III v. State of Connecticut Department of Transportation et al. (2013)

MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT (# 132)

FACTS

On November 21, 2011, the plaintiff, Martin Fagan III, filed a four-count complaint against the state of Connecticut's department of transportation (department), the city of Meriden (Meriden), Black & Boucher, LLC (Black & Boucher), and Tilcon Connecticut, Inc. (Tilcon).  Count one is a claim against the department pursuant to an alleged violation of General Statutes § 13a–144;  count two is a claim against Meriden pursuant to an alleged violation of General Statutes § 13a–149;  count three is a claim of negligence as against Black & Boucher;  and count four is a claim of negligence as against Tilcon, which was later withdrawn on June 21, 2012 (# 131).   The plaintiff subsequently filed three amended complaints.   The first amended complaint was filed on November 15, 2012 (# 140); ¹  the plaintiffs second amended complaint was filed on January 31, 2013, adding a claim for loss of consortium as against Black & Boucher (# 152);  and the plaintiff's third amended complaint was filed on February 28, 2013 (# 156).   The plaintiff was, however, only granted leave to amend its November 21, 2011 complaint, and thus, the first amended complaint (# 140) is the operative complaint.   While the present motion was filed by Black & Boucher with regard to the plaintiff's November 21, 2011 complaint, the plaintiff's allegations of negligence as against Black & Boucher are the same in his first amended complaint.   The plaintiff has alleged the following facts.

On June 29, 2011, the plaintiff was operating a motorcycle, traveling northbound on North Broad Street on the Berlin Turnpike in Meriden.   On that day, the road was in the process of being milled—a process that produced an elevated manhole cover.   When the plaintiff came into contact with the elevated manhole cover, he lost control of his vehicle and fell onto the road.   He sustained serious and permanent injuries as a result, and alleges that these injuries were caused by Black & Boucher's negligence and carelessness in milling the road.   Specifically, the plaintiff alleges the following facts in paragraph ten of count three:  “The plaintiff's resulting injuries and losses were caused by the negligence and carelessness of ․ Black & Boucher ․ in one or more of the following ways:

a.  In that it failed to maintain ․ [the] road in a reasonably safe condition;

b. In that it failed to take adequate measures to maintain, repair and/or fix the dangerous and defective condition of said ․ road and the ․ elevated manhole;

c. In that it failed to adequately warn motorists, including the plaintiff, of dangerous and defective condition of ․ [the] road and/or the ․ elevated manhole;

d. In that although it knew or should have known of the dangerous and defective condition of said ․ road and/or the ․ elevated manhole, it failed to remedy said dangerous condition;  and/or

e.  In that it created and/or maintained said ․ road in a dangerous and defective condition.

In a March 15, 2012 answer (# 120), Black & Boucher denies all of the plaintiff's substantive allegations, and asserts, in the form of a special defense, that the plaintiff's own negligence was the proximate cause of his injuries.   Black & Boucher subsequently filed a motion for summary judgment (# 132) on July 6, 2012, with regard to count three.   In its motion, Black & Boucher argues that the plaintiff has alleged a claim sounding in premises liability and not ordinary negligence, and asserts that it is necessary to find that a party had “control” over the area in which the plaintiff was injured in order to hold that party liable under a premises liability theory.   This defendant moves for summary judgment on the ground that it did not have “control” of the road where the plaintiff was injured because its work on the road was completed and accepted prior to the plaintiff's accident on June 29, 2011, and thus, there are no genuine issues of material fact regarding its liability.   Black & Boucher has submitted the following evidence in support of its motion:  (1) the June 26, 2012 affidavit of Timothy Boucher, a principal of Black & Boucher (Def.'s Ex. A);  and (2) the state department of transportation's responses to Black & Boucher's request for admissions (Def.'s Ex. B).

