Marc Gelati v. LLC (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 138)

FACTS

On April 20, 2012, the plaintiff, Marc Gelati, filed a complaint against K & A Enterprises, LLC (K & A).   In a single count, the plaintiff alleged the following facts.   K & A was contracted by the city of Meriden, Connecticut (Meriden) to place sewer pipes on Maple Branch Road, which is located within the city.   On September 2, 2011, K & A left construction materials and debris at the base of the front stairs of 2 Maple Branch Road, which was the plaintiff's place of residence.   On this date, the plaintiff struck the debris with his feet, which caused him to fall and sustain injuries.¹  K & A was negligent and careless in that, inter alia, it failed to clear the debris or warn building residents of the presence of the debris.

In response, K & A filed a three-count complaint for apportionment (# 108) on August 30, 2012, in which it alleged that the plaintiff's alleged injuries were directly and proximately caused by the negligence of three entities that K & A alleged were also contracted by Meriden to perform work on sewer and gas lines throughout the city.   Counts one, two, and three of K & A's apportionment complaint were directed toward Green Mountain Pipeline Service, Inc. (Green Mountain),² Heitkamp, Inc. (Heitkamp), and Yankee Gas Company (Yankee Gas), respectively.   K & A's allegations against these entities mirror the plaintiff's original allegations against K & A. On October 11, 2012, subsequent to the filing of K & A's apportionment complaint, the plaintiff filed an amended complaint (# 111) sounding in four counts.   In his amended complaint, the plaintiff reasserted its original claim of negligence against K & A and also alleged claims of negligence against the defendants that were named in K & A's complaint for apportionment.

The motion for summary judgment (# 138) that is presently before the court was filed on March 7, 2013, by Heitkamp.   On November 20, 2012, Heitkamp also filed an answer (# 118) to the plaintiff's October 11, 2012 amended complaint.   In its answer, Heitkamp denies all of the plaintiff's substantive allegations and asserts, by way of a special defense, that the plaintiff's alleged injuries were caused by the plaintiff's own negligence and carelessness.   Heitkamp now moves for summary judgment as to count three of the October 11, 2012 amended complaint and count two of K & A's apportionment complaint—the counts that were directed against it—on the ground that it did not owe a duty of care to the plaintiff, because it was neither in control of the premises where the plaintiff was injured nor was it responsible for, or in possession and control of the debris over which the plaintiff fell.   Heitkamp asserts that there are no genuine issues of material fact that it did not owe a duty of care to the plaintiff, and therefore is not liable for the plaintiff's injuries, and has submitted the following evidence in support of its motion:  (1) the plaintiff's December 13, 2012 responses to Green Mountain's requests for admissions and photographs (Def. Heitkamp's March 7, 2013 Ex. A);  and (2) the March 5, 2013 affidavit of Heitkamp's Director of Safety, Gordon Baldwin (Def. Heitkamp's March 7, 2013 Ex. B).

On March 20, 2013, K & A filed an objection to Heitkamp's motion and an accompanying memorandum in support (# 142).   K & A argues that there are genuine issues of material fact concerning Heitkamp's ownership, control, and possession of the debris over which the plaintiff fell, and thus, summary judgment is inappropriate.   K & A asserts that Heitkamp worked on the pipe project in the same general area in which the debris was left, as several companies were working on the pipe renovation project in Meriden.   K & A also asserts that there is a genuine issue of material fact concerning the exact location and cause of the plaintiff's fall.   To support its objection, K & A filed addenda (# 149, 150) on June 26 and June 27, 2013, in which it reiterates that “genuine issues of material fact exist ․ [because] ․ [Heitkamp] w[as] working in the area and proximity of where the plaintiff claims to have been injured.”   K & A also asserts that while the plaintiff has testified that the sawhorse over which he fell had K & A's name printed on it, K & A's denial of ownership of the sawhorse creates an issue of fact.   In support of its arguments, K & A has submitted additional evidence:  (1) excerpts from the June 20, 2013 deposition of the plaintiff (Def. K & A's Ex. A);  and (2) the June 26, 2013 affidavit of Paul Frasco, a member of K & A (Def. K & A's Ex. B).

