Opinion
CV146006846S
01-10-2018
Jonathan FRONTE v. BELFOR ENVIRONMENTAL, INC. et al.
UNPUBLISHED OPINION
OPINION
Hon. Sheridan L. Moore, Judge
Before the court are two Motions for Summary Judgment filed by the defendant homeowners, Harry and Charlotte Levasseur (# 164) and by defendant general contractors, Belfor (# 166). The parties appeared and argued said motions at short calendar on October 10, 2017.
FACTS
On December 26, 2013, the plaintiff, Jonathan Fronte, filed an eight-count complaint against the defendants, Harry Levasseur, Charlotte Levasseur, Belfor Environmental, Inc., and Belfor USA Group, Inc. Count one of the plaintiff’s complaint alleges the following facts. The defendants, Belfor Environmental, Inc. and Belfor USA Group, Inc. (collectively referred to as Belfor), are general contractors that were in charge of a construction project at the home of the defendants, Harry Levasseur and Charlotte Levasseur. On or about March 23, 2012, the plaintiff was working as a subcontractor at the construction project at the Levasseurs’ home when he fell through the Levasseurs’ deck as a result of defective boards, which caused him various physical, financial, and other harms. The plaintiff’s fall and its consequences were a result of the negligence and carelessness of Harry Levasseur, who was under a duty to keep the premises safe. Counts two, three, and four set forth the same allegations as count one, but direct them at Charlotte Levasseur and Belfor, respectively. Count five alleges that Harry Levasseur acted deliberately or with reckless disregard for the safety of the contractors working on the construction project, as he knew of the dangerous condition but did not warn others of its existence or take action to protect them from it. Counts six, seven, and eight set forth the same allegations as count five, but direct them at Charlotte Levasseur and Belfor, respectively.
On July 31, 2017, the Levasseurs jointly moved for summary judgment as to counts one, two, five, and six. On that same day, Belfor also jointly moved for summary judgment as to counts three, four, seven, and eight. The Levasseurs and Belfor submit memoranda of law in support of their motions, and attach numerous exhibits to each of them. The defendants argue in both motions that there is no genuine issue of fact concerning the defendants’ lack of a duty of care owed to the plaintiff, because the premises of the plaintiff’s alleged accident and the means and methods of the plaintiff’s work were under the complete and exclusive control of Mount Carmel Construction, LLC (Mount Carmel). On September 5, 2017, the plaintiff filed objections to both the Levasseurs’ and Belfor’s motions for summary judgment. The plaintiff submits memoranda of law in support of both objections, and attaches numerous exhibits to each of them. On September 15, 2017, the Levasseurs and Belfor both filed reply briefs in further support of their motions for summary judgment. The matter was heard at short calendar on October 10, 2017.
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 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.) Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016). " [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). " When 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 ... 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.) State Farm Fire & Casualty Co. v. Tully, 322 Conn. 566, 573, 142 A.3d 1079 (2016).
" To recover on a theory of negligence, the plaintiff must establish that the [defendant] owed a duty to [the injured person] and breached that duty ... The existence of a duty is a question of law ... 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 ... [A] count based on reckless and wanton misconduct must, like an action in negligence, allege some duty running from the defendant to the plaintiff." (Citation omitted; internal quotation marks omitted.) Vitale v. Kowal, 101 Conn.App. 691, 698, 923 A.2d 778, cert. denied, 284 Conn. 904, 931 A.2d 268 (2007).
" As a general rule, an employer is not liable for the negligence of its independent contractors ... The explanation for [this rule] most commonly given is that, since the employer has no power of control over the manner in which the work is to be done by the contractor, it is to be regarded as the contractor’s own enterprise, and [the contractor], rather than the employer, is the proper party to be charged with the responsibility of preventing the risk, and bearing and distributing it ... This same rule applies, as a general matter, to general contractors as employers of independent subcontractors: a general contractor is not liable for the torts of its independent subcontractors ... We have long held, however, that [t]o this general rule there are exceptions, among them these: If the work contracted for be unlawful, or such as may cause a nuisance, or is intrinsically dangerous, or in its nature is calculated to cause injury to others, or if the contractee negligently employ an incompetent or untrustworthy contractor, or if he reserve in his contract general control over the contractor or his servants, or over the manner of doing the work, or if he in the progress of the work assume control or interfere with the work, or if he is under a legal duty to see that the work is properly performed, the contractee will be responsible for resultant injury ... So, too, the contractee or proprietor will be liable for injury which results from his own negligence ... Consistent with these exceptions ... a general contractor may, depending on the circumstances, be held liable to an employee of its subcontractor for its own negligence." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Pelletier v. Sordoni /Skanska Construction Co., 264 Conn. 509, 517-19, 825 A.2d 72 (2003).
