Anthony Norcia v. Greenwich Plaza, Inc. et al. (2013)

MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT NOS. 197 & 199

The defendants, Greenwich Plaza, Inc. and Albert B. Ashforth, Inc. (“GP” and “ABA”), have moved for summary judgment on counts one through four of the plaintiff's third amended complaint dated December 13, 2012.   These two defendants contend that they are entitled to judgment in their favor as a matter of law on a number of grounds.   Specifically, these defendants argue, inter alia, that they did not owe any duty of care to the plaintiff and therefore did not breach any duty of care to the plaintiff, that they were not in control of the area where the plaintiff fell and sustained his injuries;  that they had no authority or control over the way the plaintiff performed the work he was doing on the premises;  that there was no defect on the premises and even if there were, they had no actual or constructive notice of any alleged defect that might have caused the plaintiff's injuries.

Defendant Northeast Generator of Connecticut, Inc. (“Northeast”) has also moved for summary judgment on count five of the plaintiff's third amended complaint.   Northeast alleges that it too is entitled to judgment as a matter of law because it did not owe a duty of care to the plaintiff with respect to the manner of injury in this case.

In response, the plaintiff, Anthony Norcia, argues that genuine issues of fact exist with respect to each defendant's respective control over the area where the plaintiff alleges that he fell and sustained his injuries and their respective duties of care to him.

The court heard oral argument on both motions (Nos. 197.00 and 199.00) on September 23, 2013.   For the reasons more particularly set forth herein Motion No. 197.00 is granted as to defendant Northeast, and Motion No. 199.00 is denied as to defendants Greenwich Plaza and Albert B. Ashforth, Inc.

FACTS

Defendant GP is the owner of the commercial office premises at 2 Greenwich Plaza in downtown Greenwich.   Defendant ABA was at all times relevant to this case the property manager and/or managing agent of 2 Greenwich Plaza.   Defendant Northeast was and is a corporation engaged in servicing the on-site generators in accordance with an annual service agreement with defendants GP and ABA. At some time prior to the incident alleged in this case, one of the new tenants in the complex, not a party to this action, requested permission from the local building authorities to install a new diesel generator on the 2 Greenwich Plaza premises to supplement its office electricity use.   This request was denied, and the tenant then requested and received permission from GP and ABA to “tap into” the existing diesel generators on the premises.

It is alleged that on June 26, 2009, the plaintiff, an electrician employed by Fairfield Electric, who is an intervening plaintiff in this action, came onto the premises for the purpose of connecting the existing diesel generator for the benefit of the new tenant.   The plaintiff, a journeyman electrician with 29 years of experience, was working with a partner, after having been given access to the generator.   It is alleged that on said date at approximately 12:45 in the afternoon, Norcia slipped and fell while in the course of performing this electrical connection.

As alleged, all outside diesel generators are required by law to be covered by some type of enclosure.   In this case, the plaintiff alleged that the enclosure housing the diesel generators and area immediately adjacent thereto was constructed and/or maintained in a manner as to create a dangerous condition.   More specifically, the plaintiff alleges that the metal doorsill where the plaintiff was required to step in order to gain access to the interior of the enclosure and work on the generators was not wide enough under OSHA standards, and, therefore, created a dangerous condition on the premises.   Norcia also alleges that the space between the doorsill and the wall of the enclosure was not wide enough for him to stand on while working, and he, therefore, had to work while stepping repeatedly on the too narrow doorsill.   Norcia further alleges, inter alia, that one of the bollards constructed just outside the enclosure was reduced in height from its original size in order to allow one of the doors of the enclosure to open fully, and that this shortened bollard was a tripping hazard.   Norcia alleges that notwithstanding the fact that he was wearing proper footwear at the time, he slipped on the metal doorsill and then caught his foot on the shortened bollard, causing him to fall and sustain the injuries alleged in the operative complaint.

The plaintiff testified at his deposition that there was no standing water, grease, oil or other substance in the area where he was working that might have contributed to his fall.   Further, there is no evidence that the plaintiff asked for any assistance after receiving access to the work site.   Nor is there evidence that he complained of any unsafe conditions prior to falling.