On June 27, 2013, Heitkamp submitted a reply (# 151) to K & A's filings in which it asserts that the timing of the submission of K & A's Exhibit B is prejudicial to Heitkamp, and thus, it should not be considered by the court.   Moreover, Heitkamp asserts that, K & A's Exhibit A consists of uncertified deposition testimony of the plaintiff, and thus, the court cannot consider this testimony, as it has not been authenticated.   Heitkamp also claims that, even if the affidavit and deposition are considered, neither document helps K & A to meet its burden of demonstrating that there is a genuine issue of material fact concerning Heitkamp's possession and control over the defective condition—the collection of materials and debris, and the sawhorse located at the base of the steps.   Notably, Heitkamp asserts that K & A has set forth self-serving statements in denying ownership of the sawhorse, as the plaintiff testified that the sawhorse had K & A's name printed on it and the plaintiff saw K & A employees working and using sawhorses on Maple Branch Road. Heitkamp also claims that the plaintiff testified in his deposition that he saw a Heitkamp truck on Maple Branch Road “a couple weeks” prior to his fall, but the plaintiff did not testify that he saw Heitkamp employees performing work on Maple Branch Road. In sum, Heitkamp asserts in its reply that it has met its burden of “demonstrat[ing] that it was not working in the area when the plaintiff fell ․ did not [possess, control or] own the sawhorse ․ and/or did not move or touch the sawhorse ․ [T]he mere fact that a single Heitkamp truck was in the area two weeks prior to the plaintiff's fall [does not] present any tangible factual dispute.”   With this reply, Heitkamp submitted the June 20, 2013 deposition of the plaintiff (Def. Heitkamp's June 27, 2013 Ex. A).

On July 1, 2013, the plaintiff filed an objection to Heitkamp's motion for summary judgment and a memorandum in support thereof (# 152),³ asserting that a genuine issue of material fact exists with respect to the ownership, utilization, control, and placement of the sawhorse.   The plaintiff argues that he testified that there were a number of construction vehicles and workmen that were present around the time of his fall, and the workmen were presumably from K & A, Heitkamp, and Yankee Gas. The plaintiff has submitted excerpts from his June 20, 2013 deposition as evidence (Pl.'s Ex. A).

The parties argued this matter at the July 1, 2013 short calendar during which the court, Wilson, J., requested that K & A submit photo exhibits of the subject sawhorse.   K & A complied with this request, filing an additional exhibit (# 153) later that day (Def. K & A's Ex. C).

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 [which] ․ typically ․ 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).  “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”   (Internal quotation marks omitted.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).   Nevertheless, “[m]ere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment] ․” (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).  “The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence.”  (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).

“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.)  Mott v. Wal–Mart Stores East, LP, supra, 139 Conn.App. 626–27.

“The issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law.”  (Internal quotation marks omitted.)  Mozeleski v. Thomas, supra, 76 Conn.App. 290.  “[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.)  Neuhaus v. DeCholnoky, 280 Conn. 190, 217, 905 A.2d 1135 (2006).

As previously stated, Heitkamp argues that there are no genuine issues of material fact concerning its liability because it was neither in possession or control of the premises where the plaintiff was injured nor was it responsible for the materials over which the plaintiff fell, and thus, it did not owe the plaintiff a duty of care.   The plaintiff asserts that a genuine issue of material fact exists with respect to the ownership, utilization, possession and control of the sawhorse because, at the time of his fall, there were a number of construction vehicles and workmen present whom he presumes were Heitkamp employees.   Moreover, K & A asserts that there are genuine issues of material fact concerning Heitkamp's ownership, possession and control of the materials and debris over which the plaintiff fell because Heitkamp worked on the pipe project within the same general area of Maple Branch Road in the city of Meriden.   K & A further asserts that there is a genuine issue of material fact concerning the exact location and cause of the plaintiff's fall, and that although the plaintiff stated in his deposition that the sawhorse over which he fell had K & A's name printed on it, K & A's denial of ownership creates an issue of fact concerning its possession, ownership and control of the sawhorse.

