Opinion
No. FST CV07-5003182
September 4, 2009
MEMORANDUM OF DECISION
I. Procedural History
The plaintiff, Eileen Schmidt, (Schmidt) commenced this action against Breitenbach Investments II, LLC (Breitenbach), Michael Rocco (Rocco) and Dorex Corporation (Dorex), by way of a six-count complaint sounding in trespass and negligence. Specifically, the plaintiff seeks to recover damages for the alleged destruction of trees and of a stone wall on her property and for trespass allegedly made by the defendants' agents upon her property. The case was tried to the court and all parties have filed post-trial briefs.
A separate consolidated action against Rocco, individually, alleging destruction of trees upon the plaintiff's property was tried before a jury and resulted in a verdict for the defendant. Thereafter, additional evidence in this matter was presented to the court over a three-day period concluding on April 1, 2009.
Based upon consideration of all the evidence, the court finds the following facts proven. The plaintiff has resided at 15 Oakley Lane in Greenwich since May of 1968 (Schmidt property). The Schmidt property consists of a single-family home surrounded by woods and foliage. During 2005, Rocco purchased an undeveloped lot immediately north of the Schmidt property. Following his acquisition of the parcel, Rocco began clearing the land in an effort to begin construction of his family residence. The Rocco parcel had been part of a larger tract of land owned by Breitenbach. Upon division of the property, Breitenbach also began clearing the remaining land. As the boundary lines between the various properties, including the Schmidt property, did not act as a straight divider, Schmidt became growingly concerned about the boundary lines separating the properties. As such, she hired Redniss and Mead, a surveying company, to stake out the property lines and prepare a sketch in accordance. One area of significance was a stone wall which extended from Oakley Lane to the northwest corner of the Schmidt property and had existed since the time Schmidt had originally purchased the property.
Rocco hired Dorex to oversee all the construction activity on site. Dorex used its own employees as well as sub-contractors to perform work on the Rocco property. Further, contractors employed by adjacent property owners, including Breitenbach, were engaged in unrelated work near the site of the Schmidt and Rocco properties simultaneous to the work being performed on the Rocco tract. This work included demolition of two houses and clearing of those lots. At some point during February or March of 2006, Breitenbach, dissatisfied with its contractors, also hired Dorex to complete some of the work remaining on its property.
This action was originally commenced against Breitenbach as well but was later withdrawn as to this defendant. As such counts one and three, brought exclusively against Breitenbach, are moot.
Schmidt testified that on February 11, 2006, she observed a backhoe, in an area she believed to be her property, dismantling a portion of a stone wall. Schmidt testified that her belief that the truck was on her property was based on her observation of stakes positioned on her property. Peter Monteleone (Monteleone), Dorex's general manager, testified that the rock pile identified by Schmidt had been previously created by a contractor employed by Breitenbach to clear its land. Breitenbach hired Dorex to rectify damage that the previous contractor had caused, including removal of the rock piles. Monteleone denied that Dorex had been on the plaintiff's property or that it had damaged her stone wall.
In the remaining four counts of the amended complaint the plaintiff asserts claims of trespass and negligence against each of the remaining defendants, Rocco and Dorex, respectively. The plaintiff seeks monetary damages as well as attorney fees and costs.
II. Discussion
The second and fourth counts of the amended complaint are brought against Rocco alleging trespass and negligence under a theory of agency liability. Specifically, the plaintiff asserts that Dorex, as Rocco's agent, trespassed and negligently damaged the plaintiff's property, and thus seeks damages from Rocco.
The plaintiff pleads against Rocco under an agency theory of liability. "As a general rule, an employer is liable for the negligence of its agents but not the negligence of 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 [independent] contractor, it is to be regarded as the [independent] contractor's own enterprise, and[the independent contractor], rather than the employer, is the proper party to be charged with the responsibility of preventing the risk, and bearing and distributing it." (Citation omitted; internal quotation marks omitted.) Ellis v. Allied Snow Plowing Removal Sanding Services, Corp., 81 Conn.App. 110, 116 n. 6, 838 A.2d 237, cert. denied, 268 Conn. 910, 845 A.2d 410 (2004).
Whether a party is an agent or an independent contractor is a question of fact. See Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 543, 893 A.2d 389 (2006) (finding that "[t]he existence of an agency relationship is a question of fact"); Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690, 696-97, 651 A.2d 1286 (1995) (noting that the fundamental distinction between employee and independent contractor is right to control means and methods of work, which presents a question of fact). The Supreme Court has set up criteria for determining whether a party is acting as an agent or an independent contractor. An "independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work. This definition has been amplified in subsequent cases but at no time has the basic principle been altered . . . The fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work. It is not the fact of actual interference with the control, but the right to interfere, that makes the difference between an independent contractor and a servant or agent." (Citation omitted; emphasis in original; internal quotation marks omitted.) Nationwide Mutual Ins., Co. v. Allen, 83 Conn.App. 526, 534, cert. denied, 271 Conn. 907, 859 A.2d 562 (2004).
In contrast, the Supreme Court has also set forth the elements required to show the existence of an agency relationship: "(1) a manifestation by the principal that the agent will act for him; (2) acceptance by the agent of the undertaking; and (3) an understanding between the parties that the principal will be in control of the undertaking." National Publishing Co. v. Hartford Fire Ins. Co., 287 Conn. 664, 677-78, 949 A.2d 1203 (2008). In assessing whether such a relationship exists the courts look to "whether the alleged principal has the right to direct and control the work of the agent; whether the agent is engaged in a distinct occupation; whether the principal or the agent supplies the instrumentalities, tools, and the place of work; and the method of paying the agent . . . [T]he labels used by the parties in referring to their relationship are not determinative; rather, a court must look to the operative terms of their agreement or understanding." (Citation omitted; internal quotation marks omitted.) Id., 678.