As to defendants GP and ABA, the plaintiff alleges that as the owners of the complex, they are charged with responsibility to maintain every part of it in a reasonably safe condition, and that they failed in this responsibility.   As to defendant Northeast, the plaintiff alleges that as a contractor charged with annual maintenance of the generator, it had a duty to plaintiff to notice the “glaring and obvious” OHSA and/or building code violations while performing its annual inspections and either correct them or report them to the owner.   Page 4 of the plaintiff's memorandum, no. 234.00.   The plaintiff further argues that Northeast had an internal policy requiring its employees to report dangerous conditions on the various job sites where they work, and, therefore, Northeast was obligated to the plaintiff to report these obviously dangerous and unsafe conditions to the owner(s) so they could be corrected.   The plaintiff argues that a genuine issue of fact exists as to whether Northeast owed the plaintiff a duty of care pursuant to its annual service agreement with defendant GP and its own internal “policies and procedures” as to identifying and reporting potential OSHA violations in their work sites.

The plaintiff states causes of action for premises liability and negligence against GP and ABA. The plaintiff states only a cause of action for negligence against Northeast.

Defendants GP and ABA vigorously and compellingly argue that this is not a premises liability case because at all times the plaintiff was in complete control of not only his work area but the manner in which he chose to perform his work.   Defendants GP and ABA also argue that the plaintiff cannot prevail against them because the conditions claimed by the plaintiff are not defective, dangerous or unsafe in the first instance, and, assuming arguendo, even if they were GP and ABA had no notice of any such problems.   Defendant Northeast argues that as a contractor charged only with mechanical operation of the generator it owed no duty of care to the plaintiff at the time of the alleged incident, and, assuming arguendo, even if it did, it had no notice of the alleged defects which allegedly caused Norcia's injuries.

DISCUSSION

Practice Book § 17–49 provides that summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ․ The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.”  (Internal quotation remarks omitted.)  Rodriguez v. Testa, 296 Conn. 1, 6–7, 993 A.2d 955 (2010).  “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.”  Nolan v. Borkowski, 206 Conn. 495, 500 (1988).

The purpose of motion for summary judgment is to dispose of actions lacking a triable issue of material fact.  Dorazio v. M.B. Foster Electric Co., 157 Conn. 226, 228 (1968).  “The test is whether a party would be entitled to a directed verdict on the same facts.”  Connecticut Bank & Trust Company v. Carriage Lane Association, 219 Conn. 772, 781 (1991).  “The courts hold the movant to a strict standard.   To 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 ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent.”  Zielinski v. Kotsoris, 279 Conn. 312, 318–19, 901 A.2d 1207 (2006).

“[T]he essential elements of a cause of action in negligence are well established:  duty, breach of that duty, causation;  and actual injury.”   Grenier v. Commissioner of Transportation, 306 Conn. 525, 538, 51 A.3d 367 (2012).  “Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner.”   (Internal quotation marks omitted.)  Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984).  “Summary judgment procedure is especially ill-adapted to negligence cases, where ․ the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation ․ [T]he conclusion of negligence is necessarily one of fact ․” (Citations omitted;  internal quotation marks omitted.)  Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).

“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 ․ Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action ․ [T]he test for the existence of a duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case ․ [A] duty to use care may arise from a contract, from a statute or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act ․ [T]here is generally no duty that obligates one party to aid or protect another party ․ One exception to this general rule arises when a definite relationship between the parties is of such a character that public policy justifies the imposition of a duty to aid or to protect another ․ In delineating more precisely the parameters of this limited exception to the general rule [the Connecticut Supreme Court] has concluded that, [in the absence of] a special relationship of custody or control, there is no duty to protect a third person ․” (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Grenier v. Commissioner of Transportation, supra, 306 Conn. 538–40.   See also 2 Restatement (second) of Torts § 314 (1965) (“[T]he fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action”).

Accordingly, “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 ․ 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.”  Mozeleski v. Thomas, 76 Conn.App. 287, 290–91, 818 A.2d 893, 897, cert. denied, 264 Conn. 904, 823 A.2d 121 (2003).  “The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual.”  Allen v. Cox, 285 Conn. 603, 609, 942 A.2d 926 (2008).

I

Defendant Northeast's Motion for Summary Judgment, No. 197.00

Considering the plaintiff's cause of action against defendant Northeast first, the plaintiff has alleged that Northeast owed the plaintiff a duty of care, an assertion the defendant denies.   Accordingly, if the record establishes the absence of a genuine issue of material fact as to whether this defendant owed a duty of care to the plaintiff, then the defendant can prevail on its Motion.   The court notes that Northeast is neither the owner, lessor nor property manager for the subject premises.   It therefore has no obligation to a business invitee such as the plaintiff to maintain the premises in a reasonably safe condition unless other circumstances prevail.