I

First, before assessing the merits of Heitkamp's motion, the court must address Heitkamp's evidentiary claims that (1) K & A has not provided a certified copy of the plaintiff's deposition, and therefore, the uncertified excerpts of the deposition submitted in support of K & A's objection, should not be considered by the court;  and (2) the timing of K & A's submission of an affidavit in support of its objection is prejudicial to Heitkamp.

“[B]efore a document may be considered by the court [in connection with] a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be.   The requirement of authentication applies to all types of evidence ․” (Internal quotation marks omitted.)  Gianetti v. Health Net of Connecticut, Inc., 116 Conn.App. 459, 466–67, 976 A.2d 23 (2009).  “Practice Book § [17–45] ․ contemplates that supporting documents to a motion for summary judgment be made under oath or be otherwise reliable ․ [The] rules would be meaningless if they could be circumvented by filing [unauthenticated documents] in support of or in opposition to summary judgment.”  (Internal quotation marks omitted.)  New Haven v. Pantani, 89 Conn.App. 675, 678, 874 A.2d 849 (2005).   In accordance with these principles, K & A's Exhibit which is an uncertified copy of what K & A purports are excerpts from the deposition of the plaintiff should not be considered with regard to the court's analysis of the merits of Heitkamp's motion.   However, since Heitkamp has submitted a certified copy of the plaintiff's entire testimony, which includes the excerpts submitted by K & A, the court will consider the plaintiff's deposition testimony, including the excerpts submitted by K & A.

The next evidentiary matter pertains to Heitkamp's objections concerning the affidavit of Paul Frasco.   Heitkamp has stated that the submission of this affidavit is prejudicial to Heitkamp, as it was filed on June 27, 2013, giving Heitkamp only a few hours to respond, and thus, “K & A should not be permitted to supplement its opposition with an affidavit it could have obtained months ago ․” Heitkamp's June 27, 2013 Reply, 4. Heitkamp acknowledges, however, that the parties were required to file supporting and opposing memoranda by June 27, 2013, in order to comply with the court's May 20, 2013 short calendar order.   Generally, “[c]ourts have the discretion whether to consider untimely affidavits ․ Pursuant to that discretion, courts may consider the contents of an affidavit notwithstanding the fact that it was untimely filed under a court-ordered scheduling order.”  (Citation omitted.)   Buttrick v. Wilson, Superior Court, judicial district of New Haven, Docket No. CV 09 5026936 (October 7, 2011, Alexander, J.).   In the present case, the filing of the affidavit was not untimely as per the court order, but left Heitkamp with a less than desirable period of time within which to respond.   Nonetheless, the affidavit will be considered by the court.

II

“When ․ [a] plaintiff's allegations stem from an injury caused by a dangerous condition on the premises ․ liability is dependent on possession and control of the dangerous condition and the claim is therefore for negligence under a theory of premises liability.”  (Internal quotation marks omitted.)   Portland v. Summer Meadows Condominium Assn., Superior Court, judicial district of Middlesex, Docket No. CV 12 6007648 (May 31, 2013, Aurigemma, J.) 56 Conn. L. Rptr. 188;  accord Alfano v. Randy's Wooster Street Pizza Shop II, Inc., 90 Conn.App. 766, 773–74, 881 A.2d 379 (2005).   “[A] defendant may have a duty in situations where ․ [it] had the right, power, or authority to possess or control the premises, not just in situations where ․ [it] had actual possession or control of the premises at the time of injury.”   Fagan v. State, Superior Court, judicial district of New Haven, Docket No. CV 11 6025092 (June 7, 2013, Wilson, J.).   Generally, “the standard of care in any premises liability action is defined ․ 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).   After the defendant's duty is established, a defendant may be held liable under a theory of premises liability if “the plaintiff ․ prove[s] (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.”  (Internal quotation marks omitted.)  Palmieri v. Stop & Shop Cos., 103 Conn.App. 121, 123–24, 927 A.2d 371 (2007).⁴