" The premise underlying the general rule that an independent subcontractor is liable for losses resulting from negligence in the performance of its work is that the assumption and exercise of control over the offending area is deemed to be in the independent contractor ... [A]n exception to this rule is when the general contractor retains all or partial control over the work to be performed ... Where the evidence on the question as to who had control of the area or instrumentality causing the injury is such that the mind of a fair and reasonable [person] could reach but one conclusion as to the identity of the person exercising control, the question is one for the court, but, if honest and reasonable [persons] could fairly reach different conclusions on the question, the issue should properly go to the jury ... In addition, the contractor’s control need not be exclusive; it is sufficient if it be shared with another." (Citations omitted; internal quotation marks omitted.) Pelletier v. Sordoni /Skanska Construction Co., 286 Conn. 563, 599, 945 A.2d 388 (2008).
I.
LEVASSEURS
The Levasseurs argue that there is no genuine issue of material fact concerning their lack of a duty of care owed to the plaintiff, because they did not have possession or control over Mount Carmel’s work or the premises of the plaintiff’s alleged accident. They argue that, after they contacted their insurance company because a tree fell on their house, their insurance company sent Belfor to assess the damage. Belfor subsequently executed a work authorization and construction contract with the Levasseurs and assigned Ray Carpenter as project manager, who then subcontracted the project to Mount Carmel. They argue that Mount Carmel controlled the means and methods of its work, as evidenced by its placement of safety barriers at the access points to the construction site and its instruction to the Levasseurs and Diane Quirk, Charlotte Levasseur’s mother, to stay off the deck because of the ongoing construction. They further argue that they did not give any instruction to Mount Carmel employees, notwithstanding their decision regarding the color of the boards to be used on their deck.
In response, the plaintiff argues that genuine issues of fact remain as to whether the Levasseurs owed him a duty of care at the time of his accident. He argues that the Levasseurs owed him a duty of care because they did not speak with Mount Carmel employees, and if Mount Carmel employees were actually in control of the premises, the Levasseurs would have spoken with them. He also argues that the Levasseurs had a duty to protect him because Jonathan Acanfora, the owner of Mount Carmel, did not conduct a safety talk with his employees or make a safety plan for the project at the Levasseurs’ home. He further argues that the existence of a duty of care is evidenced by Charlotte Levasseur’s stated intentions of staying away from the construction site, as this demonstrates her knowledge of its danger.
In Mozeleski v. Thomas, supra, 76 Conn.App. 288, our Appellate Court held that neither defendant owed a legal duty to the plaintiff, who claimed that he fell off scaffolding while performing masonry work and suffered serious physical injuries. The scaffolding, which was owned by one defendant, an independent contractor, was erected by the plaintiff and his employee at a residential construction site owned by the other defendant. Id., 288-89. The defendants filed motions for summary judgment on the ground that they did not owe a duty of care to the plaintiff, and both motions were granted. Id., 289. On appeal, the plaintiff argued that the premises owner owed a legal duty to the plaintiff, an independent contractor, to ensure the safety of the work site because the owner retained control over the premises. Id., 291.
