Opinion
CV166035108S
02-05-2019
Victor LOPEZ v. BALDWIN ESTATES, LLC
UNPUBLISHED OPINION
PETER EMMETT WIESE, Judge
I
PROCEDURAL HISTORY
This premises liability action arises from a fall through an allegedly unsecured stairway that occurred on October 8, 2014. On October 11, 2016, the plaintiff, Victor Lopez, filed a two-count complaint alleging negligence as against two defendants: Baldwin Estates, LLC (Baldwin Estates), and Calco Construction & Development Company (Calco) (No. 2).
Hereinafter, Baldwin Estates and Calco will be referred to collectively as the defendants, and individually by name where appropriate.
All references to "no." in this memorandum of decision are to the respective documents’ assigned Edison entry numbers.
The plaintiff alleges the following facts, which are applicable to both counts. At all relevant times, Baldwin Estates owned and was in possession and control of "the property" located at 28 Cortland Way in Southington, Connecticut. Baldwin Estates was responsible for the care and maintenance of the property. Additionally, at all relevant times, Calco was responsible for the care and maintenance of the property as well as construction on the property, including the structural integrity and building of all stairways. On October 8, 2014, the plaintiff viewed a house for purchase at the property. After entering the home as instructed by John Senese, owner and managing member of Baldwin Estates and owner and President of Calco, the plaintiff began ascending the stairs to the second floor when the stairway gave out, causing him to fall from the second floor down to the basement. The plaintiff’s fall and injuries were allegedly caused by the defendants’ negligence in that the defendants, inter alia, failed to: properly construct and maintain the stairway in sound condition; properly inspect the premises; have proper support for the stairway, such as anchors; provide any warning of the unsafe condition; utilize any cones, barricades, or warning tape or rope to prevent use of the stairs; and comply with various local building codes and ordinances. As a result, the plaintiff alleges that he sustained severe injuries, incurred substantial medical costs, suffered lost wages and benefits, and now suffers from an impaired ability to enjoy life’s offerings.
On March 13, 2017, the defendants filed an answer raising the special defense that any injuries and damages claimed by the plaintiff were caused by the plaintiff’s own negligence in that he failed to: keep a proper look out; be watchful of his surroundings; and exercise due care for his safety in light of the circumstances (No. 112).
By way of additional relevant background, the facts alleged indicate that in 1998, the plaintiff injured his knee while serving in the military, requiring him to have two knee surgeries. After being discharged from the military, based on a finding of service-connected disability, the plaintiff received a 30 percent disability rating for purposes of compensation and benefits from the federal Department of Veterans Affairs (VA). The VA has periodically reviewed this rating since the VA first assigned it to the plaintiff in 2001. In 2016, the VA mandatorily reduced the plaintiff’s rating to 10 percent after the plaintiff failed to report for his scheduled review. On July 8, 2016, however, the plaintiff underwent a Compensation and Pension (C & P) exam administered by Elizabeth D. Ong, a doctor affiliated with the VA hospital, and as a result, had his 30 percent rating reinstated.
On June 6, 2018, the defendants moved for summary judgment on the ground that there is no genuine issue of material fact that the plaintiff is judicially estopped from claiming that his alleged injuries were a result of the alleged fall on October 8, 2014, because the plaintiff made allegedly contradictory representations to the VA during his 2016 C & P exam (No. 125). The motion was accompanied by a memorandum of law (no. 126) and two attached exhibits: an excerpt from a May 12, 2017 deposition of the plaintiff (no. 126, Defendants’ Ex. A); and progress notes from the plaintiff’s July 8, 2016 C & P exam (no. 133, Defendants’ Ex. B). On September 4, 2018, in response, the plaintiff filed an objection (no. 129) and an accompanying memorandum of law in opposition to the defendants’ motion (no. 130). The plaintiff also submitted the following evidence: an affidavit of the plaintiff dated August 31, 2018 (no. 131); paperwork allegedly demonstrating facsimile transmission to the VA of the plaintiff’s hospital records from the date of the alleged fall (no. 131, Plaintiff’s Exs. 1 and 2); and a September 20, 2017 deposition of Mr. Senese (no. 132, Plaintiff’s Ex. 3).
The court heard oral argument on the matter at short calendar on November 13, 2018.
