Opinion
CV176070255S
06-10-2019
Barbara LUCIBELLO v. WHITNEY MANOR REALTY, LLC
UNPUBLISHED OPINION
Wilson, J.
FACTS
This action arises out of an alleged slip and fall incident that occurred on the premises of Whitney Manor Realty, LLC (Whitney Manor), on or about October 21, 2015. The plaintiff, Barbara Lucibello, filed the three-count amended complaint in this action on July 5, 2017. In count three of her amended complaint, the plaintiff alleges the following facts. On October 21, 2015, the plaintiff was proceeding up a sidewalk at the premises and stepped off the walkway into the unlit parking lot. The plaintiff was unable to ascertain the difference in elevation between the walkway and the parking lot due to insufficient illumination or designation, and a lack of warning as to the discrepancy in elevation. Subsequently, the plaintiff tripped and fell due to an unsafe, dangerous and defective condition.
Although three defendants are named in the complaint, in this memorandum "the defendant" will refer only to S&S Seal Coating, LLC.
Counts one and two allege negligence against the first and second named defendants, Whitney Manor Realty, LLC, and Whitney Manor Convalescent Center, LLC, respectively, who are not parties to the present motion.
The defendant, S&S Seal Coating, LLC, was the contractor responsible for the construction of the building, sidewalk and parking area. The defendant reserved the custody, possession, and control of the premises at all relevant times, and it was the duty of the defendant to exercise reasonable care in maintaining the premises in a reasonably safe condition for persons lawfully on the premises, including the plaintiff. The defendant breached the duty owed to the plaintiff and was negligent in the following ways: (1) the defendant caused, allowed, or permitted the sidewalk and parking area to be in an unsafe, dangerous or defective condition through the discrepancy in elevation between the sidewalk and parking lot; (2) the defendant knew or should have known that the premises contained a condition that was unsafe, dangerous or defective when in the exercise of due and reasonable care; (3) the defendant failed to warn against, remove, correct, remedy, eliminate, place a barrier between, or illuminate the unsafe area on the premises; and (4) the defendant failed to train and supervise its employees to prevent and remedy the unsafe area. As a direct and proximate result of the defendant’s conduct, the plaintiff sustained injuries and seeks damages.
On April 25, 2018, the defendant filed the instant motion for summary judgment as to count three of the plaintiff’s amended complaint on the ground that there is no genuine issue of material fact regarding an essential element of the claim, that is, whether the defendant owed a duty to the plaintiff. In support of its motion, the defendant filed a memorandum of law. On November 29, 2018, the plaintiff filed an objection to the defendant’s motion for summary judgment accompanied by a memorandum of law. On November 29, 2018, the defendant filed a supplement to its motion for summary judgment. On January 28, 2019, the plaintiff filed a reply and memorandum in opposition to the defendant’s motion for summary judgment. On February 7, 2019, the defendant filed a reply to the plaintiff’s opposition to the motion for summary judgment. Oral argument on the motion was heard at short calendar on February 14, 2019.
DISCUSSION
The issue presented for the court is whether there are no genuine issues of material fact, that the defendant did not owe a duty to the plaintiff which would entitle it to judgment as a matter of law. "[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.) Cefaratti v. Aranow, 321 Conn. 637, 645, 138 A.3d 837 (2016); see also Practice Book § 17-49. "[T]he 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. 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 ... 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." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 320, 77 A.3d 726 (2013). "A material fact ... [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015). "A genuine issue of material fact must be one which the party opposing the motion is entitled to litigate under his pleadings and the mere existence of a factual dispute apart from the pleadings is not enough to preclude summary judgment." (Emphasis omitted; internal quotation marks omitted.) Straw Pond Associates, LLC v. Fitzpatrick, Mariano & Santos, P.C., 167 Conn.App. 691, 728, 145 A.3d 292, cert. denied, 323 Conn. 930, 150 A.3d 231 (2016).
"[I]t is only [o]nce [the] defendant’s burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial ... Summary judgment should be denied where the affidavits of the moving party do not affirmatively show that there is no genuine issue of fact as to all of the relevant issues of the case ... Accordingly, the rule that the party opposing summary judgment must provide evidentiary support for its opposition applies only when the moving party has first made out a prima facie case for summary judgment ... [I]f the party moving for summary judgment fails to show that there are no genuine issues of material fact, the nonmoving party may rest on mere allegations or denials contained in his pleadings ..." (Citations omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, supra, 310 Conn. 320-21.
"Although the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion ... a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment ... A party opposing a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with evidence disclosing the existence of such an issue." (Internal quotation marks omitted.) Escourse v. 100 Taylor Avenue, LLC, 150 Conn.App. 819, 829-30, 92 A.3d 1025 (2014). "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), overruled on other grounds by J.E. Robert Co. v. Signature Properties, LLC, 309 Conn. 307, 325 n.18, 71 A.3d 492 (2013).