In support of his motion for summary judgment, the defendant premises owner in Mozeleski submitted an affidavit " in which he stated, inter alia, that (1) the plaintiff controlled the means and methods of his own work, (2) [the premises owner] did not represent himself to the plaintiff as a masonry supervisor, (3) [the premises owner] did not own or erect the scaffolding, (4) [the premises owner] was not present when the plaintiff erected the scaffolding and (5) the plaintiff did not ask [the premises owner] to provide scaffolding, a fall arrest system or guardrails." (Internal quotation marks omitted.) Id., 292. This established that " at the time of the incident, the plaintiff was acting as an independent contractor and that [the premises owner] did not exercise control over the offending area where the plaintiff was injured, namely, the scaffolding." (Footnote omitted.) Id. Further, the plaintiff " did not file a counteraffidavit or any other supporting documents to contradict [the premises owner’s] affidavit." Id., 293. The court explained that " the mere fact that [the premises owner] observed the progress of the work is not sufficient to establish control. The owner may exercise a limited degree of control or give the contractor instructions on minor details without destroying the independent character of the contractor." Id.
In the present case, the Levasseurs submit several exhibits in support of their motion for summary judgment, including several excerpts of certified deposition transcripts, which collectively provide the following statements. Belfor, through Carpenter, subcontracted the construction project at the Levasseurs’ home to Mount Carmel. Carpenter Dep., pp. 15-18, 23.
On the day of the alleged accident, the plaintiff received his instructions from Acanfora. Acanfora Dep., p. 18; Fronte Dep., p. 13. Mount Carmel installed barriers at the Levasseurs’ home that blocked access to the work site; Quirk Dep., pp. 18, 41-42; C. Levasseur Dep., pp. 22-23; and Mount Carmel workers instructed the Levasseurs to stay out of the work site. Quirk Dep., pp. 41-42. Neither Harry Levasseur nor Charlotte Levasseur were present for a substantial amount of time while Mount Carmel was working at their home, as they both work during the day, and were not present when the plaintiff was injured. C. Levasseur Dep., pp. 15, 32-34. Harry Levasseur generally left home at 4:30 a.m. and returned between 5:00-6:00 p.m.; C. Levasseur Dep., p. 34; Quirk Dep., p. 9; but Mount Carmel employees did not arrive at the Levasseurs’ home until around 8:00 a.m. and left by the time Harry got home. Quirk Dep., pp. 27-28; 31. Other than Charlotte specifying the color of the boards; C. Levasseur Dep., pp. 39-40; the Levasseurs did not provide Mount Carmel with input regarding the work being done on the deck. C. Levasseur Dep., p. 18; Acanfora Dep., p. 44.
The plaintiff, in his objection to the Levasseurs’ motion for summary judgment, submits several uncertified deposition excerpts to support his claim that " the Levasseurs should have known that they were in control of the site and the work being performed." Pl.’s Obj. Summ. Judg., p. 11. Specifically, he submits the following testimonies. The Levasseurs did not have any conversation with Mount Carmel employees or Acanfora, its owner. C. Levasseur Dep., pp. 18, 38, 43. The Levasseurs are often at work during the week. Quirk Dep., pp. 8-9. If the Levasseurs had any issues with the work being done, they would contact Carpenter or Belfor directly. Carpenter Dep., p. 30. Carpenter was at the Levasseurs’ home " more often than not"; C. Levasseur Dep., p. 17; and when Charlotte Levasseur was asked what she saw Carpenter doing at the work site, she stated " [a]ny time if I saw him, direction, conversation, that kind of thing." C. Levasseur Dep., p. 37. Carpenter also discussed the work done to make sure Charlotte Levasseur was satisfied with it. C. Levasseur Dep., p. 41. Charlotte Levasseur further stated that it was her goal to stay out of the workers’ way. C. Levasseur Dep., p. 20.
Where uncertified deposition transcripts are submitted without objection in support of or in opposition to a motion for summary judgment, the court may, in its discretion, choose to consider or exclude them. Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006). The Levasseurs have not objected to the plaintiff’s submission of uncertified deposition transcripts. Therefore, they will be considered by the court.
