Diana Sargent v. LLC (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 122)

On July 15, 2013, the defendant, OR & L Facility Services, LLC, filed a motion for summary judgment.   In addition to the memorandum of law in support of its motion, the defendant appends:  (1) the original complaint;  (2) the plaintiff's deposition;  (3) photographs from the scene of the incident;  and (4) an affidavit executed by the defendant's Executive Vice President of Operations, Suzanne O. Black.   The affidavit is accompanied by several exhibits:  the subcontract between the defendant and Project Service, LLC (Exh. A);  inspection reports completed by the Department of Transportation (Exhs. B, C, and D);  photographs of the steps at issue (Exh. E);  and an aerial photograph of the area (Exh. F).  On July 18, 2013, the plaintiff filed a memorandum in opposition to the defendant's motion and appended an affidavit executed by the plaintiff, photographs of the area of the incident, a copy of the same subcontract provided by the defendant, and a letter written by its expert witness, Mark Tebbets.   The matter was heard during short calendar on August 26, 2013.¹

BACKGROUND

On July 2, 2012, the plaintiff, Diana Sargent, filed a two-count complaint against R & K Spero Co., LLC (R & K Spero) and OR & L Facility Services, LLC (the defendant).   On June 27, 2013, R & K Spero filed a motion for summary judgment arguing that all evidence indicated that R & K Spero had no possessory interest in or right to control the offending stairway and therefore it owed no duty to the plaintiff.   The plaintiff filed no memorandum in opposition and, on July 23, 2013, the trial court, Cole–Chu, J., granted R & K Spero's motion for summary judgment.

In the amended complaint filed on August 27, 2013, which is directed against only the defendant, the plaintiff alleges the following facts.   On June 27, 2010, at approximately 11 a.m., the plaintiff was at a rest area located off of Interstate 95 northbound in Branford, Connecticut.   As the plaintiff was walking back to her vehicle after purchasing lunch at a McDonald's restaurant, she stumbled off of a cement stair and suffered various injuries and losses as a result of the defendant's negligence.   The plaintiff alleges that her injuries were caused by the defendant's negligent failure to properly paint the stairs, to warn the plaintiff of the elevation change, to install handrails, and to comply with the state building code by ramping the stairs and installing handrails.   The defendant answered the complaint and raised contributory negligence as a special defense.

LAW RE MOTION FOR SUMMARY JUDGMENT

“[S]ummary 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 that 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.”  (Internal quotation marks omitted.)  Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 56–57, 68 A.3d 1162 (2013).  “The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts ․ 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 ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).   Finally, it is important to recognize that “[i]ssues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner.”  Spencer v. Good Earth Restaurant Corp., 164 Conn. 194, 199, 319 A.2d 403 (1972).   Nevertheless, “[t]he 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, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003).

ANALYSIS

The defendant's motion for summary judgment asserts that there are no genuine issues of material fact that the defendant did not own or have the duty to perform structural repairs at the premises that would have required it to install a handrail or bring the stairway into compliance with the building codes.   The defendant further asserts that it did not have notice of the claimed defects and that the evidence demonstrates that neither the lack of a handrail nor the lack of paint caused the plaintiff to fall.   Accordingly, the defendant argues, it is entitled to judgment as a matter of law.   The defendant supports these assertions by arguing that the maintenance subcontract that the plaintiff alleges gave rise to a duty to maintain the stairway included no specific language requiring the defendant to repaint the stairs or to install handrails.   Furthermore, the defendant contends that, even if this duty did exist, Suzanne Black's affidavit and the Department of Transportation inspection records show that the defendant had no actual or constructive notice of, nor did it create, any defects in the stairway and was, therefore, not negligent in its maintenance of those stairs.   Finally, it argues that, even assuming that it had breached a duty owed to the plaintiff, such a breach was not the proximate cause of the plaintiff's injuries.   The defendant relies upon the plaintiff's deposition during which the plaintiff stated that she was holding food in both hands and was not looking down at the stairs immediately prior to her accident.   According to the defendant, this deposition proves that the addition of brighter paint or a handrail would have been futile in preventing the plaintiff's injuries.