II
STANDARD
"Summary judgment is a method of resolving litigation when 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." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012). "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." (Internal quotation marks omitted.) RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011). "The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact ..." (Internal quotation marks omitted.) Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016). "[T]he trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Id. Additionally, "the court’s role is not to weigh the credibility of the parties, which falls within the province of the finder of fact ... When a court, in ruling on a motion for summary judgment, is confronted with conflicting facts, resolution and interpretation of which would require determinations of credibility, summary judgment is not appropriate." (Citation omitted.) Straw Pond Associates, LLC v. Fitzpatrick Mariano & Santos, P.C., 167 Conn.App. 691, 710, 145 A.3d 292, cert. denied, 323 Conn. 930, 150 A.3d 231 (2016).
III
DISCUSSION
A. Applicable Law
The Connecticut Supreme Court first officially recognized the doctrine of judicial estoppel as a matter of Connecticut law in Ass’n Resources, Inc. v. Wall, 298 Conn. 145, 169, 2 A.3d 873 (2010), and in doing so, "turn[ed] for guidance to the significant body of federal case law addressing this doctrine ..." Id. "Judicial estoppel prevents a party in a legal proceeding from taking a position contrary to a position the party has taken in an earlier proceeding ... The courts invoke judicial estoppel as a means to preserve the sanctity of the oath or to protect judicial integrity by avoiding the risk of inconsistent results in two proceedings." (Internal quotation marks omitted.) Id. "Because the rule is intended to prevent improper use of judicial machinery ... judicial estoppel is an equitable doctrine invoked by a court at its discretion ..." (Internal quotation marks omitted.) Id., 171.
"Courts have observed that the circumstances under which judicial estoppel may appropriately be invoked are probably not reducible to any general formulation of principle ... Nevertheless, several factors typically inform the decision whether to apply the doctrine in a particular case." New Hampshire v. Maine, 532 U.S. 742, 750, 121 S.Ct. 1808, 149 L.Ed.2d 968, rehearing denied by 533 U.S. 968, 122 S.Ct. 10, 150 L.Ed.2d 793 (2001). Typically, judicial estoppel will apply if "(1) a party’s later position is clearly inconsistent with its earlier position, (2) the party’s former position has been adopted in some way by the court in the earlier proceeding, and (3) the party asserting the two positions would derive an unfair advantage against the party seeking estoppel." (Internal quotation marks omitted.) Barton v. Norwalk, 326 Conn. 139, 156, 161 A.3d 1264 (2017); see also New Hampshire v. Maine, supra, 532 U.S. 750. Importantly, however, "[i]n enumerating these factors, [the United States Supreme Court] d[id] not establish inflexible prerequisites or an exhaustive formula for determining the applicability of judicial estoppel. Additional considerations may inform the doctrine’s application in specific factual contexts." New Hampshire v. Maine, supra, 532 U.S. 751. "The application of judicial estoppel is further limited to situations where the risk of inconsistent results with its impact on judicial integrity is certain ... In addition, generally speaking, the doctrine will not apply if the first statement or omission was the result of a good faith mistake ... or an unintentional error." (Citation omitted; internal quotation marks omitted.) Id.; see also Dougan v. Dougan, 301 Conn. 361, 373, 21 A.3d 791 (2011); DeRosa v. National Envelope Corp., 595 F.3d 99, 103 (2d Cir. 2010).
Furthermore, the Second Circuit has emphasized that the earlier and later positions of the party must be plainly and wholly inconsistent for judicial estoppel to apply. See DeRosa v. National Envelope Corp., supra, 595 F.3d 104 (where the court focused on "the narrower question of whether the statements can be reconciled, not whether a fact finder would necessarily adopt the interpretation which reconciles them" and concluded that because the plaintiff’s statements could be "logically reconciled," judicial estoppel did not apply).