Furthermore, both plaintiff and defendant Northeast cite the case of Gazo v. City of Stamford, 255 Conn. 245, 250–51, 765 A.2d 505 (2001) and the Restatement (Second) of Torts § 324A, Subsection (b) for the affirmative duty of care owed by independent contractors.   In circumstances where an independent contractor has performed services for consideration and in a commercial context, the Restatement provides:  “One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to third persons for physical harm resulting from his failure to exercise reasonable care to protect his undertaking if (a) his failure to exercise such care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person;  or (c) the harm is suffered because of the reliance of the other or the third person upon the undertaking.”   Restatement (Second) of Torts, § 324A.

In Gazo the defendant had undertaken to perform snow and ice removal services.   A third person was injured as result of the defendant's failure to perform these services competently.   The Court decided Gazo on the theory that the owner's contractor had contractually assumed the owner's duty of care to the pedestrian/plaintiff and, therefore, stood in the owner's shoes with respect to liability viz a viz the plaintiff.   In the present case, Northeast did not undertake to perform either GP or ABA's obligation to maintain the generator enclosure or its surrounding area in a reasonably safe condition.   This court agrees with Northeast's contention that its obligations to the plaintiff are limited by its service agreement with GP, which the court finds to be clear, complete and unambiguous.   The court finds that Northeast's obligations under the service agreement are limited to maintaining proper mechanical functioning of the generator, and nothing further.

Third, this court does not accept the plaintiff's arguments that Northeast's internal policies and procedures superseded their contractual obligations and created a duty to the plaintiff.   In opposition to Northeast's motion, the plaintiff presents evidence that Northeast employees were required to report dangerous or potentially dangerous conditions that they find on their work sites to their Northeast supervisors, including possible OSHA violations.   Pages 56 and 67 of Kaminsky deposition.   Therefore, the plaintiff argues, Northeast has an express or implied duty to anyone injured on any workplace where Northeast employees may have worked, later found to be unsafe.   The court must look to the intent of the parties as expressed in the written service agreement.   In doing so, the court finds no specific voluntary assumption of the owner's obligations to maintain the premises by Northeast.   Because the court finds the service agreement clear, complete and unambiguous as to the intentions of the parties, the court does not find that the policies and procedures testified to by the Northeast employee created a voluntary assumption of these purported additional obligations.

The court also does not accept the plaintiff's argument that the later, 2010 and 2012 service agreements are relevant or probative as to Northeast's obligations under the 2008 version signed with GP. The court finds the 2008 service agreement clear, complete and unambiguous and therefore no evidence outside the contract is inadmissible in accordance with the parol evidence rule.¹

The court finds that this result is in accord with the public policy analysis of duty of care to others.   The Connecticut Supreme Court has held that “[o]ne exception to th[e] general rule [that there is no duty to aid or protect another] arises when a definite relationship between the parties is of such a character that public policy justifies the imposition of a duty to aid or protect another ․ For any such relationship, the theory of liability is the same ․ [S]ince the ability of one of the parties to provide for his own protection has been limited in some way by his submission to the control of the other, a duty should be imposed upon the one possessing control (and thus the power to act) to take reasonable precautions to protect the other [party.]”   (Citations omitted.)  Ryan Transportation, Inc. v. M & G Associates, 266 Conn. 520, 526, 832 A.2d 1180 (2003).   Northeast did not contractually undertake responsibility for inspecting or maintaining the generator enclosure and did not have exclusive control over it.   The court agrees with the argument that Northeast had no more “special relationship of custody or control” (and therefore no more responsibility) over the generator enclosure than any other casual observer or visitor to the premises.

Accordingly, with these principles in mind, and viewing the facts of this case in the light most favorable to the plaintiff, the court is unable to find that Northeast owed a duty of care to the plaintiff.   The court finds that there are no genuine issues of material fact as to the liability of this defendant and grants its motion for summary judgment, no. 197.00.

II

Defendants GP's and ABA's Motion for Summary Judgment, No. 199.00

The court next considers the motion for summary judgment of defendants GP and ABA. In order to prevail against GP and ABA in a premises liability claim, the plaintiff must prove:  (1) that GP and/or ABA were in possession and/or control of the premises in question, i.e., the generator enclosure and the areas immediately adjacent thereto;  (2) that an unsafe condition or defect existed on the premises at the time of the incident;  and (3) that GP and/or ABA had knowledge and/or notice of the alleged dangerous, unsafe or defective condition, or in the exercise of reasonable care or supervision should have known of said condition a reasonable period of time before the plaintiff was injured yet failed to correct the same.   See LaFlamme v. Dallessio, 261 Conn. 247, 251–52 (2002) and Kirby v. Zlotnick, 160 Conn. 341, 344–45 (1971).

In addition, the plaintiff has set forth a negligence action against GP and ABA. “Negligence occurs where one under a duty to exercise a certain degree of care to avoid injury to others fails to do so.”  Seguro v. Cummiskey, 82 Conn.App. 186, 192, 844 A.2d 244 (2004).