In his August 24, 2012 objection to Black & Boucher's motion (# 134), the plaintiff argues that he has alleged ordinary negligence in count three of his complaint, and not a claim for premises liability.   The plaintiff also argues that Black & Boucher owed a duty to motorists to mill the road properly and warn them of dangerous conditions, and that the raised manhole and failure to warn constitute a breach of this duty.   The plaintiff states that Black & Boucher owed the plaintiff a duty as a matter of law, and whether the defendant violated that duty is a question of fact that is to be decided by a jury.   The plaintiff also asserts that, even if the cause of action in count three is grounded in premises liability, the defendant had control over the road during the milling process, and created the allegedly defective condition—the raised manhole cover.   He asserts, thus, that there is a question of fact regarding whether Black & Boucher created a defective condition that caused the plaintiff's injuries, and has submitted the following evidence in support of his position:  (1) the June 29, 2011 police accident report (Pl.'s August 24, 2012 Ex. A);  and (2) an excerpt from the plaintiff's initial complaint, focusing on count three—the plaintiff's claim of negligence as against Black & Boucher (Pl.'s August 24, 2012 Ex. B).

Black & Boucher subsequently filed three supplemental memoranda in support (# 136, # 139, # 148), reiterating its position that there are no questions of fact regarding whether it was negligent in the manner in which it milled the road, and asserting that the plaintiff has not submitted sufficient, admissible evidence regarding what caused the plaintiff's accident.   It also argues that the fact that the road was in a milled condition does not render it defective, and the plaintiff has failed to offer any evidence that would indicate that the mill work was defective.   Additionally, Black & Boucher directs the court's attention to a motion to dismiss that was filed by the state on March 5, 2012 (# 114).   Specifically, Black & Boucher requests that the court consider affidavits that the state submitted with its March 5, 2012 motion to dismiss—affidavits in which employees of the state attest that the area where the plaintiff was injured was marked as a construction zone, and that agents for the state were performing work on the area where the accident occurred on the day that the plaintiff was injured.   Black & Boucher has submitted these affidavits, along with additional evidence, in support of its motion:  (1) the February 2, 2012 affidavit of Antonio Garofalo (Def.'s Ex. C);  (2) the February 2, 2012 affidavit of Daniel Falvey (Def.'s Ex. D);  (3) the February 2, 2012 affidavit of Stephen Petrello (Def.'s Ex. E);  (4) the February 2, 2012 affidavit of Frank Carey (Def.'s Ex. F);  (5) the February 2, 2012 affidavit of Thomas Perrone (Def.'s Ex. G);  (6) excerpts from Black & Boucher's January 7, 2013 deposition of Frank Carey (Def.'s Ex. H);  (7) excerpts from Black & Boucher's January 7, 2013 deposition of Thomas Perrone (Def.'s Ex. I);  and (8) excerpts from the January 10, 2013 deposition of Glen Felton, the police officer who responded to the June 29, 2011 accident (Def.'s Ex. J).

On January 24, 2013, the plaintiff filed a supplemental memorandum in opposition to Black & Boucher's motion (# 149), arguing that the plaintiff's evidence demonstrates that Black & Boucher was negligent in how it milled the roadway, and this negligence was the proximate cause of the plaintiff's injuries.   According to the plaintiff, the surface of the milled road was uneven, which is indicative of a defect, and the plaintiff, in an attempt to avoid the raised manhole cover, had to operate his motorcycle on this uneven surface.   In support of this proposition, the plaintiff submitted excerpts from the January 10, 2013 deposition of officer Glen Felton (Pl.'s Ex. A, January 24, 2013), and a certified copy of the June 29, 2011 police report (Pl.'s Ex. B, January 24, 2013).   The plaintiff has also submitted photographs that were taken by the Meriden police department (Pl.'s Ex. C & D, January 24, 2013), which depict gouge marks to the right of the manhole cover that the plaintiff asserts are attributable to the plaintiff's motorcycle.   According to the plaintiff, the photographs show that the milled roadway surface was uneven, and had various levels and layers of asphalt.   The plaintiff has also submitted the January 11, 2013 affidavit of highway and municipal engineer Richard M. Balgowa (Pl.'s Ex. E, January 24, 2013), and the January 10, 2013 affidavit of mechanical engineer and accident reconstructionist Michael Cei (Pl.'s Ex. F, January 24, 2013).

The court heard argument on this matter at the March 4, 2013 short calendar.

