Daphney Jordan v. Leland Torrence Enterprises et al. (2013)

MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT # 189 and # 191

INTRODUCTION

The plaintiff filed this action by way of writ, summons and complaint dated August 12, 2008 and amended on February 9, 2009 to assert claims against additional defendants.   The plaintiff brought the amended complaint against the defendants Leland Torrence Enterprises, Belvedere Construction, Inc., Perri Mechanical Contractors, LLC, Supreme Storage Trailer Company, Caplow Mechanical, Inc., John's Refuse Removal, Inc., and Abate Electric, Inc.¹ Leland Torrence Enterprises, LLC and Belvedere have filed separate motions for summary judgment dated August 26, 2013 and September 12, 2013.   The plaintiff filed an objection to the motions for summary judgment dated September 24, 2013.   Each of the motions for summary judgment are based upon the same argument and thus the court will address both motions in the discussion below.   The parties each appeared and argued the motions on September 30, 2013.

FACTUAL BACKGROUND

The plaintiff, Daphney Jordan, is an employee at the Children's Center of Hamden (“CC”).  The remaining defendants arc Leland Torrence Enterprises, LLC, (LTE) Belvedere Construction Company, Inc., Perri Mechanical Contractors, Inc., Supreme Storage Trailer Co., and Caplow Mechanical, Inc. The Children's Center of Hamden is a learning and residential facility for children who have behavior and emotional conditions.   The plaintiff is a child care worker at CC. On August 24, 2006, the Children's Center was undergoing some renovations of its facilities, in particular, at the Trowbridge Cottage.   The defendant LTE was the general contractor for the renovations and performed oversight and construction management services.   The defendant, Belvedere, was the primary subcontractor responsible for the demolition, framing, sheetrock and clean-up work.

The Trowbridge Cottage houses girls between the ages of 13 to 18 years of age.   The plaintiff was assigned to this cottage to monitor the girls and keep them safe.   She alleges that on August 24, 2006 she was escorting a group of girls from the Trowbridge Cottage when she noticed a young girl referred to as S.A. with a 2 X 4 in her hand attempting to assault a therapist.   She alleges that this caused her to go to the aide of the therapist and physically remove S.A. from the area, taking the 2 X 4, and restraining the young girl.   During the course of these actions, the plaintiff alleges that she was kicked in the chest and knocked into a door which caused the injuries alleged in this action.

The plaintiff alleges that the failure to properly secure the site and thus allowing a student to gain access to either tools or construction materials were negligent actions on the part of the defendants which caused the harm to the plaintiff.

The plaintiff contends that the defendants violated the safety rules and procedures that were part of their responsibility by leaving either a 2 X 4 or tools in an area where the students had access.

The defendants contend that the evidence does not support the claim that the student had the 2 X 4 nor that the injuries incurred by the plaintiff were proximately caused by the student having access to the 2 X 4 or physically by the 2 X 4.

DISCUSSION

A. GENERAL STANDARD

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and 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.”  (Citations omitted.)  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “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.)   Provencher v. Enfield, 284 Conn. 772, 790–91, 936 A.2d 625 (2007).   “[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.”  (Citations omitted;  internal quotation marks omitted.)  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).   Accompanying the motion “the [movant] is required to support its motion with supporting documentation, including affidavits.”  Heyman Associates, No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 786, 796, 653 A.2d 122 (1995).   The burden is on the moving party to demonstrate an absence of any triable issue of material fact and “[t]o satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318–19, 901 A.2d 1207 (2006).”When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non-moving party has no obligation to submit documents establishing the existence of such an issue ․” Ramirez v. Health Net of the Northeast, Inc. 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

B. GENERAL DISCUSSION

The defendants, LTE and Belvedere, filed this motion for summary judgment in their favor contending that there are no issues of material fact that negligence of the defendants was the proximate cause of the plaintiff's injury.   In particular, the defendants argue that the plaintiff has failed to demonstrate that the young student referred to as S.A. had a 2 X 4 which she intended to utilize to harm another person or that the injuries alleged by the plaintiff were the result of her using the 2 X 4 as a weapon.

The plaintiff contends that there are genuine issues of fact as to whether the defendant left the stick in the area where the teens have access and whether the alleged injury of the plaintiff was the result of the defendant's failure to secure the materials and/or refuse that were part of the renovation that the defendants had contracted to perform with particular emphasis on the safety issues.   The plaintiff contends that in order to find that the defendants proximately caused the injury it is not necessary that the 2 X 4 was utilized directly as the instrument to cause the plaintiff's injuries.   Rather, the plaintiff contends it is whether the availability of the stick because of lack of care in securing the stick set into motion a series of events that resulted in the injuries.

The defendants argue that in this action the plaintiff has failed to satisfy the element of causation as to them.   This issue is the main focus of the motions for summary judgment.

“The test is whether the defendant's conduct was a substantial factor in causing the plaintiff's injuries.   To be such a fact that cause must have continued down to the moment of the damage or at least down to the setting in motion of the final active injurious force which immediately produced or preceded the damage.”  Smiroff v. McNerney, 112 Conn. 421, 424–26 (1930).