It is true, as GP and ABA argue, that GP and ABA were not parties to the contract pursuant to which the plaintiff performed his work.   It is also true that they had no authority to control the means or methods of the work which the plaintiff performed.   This court further agrees that GP and ABA were not required by any statute or other regulation to oversee the manner in which the plaintiff performed his work.

This court agrees with the plaintiff that “the legal responsibility for maintaining premises in a safe condition depends on who has possession and control of the premises.”  Mozeleski v. Thomas, supra, 76 Conn.App. 294.   In this case, those parties are GP and ABA, who have a non-delegable duty to all persons lawfully entering upon the premises, for whatever reason.

While it is certainly true that GP and ABA had no control over the manner in which the plaintiff performed his work, viewing the undisputed facts of this case in the light most favorable to the plaintiff, the court concludes that they did have legal responsibility for maintaining the area in a reasonably safe condition.   See, e.g., Gargano v. Azpiri, 110 Conn.App. 502, 505–06, 955 A.2d 593 (2008), and Curran v. McCall, 4 Conn.App. 531, 495 A.2d 731 (1985).   The court, therefore, finds that the defendants GP and ABA owed a duty of care to the plaintiff.   The court has carefully reviewed the affidavits submitted by the plaintiff in opposition to, the motion for summary judgment and concludes that while the question of whether a defective or dangerous condition existed on the premises is a close one, it is still a question and the court is unable to grant summary judgment to GP and ABA on this issue under these circumstances.

The court has also carefully considered the arguments of GP and ABA to the effect that as an independent contractor, they had no control over the way the plaintiff performed his work.   The defendants cite several cases;  Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 517–18, 825 A.2d 72 (Pelletier II), and 286 Conn. 563, 945 A.2d 388 (Pelletier III) (2008);  in support of the general rule that where an owner of property employs an independent contractor to perform work on the premises and does not control the area where the invitee is injured, it is the contractor and not the owner who is liable.

The court agrees with this argument in principle, but finds that even if there was superseding negligence on the part of the plaintiff, there remains the question of whether these defendants failed to maintain the premises in a reasonably safe condition.   The defects alleged by plaintiff were not the result of any intervening party, as in Pelletier III. Rather, they are part of the premises owned and controlled by defendants GP and ABA, and existed prior to the plaintiff's entry on the premises.   This court agrees with the plaintiff's argument that while he may have been in complete control of the method necessary to “tap into” the generator, he still had to access it through the enclosure surrounding it.

On the issue of whether GP and ABA had notice of the alleged dangerous condition, the court finds that there is no evidence that either GP or ABA had actual notice of the claimed defects.   With respect to the question of whether defendants GP and ABA had constructive notice, the plaintiff claims that the generator installation appears to have been done in 2002, and GP and ABA, therefore, had more than sufficient time to notice the alleged dangerous conditions and remedy them.

Given the facts of this case a trier of fact might or might not reasonably conclude that these defendants had constructive notice of these alleged dangerous conditions and failed to take reasonable steps to fix them.   “Business owners are chargeable with constructive notice of a dangerous condition when, had they exercised reasonable care, they would have discovered the condition.”   2 Restatement (Second) of Torts, § 343 (1965).  “Constructive notice is triggered by a general duty of inspection, or when the dangerous condition is not apparent to the human eye, some other factor that would alert a reasonable person to the hazard.”  DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 118, 49 A.3d 951 (2012).

In the present case, both sides have submitted, in support of and in opposition to the motions, the deposition testimony of the plaintiff.   Therein, the plaintiff, an experienced electrician with 29 years of experience, stated that he himself, prior to the incident, had ten hours of OSHA training;  page 114 of Norcia deposition;  but failed to notice or take steps to address the alleged OSHA violations.   Norcia further stated of the work site on this particular job, “I didn't think it was dangerous at all,” and “[b]ecause I was able to stand on the doorsill and I didn't think it was that dangerous at all.”   Page 130 of Norcia deposition.   Norcia further stated that he was not worried about falling and that he had stood on the doorsill in question “no more than a dozen times that day.”   Pages 131 and 206 of Norcia deposition.   Norcia further stated that the he himself did not consider the area to be dangerous before the incident happened.   Pages 134 and 146 of Norcia deposition.   Finally, Norcia stated that his coworker on the job on the day of the incident never mentioned anything about a dangerous or unsafe condition.   Page 147 of Norcia deposition.