DISCUSSION

“Summary judgment is a method of resolving litigation when 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.”  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “[A] party opposing a summary judgment motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ․ [T]ypically [d]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred.”   (Internal quotation marks omitted.)  Mott v. Wal–Mart Stores East, LP, 139 Conn.App. 618, 625–26, 57 A.3d 391 (2012).  “An important exception exists, however, to the general rule that a party opposing summary judgment must provide evidentiary support for its opposition, and that exception has been articulated in our jurisprudence with less frequency than has the general rule.   On a motion by [the] defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint ․ [I]t is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial ․ Accordingly, [w]hen 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.”  (Internal quotation marks omitted.)  Id., 626–27.

“[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ․ [A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party ․ [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).

In the present case, Black & Boucher argues that the plaintiff's claim sounds in premises liability, and thus, there are no genuine issues of material fact regarding its liability because it lacked the requisite control over the road on the date that the plaintiff was injured.   As previously stated, the plaintiff asserts that he has alleged ordinary negligence as against this defendant, and that Black & Boucher breached its duty to mill the road in a manner that would not create a defect such as an elevated manhole, and warn motorists of dangerous conditions.

The following issues will be discussed in seriatim.   First, whether the negligence alleged in count three is founded on a theory of premises liability, or ordinary negligence;  and second, whether there are any genuine issues of material fact regarding Black & Boucher's liability, which will be assessed with regard to the applicable claim as determined in part I.

I

WHETHER COUNT THREE OF THE PLAINTIFF'S CLAIM SOUNDS IN ORDINARY NEGLIGENCE OR NEGLIGENCE BASED UPON A THEORY OF PREMISES LIABILITY

“[T]he interpretation of pleadings is always a question of law for the court ․ Whenever [the] language [of the pleadings] fails to define clearly the issues in dispute, the court will put upon it such reasonable construction as will give effect to the pleadings in conformity with the general theory which it was intended to follow, and do substantial justice between the parties.”  (Internal quotation marks omitted.)  Sweeney v. Friends of Hammonasset, 140 Conn.App. 40, 46, 58 A.3d. 293 (2013).   The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury ․ [T]he existence of a duty of care is a prerequisite to a finding of negligence ․ The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant [breached] that duty in the particular situation at hand ․ 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.)  Id., 46–47.

“There is also a duty under a theory of premises liability.”  Id., 48.   “The law [of premises liability] is clear that [a] possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe ․ In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover.”  (Internal quotation marks omitted.)  Id. “The touchstone of liability for unsafe premises is control over the area of danger which causes injury ․ Liability for an injury due to defective premises does not depend on title, but on possession and control ․ To establish duty, the plaintiff must [therefore] have evidence of control.”  (Citation omitted;  emphasis added;  internal quotation marks omitted.)   Martinez v. Maratta, Superior Court, judicial district of Waterbury, Docket No. 04 4002015 (June 9, 2006, Gallagher, J.).   Accordingly, the court has found that a claim sounds in ordinary negligence, and not premises liability, where “the plaintiff has not alleged the crucial fact which would create a premises liability case:  possession and control of the property.”  (Emphasis added;  internal quotation marks omitted.)   Rizzo v. Ryder Truck Rental, Inc., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 08 4009231 (May 13, 2009, Fischer, J.);   accord Snyder v. Thomas, Superior Court, Docket No. CV 07 5002030 (January 16, 2009, Pickard, J.) (“[t]he failure to allege possession and control convince[d] [the court] ․ that the plaintiff [wa]s correct in asserting that, as pleaded, this is a simple negligence case”).

In another case in which a claim for negligence was brought against Black & Boucher, the court was presented with facts that are similar to those in the present case, and also had to make a threshold determination regarding whether the plaintiff's negligence count was actually based on a theory of premises liability.   See Brinnier v. Black & Boucher, LLC, Superior Court, judicial district of Waterbury, Docket No. CV 10 6006674 (August 9, 2012, Dooley, J.) [54 Conn. L. Rptr. 493].   In Brinnier, the dispositive issue in determining whether the plaintiff's claim sounded in ordinary negligence or premises liability was whether “[the plaintiff] allege[d] that the defendant exercised control, exclusive or joint, over the roadway at issue.   Such an allegation is necessary to a premises liability claim.”  Id. The court found that because such control was not alleged and the plaintiff asserted that the claim was one of ordinary negligence, that the claim was not based upon a theory of premises liability.  Id. Whether the defendant had control over the roadway was, therefore, not dispositive.  Id.

