Opinion
CV176031537
04-04-2019
Michael FALZARANO v. C.E. FLOYD COMPANY, INC. et al.
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
Both defendants, C.E. Floyd Company, Inc., and CBT/Child Bertman Tseckares, Inc., filed separate motions for summary judgment. This decision addresses both of the motions.
Swienton, J.
The plaintiff, Michael Falzarano, alleges he suffered injury and other losses after he walked into a glass wall located within the Mystic Hilton Hotel. He has brought three separate actions. In the present action he has made claims against the defendant, C.E. Floyd Company, Inc. (C.E. Floyd), and CBT/Child Bertman Tseckares, Inc. (CBT Architects), alleging that individuals employed by these defendants designed and/or were responsible for erecting a glass wall and/or partition which was defective in a number of ways. The defendants deny negligence and have asserted special defenses, including comparative negligence. Both C.E. Floyd and CBT Architects have filed motions for summary judgment.
CBT/Child Bertman Tseckares, Inc., does business as CBT Architects, Inc.
FACTUAL BACKGROUND
The plaintiff alleges that on September 29, 2015, he walked into a glass wall and/or partition at the Mystic Hilton Hotel. The hotel had recently undergone renovations, and the defendant, C.E. Floyd, was the general contractor responsible for the renovations. The renovation entailed the renovation of lobby space and the renovation of the interior and entry of the restaurant located at the hotel known as "The Irons." The design of the renovations was prepared by CBT Architects, and those plans included the installation of glass walls separating the lobby hallway from The Irons restaurant. (Amended complaint, first count, ¶¶1-4; second count, ¶¶1-4.
C.E. Floyd subcontracted the glass work to a glass subcontractor, 385 Central Glass and Mirror, Inc., d/b/a New England Glass & Mirror Co., Inc. (New England Glass). New England Glass purchased and installed the glass (C.E. Floyd’s Memorandum, Exhibit A, Aff. of Peter Doucet).
The operative complaint is the amended complaint dated February 8, 2018, and is in two counts. The complaint alleges that both defendants violated Chapter 10, § 1007.1 of the 2003 International Building Code by failing to provide a continuous and unobstructed way of egress; allowed a glass wall and/or partition to be erected and/or installed in the hotel which they knew or should have known to be dangerous; failed to put decals, stickers, or other warning signs on the glass wall and/or partition; failed to warn patrons of the dangerous glass wall and/or partition; failed to inspect the area where the plaintiff was injured to notify him of the dangerous condition; failed to remove the glass wall and/or partition although the defendants knew or in the exercise of reasonable care should have known that the area was dangerous and hazardous; failed to place cones, barricades, signs, or other such devices in the area to warn of the presence of the glass wall and/or partition; and failed to take reasonable precautions to ensure there were no hazards such as the unmarked glass wall and/or partition.
As against the defendant, C.E. Floyd, the plaintiff also alleges that it erected and/or installed a glass wall and/or partition in the hotel when they knew or in the exercise of reasonable care should have known that the wall and/or partition would be hazardous and dangerous to patrons including the plaintiff walking through the hotel because it was not visible (Amended complaint, first count, § 5b). In the second count against CBT Architects, the plaintiff added that CBT Architects "designed," erected, and/or installed a glass wall that presented a hazardous and dangerous condition to patrons. Id.
Both defendants filed motions for summary judgment, the plaintiff filed an objection to both motions, and each defendant filed a reply to the objections. The court heard argument on the motions and objections.
DISCUSSION
Legal Standard
"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 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.) Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. 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, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard ... 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.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
"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, 538 A.2d 1031 (1988).
"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).
C.E. Floyd’s Motion for Summary Judgment
C.E. Floyd asserts that it is entitled to summary judgment because it was not negligent, and also because the plaintiff has not disclosed any expert rendering an opinion that C.E. Floyd was negligent. It argues that its only duty was to do the site work in accordance with the plans and specifications given to it as the general contractor. As there are no allegations that it did not perform all of the work required by the contract documents in accordance with the contract specifications, plans and drawings, then there can be no finding of negligence. To support its position, C.E. Floyd submitted an affidavit of Peter Doucet, the project manager employed by C.E. Floyd and the project manager in charge of the Mystic Hilton renovation. He states that "[C.E.] Floyd performed all of the work required by the contract documents in accordance with the contract specifications, plans, and drawings" (C.E. Floyd’s Memorandum, Exh. A).