While the plaintiff has pled an agency theory of liability, little evidence was offered to support this allegation. The testimony of Monteleone, which the court credits, was simply that Dorex had been contracted to manage construction of the Rocco estate. While Dorex equipment was stationed on the Rocco property, there is no evidence to support a finding that Rocco exercised control over Dorex, or Dorex's employees as an agent. Rather, the evidence supports a finding that the relationship between Rocco and Dorex was that of an independent contractor. Accordingly, the court finds that Dorex was retained by Rocco as an independent contractor and was not an agent of Rocco. This finding, however, does not end the inquiry as the law pertaining to independent contractor liability enumerates certain exceptions.
As previously stated, "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." (Citation omitted; internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 291, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). "There are, however, several exceptions to the nonliability rule whereby an employer may be held liable for the conduct of his contractor. For example, where the employer retains control of the premises, supervises the work of the contractor, where the work to be performed by the contractor is inherently dangerous, or where the employer has a nondelegable duty to take safety precautions imposed by statute or regulation, the employer may be vicariously liable to others for the negligent acts of the independent contractor." (Internal quotation marks omitted.) Raboin v. North American Industries, Inc., 57 Conn.App. 535, 539, 749 A.2d 89, cert. denied, 254 Conn. 910, 759 A.2d 505 (2000). This principle does not exclude the owner from all aspects of involvement as a limited exercise of control or instructions to a contractor may be accomplished without destroying the independent character of the contractor. Mozeleski v. Thomas, supra, 76 Conn.App. 293.
The court does not find the existence of any delineated exception to this rule of nonliability whereby the defendant may be held accountable for the conduct of Dorex. As such, the court finds for the defendant, Rocco, as to counts two and four.
In the fifth count of the amended complaint the plaintiff alleges that Dorex trespassed upon her property thereby causing damage thereto. "The essentials of an action for trespass are: (1) ownership or possessory interest in land by the plaintiff; (2) invasion, intrusion or entry by the defendant affecting the plaintiff's exclusive possessory interest; (3) done intentionally; and (4) causing direct injury . . . The invasion, intrusion or entry must be physical. [B]ecause it is the right of the owner in possession to exclusive possession that is protected by an action for trespass, it is generally held that the intrusion of the property be physical and accomplished by a tangible matter. Thus, in order to be liable for trespass, one must intentionally cause some substance or thing to enter upon another's land . . ." (Citations omitted; internal quotation marks omitted.) Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 87-88, 931 A.2d 237 (2007).
It is well-settled law in Connecticut that "[t]he general burden of proof in civil actions is on the plaintiff, who must prove all the essential allegations of the complaint" by a preponderance of the evidence. Gulycz v. Stop Shop Cos., 29 Conn.App. 519, 523, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1992); see Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 535, 733 A.2d 197 (1999). The plaintiff in a civil case "sustain[s] his burden of proof as to any essential element in his cause of action if the evidence, considered fairly and impartially, induce[s] in the mind of the trier a reasonable belief that it [is] more probable than otherwise that the facts involved in that element [are] true." Busker v. United Illuminating Co., 156 Conn. 456, 458, 242 A.2d 708 (1968). Failure of the plaintiff to establish any of the necessary elements, by a fair preponderance of the evidence, results in judgment for the defendant. Gulycz v. Stop Shop Cos., supra, 29 Conn.App. 523.
While the record may support a finding that the plaintiff has suffered damage to her property, the plaintiff has failed to sustain her burden of proving, by a fair preponderance of the evidence, that the defendant, Dorex, caused the damage. The evidence is speculative that Dorex, and not others, caused the damage at issue. What the plaintiff is essentially asking this court to do is draw inference from a collection of largely uncertain facts and from that, find the defendant was the responsible actor. "Because [t]he only kind of an inference recognized by the law is a reasonable one . . . any such inference cannot be based on possibilities, surmise or conjecture." (Internal quotation marks omitted.) Fortin v. Hartford Underwriters, Superior Court, complex litigation docket at Hartford, Docket No. X04 CV 03 4034596 (February 19, 2009, Shapiro, J.). Where the link between the evidence and the proposed inference is "attenuated and speculative," a reasonable inference is not warranted by the fact finder. DiStefano v. Milardo, 276 Conn. 416, 426, 886 A.2d 415 (2005); Eichman v. J J Building Co., 216 Conn. 443, 456-57, 582 A.2d 182 (1990). The court finds that in this instance the evidence presented is not persuasive enough to reasonably infer that the defendant caused the damage in question. Therefore, the court declines to draw such inference.
Accordingly, the court finds in favor of the defendant, Dorex, as to count five.
In the sixth count of the amended complaint, the plaintiff alleges that Dorex negligently damaged her property. As the Supreme Court has ruled the "[e]ssential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . This causal connection must be based upon more than conjecture and surmise . . . An actual cause that is a substantial factor in the resulting harm in a proximate cause of that harm . . ." The finding of actual cause is thus a requisite for any finding of proximate cause." (Citations omitted; internal quotation marks omitted.) Winn v. Posades, 281 Conn. 50, 56-57, 913 A.2d 407 (2007).
For the same reasons set forth as to count five, above, the court finds that the plaintiff has failed to sustain her burden of proving by a preponderance of the evidence that it was the defendant, Dorex, who caused damage to her property. Accordingly, the court finds in favor of the defendant, Dorex as to count six.
III. Conclusion
Accordingly, the court finds for the defendants as to all counts of the plaintiff's amended complaint. Judgment shall enter in accordance with this decision.