In Sweeney, in deciding whether a plaintiff's allegation of negligence was more appropriately construed as a premises liability claim, the Appellate Court found that allegations pertaining to defects on the subject premises and a failure to warn the plaintiff of these dangers “[we]re not inconsistent with a duty under a theory of ordinary negligence ․” Sweeney v. Friends of Hammonasset, supra, 140 Conn.App. 48.   The court subsequently acknowledged, however, that because the gravamen of that plaintiff's complaint pertained to the dangerous condition of the area in which the plaintiff was injured, that the claim was properly construed as a claim for negligence under a theory of premises liability.  Id., 48–49 (“[a]s th[at] plaintiff's allegations stem [med] from an injury caused by a dangerous condition on the premises, liability is dependent on possession and control of the dangerous premises ․ Accordingly, the court ․ determined that the negligence alleged ․ [wa]s founded on a theory of premises liability rather than general negligence.”   (Citation omitted;  internal quotation marks omitted.)).

In the present case, the plaintiff has alleged the crucial fact that, under Rizzo and Brinnier, creates a premises liability case—possession and control.   In paragraph one of count three, the plaintiff alleges that “one or more of the defendants owned, maintained, possessed and/or controlled the ․ road ․” (Emphasis added.)   Moreover, the gravamen of the plaintiff's complaint is that his injuries stemmed from a dangerous condition on the road—the manner in which the road was milled.   Under Sweeney, this allegation is sufficient to find that the negligence alleged is founded on a theory of premises liability.   Count three is, thus, properly construed as a premises liability claim.

II

WHETHER THERE ARE ANY GENUINE ISSUES OF MATERIAL FACT REGARDING BLACK & BOUCHER'S LIABILITY UNDER A THEORY OF PREMISES LIABILITY

As previously stated, “the standard of care in any premises liability action is defined generally by law as the duty to keep [the] premises in a reasonably safe condition” (internal quotation marks omitted) DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 115 n.3, 49 A.3d 951 (2012);  and our Supreme Court has made it clear that “the dispositive issue in deciding whether a duty exists is whether the [defendant] ․ ha[d] any right to possession and control of the property.”  (Emphasis added.)  LaFlamme v. Dallessio, 261 Conn. 247, 252, 802 A.2d 63 (2002).  “The word control has no legal or technical meaning distinct from that given in its popular acceptation ․ and refers to the power or authority to manage, superintend, direct or oversee ․ [T]he question of whether a defendant maintains control over property sufficient to subject him to ․ liability normally is a jury question ․ Where the evidence is such that the minds of fair and reasonable persons could reach ․ different conclusions on the question [of control], then the issue should properly go to the jury for its determination ․ [I]n order to prevail ․ on the theory of premises liability, the plaintiff [i]s required to plead and to prove that [the defendant] ․ was in possession and control of the premises at the time [the plaintiff was injured] ․” (Citations omitted;  emphasis added;  internal quotation marks omitted.)  Alfano v. Randy's Wooster Street Pizza Shop II, Inc., 90 Conn.App. 766, 773–74, 881 A.2d 379 (2005).

After the defendant's duty is established as based on the element of control, “[t]o hold the defendant liable [under a theory of premises liability] ․ the plaintiff must prove (1) the existence of a defect, (2) that the defendant knew or in the exercise of reasonable care should have known about the defect and (3) that such defect had existed for such a length of time that the [defendant] should, in the exercise of reasonable care, have discovered it in time to remedy it ․ Furthermore, [i]t is within the province of the trier of fact to determine whether a defective condition existed.”  (Citation omitted;  internal quotation marks omitted.)  Palmieri v. Stop & Shop Cos., 103 Conn.App. 121, 123–24, 927 A.2d 371 (2007).