The Levasseurs have demonstrated that there is no issue of fact concerning their lack of control over the site of the plaintiff’s alleged injuries or the means and methods of Mount Carmel’s work. Similar to the defendant premises owner in Mozeleski, the Levasseurs did not represent themselves as supervisors to Mount Carmel. Although in this case, unlike Mozeleski, the plaintiff has submitted evidence in opposition to summary judgment, that evidence does not create a genuine issue of material fact. The plaintiff essentially argues that, because the Levasseurs did not exercise control over Mount Carmel or the premises of the alleged accident, and because neither Mount Carmel nor Belfor took the proper safety precautions, a duty of care somehow arose in the Levasseurs. But in an effort to support this argument, the plaintiff actually submits evidence demonstrating the Levasseurs’ lack of control over the premises of the alleged accident or the means and methods of Mount Carmel’s work. Further, any observation of the progress of Mount Carmel’s work by the Levasseurs and their decision as to which color boards were to be used on the deck does not destroy Mount Carmel’s independent nature. As the court explained in Mozeleski, an " owner may exercise a limited degree of control or give the contractor instructions on minor details without destroying the independent character of the contractor." Mozeleski v. Thomas, supra, 76 Conn.App. 293. Accordingly, the Levasseurs have demonstrated that no genuine issue of material fact exists regarding their lack of control over the site of the plaintiff’s alleged injuries or the means and methods of Mount Carmel’s work, and are entitled to judgment as a matter of law.
II.
BELFOR
Belfor similarly argues that there is no genuine issue of material fact concerning its lack of a duty of care owed to the plaintiff, because it did not have possession or control over Mount Carmel’s work or the premises of the plaintiff’s alleged accident. Belfor argues that it, through Carpenter, subcontracted the project at the Levasseurs’ home to Mount Carmel. Belfor argues that its employees did not perform any work at the Levasseurs’ home, it did not tell Mount Carmel employees how to perform their work, and Carpenter himself only visited the work site periodically to check the progress of the project. It further argues that Mount Carmel controlled the means and methods of its work, as evidenced by its placement of safety barriers at the access points to the construction site and its instruction to the Levasseurs and Quirk to stay off the deck because of the ongoing construction.
In response, the plaintiff argues that genuine issues of fact remain as to whether Belfor owed the plaintiff a duty of care at the time of his accident, as factual issues remain concerning Belfor’s control over the project at the Levasseurs’ home. The plaintiff further argues that Belfor’s control over the site of the plaintiff’s accident is evidenced by Carpenter’s frequent presence at the work site, his final say over Mount Carmel’s work, his giving directions to the Mount Carmel workers, and his position as Belfor representative, in which he would periodically correspond with the Levasseurs regarding the status of the project. The plaintiff argues that Belfor’s control over the work site is also demonstrated by Belfor’s directive that Mount Carmel employees were not to wear shirts bearing Mount Carmel insignia, as Belfor did not want its clients knowing it was using subcontractors.
The plaintiff also argues that Belfor owed him a duty of care because the contract between Belfor and Mount Carmel required Belfor to ensure a safe work site, but Carpenter, as Belfor’s project manager, neglected this responsibility. Further, the plaintiff argues that an issue of fact remains concerning Belfor’s control because Belfor failed to prove that it was not a " controlling employer" at the project at the Levasseurs’ home, pursuant to the Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C. § 651 et seq. Our Supreme Court, however, rejected such arguments in Archambault v. Soneco/Northeastern, Inc., 287 Conn. 20, 56, 946 A.2d 839 (2008) (" The fact that two [of the general contractor’s] supervisors, Zook and Simmons, testified that [the general contractor] had overall responsibility for safety on the work site or that [the general contractor] was the ‘controlling employer’ under OSHA does not mean that [the general contractor] had a nondelegable duty to provide a safe work site that precluded the jury from considering [the subcontractor’s] negligence. Neither Zook nor Simmons testified that [the general contractor] retained direct control over [the subcontractor’s] work, over [the subcontractor’s] employees or over the manner in which the work was to be performed, nor did either testify that [the general contractor] assumed direct control over, or interfered with, [the subcontractor’s] responsibility to perform its work safely ... To the contrary, both Zook and Simmons emphasized that, even though Simmons exercised general supervision over the work site, [the subcontractor] had direct responsibility for supervising the work of its employees. Accordingly, we conclude that the trial court improperly instructed the jury that [the general contractor] had a nondelegable duty to ensure a safe work site" [citation omitted]).