The Second Circuit has also expressed its stance in light of certain splits of authority across circuit courts. First, although the doctrine is called judicial estoppel, "[t]he prior inconsistent assertion need not be made to a court of law[; ] statements to administrative agencies ... may also give rise to judicial estoppel." Siuzdak v. Sessions, 295 F.Supp.3d 77, 111 (D.Conn. February 21, 2018); see also DeRosa v. National Envelope Corp., supra, 595 F.3d 103 ("[j]udicial estoppel applies to sworn statements made to administrative agencies"). Second, "[a] settlement neither requires nor implies any judicial endorsement of either party’s claims or theories, and thus a settlement does not provide the prior success necessary for judicial estoppel." (Internal quotation marks omitted.) Bates v. Long Island Railroad Co., 997 F.2d 1028, 1038 (2d Cir.), cert. denied, 510 U.S. 992, 114 S.Ct. 550, 126 L.Ed.2d 452 (1993), superseded by statute on other grounds, 29 C.F.R. § 1614.203; see also Lauterbach v. Huerta, 817 F.3d 347, 353 (D.C.Cir. 2016).
Neither Connecticut state courts nor the Second Circuit have explicitly addressed in detail how the court should treat statements made to the VA regarding disability benefits where there was no appeal or advancement to a hearing before the Board of Veterans’ Appeals. The closest Connecticut has come to ruling on this issue was in Main v. Stonington, United States District Court, Docket no. 3:96CV52 (AHN) (D.Conn. August 25, 1997), a case involving previous statements made to the Social Security Administration (SSA) and a subsequent action alleging violations of the Americans with Disabilities Act of 1990 (ADA). In Main, the defendant raised the defense of judicial estoppel and argued that an award of social security benefits was "equivalent to a quasi-judicial endorsement of Main’s claim that he was entirely disabled and could not engage in any gainful economic activity." (Emphasis in original.) Id. The court, however, expressly rejected this argument. Id. First, the court held that Main did not make contrary or inconsistent representations to the SSA because even though Main indicated in his application that he was not able to work, the SSA never discussed whether Main "could have engaged in gainful employment if [the defendant] had reasonably accommodated his disability." Id. Second, the court held that "because Main made these representations in two different forums, [before an administrative body and a judicial body, ] there [was] no danger that ... Main [was] speaking out of both sides of [his] mouth with equal vigor and credibility and thereby degrading the judicial process. Main’s statements in his SSA application, rather than barring the plaintiff from bringing th[e] suit on behalf of Main’s estate, simply provide[d] [the defendant] with ample evidence to impeach the credibility of her claims." Id.
The Sixth Circuit, however, did specifically address an analogous factual scenario in Edwards v. Aetna Life Ins. Co., 690 F.2d 595 (6th Cir. 1982). In Edwards, the court held that the plaintiff "did not successfully assert an inconsistent position [as to whether his disability was service connected] in the previous proceeding before the Veterans’ Administration" because even though the relationship between the plaintiff and the VA was adversary and the plaintiff was indeed awarded benefits, "the administrator’s decision to pay [the plaintiff’s] claim, without resorting to a full adversary proceeding before the Board of Veterans’ Appeals, [w]as a decision to settle [the plaintiff’s] claim." Id., 599-600. The court concluded that "such an administrative settlement does not amount to a judicial or quasi-judicial endorsement of [the plaintiff’s] initial position that his disability was service connected. Absent such an endorsement, judicial estoppel cannot be applied because the requisite success in the initial assertion of the inconsistent position is not present." Id., 600.
B. Positions of the Parties
The defendants argue that the plaintiff is judicially estopped from asserting that his knee injury occurred as a result of the alleged fall through the stairway and, thus, the plaintiff cannot establish a dispositive element of his negligence claim. Specifically, the defendants contend that the plaintiff represented to the VA during his July 8, 2016 C & P exam that his left knee gave out while walking upstairs to the second floor, and that the VA reinstated the plaintiff’s benefits based on its reliance on the plaintiff’s representations and its determination of service-connected disability. The defendants further maintain that this agency process constitutes an adjudicative, administrative proceeding to determine benefits pursuant to 38 C.F.R. § 3.103. Thus, the defendants argue, the plaintiff should be judicially estopped from taking the contrary position that his knee injury was caused by the defendants’ negligence in the current judicial proceeding.