In Setubal v. Loparco Associates, Inc., Superior Court, judicial district of Stamford, Docket No. CV 07 5005571 (September 16, 2010, Adams, J.), the court considered whether there was a genuine issue of material fact concerning a defendant subcontractor, Eden Farm's liability for injuries that two workers, plaintiffs, Antonio and Francisco Setubal, sustained at a construction site when the portico roof upon which they were working collapsed.   The defendant subcontractor argued that it owed no duty to the plaintiffs because it “had no power to control the worksite, no control over the design or construction of the roof, and no control over the activities of the plaintiffs.   See Mozeleski v. Thomas, 76 Conn.App. 287 (2003).”  Id. In support of its motion for summary judgment, Eden submitted testimony of its employees and an affidavit of its owner to demonstrate that its employees did not perform work on the subject portico, as “[the company's] responsibilities at the site had nothing to do with the portico roof or carpentry of any kind, [and their responsibilities] ․ w[ere] limited to masonry projects including the construction of a ․ front stoop.”  Id. Based on this evidence, the court concluded that the defendant was only “tasked with limited responsibilities” and for these reasons, “determine[d] that [the subcontractor] ․ owed no duty to the plaintiffs concerning the condition of the portico roof, a project not within its responsibility ․ [The subcontractor] had no power to control the worksite, no control over the design or construction of the [portico] roof, and no control over the activities of the plaintiffs.”  Id.

In Mozeleski v. Thomas, 76 Conn.App. 287, 818 A.2d 893 (2003), an Appellate Court decision upon which the trial court in Setubal relied, the plaintiff claimed that while performing masonry work at a residential construction site, he suffered serious physical injuries as a result of his falling approximately thirty feet off scaffolding owned by Thomas.   At that time, Hall was the owner of the premises at 410 East Wakefield Boulevard in Winsted, Connecticut, and Thomas was an independent contractor hired by Hall to perform carpentry work on the residence that was being constructed on the premises.   Both defendants Hall and Thomas moved for summary judgment claiming that neither owed a duty of care to the plaintiff.   The trial court granted both motions and rendered judgment in favor of the defendants.   In affirming the trial court's granting of Hall's motion for summary judgment, the Appellate Court concluded that “the mere fact that [the defendant property owner who commissioned the injured plaintiff to perform contracting work] ․ observed the progress of the [plaintiff's] work is not sufficient to establish control.”  Mozeleski v. Thomas, supra, 76 Conn.App. 293.   Thus, the mere presence of the defendant at the work site was insufficient to establish control.

In Baldwin v. Curtis, 105 Conn.App. 844, 939 A.2d 1249 (2008), the plaintiff, who was a tenant of premises owned by the defendant, sought to recover damages from the defendant for personal injuries she sustained when she slipped and fell on ice in a rear parking lot owned by the defendant, claiming that the defendant was negligent in her maintenance of the parking lot.   The defendant moved for summary judgment, claiming that there was no issue of material fact that she was not in possession of the parking lot where the plaintiff fell and thus had no duty to the plaintiff.   The trial court granted the motion, basing its decision, in part, on the defendant's assertion in her affidavit that she was not in possession of the parking lot and on the plaintiff's failure to file an affidavit countering that assertion.   In support of the motion, “the defendant attached two affidavits․  In her affidavit, the defendant attested that she did not possess the parking lot.   In addition, she attested that ․ [one of her tenants] maintained the parking lot.   The defendant did not, however, attest as to who possessed the parking lot ․ The second affidavit attested that ․ [the tenant] maintained the parking lot [but] ․ [i]t did not allege that ․ [the tenant] possessed or controlled the parking lot.”  (Emphasis added.)  Id., 851.   The Appellate Court reversed the trial court and concluded that, “without evidence tending to show that someone other than the defendant possessed and controlled the parking lot, the defendant ha[d] not met her burden of proof [and thus] ․ did not meet her burden of establishing that, as a matter of law, summary judgment should have been rendered in her favor.”  (Citations omitted.)  Id., 851–52.

