available in exercise of the discovery procedures:  The purpose of the request to revise is to secure a statement of the material facts upon which the plead[ing] is based ․ Kileen v. Motors Corp., 36 Conn.Sup. 347, 348, 421 A.2d 874 (1981) ․

“The complaint must contain ․ ‘a statement of the facts constituting the cause of action ․’ Conn. Gen.Stat. § 52–91.   It must contain ․ a plain and concise statement of the material facts on which the pleader relies, but not of the evidence by which they are to be proved ․ Practice Book § 10–1.   Some facts are necessary;  bare conclusions do not suffice.   See Stephenson's Conn. Civil Procedure (3rd Ed., 1997) at p. 133 citing Research Associates, Inc. v. New Haven Redevelopment Agency, 157 Conn. 587, 248 A.2d 927 (1968).”   Guberman v. Camillo, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 07 5006202, (May 27, 2008, Kochiss–Frankel, J.).

“There are four separate elements ․ to maintain a common-law action for indemnity.   These elements are:  (1) that the other tortfeasor was negligent;  (2) that [that] negligence, rather than [the cross claim plaintiff's], was the direct, immediate cause of the accident and injuries;  (3) that [the other tortfeasor] was in control of the situation to the exclusion of [the cross claim plaintiff];  and (4) that [the cross claim plaintiff] did not know of such negligence, had no reason to anticipate it, and could reasonably rely on the other tortfeasor not to be negligent.”  (Emphasis added.)  Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 698, 694 A.2d 788 (1997).  “It is plausible to define exclusive control over the situation as exclusive control over the dangerous condition that gives rise to the incident.”  Id., 706.

The cross claimant, Turner Construction, alleges in count two, paragraph 8, of the revised complaint, that “LVI was in control of the situation causing injury to Carlos Pillco to the exclusion of Turner in that it failed to follow established trash chute procedures by failing to provide a means to close and secure (lock) access to rubbish removal chutes, and to coordinate their work with that of other trades and failed to ensure that all chute access was properly secured (locked) before sending the plaintiff into the covered dumpster to clear the debris chute of obstruction as required by LVI's obligations.”   Turner's Cross Complaint for Indemnification.

Paragraph 3 of the Cross Claim Complaint for indemnification alleges that the plaintiff was injured when “he was in the process of working in the LVI dumpster below a debris chute when an employee of Champion, who was working on the 10th floor of the structure, pushed a 50 pound piece of concrete into the chute which fell 90 feet and struck the plaintiff in the midsection.”  Id.

Here, the court concludes that Turner's revised complaint alleges sufficient material facts to establish that LVI had exclusive control of the situation which caused injury to the plaintiff.   The dangerous condition which allegedly led to the plaintiff's injuries was the alleged unsecured/unlocked rubbish removal chutes and the covered dumpster.   According to the allegations of the complaint, LVI's obligations required it to follow established trash chute procedures and it failed to follow those procedures by failing to provide a means to close and secure (lock) access to rubbish removal chutes, and to coordinate their work with that of other trades and to ensure that all chute access was properly secured (locked) before sending the plaintiff into the covered dumpster to clear the debris chute of obstruction.

As this court previously noted the purpose of a request to revise “is not to supply a party with all that might be available in exercise of the discovery procedures:  The purpose of the request to revise is to secure a statement of the material facts upon which the plead[ing] is based ․” Guberman v. Camillo, supra.   Here, Turner sufficiently describes the situation over which LVI had control which led to the plaintiff's injuries.

CONCLUSION

Accordingly, for the foregoing reasons, LVI's Motion for Entry of Nonsuit is DENIED.

Wilson, J.

Wilson, Robin L., J.