Lis Castillo v. World Gym East of Branford, Inc. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 146)

FACTS

On August 25, 2011, the plaintiff, Lis Castillo, filed a four-count complaint against the defendants, World Gym East of Branford, Inc., Mieka Enterprises, LLC (Mieka), World Gym East, Inc. and Planet Fitness Park, LLC, respectively.¹  On May 30, 2012, World Gym East of Branford, Inc. moved to implead JDL Construction LLC (JDL) as a third-party defendant.   On October 15, 2012, Mieka filed a cross complaint against JDL for common law indemnification.²

This matter arose out of the plaintiff's slip and fall accident on February 11, 2010.   The accident was allegedly caused by slippery and icy conditions in the walkway and parking lot area of 469 East Main Street in Branford, Connecticut (the property).   The third-party plaintiffs allege the following facts.   JDL is a snow removal, sanding and salting company that performed snow removal services at the property.   On the day of the plaintiff's accident, JDL had exclusive control over the snow and ice removal, salting and sanding of the sidewalk, entranceway, walkway and parking lot area where the plaintiff fell.   The third-party plaintiffs seek indemnification from JDL on the ground that the plaintiff's injuries were caused by the active negligence of JDL in that it (1) failed to properly maintain the walkway/parking lot area;  (2) failed to spread adequate sand, salt or other abrasive materials;  (3) failed to remove snow and ice in a timely manner;  and (4) knew or should have known of the dangerous condition but failed to take measures to remedy the condition.

On June 26, 2013, JDL filed the instant motion for summary judgment accompanied by a memorandum in support, a deposition of Gerald Mastrangelo ³ and a lease agreement.   In response, the third-party plaintiffs filed an objection to the motion on July 15, 2013, accompanied by, inter alia, a memorandum in support, Mastrangelo's affidavit, depositions of Joseph Lepre ⁴ and Mastrangelo, and an invoice from JDL for its snow removal services.   JDL filed a reply to the third-party plaintiffs' objection on July 23, 2013.   This matter was heard at the short calendar on July 29, 2013.

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 ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”  (Internal quotation marks omitted.)  Grenier v. Commissioner of Transportation, 306 Conn. 523, 534–35, 51 A.3d 367 (2012).  “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 a judgment as a matter of law ․ and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.”  (Internal quotation marks omitted.)   Anastasia v. General Casualty Co. of Wisconsin, 307 Conn. 706, 711, 59 A.3d 207 (2013), quoting DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116, 49 A.3d 951 (2012).  “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.”  (Internal quotation marks omitted.)  Maltas v. Maltas, 298 Conn. 354, 365, 2 A.3d 902 (2010).  “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.)   Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).

JDL moves for summary judgment on the ground that it is not liable for indemnification because it did not retain exclusive control over the removal of snow and ice where the plaintiff fell.   Specifically, JDL cites to (1) the request for admissions where Mieka admitted that it had the right to remove snow and ice from the area where the plaintiff fell;  (2) Mastrangelo's deposition testimony stating that employees would remove snow and ice from the property if needed;  and (3) Mastrangelo's deposition that the third-party plaintiffs directed JDL to use specific melting materials for snow and ice removal.   The third-party plaintiffs maintain that JDL had exclusive control of the area where the plaintiff fell because they contracted out their exclusive control of the snow and ice removal duty to JDL and did not remove any snow and ice on the property.

JDL argues at the outset that the nondelegable duty doctrine prevents the third-party plaintiffs from contracting out their exclusive control in the right to remove snow and ice on the property because “the owner or occupier of premises owes invitees a nondelegable duty to exercise ordinary care for the safety of such persons.”  (Internal quotation marks omitted.)  Gazo v. Stamford, 255 Conn. 245, 257, 765 A.2d 505 (2001).   Nevertheless, our appellate courts have also “held that the nondelegable duty doctrine means that a party may contract out the performance of a nondelegable duty, but may not contract out his ultimate legal responsibility.”  (Emphasis in original.)  Id., 255.   Thus, while the third-party plaintiffs remain liable for any damages incurred by the plaintiff regardless of any agreement with JDL, the nondelegable duty doctrine does not prohibit the third-party plaintiffs from contracting out its exclusive control of snow and ice removal and seeking indemnification against JDL.