In the present case, evidence submitted by Heitkamp demonstrates the following:  (1) there is no issue of fact as to the exact location of the plaintiff's fall, as he admitted in his responses to Green Mountain's requests for admissions that he fell at the base of the stairs of 2 Maple Branch Road (Def. Heitkamp's March 7, 2013 Ex. A ¶¶ 1–4);  (2) Heitkamp's Director of Safety attested that Heitkamp entered into a contract with the city of Meriden to work on water pipes on West Main Street and areas adjacent to West Main Street, but not on Maple Branch Road (Def. Heitkamp's March 7, 2013 Ex. B ¶¶ 3, 5, 11, 12);  (3) Heitkamp's Director of Safety attested that the equipment pictured in the plaintiff's photographs neither belongs to Heitkamp nor was it used by Heitkamp (Def. Heitkamp's March 7, 2013 Ex. B ¶¶ 7–10);  and (4) at his deposition, the plaintiff testified that he tripped and fell over a sawhorse with K & A's name printed on it (Def. Heitkamp's June 27, 2013 Ex. A 54:9–13).

As previously stated, the defendant subcontractor in Setubal was able to demonstrate that it owed no duty to the injured plaintiffs because the defendant was only tasked with “limited responsibilities” at that worksite, and thus, had no power to control the worksite.   The court concluded that because the defendant's responsibilities were limited to the construction of a front stoop, the defendant had no power to control the portico roof, the worksite area, and the plaintiffs' activities.   The facts of the present case are even more compelling than those in Setubal because Heitkamp has demonstrated that it did not have any responsibility at the Maple Branch Road worksite, as it was not contracted to perform any work on Maple Branch Road, and thus, Heitkamp had no control over the worksite where the plaintiff was injured.   In Setubal, the defendant submitted the testimony of some of its employees and an affidavit of its owner to demonstrate that the defendant's employees did not perform any work on the portico roof and their responsibilities were limited to the construction of a front stoop.   Similarly, Heitkamp's Director of Safety attested that Heitkamp was only contracted to work on a water pipe project on West Main Street and areas immediately adjacent to West Main Street, but not on Maple Branch Road. Def. Heitkamp's March 7, 2013 Ex. B ¶¶ 3, 5, 11, 12.   Heitkamp has, therefore, demonstrated that it did not have any responsibility at the worksite on Maple Branch Road let alone limited responsibility.

The Appellate Court's holding in Mozeleski also supports Heitkamp's position.   In that case, as previously stated, the defendant property owner did not owe a duty of care to the plaintiff because the defendant's observation of the progress of the work that was being performed at the worksite on his property was insufficient to establish that he had control of the worksite.   Again, the facts are even more compelling in the present case because while the defendant in Mozeleski was absolved of liability for an injury that occurred at a worksite where he was actually present, the evidence demonstrates that Heitkamp was not present at the Maple Branch Road worksite.   As previously stated, Heitkamp was neither contracted to work on Maple Branch Road;  Def. Heitkamp's March 7, 2013 Ex. B ¶¶ 3, 5, 11, 12;  nor were Heitkamp's workers or trucks present at the Maple Branch Road work site on the day of the plaintiff's injury.   See Def. Heitkamp's June 27, 2013 Ex. A 64:20–23, 66:2–4.   The fact that the plaintiff observed Heitkamp's truck on Maple Branch Road “a couple of weeks” prior to the fall, or in the general area around the time of the fall, is not enough to establish that Heitkamp had control over the work site.   See Setubal, supra, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 07 5005571;  Mozeleski, supra, 76 Conn.App. 827.   Therefore, based on the principles set forth in Setubal and Mozeleski, Heitkamp has demonstrated that no genuine issue of material fact exists that it did not control the area where the plaintiff's injury occurred—the Maple Branch Road worksite.