With regard to landlord-tenant law, this court has found that “[l]andlord control of leased premises may be reasonably supported ․ where there is evidence that ․ [the landlord] was granted general access to the [premises] for the purpose of inspection and repair.”  (Internal quotation marks omitted.)   Meyhoefer v. Tatoian, Superior Court, judicial district of Waterbury, Docket No. CV 03 0176971 (July 1, 2004, Matasavage, J.) [37 Conn. L. Rptr. 319].   Moreover, with regard to which party wields control over leased premises, “if the terms of control are not express between the parties, the question of who retains control over a specific part of the property is an issue of fact and a matter of intent that can be determined only in light of all the relevant circumstances.”  LaFlamme v. Dallessio, supra, 261 Conn. 257.   By way of analogy, if a contractor is permitted to access a worksite for inspection and repair, this permissive activity may constitute control for the purpose of imposing liability on a premises liability theory.   This reasoning is consistent with the principle espoused in LaFlamme and Alfano —a defendant may have a duty in situations where he had the right, power, or authority to possess or control the premises, not just in situations where he had actual possession or control of the premises at the time of injury.

This concept was addressed with regard to premises liability law in Brandle v. Waterford, Superior Court, judicial district of New London, Docket No. CV 11 6007040 (August 28, 2012, Martin, J.) [54 Conn. L. Rptr. 602].   In this case, the plaintiff brought suit against a town, a soccer club, and various individuals for injuries that she sustained when she slipped on a grassy area at a park where the soccer club was sponsoring an event.   The soccer club moved for summary judgment, arguing that its motion should be granted as to the plaintiff's negligence claim because the soccer club did not control the area where the plaintiff was injured—the park—and thus, it did not owe the plaintiff a duty of care.   The evidence that was submitted by the parties in Brandle demonstrated that while the defendant town owns and maintains the park, the town granted access to the soccer club to conduct its activities and the soccer club was free from the town's regulation.   The court found that the soccer club's permissive access and authority created a question of fact regarding the soccer club's control over the area where the plaintiff was injured—a question that was not amenable for resolution by way of a motion for summary judgment.   Accordingly, the defendant's motion was denied.

As previously discussed, Black & Boucher was also a defendant in Brinnier, which concerned facts that are similar to those in the present case.   In Brinnier, Black & Boucher filed a motion for summary judgment on the grounds that the work for which it had been hired was completed before the date of the injury, and thus, it had no access, no possessory interest, and no control over the premises where the injury occurred.  Brinnier v. Black & Boucher, LLC, supra, Superior Court, Docket No. CV 106006674.   Thus, Black & Boucher argued, a negligence claim sounding in premises liability could not lie.  “Black & Boucher relie[d] upon the undisputed testimony that the [t]own had inspected and signed off on the work performed by the defendant;  that the entirety of their work for the town was completed to the town's satisfaction;  and that the town thereafter assumed responsibility for the roadway ․ [T]he argument essentially assert[ed] ․ the ‘completed and accepted’ rule for contractor liability.”  Id. Although this rule is discussed in Brinnier within the context of ordinary negligence, the Superior Court has also referenced this rule with regard to cases concerning premises liability.   See, e.g., Bradley v. Highland Park Market of Farmington, LLC, Superior Court, judicial district of Hartford, Docket No. CV 07 5014765 (December 30, 2008, Prescott, J.).   Thus, our courts' commentary concerning this rule is, therefore, instructive.