In Van Nesse v. Tomaszewski, 265 Conn. 627, 628, 829 A.2d 836 (2003), our Supreme Court held that there was sufficient evidence of the defendant’s control of the work site to support the verdict against him. The defendant in Van Nesse was a general contractor who had contracted to build a house, and subcontracted the framing of the house to the plaintiff’s employer. Id., 629. The plaintiff was injured when he fell off a ladder that was owned by the subcontractor. Id., 629-30. Although that particular ladder had a broken foot and ordinarily was used outside where it could be secured in the soil, at the time of the plaintiff’s fall it was placed in the basement and its feet were situated in an accumulation of sawdust. Id., 629. After descending the ladder to retrieve his tape measure, the ladder slid out from under the plaintiff, causing him to fall and suffer serious injuries. Id., 629-30. After a verdict for the plaintiff, the general contractor claimed on appeal " that there was insufficient evidence that he was in control of the area of the defective condition that caused the plaintiff’s injuries ..." Id., 630-31.
The court disagreed because the property owners’ contract with the general contractor charged him with the responsibility of keeping the property free from rubbish and waste during construction, and he inspected the premises daily. Id., 631-32. Additionally, the subcontractor’s work in the basement essentially had been completed for approximately two weeks, the ladder was the only means of access to the basement, and other tradesmen had access to and reason to be in the basement in the days preceding the accident. Id., 632. There was also evidence that the general contractor, or one of his employees, had swept the sawdust into the basement, which rendered the ladder unsafe. Id. " Thus, there was evidence from which the jury reasonably could have inferred that: (1) on the day in question, the [general contractor] had not fully relinquished control of the basement area, including the floor, to any particular subcontractor; (2) the defendant continued to inspect the job on a regular basis, including the area in contention that included both the opening and the ladder; and (3) the [general contractor] personally was responsible for the accumulation of sawdust on the basement floor that rendered the ladder particularly unsafe." Id., 632-33. The court further held that, even though the general contractor did not have employees on the job, this did not absolve him of liability, as there was evidence supporting the jury’s determination that he was responsible for creating the dangerous condition. Id., 633.
In the present case, Belfor submits several exhibits in support of its motion for summary judgment, including several excerpts of certified deposition transcripts, which collectively state the following. Belfor assigned Carpenter as the project manager for the construction project at the Levasseurs’ home; Carpenter Dep., pp. 15-16; and Carpenter subcontracted the repair of the deck to Mount Carmel. Carpenter Dep., p. 23. As a general contractor, Belfor generally subcontracted all of its work except for limited " punch list" items. Carpenter Dep., pp. 18-20. Mount Carmel exclusively removed the deck at the Levasseurs’ home. Carpenter Dep., pp. 50-51; Acanfora Dep., p. 46. Carpenter was the only Belfor employee to visit the work site, and he only visited periodically to check on the progress of the work. Carpenter Dep., pp. 28, 49-50. Mount Carmel was responsible for ensuring its employees’ safety during the project at the Levasseurs’ house; Carpenter Dep., p. 48; Acanfora Dep., pp. 43-44; and Mount Carmel employees were responsible for controlling the means and methods of their work. Carpenter Dep., pp. 52-53; Acanfora Dep., pp. 36, 43-44. On the day of the alleged accident, the plaintiff received his instructions from Acanfora; Acanfora Dep., p. 18; Fronte Dep., p. 13; and the plaintiff has never spoke with anyone from Belfor. Fronte Dep., pp. 115-17.