The plaintiff's memorandum of law in opposition first argues that the defendant's motion for summary judgment should be denied as untimely.   On July 8, 2013, notice was given to both parties that trial was scheduled to begin on December 5, 2013, and the court, Devine J., ordered the defendant to submit any motion for summary judgment by July 12.   The defendant submitted its motion three days late on July 15.   The plaintiff next argues that, setting aside timeliness, there are nine provisions within the defendant's subcontract that indicate that it had a duty to maintain the stairway in a manner which, if properly performed, would have spared the plaintiff her injuries.   Regarding proximate cause, the plaintiff cites her affidavit wherein she states that she mistakenly believed, as she left the McDonald's restaurant, that the stairway was actually a ramp.   The plaintiff's memorandum argues that, had the stairs been more brightly painted or accompanied by a handrail, the plaintiff would have realized that she was indeed approaching a stairway and her fall would not have occurred.   Furthermore, with respect to breach, the plaintiff's memorandum states that its expert witness, Mark Tebbetts, will testify that the defendant did have constructive notice of the fading and chipping paint.

I.

Timeliness of the Defendant's Motion for Summary Judgment

Before delving into the parties' substantive arguments, the court will address the timeliness of the defendant's motion, which it filed three days after the deadline ordered by the court.   Both the Supreme Court and the Appellate Court have emphasized the trial court's “ample discretion” in choosing to hear untimely motions for summary judgment.   See Grimm v. Fox, 303 Conn. 322, 339, 33 A.3d 205 (2012), citing Kervick v. Silver Hill Hospital, 128 Conn.App. 341, 354, 18 A.3d 622 (2011), rev'd on other grounds, 309 Conn. 688, 72 A.3d 1044 (2013).   The Appellate Court in Kervick recognized that—in determining whether to consider an untimely motion for summary judgment—the court should evaluate whether adjudicating the motion would delay trial.   Kervick v. Silver Hill Hospital, supra, 128 Conn.App. 354.   In the present case, the defendant's motion, while certainly untimely, was filed more than four months before trial was scheduled to begin on December 5, 2013.   Accordingly, there is no concern of delay and the court will proceed to consider the defendant's substantive arguments regarding the plaintiff's negligence claim.

II.

The Defendant's Argument Regarding Duty

“The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury.”   RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994).  “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 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).   The defendant's memorandum argues that it owed no duty to the plaintiff under its subcontract with Project Service, LLC.

“Connecticut law holds that a contractor has a duty to anyone who may be foreseeably injured by its negligence in performing its contractual obligations.   See Minton v. Krish, 34 Conn.App. 361, 367–68, 642 A.2d 18 (1994).”  (Internal quotation marks omitted) Turner v. Bay State Elevator, Co., Superior Court, judicial district of Hartford, Docket No. CV–07–5012074–S (February 19, 2009, Wagner, J.T.R.).   Twenty-five years ago, the Supreme Court recognized that “[i]t is now the almost universal rule that the contractor is liable to all those who may foreseeably be injured by the structure, not only when he fails to disclose dangerous conditions known to him, but also when the work is negligently done.   This applies not only to contractors doing original work, but also to those who make repairs ․” (Internal quotation marks omitted.)  Zapata v. Burns, 207 Conn. 496, 517, 542 A.2d 700 (1988).

Stated differently, “[o]ne 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 the third person for physical harm resulting from his failure to exercise reasonable care ․” (Internal quotation marks omitted.)  Gazo v. Stamford, 255 Conn. 245, 252–53, 765 A.2d 505 (2001).   Of course, for such duty to arise, the original parties to the contract must have intended that the contractor perform the services which caused the third person's injuries.   While “[i]t is well established that [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law”;  (emphasis omitted;  internal quotation marks omitted) Harbour Pointe, LLC v. Harbour Landing Condominium Assn., Inc., 300 Conn. 254, 259–60, 14 A.3d 284 (2011);  “the meaning of ambiguous contract language presents a question of fact for the trier.”  Williams v. Freedom of Information Commission, 108 Conn.App. 471, 475–76 n.4, 948 A.2d 1058 (2008).   “[A] contract is unambiguous when its language is clear and conveys a definite and precise intent ․ In contrast, a contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself ․ If the language of the contract is susceptible to more than one reasonable interpretation, the contract is ambiguous.”  (Internal quotation marks omitted.)  Harbour Pointe, LLC v. Harbour Landing Condominium Assn., Inc., supra, 300 Conn. 260–61.