Whether C.E. Floyd owed a duty to the plaintiff centers around whether it negligently performed its contractual duties. The plaintiff has submitted an affidavit of his expert, Michael Panish, who opines that "[i]t was a failure in design and construction management on the part of the owner, general contractor, C.E. Floyd ... by failing to provide any warning for a clear glass wall in this environment." Plaintiff’s objection, Exhibit A, ¶18.
C.E. Floyd also raises the issue of late disclosure of the plaintiff’s expert witness. The scheduling orders gave a date of June 1, 2018, by which the plaintiff was to have disclosed an expert. The expert disclosure was made on July 13, 2018. This motion for summary judgment was heard on March 18, 2019. There was ample time for C.E. Floyd to have deposed the plaintiff’s expert, or to have his opinion reviewed. C.E. Floyd does not argue that the plaintiff’s expert is not qualified to render an opinion as to the general contractor.
C.E. Floyd incorrectly states that the allegations of the complaint center around the design of glass wall and/or partition, or even the installation. A question of fact remains whether C.E. Floyd, as the general contractor, was negligent in its construction management of the project in allowing the glass wall and/or partition to be erected and installed. C.E. Floyd’s motion for summary judgment is denied.
There also remains a question of whether the harm alleged was foreseeable. In any event, several questions of fact exist which do not allow the court to grant summary judgment in favor of C.E. Floyd.
CBT Architect’s Motion for Summary Judgment
The claim against CBT Architects sound in professional negligence which requires expert testimony to opine as to the applicable standard of care and causation. CBT Architect argues that it is entitled to summary judgment because the plaintiff did not disclose a qualified expert to give such an opinion because the plaintiff’s expert, Michael Panish, is not a licensed architect and therefore not qualified to testify as to the standard of care applicable to architects. Although the plaintiff does not specifically address this argument, the court nevertheless finds that the expert disclosed by the plaintiff is qualified based upon reason of training and experience to opine as to the applicable standard of care.
When CBT Architects filed its motion for summary judgment on July 2, 2018, no expert had been disclosed by the plaintiff. This argument was raised in reply brief filed by CBT Architects on February 21, 2019.
"A cause of action in negligence is comprised of four elements: duty; breach of that duty; causation; and actual injury." Ruiz v. Victory Properties, LLC, 315 Conn. 320, 328, 107 A.3d 381 (2015). Actions asserted as negligence, however, can actually sound in professional negligence, also known as malpractice. "The classification of negligence claim as either malpractice or ordinary negligence requires a court to review closely the circumstances under which the alleged negligence occurred." Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 357, 764 A.2d 203, appeal dismissed, 258 Conn. 711, 784 A.2d 889 (2001). "[P]rofessional negligence or malpractice ... [is] defined as the failure of one rendering professional services to exercise that a degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services." (Internal quotation marks omitted.) Santopietro v. New Haven, 239 Conn. 207, 226, 682 A.2d 106 (1996).
"In every professional malpractice action, the plaintiff is required to prove that (1) the defendant was obligated to conform to a recognized standard of care, (2) the defendant deviated from that standard, (3) the plaintiff suffered some injury, and (4) the defendant’s act in departing from the standard of care caused the plaintiff’s injury." Gordon v. Glass, 66 Conn.App. 852, 855-56, 785 A.2d 1220 (2001), cert. denied, 259 Conn. 909, 789 A.2d 994 (2002).
"As a general rule, for a plaintiff to prevail in a ... malpractice case in Connecticut, he must present expert testimony to establish the standard of proper professional skill or care ... The requirement of expert testimony in malpractice cases serves to assist lay people, such as members of the jury and the presiding judge, to understand the applicable standard of care and to evaluate the defendant’s actions in light of that standard." (Citations omitted.) Vona v. Lerner, 72 Conn.App. 179, 188, 804 A.2d 1018 (2002), cert. denied, 262 Conn. 938, 815 A.2d 138 (2003).
"If the determination of the standard of care requires knowledge that is beyond the experience of an ordinary fact finder, expert testimony will be required." Santopietro v. New Haven, supra, 239 Conn. 226. "When a topic requiring special experience of an expert forms a main issue in the case, the evidence on that issue must contain expert testimony or it will not suffice ... In cases involving claims of professional negligence, as here, expert testimony is essential to establish both the standard of skill and care applicable and that the defendant failed to conform to the standard as these matters are outside the knowledge of the jury." (Citations omitted; internal quotation marks omitted.) Matyas v. Minck, 37 Conn.App. 321, 326-27, 655 A.2d 1155 (1995).