The plaintiff argues in response that the doctrine of judicial estoppel is inapplicable here because: (1) the plaintiff is not taking a wholly inconsistent position now because he never referred to the October 8, 2014 incident during his C & P exam, but rather discussed how his knee had been regularly giving out and cited an unrelated example of when his knee gave out on stairs while he was working in 2015; (2) the defendants have failed to show that any of the plaintiff’s alleged statements during the C & P exam were made under oath; (3) the plaintiff never contested the VA’s benefits determination via an administrative hearing; and (4) the lack of a full administrative proceeding coupled with the unchallenged restoration of a 30 percent service-connected disability rating was akin to a settlement, which cannot amount to a prior quasi-judicial endorsement. The plaintiff also noted that no Connecticut court has ever held that one may be judicially estopped from pursuing a negligence claim based on statements allegedly made during a VA medical evaluation. Finally, the plaintiff argues that genuine issues of material fact exist not only as to the nature of the plaintiff’s statements during the C & P exam, but also as to the cause of the plaintiff’s fall through the stairs, especially because Mr. Senese apparently conceded during his deposition that the stairway on the property was not secure.
The court will not address this argument in detail because the Second Circuit has clearly held the following: "That such [administrative] proceedings are not always conducted under formal oath is unimportant. Claimants affirm that the information they give is true, and they sign the application [for disability benefits] ... under penalty of perjury." Simon v. Safelite Glass Corp., 128 F.3d 68, 72 (2d Cir. 1997).
C. Analysis
In the present case, the defendants have failed to meet their burden of demonstrating no genuine issue of material fact as to the factors that would make the doctrine of judicial estoppel applicable.
i. No Adoption of the Plaintiff’s Former Position
Pursuant to the "successful adoption" factor of the judicial estoppel "test," the defendants have failed to demonstrate that there is no genuine issue of material fact that the plaintiff’s former position was officially adopted in some way by the court or an administrative agency in an earlier proceeding. The Second Circuit has made clear that a settlement does not imply any judicial endorsement of a party’s statements or theories. See Bates v. Long Island Railroad Co., supra, 997 F.2d 1038. Although the Second Circuit has not expressly addressed the narrow issue of whether an uncontested VA disability rating amounts to a quasi-judicial endorsement of the parties’ positions or a settlement, the court agrees with the Sixth Circuit’s reasoning and conclusion in Edwards v. Aetna Life Ins. Co., supra, 690 F.2d 599-600. Similar to the facts in Edwards, the plaintiff here did not contest the VA’s decision and there was no formal adjudication process or hearing on the record before the Board of Veterans’ Appeals. The VA simply conducted its evaluation, and its decision to reinstate the plaintiff’s service-connected disability rating of 30 percent without resorting to a full adversary proceeding essentially amounted to a settlement. As the court in Edwards stated, "[i]f the initial proceeding results in settlement, the [initial] position cannot be viewed as having been successfully [and unequivocally] asserted." See id. More specifically, the plaintiff’s alleged prior statements during the C & P exam about the nature and cause of his knee injury were never truly adopted and, therefore, judicial estoppel cannot apply.
ii. No Clear Inconsistency Between the Plaintiff’s Positions
Even if, for the sake of argument, this court were to determine that the VA’s decision to award the plaintiff disability benefits was a quasi-judicial endorsement of the plaintiff’s alleged initial position and not a settlement, the defendants’ judicial estoppel claim still fails. Pursuant to the "clearly inconsistent" factor of the judicial estoppel "test," the defendants have failed to meet their burden of proving that the plaintiff’s current position in this action is clearly and wholly inconsistent with his earlier position to the VA because there remain outstanding factual disputes regarding the nature of the statements the plaintiff made to the VA medical evaluator during the C & P exam. The defendants submitted Dr. Ong’s progress notes related to the plaintiff’s July 8, 2016 C & P exam (No. 133, Defendants’ Ex. B). Underneath the "Medical History" section, prompting a description of the history of the plaintiff’s knee condition, Dr. Ong noted, "41 y/o male here for his left knee ... At present, does HVAC and now has to hire people to work for him due to his left knee. A little over a year [ago], he was working, his left knee gave out while walking upstairs to second floor, he fell . Everyday he has pain ... He has problem[s] coming down the stairs and need[s] to walk sideways ... The left knee constantly gives out." (Emphasis added.) Id., 72. The defendants maintain that the VA relied on the above representations when determining that the plaintiff had a service-connected disability and the plaintiff should be estopped from now relying on a different portrayal of events to prevail in this negligence action. Without more than Dr. Ong’s shorthand notes regarding the plaintiff’s responses during his C & P exam, however, there remain genuine issues of material fact as to the nature of the plaintiff’s statements.