In Brinnier, with regard to the “completed and accepted rule,” the court stated:  “The Appellate Court [has acknowledged] ․ the ․ erosion of both the rule and the reasons for it [and] ․ concluded that the ‘completed and accepted rule’ is no longer the law of the state.”  (Citation omitted.)   Brinnier v. Black & Boucher, LLC, supra, Superior Court, Docket No. CV 10 6006674;  see generally Minton v. Krish, 34 Conn.App. 361, 642 A.2d 18 (1994).   Traditionally, with regard to the attribution of liability to those in control of the subject premises, “[t]he contractor was shielded from liability upon completion because the owner alone was in control of the entity when the injury occurred ․ ‘By occupying and resuming possession of the work, the owner deprives the contractor of all opportunity to rectify his wrong.’  ․ This [standard] is consistent with the fundamental proposition that one in actual possession and control is chargeable with injuries while in possession and control.”  (Citations omitted;  emphasis added;  internal quotation marks omitted.)  Brinnier v. Black & Boucher, LLC, supra, Superior Court, Docket No. CV 10 6006674.   As previously noted, however, the Appellate Court, in Minton v. Krish, 34 Conn.App. 361, 367, 642 A.2d 18 (1994), stated that this reason for the completed and accepted rule has eroded, and thus, a contractor cannot rely on this rule to avoid liability.  “[T]he Appellate Court in Minton reversed the granting of summary judgment in favor of the defendant as ‘the defendant's liability [wa]s not precluded by the fact that his work had been completed and accepted.   Rather, his liability hinge[d] on foreseeability of injury to the plaintiff.’  “ (Emphasis added.)  Brinnier v. Black & Boucher, LLC, supra, Superior Court, Docket No. CV 10 6006674.   Thus, the defendant's liability hinged on whether “[i]t [wa]s foreseeable that a person, such as the plaintiff, w[ould] traverse a public road and be subject to injury if that road ․ present[ed] a danger ․ as a result of the contractor's negligence.”  Id. This principle is also consistent with LaFlamme and Alfano in that a defendant may have owed a duty even where the defendant lacked actual control of the premises at the time of injury.

Therefore, even if a defendant in a premises liability action did not have actual control over an area at the time of injury, this finding is not determinative with regard to imposing liability;  the foreseeability of danger and the condition of the road are factors that should be considered in determining whether a duty exists and in assessing liability.   The case law indicates that the following standard applies:  “[A]n independent contractor to whom ․ [a] duty is contracted ․ may be liable to ․ [those] who are foreseeably injured as a result of the independent contractor's negligence ․ Such a duty exists regardless of whether the independent contractor is actually present at the premises at the time the injuries occurred as long as the independent contractor's negligence is the direct and proximate cause of the plaintiff's injuries.   See, e.g., Minton v. Krish, 34 Conn.App. 361, 367, 642 A.2d 18 (1994) (rejecting the traditional ‘accepted and completed’ rule which typically absolves an independent contractor of negligence liability once the work is accepted by the premises owner and the independent contractor has left the property).”  (Citation omitted;  internal quotation marks omitted.)   Bradley v. Highland Park Market of Farmington, LLC, supra, Superior Court, Docket No. CV 07 5014765.

In the present case, Black & Boucher asserts that it is not liable because it had no control over the road at the time that the plaintiff was injured.   It asserts that this lack of control absolves it of liability because, with regard to premises liability claims, the existence or exercise of control is dispositive in establishing that Black & Boucher owed a duty to the plaintiff.   The case law indicates, however, that the issue of control is not dispositive in imposing a duty, and thus, is not dispositive as to a party's liability.   Even if Black & Boucher lacked control, it may be charged with owing a duty to the plaintiff if it was foreseeable that the plaintiff could have been injured by a defect that is attributable to Black & Boucher.  (Emphasis added.)   See Brinnier v. Black & Boucher, supra.   As previously stated, whether a defective condition existed at the time of injury is a question of fact.   See Palmieri v. Stop & Shop Cos., supra, 103 Conn.App. 121.

Black & Boucher has submitted a great deal of evidence in support of its proposition that it did not have control over the area where the plaintiff was injured on the day that the plaintiff sustained his injuries.   Black & Boucher asserts that the affidavit of Timothy Boucher (Def.'s Ex. A) and the department's responses to Black & Boucher's requests for admissions (Def.'s Ex. B) demonstrate that Black & Boucher completed its work and vacated the job site two days prior to the plaintiff's accident.   In accordance with Black & Boucher's assertions, Timothy Boucher has attested that Black & Boucher completed its work on June 27, 2011, did not receive any complaints concerning its work, and was not requested to return to the work site to perform repair work.   See generally Def.'s Ex. A. Attached to Timothy Boucher's affidavit is a customer order receipt that was issued by Black & Boucher and signed by Frank Carey, crew leader for the department, and which indicates that June 27, 2011 was the last day that Black & Boucher was present at the work site.   Also included in that exhibit is an invoice that was paid by the department, which Black & Boucher asserts was paid without a request to return to perform repair work.   The department has admitted that Black & Boucher did not perform any work after June 27, 2011, nor was Black & Boucher at the job site after that date.   Def.'s Ex. B ¶¶ 2–3, 8. The department also acknowledged that it did not request the performance of repair work.   Def.'s Ex. B ¶ 9.   Notably, the department also admitted that Black & Boucher did not control any portion of the road after June 27, 2011.   Def.'s Ex. B ¶ 10.