Generally speaking, professional malpractice claims are applicable to traditional professions, such as doctors, lawyers, accountants, architects and engineers, as well as those who undertake any work calling for a special skill that requires a standard minimum of special knowledge and ability. See, e.g., Santopietro v. New Haven, supra, 239 Conn. 229 (exercise of discretion of umpire in softball tournament served as basis for professional malpractice action); Ahearn v. Fuss & O’Neil, Inc., 78 Conn.App. 202, 206, 826 A.2d 1224, cert. denied, 266 Conn. 903, 832 A.2d 64 (2003) (professional malpractice standards applied to engineering firm and required expert testimony); Matyas v. Minck, supra, 37 Conn.App. 326-27, (professional malpractice standard applies to engineers).
The issue is whether an expert witness has to be a licensed architect in order to provide the standard of care applicable to architects or can an expert witness be qualified based on reason of training and experience and/or licensure.
Connecticut courts have recognized that expert testimony is required to determine the duty of architects in cases involving claims of professional negligence. See Canale v. KBE Building Corp., Superior Court, judicial district of Waterbury, Docket No. CV-15-6026262-S (September 5, 2017) ("[t]he duty of an architect must be established by expert testimony; it is not within the province of the ordinary factfinder to determine this duty through negative inference"); Winsted Land Development v. Design Collaborative Architects, P.C., Superior Court, judicial district of Litchfield, Docket No. CV-96-0071571-S (August 12, 1999) ("In a [malpractice] case against an engineer, it is incumbent upon the plaintiff to produce evidence as to what a skilled engineer of ordinary prudence engaged in the same line of business would have exercised in the same or similar circumstances ... The court finds that this principle of law is equally applicable to architects and other site planning professionals" [citations omitted; internal quotation marks omitted]).
In Conway v. American Excavating, Inc., 41 Conn.App. 437, 448-49, 676 A.2d 881 (1996), the Connecticut Appellate Court held "[e]xcept in malpractice cases, it is not essential that an expert witness possess any particular credential, such as a license, in order to be qualified to testify, so long as his education or experience indicate that he has knowledge on a relevant subject significantly greater than that of persons lacking such education or experience." The Conway court did not expound further on whether a particular credential was essential in all malpractice cases or whether a particular credential was essential in certain malpractice cases. See Id. Following the Conway ruling, there appears to be a dearth of case law as to whether an expert witness has to be a licensed architect in order to provide testimony on the standard of care applicable to architects. On the other hand, Connecticut courts have addressed the issue of whether an expert witness has to be a licensed engineer in order to provide testimony on the standard of care applicable to engineers.
For example, in United Technologies Corp. v. Saren Engineering, Inc., Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X06-CV-02-0173135-S (January 9, 2004), a plaintiff brought a breach of contract and negligence action against various defendants that included an engineering firm. In moving for summary judgment, the engineering firm contended that the plaintiff’s witness lacked the necessary qualifications to render an opinion in the case because the expert witness was not a licensed engineer and lacked the relevant experience in the subject matter at issue. Id. The court held that "[t]he fact that [the expert witness] is not a licensed engineer does not preclude him from rendering an expert opinion in this matter ... The fact that his experience does not include the design of control valves or control systems for ammonia storage systems goes to the weight, not the admissibility, of his expert opinion." (Citation omitted.) Id.
A similar issue arose in Shoreline Care Ltd. Partnership v. Jansen & Rogan Consulting Engineers, P.C., Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X06-CV-94-0155982-S (November 15, 2002), overruled on other grounds by Schirmer v. Souza, 126 Conn.App. 759, 767, 12 A.3d 1048 (2011) ("[a]lthough the defendants cite three cases in which our trial courts did, in fact, reject claims of unjust enrichment on the ground that there was no contractual relationship between the parties, we are guided by ample appellate decisional precedent and legal authority that a contractual relationship is not a prerequisite to recovery based on unjust enrichment" [footnote omitted]). In Shoreline, the court addressed the defendant’s argument that the plaintiff failed to provide an expert opinion from a licensed professional engineer regarding the standard of care owed by the engineer to the plaintiff. Id. The expert witness in question, an experienced mechanical contractor, was not a licensed engineer. Id. The court found that the testimony of the expert witness was sufficient to establish the obligation of the mechanical engineer and the failure of the defendant to comply with that duty. Id.