Premises Liability
"In a negligence action, the plaintiff must meet all of the essential elements of the tort in order to prevail. These elements are: duty; breach of that duty; causation; and actual injury ... Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances ..." (Citation omitted; internal quotation marks omitted.) LaFlamme v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63 (2002). "Where there is no duty, there can be no actionable negligence." Frankovitch v. Burton, 185 Conn. 14, 20, 440 A.2d 254 (1981). "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).
Notwithstanding, "[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). "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 ... If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant." (Internal quotation marks omitted.) Sic v. Nunan, 307 Conn. 399, 407, 54 A.3d 553 (2012). "Liability for injuries caused by defective premises ... does not depend on who holds legal title, but rather on who has possession and control of the property ... Thus, the dispositive issue in deciding whether a duty exists is whether the [defendant] has any right to possession and control of the property." (Citation omitted; internal quotation marks omitted.) Marciano v. Olde Oak Village Condominium Assn., Inc., 174 Conn.App. 851, 854, 167 A.3d 469 (2017). "[A] duty of care to an invitee ... only attaches if the defendant exercised possession and control over the area at the time and place the injury occurred." (Emphasis added.) Millette v. Connecticut Post Ltd. Partnership, 143 Conn.App. 62, 70, 70 A.3d 126 (2013).
"The general rule is that where the owner of premises employs an independent contractor to perform work on them, the contractor, and not the owner, is liable for any losses resulting from negligence in the performance of the work ... The basic premise is that the assumption and exercise of control over the offending area is deemed to be in the independent contractor ... The explanation for [this rule] most commonly given is that, since the [owner] 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 [owner], is the proper party to be charged with the responsibility of preventing the risk, and bearing and distributing it." (Internal quotation marks omitted.) Id., 70-71. "Exceptions to that rule arise when the employer retains control of the premises or supervises the work of the contractor ... or where the employer has a nondelegable duty to take safety precautions imposed by statute or regulation ..." (Emphasis added; internal quotation marks omitted.) Id., 71.
"[T]he owner or occupier of a premises owes a nondelegable duty to keep the premises safe by protecting third parties from foreseeable slip and fall injuries." Smith v. Greenwich, 278 Conn. 428, 460, 899 A.2d 563 (2006). "[T]he party in control of a premises long has had a nondelegable duty to maintain the safety of those premises." Id. Possession means "the exercise of dominion and control similar to and in substitution for that which ordinarily would be exerted by the owner in possession." (Internal quotation marks omitted.) Silano v. Cumberland Farms, Inc., 85 Conn.App. 450, 454, 857 A.2d 439 (2004). "The legal responsibility for maintaining premises in a reasonably safe condition depends on who has possession and control of those premises ... The word control has no legal or technical meaning distinct from that given in its popular acceptation ... and refers to the power or authority to manage, superintend, direct or oversee ... Where the evidence is such that the minds of fair and reasonable persons could reach but one conclusion as to the identity of the person exercising control, the question is one for the court ..." (Citations omitted; internal quotation marks omitted.) Mozeleski v. Thomas, supra, 76 Conn.App. 294. "Retention of control is essentially a matter of intention to be determined in the light of all the significant circumstances." (Internal quotation marks omitted.) Sweeney v. Friends of Hammonasset, 140 Conn.App. 40, 50, 58 A.3d 293 (2013).
In the defendant’s motion for summary judgment, it argues that it is entitled to summary judgment because it did not owe a duty of care to the plaintiff. Specifically, the defendant argues that it did not have possession and control over the premises at the time of the plaintiff’s alleged injury, and was also not involved in creating any of the conditions that allegedly caused the plaintiff her injury. First, the defendant argues that it had no responsibility at the premises for the lighting, the sidewalk, painting the edge of the curb, or constructing the edge of the curb. Moreover, the defendant informed Whitney Manor that it did not perform painting, lining, or striping, the defendant was not contracted to perform such services for Whitney Manor, and that it did not provide this service for Whitney Manor. Furthermore, the defendant argues it is undisputed that it completed the work on or before October 9, 2015; therefore, it could not be in possession and control of the premises at the time of the plaintiff’s alleged injury on October 21, 2015.
The defendant also argues that it was only responsible for the limited purpose of sealing the parking lot, sidewalk and curb, and, once the work was complete, the responsibility to keep and maintain the premises in a reasonably safe condition fell to the landowner. Additionally, the defendant argues that it did erect barriers at the premises, but these barriers were subsequently removed by others. Lastly, the defendant argues that the plaintiff has failed to put forth any evidence outside the allegations in her complaint that there was a failure to train and supervise the defendant’s employees, and that this failure to train was a causative factor in her alleged injury. The defendant contends that David Stanley, as an owner of the defendant, testified to his knowledge and familiarity with the work, and he was the individual in charge at this project and who performed the work.