With regard to Heitkamp's alleged possession and control over the sawhorse and worksite materials that were left at the base of the plaintiff's front stairs, the Appellate Court's holding in Baldwin is instructive.   As the court previously noted, in Baldwin v. Curtis, supra, 105 Conn.App. 844, the defendant movant attempted to demonstrate that she owed no duty to the plaintiff because she was not in possession of the parking lot where the plaintiff was injured.   In an attempt to demonstrate that she did not possess the parking lot, she provided affidavits in which she attested as to who maintained the parking lot, but she failed to attest as to who possessed or controlled the parking lot.   The Appellate Court held that the defendant failed to meet her burden of establishing that the trial court should have granted summary judgment in her favor because she did not present evidence that someone other than the defendant possessed and controlled the parking lot.   Here, Heitkamp, unlike the defendant in Baldwin, has demonstrated that it not only did not have possession, ownership or control over the sawhorse, but that it was someone other than Heitkamp who had ownership, possession and control over the sawhorse because the plaintiff testified that the sawhorse was marked with K & A's name.   See Def. Heitkamp's June 27, 2013 Ex. A 54:9–13.   Thus, Heitkamp has met its burden of proof that there is no genuine issue of material fact that it did not own, possess or control the construction site materials, more particularly, the sawhorse, over which the plaintiff fell and that it was not in control of the worksite area on Maple Branch Road. The burden now shifts to K & A and the plaintiff to demonstrate the existence of genuine issues of fact.

Frasco, a member of K & A, attested that the sawhorse—the only object over which the plaintiff has alleged that he fell—was neither used nor owned by K & A despite the plaintiff's testimony that K & A's name was printed on it.   Def. K & A's Ex. B ¶¶ 4–9, 12;  see also Def. Heitkamp's June 27, 2013 Ex. A 54:9–13.   Frasco further acknowledges that Maple Branch Road was included within the area that K & A was contracted to service;  Def. K & A's Ex. B ¶ 3;  but asserts that K & A never left any equipment behind at the Maple Branch Road when not working at that job site.   Def. K & A's Ex. B ¶¶ 10–11.   Nevertheless, while K & A has disavowed ownership of and possession and control over the sawhorse, K & A has not provided any evidence to demonstrate that Heitkamp had ownership, possession and control over the sawhorse.   In fact, counsel for K & A conceded at oral argument that K & A did not have any evidence to demonstrate that Heitkamp had ownership, possession and control over the sawhorse.  (Short Calendar, July 1, 2013.)  “Judicial admissions are voluntary and knowing concessions of fact by a party or a party's attorney occurring during judicial proceedings.”  (Internal quotation marks omitted.)  Macy v. Lucas, 72 Conn.App. 142, 153, 804 A.2d 971, cert. denied, 262 Conn. 905, 810 A.2d 272 (2002).”  BHP Land Services, LLC v. Seymour, 137 Conn.App. 165, 171 n.4, (2012).   K & A's mere disavowal of ownership, possession and control of the sawhorse does not demonstrate that Heitkamp was in possession and control of the sawhorse, nor does it counter Heitkamp's evidence that it did not have ownership, possession or control.   K & A has, therefore, not met its burden of demonstrating that there are genuine issues of material fact that Heitkamp did not have ownership, possession and control of the worksite materials.