The defendant's argument is basically that there can only be one cause of the injury which is not the law.   This argument is a very strict direct standard for proximate cause.   This court in examining the claims focuses on whether a “cause in fact” is an actual cause.   The test for cause in fact is simply “Would the injury have occurred were it not for the defendant's negligence?”   Shaughnessy v. Morrison, 116 Conn. 661, 666 (1933).  “[A]n act or omission can hardly be regarded as the cause of an event which would have happened if the act or omission had not occurred.”  “[A] plaintiff must establish that the defendant's conduct legally caused the injuries, that is, the conduct both caused the injury in fact and proximately caused the injury.”  (Internal quotation marks omitted.)  Mulcahy v. Hartell, 140 Conn.App. 444, 451–52, 59 A.3d 313 (2013).   Based upon the facts presented in the instant action the court cannot say that possible access and use of a 2 X 4 is not a cause in fact.   The evidence is mixed as to these facts.

“Because actual causation, in theory, is virtually limitless, the legal construct of proximate cause serves to establish how far down the causal continuum tortfeasors will be held liable for the consequences of their actions.”  (Internal quotation marks omitted.)  Sapko v. State, 305 Conn. 360, 372–73, 44 A3d 827 (2012).  “The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection ․ This causal connection must be based upon more than conjecture and surmise.”  (Internal quotation marks omitted.)   Winn v. Posades, 281 Conn. 50, 56–57, 913 A.2d 407 (2007).  “The test of proximate cause is whether the defendant's conduct is a substantial factor in producing the plaintiff's injury.   The substantial factor test asks ․ whether the harm occurred was of the same general nature as the foreseeable risk created by the defendant's negligence.”  (Internal quotation marks omitted.)   Mulcahy v. Hartell, supra, 452.

The parties have provided a background and factual scenario as to the work relationship that is generally compatible.   The parties agree that the defendants conducted the work at the site with a certain amount of caution and care to address the emotional and psychological needs of the young teens who are residents.   All agree that the defendants were not to permit any access to tools and construction material and they engaged in procedures which caused the tools not in use to be locked up.   The defendants were responsible to seal off the work area from access by the residents while there was ongoing work.   The bathroom that the defendants were working on at the time of this incident was separated from the cottage by placement of plywood that should have been secured to the wall by nails.

The defendants argue extensively and vociferously that because the plaintiff was not injured directly by the use of the 2 X 4 there is no negligence by either of them.   This argument must fail because it is whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence.  Miranti v. Brookside Shopping Center, Inc. 159 Conn, 24, 30, 266 A.2d 370 (1969).

“[I]ssues of proximate cause may be determined by way of summary judgment only in rare circumstances.”  Kumah v. Brown, 130 Conn.App. 343, 349, 23 A.3d 758 (2011) aff'd.  307 Conn. 620, 58 A.3d 247 (2013).  “[T]he question of proximate causation generally belongs to the trier of fact because causation is essentially a factual issue ․ It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion;  if there is room for a reasonable disagreement the question is one to be determined by the trier as a matter of fact.”  (Internal quotation marks omitted.)  Alexander v. Vernon, 101 Conn.App. 477, 485, 923 A.2d 748 (2007).

In this action, the issues regarding proximate cause remain unresolved.   The factual disputes are numerous including the issue of whether the defendants failed to satisfy their duties in maintaining a safe environment, to the issue of whether the young resident actually gained access to and had in her possession a 2 X 4 that was from the work site,² to the final question as to whether if she had such an item, her possession of the item caused the plaintiff to engage in the action to regain possession and prevent further harm to a therapist, a resident or other individual.   These factual disputes and the question of causation create genuine issues of material fact which preclude the granting of summary judgment for either LTE or Belvedere.   The motions are Denied.

THE COURT

Brazzel–Massaro, J.

FOOTNOTES

FN1. Summary Judgment has entered for Perri Mechanical and Abate Electric, Inc., on other issues..  FN1. Summary Judgment has entered for Perri Mechanical and Abate Electric, Inc., on other issues.

FN2. Although the defendants argue that S.A did not have a 2X4 in her hand, the deposition testimony of Renee Evans leaves open the question when she states she believes she was trying to take something from her ․ (Plaintiff's Exh. III at 43.) and deposition of the plaintiff that she had a 2 X 4 in her hand.   The deposition testimony of Davis is simply that he could not recall.  (Defendant's Exhibit Deposition at 35, 36 and 38.).  FN2. Although the defendants argue that S.A did not have a 2X4 in her hand, the deposition testimony of Renee Evans leaves open the question when she states she believes she was trying to take something from her ․ (Plaintiff's Exh. III at 43.) and deposition of the plaintiff that she had a 2 X 4 in her hand.   The deposition testimony of Davis is simply that he could not recall.  (Defendant's Exhibit Deposition at 35, 36 and 38.)

Brazzel–Massaro, Barbara, J.