“[I]ndemnity involves a claim for reimbursement in full from one on whom a primary liability is claimed to rest ․ Indemnity shifts the impact of liability from passive joint tortfeasors to active ones.”  (Emphasis in original;  internal quotation marks omitted.)  Pellecchia v. Connecticut Light and Power Co., 139 Conn.App. 767, 771, 57 A.3d 803 (2012), cert. denied, 308 Conn. 911, 61 A.3d 532 (2013).  “[A] party is entitled to indemnification, in the absence of a contract to indemnify, only upon proving that the party against whom indemnification is sought either dishonored a contractual provision or engaged in some tortious conduct ․ [I]f a claim for indemnification is grounded in tort, reimbursement is warranted only upon proof that the injury resulted from the active or primary negligence of the party against whom reimbursement is sought.”  (Citation omitted;  internal quotation marks omitted.)  Burkert v. Petrol Plus of Naugatuck, Inc., 216 Conn. 65, 74, 579 A.2d 26 (1990).   To assert a claim for indemnification, the third-party plaintiffs “must show that:  (1) the party against whom the indemnification is sought was negligent;  (2) that party's active negligence, rather than the defendant's own passive negligence, was the direct, immediate cause of the accident and the resulting injuries and death;  (3) the other party was in control of the situation to the exclusion of the defendant seeking reimbursement;  and (4) the defendant did not know of the other party's negligence, had no reason to anticipate it, and reasonably could rely on the other party not to be negligent.”  Smith v. New Haven, 258 Conn. 56, 66, 779 A.2d 104 (2001).

JDL's motion for summary judgment hinges on the argument that it did not retain exclusive control over the removal of the snow and ice at the property.   Our Supreme Court has defined exclusive control of the situation, for the purpose of a common-law indemnification claim, “as exclusive control over the dangerous condition that gives rise to the accident.”  Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 706, 694 A.2d 788 (1997).   The issue in Skuzinski was whether in the exercise of exclusive control over a sidewalk, a third-party defendant's failure to clear snow in its parking lot, which allegedly caused the plaintiff to walk in the street where he was struck by a truck, constituted exclusive control over the accident.  Id., 706.   In granting the motion to strike, the court held that the situation that gave rise to the plaintiff's accident was the snow and ice in the adjoining public roadway.  Id. Thus, the court concluded that, based on the undisputed allegations, no reasonable juror could find that the third-party defendant had exclusive control over the accident because the plaintiff's injuries were caused by an unrelated party and occurred in an adjoining public roadway.   Id.

In the present case, the situation that led to the plaintiff's fall was the accumulation of snow and ice on the property where the plaintiff fell.   Thus, JDL must have retained exclusive control over the removal of snow and ice at the property in order for the third-party plaintiff's to obtain indemnification from JDL. “Generally, the determination of whether an act is negligent is a matter for the jury ․ as is the question of exclusive control ․ A party's actual knowledge and the reasonableness of his reliance on others are also to be determined by the trier of fact.   Accordingly, the question of whether a party is primarily negligent and thereby precluded from indemnification from another tortfeasor is ordinarily one for the trier of fact.”  (Citations omitted.)  Weintraub v. Richard Dahn, Inc., 188 Conn. 570, 573–74, 452 A.2d 117 (1982);  see also Skuzinski v. Bouchard Fuels, Inc., supra, 240 Conn. 704 (ordinarily, the absence or presence of exclusive control is a question of fact);  Angelone v. Travisano, Superior Court, judicial district of New Britain, Docket No. CV 97 0483599 (August 3, 1999, Robinson, J.) (questions of whether party is primarily negligent and thereby liable for indemnification to another tortfeasor and whether party has exclusive control are for trier of fact).