In addition, although Frasco attested that “[s]everal other companies were also involved in working on the subject project”;  Def. K & A's Ex. B ¶ 3;  K & A has not demonstrated that Heitkamp was performing work on Maple Branch Road in order to counter what is demonstrated by Heitkamp's evidence—that Heitkamp was not one of the companies that was responsible for the performance of work on Maple Branch Road. Again, Heitkamp “owe[s] no duty to the [plaintiff] concerning ․ a project not within its responsibility”;  Setubal v. Loparco Associates, Inc., supra, Superior Court, Docket No. CV 07 5005571;  and, similar to Mozeleski where the defendant's mere presence at a worksite was insufficient to establish that the defendant had control over the worksite, the fact that Heitkamp's evidence demonstrates that it was not present at the worksite at all further shows that Heitkamp did not have control over the area where the plaintiff was injured.   See Mozeleski v. Thomas, supra, 76 Conn.App. 293.

As previously noted, Heitkamp offered evidence to demonstrate that:  (1) there is no issue of fact concerning the exact location of the plaintiff's fall, as he admitted in his responses to Green Mountain's requests for admissions that he fell at the base of the stairs of 2 Maple Branch Road (Def. Heitkamp's March 7, 2013 Ex. A ¶¶ 1–4);  (2) Heitkamp's Director of Safety attested that Heitkamp entered into a contract with the city of Meriden to work on water pipes on West Main Street and areas adjacent to West Main Street, but not on Maple Branch Road (Def. Heitkamp's March 7, 2013 Ex. B ¶¶ 3, 5, 11, 12);  (3) Heitkamp's Director of Safety attested that the equipment pictured in the plaintiff's photographs neither belongs to Heitkamp nor was it used by Heitkamp (Def. Heitkamp's March 7, 2013 Ex. B ¶¶ 7–10);  and (4) at his deposition, the plaintiff testified that he tripped and fell over a sawhorse with K & A's name printed on it (Def. Heitkamp's June 27, 2013 Ex. A 54:9–13).

In light of the evidence submitted, and, when viewing K & A's evidence in the light most favorable to it, Heitkamp has demonstrated that no issues of material fact exist that Heitkamp did not possess, control or own the sawhorse or work site materials, nor did it have control or responsibility over the premises where the plaintiff fell on September 2, 2011, and, therefore owed no legal duty to the plaintiff.

Nevertheless, evidence submitted by the plaintiff must also be considered and viewed in the light most favorable to him in determining whether a genuine issue of material fact exists as to Heitkamp's possession, control and ownership of the sawhorse and control and responsibility over the premises where the plaintiff fell.   At his deposition, the plaintiff testified that he was “pretty sure” that he saw a Heitkamp truck on Maple Branch Road a “couple weeks” prior to his fall;  Def. Heitkamp's June 27, 2013 Ex. A 61:10–14, 63:3–22, 64:2–3, 64:15–19, 65:18–20;  but that he did not see any Heitkamp workers and did not speak to anyone who was affiliated with Heitkamp.  Id., 64:20–23, 65:5–6.   As previously stated, a party opposing a motion for summary judgment must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.   It would be unreasonable to find that the mere presence of Heitkamp's truck on Maple Branch Road “a couple weeks” before the plaintiff's fall is sufficient to create an issue of fact concerning Heitkamp's control of the premises where the plaintiff tripped and fell.   Just as a defendant's presence by observation of the progress of work being performed on a work site is not sufficient to establish control;  see Mozeleski v. Thomas, supra, 76 Conn.App. 293;  it would be unreasonable to find that the possible presence of a Heitkamp truck, “a couple of weeks” prior to the alleged injury, at a work site in which it was not even performing work, is sufficient to establish control over the site where the plaintiff fell, and materials at that site.