When viewing the facts in the light most favorable to the plaintiff, a reasonable fact finder could logically conclude that the plaintiff’s earlier and current positions are not so clearly inconsistent that they cannot be reconciled with any amount of explanation. The plaintiff explained in his sworn affidavit that when Dr. Ong asked if his knee had ever given out recently, he responded that it had been constantly giving out recently, frequently at work and when climbing up and down stairs, and that "it had [given out] while performing HVAC work in or around July 2015" (No. 131, p. 1-2, par. 9-11). The plaintiff claims that the July 2015 incident at work he referred to was a different incident than the October 8, 2014 fall through the stairway that gave rise to the present action, which he claims he never discussed during the C & P exam. Id. Regardless of "whether a fact-finder would necessarily adopt [this] interpretation which reconciles" the positions taken, the court concludes that they could be reconciled, given the nature of the question asked of the plaintiff, the difference of dates between October 2014 and July 2015, and the claim that the 2015 incident happened while the plaintiff was doing HVAC work, not previewing a home for purchase. See DeRosa v. National Envelope Corp., supra, 595 F.3d 104. It is at least possible that a reasonable fact finder could conclude that the plaintiff both suffers from a service-connected knee injury and also fell through an allegedly unsecured stairway on a separate, unrelated occasion due to the defendants’ negligence.
Furthermore, the plaintiff also submitted documentary evidence (no. 131, Plaintiff’s Exs. 1 and 2) indicating that he faxed over his medical records from his hospital visit on the date of the October 8, 2014 fall to the VA, allegedly leading him to believe that the VA already had full knowledge of the incident (No. 131, p. 2, par. 11). It is possible that a reasonable fact finder could logically conclude, then, that as a result of the plaintiff’s transparency, the VA already had this information at its disposal when making its decision as to what service-connected disability rating to assign the plaintiff. Thus, the defendants have failed to meet their burden of proving that there is no genuine issue of material fact with respect to the claimed unequivocal inconsistency of the plaintiff’s initial position before the VA and current position before the court.
Ultimately, because judicial estoppel is inapplicable and because there remain genuine issues of material fact as to the nature of the plaintiff’s earlier statements to the VA and as to what exactly caused the plaintiff to fall through the stairs on October 8, 2014, this case comes down to issues of credibility, which cannot be resolved on a motion for summary judgment. See Rodal v. Anesthesia Group of Onondaga, P.C., 369 F.3d 113, 119 (2d Cir. 2004) ("Because the [plaintiff’s] statements at issue do not present an irreconcilable direct conflict, we hold that the [defendant] is not entitled to summary judgment on a theory of judicial estoppel. Instead, [the plaintiff’s] statements, together with all other relevant evidence, will have to be weighed by the fact finder to determine whether the [plaintiff] has established [his] claim ..."); see also Main v. Stonington, supra, Docket no. 3:96CV52 (AHN). To further rebut the defendants’ evidence, the plaintiff submitted the September 20, 2017 deposition of Mr. Senese, who, when asked about whether the stairs the plaintiff allegedly fell through had been secured, responded several times that the stairs were "not secured" (No. 132, Plaintiff’s Ex. 3, p. 28, l. 22-24; p. 29, l. 15-18). Thus, not only can the plaintiff’s positions be construed without conflict to reflect two separate incidents— one in October 2014 when the allegedly unsecured staircase fell through while he was viewing a home he had contracted to purchase, and one in July 2015 when his knee gave out on stairs while he was at work— but the issues of causation and credibility related to whether or how much the plaintiff’s alleged injuries were caused by his service-connected disability or the defendants’ negligence are left outstanding for the factfinder to determine, not for this court to decide on a motion for summary judgment.
Specifically, Mr. Senese further testified, "So what happened was the wood floor guy, when they put the wood floors in they have to remove the temporary stairs to run the floor under the temporary stair. Because the temporary stair hangs out. So they removed the stair, they run their wood floor back underneath; then they put the staircase back on. Obviously they didn’t secure it because they were still working in the house at the time of the fall. So that’s the only explanation for the staircase to be unsecured; it’s because they were installing the floors" (No. 132, Plaintiff’s Ex. 3, p. 29, l. 1-10).
IV
CONCLUSION
Accordingly, the defendants’ motion for summary judgment is hereby denied.