The plaintiff, in his objection to Belfor’s motion for summary judgment, submits uncertified deposition excerpts, affidavits, and documentary exhibits to support his claim that Belfor’s conduct demonstrates its control over Mount Carmel’s work. Specifically, he relies on the following testimonies. Carpenter was the contact person regarding Belfor’s work at the Levasseurs’ home, and the Levasseurs would communicate directly with him. Carpenter Dep., p. 30. Carpenter was often present at the Levasseurs’ home. C. Levasseur Dep., p. 17. When Charlotte Levasseur was asked what she saw Carpenter doing at the work site, she stated, " [a]ny time if I saw him, direction, conversation, that kind of thing." C. Levasseur Dep., p. 37. Further, in Carpenter’s affidavit, he states that " [a]s an employee (Project Manager) of the General Contractor Belfor I had a duty to see that the work contracted for with the Levasseurs was performed properly and my position as Project Manager allowed me to exercise control over the subcontractor which was done on this particular job." Carpenter Aff., p. 1, ¶ 4. Carpenter further states, " I do not recall ever seeing Mr. Acanfora on the job site, as a result, I carried the expectation of being sure the job was performed proper[ly] while directing the subcontractors’ employees. If I saw something I did not like I would interfere and correct it right on the spot. I would tell the laborer and have him fix it immediately." Carpenter Aff., p. 2, ¶ 7. " On a job like the Levasseurs’ I would also be expected to handle and remedy any safety issues. I would also intervene whenever I believed something needed to be done related to safety." Carpenter Aff., p. 2, ¶ 9. " On this particular job there was no designated supervisor from Mount Carmel ... It was my responsibility to find, discuss and remedy any issue I saw. I would be on site during this job for this purpose." Carpenter Aff., p. 2, ¶ 10.
See footnote 1. Belfor has not objected to the plaintiff’s submission of uncertified deposition transcripts. Therefore, they will be considered by the court.
Even if Belfor met its initial burden of demonstrating that no issue of fact exists, the plaintiff has submitted evidence sufficient to create an issue of fact concerning whether Belfor exercised control over the premises of the plaintiff’s accident or the means and methods of Mount Carmel’s work. Specifically, the testimony by Carpenter stating that " I had a duty to see that the work contracted for with the Levasseurs was performed properly and my position as Project Manager allowed me to exercise control over the subcontractor which was done on this particular job " (emphasis added); Carpenter Aff., p. 1, ¶ 4; demonstrates that he, as Belfor’s representative, exercised control over Mount Carmel. Although portions of Carpenter’s affidavit statement seemingly conflict with portions of his deposition testimony, evidence of Belfor’s control, through Carpenter, is further supported by Charlotte Levasseur’s testimony that she often observed Carpenter on the work site, and that when she saw him, it appeared as though he was giving direction.
Although Carpenter states in his affidavit that his " position as Project Manager allowed [him] to exercise control over the subcontractor which was done on this particular job"; Carpenter Aff., p. 1, ¶ 4; when asked during his deposition whether he saw anything at the Levasseurs’ house that needed to be addressed, he remarked, " I don’t remember anything." Carpenter Dep., p. 33. Carpenter also stated during his deposition that if he saw something at a work site that he did not like he would tell the laborer and call the owner; Carpenter Dep., p. 56; but when asked if he had to do that during the project at the Levasseurs’ house, he replied, " I don’t remember." Carpenter Dep., p. 56.
In the present case, similar to Van Nesse v. Tomaszewski, supra, 265 Conn. 627, there is sufficient evidence of Belfor’s control of the work site such that the issue must be considered by a jury. Similar to Van Nesse, the evidence submitted by the plaintiff here, specifically the statements made by Carpenter, is of such a nature that a jury reasonably could infer that, on the day of the plaintiff’s alleged fall, Belfor had not fully relinquished control of the Levasseurs’ deck, and that Belfor continued to inspect the job, including the deck, on a regular basis. Further, as in Van Nesse, a jury could find, based on the evidence submitted, that even though Belfor did not have employees working on the Levasseurs’ deck, Belfor, through Carpenter, exercised control over the means and methods of Mount Carmel’s work. Therefore, the issue should go to the jury, as " honest and reasonable [persons] could fairly reach different conclusions on the question." (Internal quotation marks omitted.) Van Nesse v. Tomaszewski, supra, 631.
CONCLUSION
As there is no genuine issue of material fact concerning the Levasseurs’ lack of a duty owed to the plaintiff, they are entitled to judgment as a matter of law. Accordingly, the Levasseurs’ motion for summary judgment as to counts one, two, five, and six of the plaintiff’s complaint is granted.
A genuine issue of material fact remains, however, concerning whether Belfor owed a duty of care to the plaintiff. Accordingly, Belfor’s motion for summary judgment as to counts three, four, seven, and eight of the plaintiff’s complaint is denied.