If a visual inspection of the area would not reveal the defect to an experienced tradesman, the court certainly cannot conclude that the alleged dangerous and/or unsafe condition was obvious.   Therefore, the “affirmative rule” exempting an owner from the notice requirement because it created the condition does not apply.  Id., 123 (“Analysis of the affirmative act rule as it has been applied shows that it permits the inference of actual notice only when the defendant or its employees created an obviously hazardous condition.”  DiPietro v. Farmington Sports Arena, LLC, supra, 306 Conn. 123).

In response to this argument the plaintiff has submitted:  (1) the Affidavit of Franklin “Chip” Darius, Jr., a safety expert, who expresses the opinion that the construction of the enclosure and the immediate surrounding area does not meet OSHA specifications and (2) the Affidavit of Mark W. Tebbets, an expert in state building code compliance, who opines that the improvements violate several building codes.   The court notes, as to both premises liability and negligence, that violations of OSHA regulations do not create per se liability or create a private right of action.   See Edwards v. Washington, 661 F.Sup.2d 13 (D.C.2009);  Mazurek v. Great American Ins. Co., 284 Conn. 16, 26, 930 A.2d 682 (2007) (“[A]ny alleged violations of OSHA do not in and of themselves constitute breach of a duty, but merely constitute evidence of a breach of the standard of care”).   They can be used “if applicable as evidence of the standard of care in a negligence action against an employer ․ Where an OSHA regulation applies, in a civil case, it can provide helpful guidance to the jury in its deliberations.”  (Citation omitted.)  Wagner v. Clarke Equipment Co., 243 Conn. 168, 188, 700 A.2d 38 (1997).

In the present case the plaintiff argues that the requirement of constructive notice is satisfied by offering these experts' opinions that the enclosure:  (1) did not meet certain OSHA regulations;  and/or (2) did not meet Connecticut Building Code specifications as promulgated by the National Fire Protection Association.   The court notes that “[i]n addition to obvious or discoverable dangers, constructive notice may arise from the existence of industry standards or government regulations.”  DiPietro v. Farmington Sports Arena, LLC, supra, 306 Conn. 119.

Neither GP nor ABA was ever the plaintiff's employer.   Therefore, the provisions of 26 U.S.C. §§ 651 et seq. may not apply to them.   The court also notes the provisions of 26 U.S.C. § 653, Subsection (b)(4), which state that “[n]othing in this Act shall be construed to ․ enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.”

It is possible that the trier of fact may find insufficient evidence that a defect or dangerous or unsafe condition on the premises in the first instance.   It is also possible that the trier of fact may find insufficient evidence upon which to charge defendants GP and ABA with knowledge of the alleged OSHA and building code violations and, by extension, with notice of the alleged dangerous and unsafe conditions.   But this is not the province of the court when ruling on a motion for summary judgment.   Therefore, given the two Affidavits submitted by plaintiff, and again viewing the facts of the case in the light most favorable to the plaintiff, the court finds that the plaintiff has created an issue of material fact as to existence of a defect on the premises and as to notice.   Given this finding, these defendants are not entitled to summary judgment as to counts one, two, three and four of plaintiff's third amended complaint.

CONCLUSION

For the reasons set forth above, Motion No. 197.00 of defendant Northeast Generator of Connecticut, Inc. is granted, and Motion No. 199.00 of defendants Greenwich Plaza, Inc. and Albert B. Ashforth, Inc. is denied.

By the Court

Anthony D. Truglia, Jr., J.

FOOTNOTES

FN1. “Parol evidence is admissible (1) to explain an ambiguity appearing in the instrument;  (2) to prove a collateral oral agreement which does not vary the terms of the writing;  (3) to add a missing term in a writing which indicates on its face that it does not set forth the complete agreement;  or (4) to show mistake or fraud.”  Jay Realty, Inc. v. Ahearn Development Corporation, 189 Conn. 52, 56 (1983).   None of these situations apply and, thus, evidence outside the four corners of the 2008 service agreement is inadmissible in the present context.   See Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997), and Practice Book § 17–46 (“only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment”)..  FN1. “Parol evidence is admissible (1) to explain an ambiguity appearing in the instrument;  (2) to prove a collateral oral agreement which does not vary the terms of the writing;  (3) to add a missing term in a writing which indicates on its face that it does not set forth the complete agreement;  or (4) to show mistake or fraud.”  Jay Realty, Inc. v. Ahearn Development Corporation, 189 Conn. 52, 56 (1983).   None of these situations apply and, thus, evidence outside the four corners of the 2008 service agreement is inadmissible in the present context.   See Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997), and Practice Book § 17–46 (“only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment”).

Truglia, Anthony D., J.