Unlike Skuzinski, which was a motion to strike solely based on the sufficiency of the allegations, genuine issues of material fact exist in the present case.   JDL argues that it did not retain exclusive control over the removal of snow and ice where the plaintiff fell because (1) the third-party plaintiffs admitted in the request for admissions that Mieka had the right to remove snow and ice from the area where the plaintiff fell;  (2) the third-party plaintiffs stated in the deposition that they would remove snow and ice from the property if needed;  (JDL's Ex. A, p. 32);  and (3) the third-party plaintiffs directed JDL to use specific materials for snow and ice removal.   (JDL's Ex. A, p. 39).   On the other hand, the third-party plaintiffs counter JDL's evidence with an affidavit and deposition testimony that show (1) Mieka entered into an oral agreement with JDL for it to exclusively perform snow and ice removal, as well as abrasion application to the sidewalks of the property and the parking lot where the plaintiff fell;  (Third–Party Pl.s' Ex. D, p. 6);  and (2) besides JDL, there was no one else who had any kind of role in the snow and ice removal duties at the property.  (Third–Party Pl.s' Ex. B, p. 32.)   Moreover, JDL's own response to the third-party plaintiffs' interrogatory admitted that “JDL Construction was and is responsible for snow and ice removal” where it was asked to “[i]dentify the person(s) responsible for the maintenance and inspection of the premises at the time and place where the plaintiff claims to have been injured.”  (Third–Party Pl.s' Ex. C, p. 2.)

JDL attempts to show that it lacked exclusive control of snow and ice removal at the property by citing to the lease agreement between the third-party plaintiffs, which provides, in relevant part:  “The common areas shall at all times be subject to the exclusive control and management of the landlord ․ Landlord shall have the right to operate and maintain the common areas in such a manner as landlord, in its sole discretion, shall determine from time to time ․ Landlord shall have the exclusive right at any and all times to close any portion of the common areas for the purpose of making repairs, changes or additions thereto ․” (JDL's Ex. B, p. 21.)   This agreement, however, only applies to the relationship between the landlord, Mieka, and the tenant, World Gym East of Branford, Inc. It does not foreclose the possibility that Mieka could grant its exclusive control of the common areas to a third party.   In fact, Mieka's exact response to JDL's requests for admissions, dated June 10, 2013, that Mieka had the right to remove snow and ice from, as well as apply sand and salt mixtures to, the area where the plaintiff fell, was:  “Admit, but contracted this task exclusively to JDL Construction.”  (Emphasis added.)   This response does not conclusively establish that Mieka had the right to remove snow and ice in the parking lot because a reasonable juror could certainly find that although it may have had an exclusive right to control based on the lease agreement, it could have contracted that right exclusively to JDL.

JDL also cites to Mastrangelo's deposition testimony in an attempt to show that Mieka exercised control over directing JDL to use certain melting products in removing the snow and ice.   Specifically, Mastrangelo was asked whether he was aware of any special arrangements with JDL to only use ice melt outside of the front entrance of the building.   Mastrangelo's response was:  “The only thing I recall is something with tracking it in.   There was something, and I'm not even sure of what the conversation was.   It wasn't for me, but I know there was something having to do with keeping the carpet or the tile clean inside or something.”  (JDL's Ex. A, p. 39.)   This uncertain response does not definitively demonstrate that the third-party plaintiffs exercised any control in the actual removal of the snow and ice.   Rather, Mastrangelo's response suggests that he does not remember what, if any, specific melting products Mieka required JDL to use.

Finally, JDL cites to Mastrangelo's deposition testimony where he was asked whether anyone from the gym had any shared responsibilities to throw either ice melt or sand in any location when there was snow or ice.   Mastrangelo stated:  “Well, I know we keep a shovel, bucket of sand or ice melt or whatever, and at any time if we are aware of an area that needs to be shoveled or sanded ․ then we would do it.”  (Emphasis added.)  (JDL's Ex. A, p. 32.)   This statement does not purport to show that the third-party plaintiffs actually removed any snow or ice on the day that the plaintiff fell.   Furthermore, the fact that the third-party plaintiffs had a shovel and a bucket of ice melt does not prove that they ever removed any snow or ice on the property.   Indeed, when specifically asked whether anyone else, besides JDL, had any kind of role in the snow and ice removal duties at the property, Mastrangelo replied:  “No.” (Id.) Moreover, the third-party plaintiffs do not necessarily have the right to remove snow and ice merely because they could have exercised control without first obtaining permission from JDL.