The defendant argues that its subcontract with Project Service, LLC is unambiguous and clearly contains no requirements that the defendant repaint the stairs, install handrails, or maintain the stairway in a manner which would have prevented the plaintiff's injuries.   The plaintiff's memorandum, however, has highlighted at least three provisions which suggest otherwise.   First, section 6.2 entitled “Maintenance Standards” located on page fourteen of the contract mandates that “OR & L shall maintain the parking areas, drives, lanes, drive thru land, entrances, exits, sidewalks, ramps ․ stairways, picnic areas, green space ․” (Emphasis added.)   Next, section 6.22 entitled “Preventative Maintenance Program” located on page twenty stipulates that “OR & L acknowledges and agrees to the necessity of and implementing a program of preventative maintenance in order to keep the buildings, structures and improvements of the Service Areas and all Equipment and Fixtures at all Service Areas in good repair and working order and appearance, subject to normal wear and tear.”   Finally, section 6(a) of Schedule 4.1 (appended to the subcontract) specifies that “[d]aily concern, concentration, and service will be targeted at various areas of the Service Areas, including without limitation the following areas:  ․ 7. Interior and Exterior Painting.”   These provisions certainly indicate that the defendant had some contractual responsibilities to maintain the stairway and to perform exterior painting.   Whether these responsibilities specifically include installing handrails and repainting the stairs is unclear and, therefore, remains a genuine issue of material fact most properly reserved for trial.

III.

The Defendant's Argument Regarding Breach

The defendant next argues that, even if it had a duty to maintain the stairway pursuant to the subcontract, the evidence is clear that it was not negligent in its maintenance.   It is important to first recognize that breach is ordinarily a question of fact left for the trier to determine.   See Sic v. Nunan, 307 Conn. 399, 407, 54 A.3d 553 (2012) (“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 violated that duty in the particular situation at hand”).   The defendant asserts that it did not breach its duty because it had no notice of any alleged defects and cites numerous inspection reports completed by the Department of Transportation.

However, in opposition to that claim, the plaintiff attaches a letter from its expert witness, Mark Tebbets, which states that the paint on the stairs was clearly worn and barely visible.

The plaintiff's Disclosure of Expert Witnesses filed on November 15, 2012, represents that Tebbets will also testify that failure to install a handrail was a clear violation of Connecticut's Building Code.

Furthermore, Suzanne Black's affidavit states that the defendant had performed 784 work orders at the Service Area in the six months between when it entered into the contract in December of 2009 and when the plaintiff was injured on June 27, 2010.   Accordingly, the defendant executed approximately one hundred and thirty work orders at the Service Area per month leading up to the plaintiff's accident and had ample opportunity to observe the paint on the stairs and the absence of a handrail.   Whether the defendant's failure to remedy these alleged defects was negligent is an issue for the finder of fact.   Viewing this evidence in the light most favorable to the plaintiff, as the court must, there is a genuine issue of fact regarding whether the defendant breached its duty to adequately maintain the stairway.

IV.

The Defendant's Argument Regarding Proximate Cause

Finally, the defendant's motion argues that, even assuming duty and breach, there is no genuine issue of fact regarding proximate cause in light of the plaintiff's deposition wherein she stated that both of her hands were occupied and that she was not looking down at the stairs when she fell.   As with breach, “[t]he question of proximate causation ․ 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.)  Sapko v. State, 305 Conn. 360, 373, 44 A.3d 827 (2012).   The defendant's interpretation of the plaintiff's deposition is that brighter paint or the presence of a handrail would not have prevented the plaintiff's injuries because her hands were occupied and she was not looking down at the time of the accident.   The plaintiff's memorandum argues that—had there been handrails next to the stairway or brighter paint—the plaintiff would have realized that she was approaching a stairway (as opposed to a ramp) early enough to prevent her accident.   In her affidavit, the plaintiff avers that “[t]he stairway looked like the ramp I had ascended as it did not have a handrail and there was nothing to warn me that I was about to encounter cement steps.”   Accordingly, this evidence, again viewed in the light most favorable to the plaintiff, presents a genuine issue of material fact as to whether the defendant's alleged failure to properly maintain the stairway was a proximate cause of the plaintiff's injuries.

ORDER

For the foregoing reasons, the plaintiff has carried its burden of establishing a genuine issue of material fact with respect to each of the elements that the defendant has contested.   Therefore, the defendant's motion for summary judgment is denied.

Devine, J.

FOOTNOTES

FN1. On August 27, 2013, the plaintiff filed an amended complaint.   The only substantive change made was that count one, against OR & L's co-defendant, R & K Spero Co., LLC, was removed from the complaint.   A month earlier, R & K Spero was granted summary judgment.   On September 5, 2013, OR & L answered the amended complaint and the plaintiff replied four days later on September 9, 2013..  FN1. On August 27, 2013, the plaintiff filed an amended complaint.   The only substantive change made was that count one, against OR & L's co-defendant, R & K Spero Co., LLC, was removed from the complaint.   A month earlier, R & K Spero was granted summary judgment.   On September 5, 2013, OR & L answered the amended complaint and the plaintiff replied four days later on September 9, 2013.

Devine, James J., J.