In opposition, the plaintiff argues that the defendant’s motion for summary judgment should be denied because there is a genuine issue of material fact as to whether the defendant owed the plaintiff a duty of care. Specifically, the plaintiff argues that the defendant had possession and control over the premises at the time the plaintiff was allegedly injured because the defendant was either performing the contract for service at the time she fell, or had recently completed the work. Additionally, the plaintiff argues that the defendant breached its duty to the plaintiff by sealing over the previously painted cautionary stripes which signified the change in elevation, and by failing to place warning devices or barriers during the performance of the work. Therefore, the plaintiff argues, that the defendant created the dangerous condition that lead to her alleged injury. Furthermore, the plaintiff argues that there remain triable issues of fact as to whether the defendant failed to train and supervise its employees to mitigate the conditions which lead to the plaintiff’s alleged injury.
In the present matter, the evidence submitted demonstrates that there is no genuine issue of material fact as to whether the defendant owed a duty to the plaintiff. The evidence submitted supports the conclusion that the defendant was not in possession and control of the premises at the time of the plaintiff’s alleged injury. In support of its motion, the defendant submitted an affidavit of David Stanley, an owner of the defendant. Stanley avers that the defendant was hired by Whitney Manor to sealcoat the parking lot, that the defendant does not perform lining or striping, did not contract with Whitney Manor to perform lining or striping, and did not perform any such lining or striping for Whitney Manor. Moreover, during his deposition, Stanley testified to the following. The defendant did not alter the height of the step from the sidewalk to the parking lot, the angle in the curb, or the lighting that was in place at the premises. The defendant did not have any responsibility for the lining and striping at the premises or the lighting in the parking lot. Further, Stanley had no recollection if there was any demarcation or paint indicating a difference in elevation in the area between the sidewalk and parking lot where the plaintiff was allegedly injured before Stanley began the work for Whitney Manor.
As part of the work, the defendant placed cones around the sidewalk area and the back entrance, and also placed a rope at the back entrance in order to prevent and caution people from walking on the wet sealant. Whitney Manor informed their employees that work was being done by the defendant. Once the work was completed, the maintenance manager for the premises removed the cones and rope from where Stanley had placed them. The work was subsequently completed on or before October 9, 2015, because Stanley stated that he would only invoice a client once a job was completed. Stanley left the job site and removed all of his equipment on or before October 9, 2015. The defendant has also submitted as evidence, the estimate, dated August 13, 2015, which it provided to Whitney Manor regarding the work for which it contracted, along with an invoice, dated October 9, 2015, which specifies the work that was performed by the defendant at the premises and the associated cost. Both the estimate and the invoice indicate that the work performed by the defendant does not include lining and striping.
In opposition to the motion for summary judgment, the plaintiff submitted an expert witness report completed by Mark W. Tebbets, who conducted a site inspection of the premises, along with deposition testimony of Tebbets and the plaintiff. Upon reviewing the evidence submitted, the plaintiff did not provide any evidence demonstrating the existence of a genuine issue of material fact. In examining the site inspection report, Tebbets does not indicate that any of the work that was conducted by the defendant contributed to the plaintiff’s alleged injury, and his report does not discuss whether the defendant had possession and control over the premises at the time of the alleged injury. Tebbets’ report attributes the plaintiff’s fall to the following factors: the failure in designing the premises for proper illumination, including the parking lot area and at the exit; the failure to actually illuminate the premises properly at all times it was occupied; the failure to provide a minimum of one foot candle of illumination; the failure to properly illuminate all areas to eliminate shadows at the premises; and the improper step at the edge of the parking lot and the lack of a ramp at the transition from the sidewalk to parking area. The defendant submitted evidence that it was not responsible for designing, constructing, or maintaining the lighting, the curb, the sidewalk or the parking lot at the premises. Moreover, Tebbets testified during his deposition that he did not observe any improper workmanship with the curb at the premises. Specifically, Tebbets stated that the curbing was smooth, it was not breaking off, and there were no potholes. Furthermore, when Tebbets was similarly asked about the workmanship regarding the parking lot and walkway, he indicated that both surfaces were smooth without cracks or potholes.
The plaintiff’s deposition testimony also fails to raise a genuine issue of material fact regarding whether the defendant was in possession and control at the time of the alleged injury or whether any of the work that was performed by the defendant contributed to the plaintiff’s alleged injury. When the plaintiff was asked whether she was caused to trip or fall because of any potholes, cracks, or defects in the sidewalk surface, she testified that this was not the cause. The plaintiff testified that there was a significant depth between the pavement and the step, and that she was not expecting this depth. The plaintiff also testified that the area in which she fell was not well illuminated, and that the asphalt sidewalk was completely black without any yellow paint. Therefore, upon reviewing the evidence submitted, the plaintiff has failed to meet her burden of demonstrating that there is a genuine issue of material fact as to whether the defendant possessed and controlled the premises at the time of the alleged injury or whether the work performed contributed to the alleged injury.
Accordingly, the defendant has provided sufficient evidence that it did not have possession and control over the premises at the time of the plaintiff’s alleged injuries, and that the defendant was not responsible for the factors which contributed to the plaintiff’s fall and resulting injuries. There is no genuine issue of material fact that the defendant did not owe a duty to the plaintiff and therefore is entitled to judgment as a matter of law on count three of the amended complaint.
CONCLUSION
For the foregoing reasons, the defendant’s motion for summary judgment is granted.