“In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 57, 68 A.3d 1162 (2013).   Here, JDL submits only circumstantial evidence that does not, as a matter of law, prove that the third-party plaintiffs ever removed snow and ice from the property.   Moreover, the absence of a formal written contract makes it difficult for the court to determine the exact terms of agreement between the parties, namely, whether the third-party plaintiffs contracted the performance of snow and ice removal at the property exclusively to JDL and to the exclusion of the third-party plaintiffs.   Therefore, the court concludes that JDL has not met its initial burden in showing that it did not exclusively control the removal of snow and ice at the property.

JDL incorrectly asserts that the third-party plaintiffs must prove that JDL exerted exclusive control over the removal of snow and ice at the property.   This would improperly shift the burden of proof onto the nonmoving parties.   See Baldwin v. Curtis, 105 Conn.App. 844, 851, 939 A.2d 1249 (2008).  “When 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.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).   Thus, as the nonmoving parties, the third-party plaintiffs in the present case have no obligation to prove that JDL exerted exclusive control over the removal of snow and ice at the property.

The facts of this case are nearly identical to those in Visini v. Home Depot U.S.A., Inc., Superior Court, judicial district of Litchfield, Docket No. CV 10 6001740 (May 24, 2011, Roche, J.).   In Visini, the plaintiff was alleged to have slipped on snow and ice in the parking lot of a Home Depot.  Id. United States Maintenance, Inc. (USM) allegedly contracted with Johnny's Sweeping Services (Johnny's) to remove snow and ice at the Home Depot in question.   Id. USM filed a cross complaint against Johnny's seeking contractual indemnification and common-law indemnification alleging that Johnny's was in exclusive control of the snow and ice responsibilities.  Id. Subsequently, Johnny's filed a motion for summary judgment as to the plaintiff's complaint and as to USM's cross complaint on the ground that it did not have a common-law duty to maintain the area where the plaintiff was injured.  Id. The court denied Johnny's motion because there were genuine issues of material fact regarding, inter alia, the exclusive control of snow and ice removal based on deposition testimony that Johnny's had previously removed snow and ice from the sidewalk at issue on several occasions.  Id. Likewise, as previously discussed, the evidence submitted by the parties in the present case create issues of fact as to whether JDL had exclusive control over the snow and ice removal at the property.

Accordingly, based on the evidence presented, JDL's motion for summary judgment is denied because genuine issues of material fact remain with respect to whether JDL retained exclusive control of the snow and ice removal at the property where the plaintiff fell.

CONCLUSION

For the foregoing reasons, JDL's motion for summary judgment is denied.

Wilson, J.

FOOTNOTES

FN1. Thereafter, the plaintiff withdrew her complaint against Planet Fitness Park, LLC on January 19, 2012 and against World Gym East, Inc. on March 4, 2013.   Thus, the remaining counts in this action are counts one and two against World Gym East of Branford, Inc. and Mieka Enterprises, LLC, respectively..  FN1. Thereafter, the plaintiff withdrew her complaint against Planet Fitness Park, LLC on January 19, 2012 and against World Gym East, Inc. on March 4, 2013.   Thus, the remaining counts in this action are counts one and two against World Gym East of Branford, Inc. and Mieka Enterprises, LLC, respectively.

FN2. For the sake of clarity, World Gym East of Branford, Inc. and Mieka Enterprises, LLC will, hereafter, be collectively referred to as the third-party plaintiffs in this memorandum..  FN2. For the sake of clarity, World Gym East of Branford, Inc. and Mieka Enterprises, LLC will, hereafter, be collectively referred to as the third-party plaintiffs in this memorandum.

FN3. Mastrangelo is a member of Mieka Enterprises, LLC and majority shareholder of World Gym East of Branford, Inc. (Third–Party Pl.s' Ex. A, ¶ ¶ 3, 6.).  FN3. Mastrangelo is a member of Mieka Enterprises, LLC and majority shareholder of World Gym East of Branford, Inc. (Third–Party Pl.s' Ex. A, ¶ ¶ 3, 6.)

FN4. Lepre is the owner of JDL Construction.  (Third–Party Pl.s' Ex. D, p. 6.).  FN4. Lepre is the owner of JDL Construction.  (Third–Party Pl.s' Ex. D, p. 6.)

Wilson, Robin L., J.