In addition, the plaintiff, like K & A, has not produced any evidence to refute Heitkamp's evidence or raise an issue of fact that Heitkamp did not have ownership of, or possession or control over, the construction debris, including the sawhorse, where the plaintiff tripped and fell.   In fact, in the plaintiff's own testimony from his deposition, he states that he observed K & A's initials on the sawhorse.   The plaintiff has also failed to raise a genuine issue of fact that Heitkamp did not have control or responsibility over the premises where the plaintiff fell, whereas Heitkamp has demonstrated that it owed no duty to the plaintiff because it had no control over a worksite that was not its responsibility and where it had no presence.   See Setubal v. Loparco Associates, Inc., supra, Superior Court, Docket No. CV 07 5005571;  Mozeleski v. Thomas, supra, 76 Conn.App. 293.   Consequently, the plaintiff, like K & A, has failed to meet his burden by demonstrating that material issues of fact exists that Heitkamp did not owe a duty to him.

CONCLUSION

For the foregoing reasons, Heitkamp is entitled to judgment as a matter of law because it owed no duty to the plaintiff, and therefore, Heitkamp's motion for summary judgment with regard to count three of the plaintiff's amended complaint and count two of K & A's apportionment complaint is granted.

Wilson, J.

FOOTNOTES

FN1. The plaintiff later testified that of the items that were located at the base of the stairs at the time of his fall, a red sawhorse was the only item with which he made contact and over which he fell.   Def. Heitkamp's June 27, 2013 Ex. A 55:3–6..  FN1. The plaintiff later testified that of the items that were located at the base of the stairs at the time of his fall, a red sawhorse was the only item with which he made contact and over which he fell.   Def. Heitkamp's June 27, 2013 Ex. A 55:3–6.

FN2. The court, Frechette, J., granted Green Mountain's January 15, 2013 motion for summary judgment (# 129), as it “found that no genuine issue of material fact as to liability or damages exists.”   Judgment was entered for Green Mountain on July 22, 2013 with respect to Count two of the plaintiff's October 10, 2012 amended complaint and Count one of K & A's apportionment complaint dated August 27, 2012, and filed on August 30, 2012.   Neither the plaintiff nor K & A, the apportionment plaintiff, submitted objections or evidence in opposition.   The court's order granting summary judgment enters judgment in favor of the plaintiff, however, it appears that the court intended to enter judgment in favor of the defendant, Green Mountain, since it was the defendant, Green Mountain who filed the motion for summary judgment and not the plaintiff..  FN2. The court, Frechette, J., granted Green Mountain's January 15, 2013 motion for summary judgment (# 129), as it “found that no genuine issue of material fact as to liability or damages exists.”   Judgment was entered for Green Mountain on July 22, 2013 with respect to Count two of the plaintiff's October 10, 2012 amended complaint and Count one of K & A's apportionment complaint dated August 27, 2012, and filed on August 30, 2012.   Neither the plaintiff nor K & A, the apportionment plaintiff, submitted objections or evidence in opposition.   The court's order granting summary judgment enters judgment in favor of the plaintiff, however, it appears that the court intended to enter judgment in favor of the defendant, Green Mountain, since it was the defendant, Green Mountain who filed the motion for summary judgment and not the plaintiff.

FN3. Although the plaintiff's memorandum in opposition was filed on the morning of July 1, 2013, at oral argument, the court will consider the plaintiff's arguments and evidence in deciding Heitkamp's motion..  FN3. Although the plaintiff's memorandum in opposition was filed on the morning of July 1, 2013, at oral argument, the court will consider the plaintiff's arguments and evidence in deciding Heitkamp's motion.

FN4. With respect to the plaintiff's premises liability claim, there does not appear to be a dispute as to the plaintiff's legal status regarding the alleged legal duty owed, since the plaintiff admitted that he fell at the base of the front steps leading from his residence located at 2 Maple Branch Road, to his mailbox.  (Def. Heitkamp's March 7, 2013, Ex. A, ¶¶ 1–4.).  FN4. With respect to the plaintiff's premises liability claim, there does not appear to be a dispute as to the plaintiff's legal status regarding the alleged legal duty owed, since the plaintiff admitted that he fell at the base of the front steps leading from his residence located at 2 Maple Branch Road, to his mailbox.  (Def. Heitkamp's March 7, 2013, Ex. A, ¶¶ 1–4.)

Wilson, Robin L., J.