Nevertheless, it is important to remember two things:  (1) proof of actual control is not necessary if Black & Boucher had the right to repair the road, the authority to enter the work site, or permissive access;  and (2) even if Black & Boucher had no right or authority to control the area, this lack of control is not solely determinative of its liability if, as previously stated, Black & Boucher created a defective condition that could cause foreseeable injury to persons such as the plaintiff.

With respect to these two points, Black & Boucher has not provided evidence regarding whether it lacked the right to control the road, or the authority to do so, on the date that the plaintiff sustained his injuries.   While affidavits of state employees indicate that the state was performing work on site and the work site was marked with warning signs on the date that the plaintiff was injured, these facts do not indicate that Black & Boucher had neither the right nor the authority to possess or control the premises.   See Def.'s Ex. C–G. As in Brandle, whether Black & Boucher had permissive access and authority to exercise control over the road on June 29, 2011 is a genuine issue of material fact.

Black & Boucher has also offered excerpts from the deposition of Frank Carey, in which the crew leader testifies that Black & Boucher's work was accepted, and the road was milled to the appropriate depth.   See Def.'s Ex. H 71:8–11, 71:20–25, 72:1–3.   While Black & Boucher asserts that this testimony regarding the depth of the mill work indicates that the road was milled properly and was not in a defective condition on the day of the accident, there is no direct evidence regarding whether the appropriateness of the depth of the mill work is the only factor to be considered in assessing whether a road was milled properly.   At most, the state's admissions indicate that Black & Boucher's work was not rejected, but this lack of rejection does not amount to proof that the road was milled properly and was not in a defective condition that could have caused foreseeable injury to those traveling on the road on June 29, 2011.   This consideration is a genuine issue of material fact, and while Black & Boucher asserts that the plaintiff cannot claim that the area was defective merely because it was in a milled condition, Black & Boucher has not submitted any evidence regarding what constitutes a properly milled condition.   Furthermore, Black & Boucher has placed much emphasis on the fact that the plaintiff has not provided evidence of a defect, but the burden is not on the plaintiff.   The burden is on the movant, Black & Boucher, to provide evidence that the road was not in a defective condition that could cause foreseeable injury, and it has failed to do so.  Mott v. Walmart Stores East LP, supra, 139 Conn. 626–27.

Moreover, although the burden has not shifted to the plaintiff to provide evidence of a defect, the plaintiff has provided an affidavit of a highway engineer who has attested that the plaintiff's accident was caused by incomplete milling of the road, as the milled section of the road was irregular and was not milled in a uniform manner.   Pl.'s Ex. E ¶¶ 11–12.   Additionally, the plaintiff provided an affidavit of an accident reconstructionist who attested that the irregular section of the milled road contributed substantially to the plaintiff's accident.   Pl.'s Ex. F ¶¶ 11–12, 14.

Overall, whether Black & Boucher had control over the road on June 29, 2011, and, moreover, whether the road was milled improperly such that Black & Boucher created a defective condition, are questions of fact that cannot be resolved on summary judgment.   Accordingly, Black & Boucher is not entitled to judgment as a matter of law.

CONCLUSION

For the foregoing reasons, Black & Boucher's motion for summary judgment with regard to count three of the plaintiff's complaint is denied.

Wilson, J.

FOOTNOTES

FN1. On February 1, 2013, the court, Wilson, J., granted the plaintiff leave to amend his complaint in order to cite in the state of Connecticut as a party defendant..  FN1. On February 1, 2013, the court, Wilson, J., granted the plaintiff leave to amend his complaint in order to cite in the state of Connecticut as a party defendant.

Wilson, Robin L., J.