In contrast to the lack of a licensure requirement for expert witnesses testifying to the applicable standard of care for matters of professional malpractice involving engineering, Connecticut courts have required licensure or membership requirements for expert witnesses testifying to the applicable standard of care for issues concerning medical malpractice or legal malpractice. See Glaser v. Pullman and Comley, LLC, 88 Conn.App. 615, 623, 871 A.2d 392 (2005) ("[t]o be qualified as an expert witness in a legal malpractice matter, an attorney must be found to possess special knowledge beyond that exhibited by every attorney simply as a result of membership in the legal profession" [internal quotation marks omitted]); Bergeron v. Verna at Woodcrest Knoll, LLC, Superior Court, judicial district of New Haven, Docket No. CV-09-5028817-S (September 12, 2014) ("[i]n the medical malpractice area, [General Statutes § 52-184c] explicitly provides that a witness may not testify as a health care provider or similar health care provider without certain licensing requirements").
Although this court is not bound by the decisions of our sister state courts, the Colorado Court of Appeals and the Superior Court of New Jersey, Appellate Division, both ruled on the issue of an expert witness’ qualifications in regards to claims involving architectural malpractice. In Corcoran v. Sanner, 854 P.2d 1376, 1381-82 (Colo.App. 1993), the Colorado Court of Appeals rejected the plaintiff’s contention that expert witnesses are disqualified from testifying in Colorado merely because they are not licensed in Colorado or do not perform their services in the state. The Colorado Court of Appeals held that "an architect unlicensed in Colorado is not disqualified from testifying as to the standard of care of architects here, provided that the out-of-state expert has a sufficient familiarity with the proper standard of care required by Colorado practitioners." Id., 1382.
In Garden Howe Urban Renewal Associates, L.L.C. v. HACBM Architects Engineers Planners, L.L.C, 439, 456, 110 A.3d 82 (N.J.Super.App.Div. February 26, 2015), the New Jersey court addressed the issue of whether expert testimony in a case involving claims of architectural malpractice is solely limited to expert testimony from architects. The New Jersey court declined to limit expert testimony to architects for claims involving architectural malpractice. Id., 459. In arriving at its conclusion, the New Jersey court noted that the New Jersey statutes governing the practice of architecture and engineering recognize that architects and engineers may both engage in practices that form the basis for several of the plaintiff’s claims and, thus, a professional engineer may have the requisite knowledge to offer opinions as to the standards of care that apply to architects in the performance of the applicable services. See Id., 458.
Similarly, Connecticut statutes governing the practice of architecture and engineering also recognize that architects and engineers may both engage in the same practice. See Malone v. 390 Capitol Avenue, Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X07-CV-16-6070579-S (November 28, 2018) ("[General Statutes § 31-293(c)] defines construction design professional as any person licensed as an architect ... or ... engineer ... or ... any corporation organized to render licensed architectural or engineering services" [internal quotation marks omitted]). Moreover, a Connecticut Superior Court case arrived at a similar conclusion as to the New Jersey court in Garden in regards to the possibility that an architect and a professional engineer may both have the requisite qualifications to testify to a claim involving professional malpractice. See Apicelli v. C.R. Klewin, Inc., Superior Court, judicial district of New London at Norwich, Housing Session, Docket No. X04-CV-99-0118348-S, X04-CV-00-0119305-S (February 20, 2002) ("Similarly, the court declines to rule on the issue raised by the objections that an individual expert in the field of each individual defendant would be required. While generally an expert must possess specialized knowledge in the field in question, it is possible that a member of a firm of architecture and engineering professionals could be qualified to testify about the design defects plaintiff alleges" [emphasis in original]).
Connecticut courts have not established that an expert witness has to be a licensed architect in order to provide the standard of care applicable to architects and, thus, an expert witness may be qualified based on reason of training and experience and/or licensure. Therefore, the plaintiff has established a question of fact as to the negligence of CBT Architects, and accordingly the motion for summary judgment is denied.
CONCLUSION
Based upon the foregoing, the motion for summary judgment as to the first count against C.E. Floyd is denied. The motion for summary judgment as to the second count against CBT Architects is denied.