Opinion
No. CV05 5000201-S
April 16, 2009
MEMORANDUM MOTION FOR SUMMARY JUDGMENT #108
The defendants, Jeffrey Forte and Lawrence Forte, have filed a motion for summary judgment, which is opposed by the plaintiff, John Sepulveda. For the following reasons, the defendants' motion for summary judgment is granted.
I. Facts
The pleadings and documentary evidence submitted by the parties reveal the following facts. On or about May 5, 2004, the plaintiff, as owner and operator of a painting company called Fresh Start Painting, LLC, entered into a written contract to make various improvements to a home owned by Jeffery Forte in return for a sum of $1,700. The agreement provided the following: "Description of work: Paint the ceilings in the dining room, living room and bedroom. Repair areas as needed, caulk, sand, prime and paint walls, trim and some doors in dining room, living room, bedroom and hallway. Install a light fixture in the dining room and bedroom."
The plaintiff started the work on or about May 5, 2004, entering the premises by using a key provided to him by the defendants, who were not present at the time. To aid in his work, the plaintiff used an aluminum ladder that was already on site and belonged to Lawrence Forte. The ladder did not have non-skid material on its base. The plaintiff propped the ladder up by leaning it against a wall and began to paint the ceiling in one of the rooms; at some point, the ladder slipped from underneath him, causing him to fall to the ground and suffer various injuries.
Subsequently, on October 25, 2005, the plaintiff commenced the present action, alleging that the defendants' negligence caused his injuries. The plaintiff alleges that the defendants were negligent because they knew or should have known that the ladder did not have anti-skid material necessary to ensure its safety and/or that it had been improperly maintained, but failed to warn him or remedy its unsafe condition.
On January 23, 2007, the defendants filed the motion for summary judgment that is currently before the court. They argue that the evidence and pertinent law demonstrate that they owed the plaintiff no duty because he was an independent contractor whose activities they did not control, and that they are therefore entitled to judgment as a matter of law. In support of their motion for summary judgment, the defendants have provided the court with a memorandum of law, the affidavits of both Lawrence and Jeffrey Forte, a copy of the controlling contract, and a portion of the plaintiff's deposition. On February 20, 2007, the plaintiff filed a memorandum of law in opposition arguing that there remain genuine issues of material fact to be resolved; namely, (1) to what degree the defendants sought to control the plaintiff's work, and (2) whether the facts of the case trigger an exception to the general rule that an independent contractor is owed no duty. The memorandum of law in opposition is accompanied by the affidavit of Nancy Vargas, the plaintiff's wife, and additional excerpts of the plaintiff's deposition. Subsequently, the defendants served and the plaintiff responded to a first and then a second request for admissions, which are also taken under consideration by the court for the purpose of resolving the pending motion for summary judgment. Then, on February 2, 2009, the defendants filed a reply to the plaintiff's objection. The reply makes additional arguments that largely reference the plaintiff's responses to the earlier requests for admissions. Finally, on February 10, 2009, the plaintiff filed a reply to the defendants' reply, again arguing that the same genuine issues of material fact remain unresolved.
II. 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.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "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). "[T]he `genuine issue' aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
"[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." (Internal quotation marks omitted.) Neuhaus v. Decholnoky, 280 Conn. 190, 217, 905 A.2d 1135 (2006).
III. Discussion
The defendants argue that they are entitled to judgment as a matter of law because, as an independent contractor, they owed the plaintiff no duty. They point out that "[t]he 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." (Citations omitted; internal quotation marks omitted.) Mozeleski v. Thomas, supra, 76 Conn.App. 291-92.
The plaintiff, on the other hand, argues that there are still genuine issues of material fact left to be resolved by the trier of fact. His first argument centers on the way the term "independent contractor" is defined. "[A]n 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." (Internal quotation marks omitted.) Id., 291. Thus, it has been said that "where the employer itself retains supervision or control over the work, the employer may be found negligent for performance of work it controlled, though undertaken by another." Balogh v. Boehringer-Ingelheim Corp., Superior Court, judicial district of New Haven, Docket No. CV 01 0276094 (July 28, 2004, Frazzini, J.) (37 Conn. L. Rptr. 622, 624). The plaintiff argues that there is a factual dispute regarding how much control the defendants actually exercised over the methods he was permitted to use in carrying out the contract work. Specifically, the plaintiff contends that the defendants required him to use the ladder owned by Lawrence Forte, and that having done so, there is now a genuine issue of material fact as to whether the amount of control exercised was so substantial that the defendants in fact owed him a duty.
On the one hand, an employer/owner "may exercise a limited degree of control or give the contractor instructions on minor details without destroying the independent character of the contractor. See Darling v. Burrone Bros., Inc., [ 162 Conn. 187, 193-95, 292 A.2d 912 (1972)]; Welz v. Manzillo, 113 Conn. 674, 679-80, 155 A. 841 (1931) . . ." (Citation omitted.) Mozeleski v. Thomas, supra, 76 Conn.App. 293. On the other hand, the question of control is not, generally speaking, one susceptible to summary judgment. See generally LaFlamme v. Dallessio, 261 Conn. 247, 256-61, 802 A.2d 63 (2002).
Nevertheless, in the present case the evidence presented to the court makes it clear that, as a matter of law, the defendants did not control the plaintiff's work methods, and that they therefore owed him no duty. First, there is nothing in the contract formed by the parties that requires the use of certain equipment during the painting project. Secondly, during the plaintiff's deposition testimony the following exchange took place between the defendants' counsel and the plaintiff:
"Q. Again, [Lawrence Forte] offered for you to use the ladders that they had at the condominium, correct?"
"A. Right."
"Q. They didn't require you to use their ladders, correct?"
"A. No. They said that I can use them, because I don't have to bring mine, and I said, fine."
"Q. So if you wanted to use their ladders, you could; if you wanted to use your ladders, you could, correct?"
"A. Right, right."
Similarly, the affidavits of both Lawrence and Jeffrey Forte state that they merely offered to allow the plaintiff to use Lawrence Forte's ladders as a matter of convenience, but that the agreement between the parties was that the plaintiff could instead bring his own ladders if he preferred. The plaintiff attempts to combat this evidence by offering the affidavit of his wife, Nancy Vargas, wherein she states that she was present on the day the plaintiff and the defendants formed the painting contract, and that "[b]oth Jeffrey Forte and Lawrence Forte directed [the plaintiff] to use their ladders." (Emphasis added.) Even assuming, arguendo, that Nancy Vargas' use of the word "directed" might create an issue of fact regarding whether the defendants required or merely permitted the plaintiff to use their ladders, and that this issue of fact would be material despite the rule that the defendants were entitled to exercise a limited degree of control over the plaintiff without destroying his status as an independent contractor, the plaintiff's responses to the defendants' second request for admissions definitively resolves the issue. That request for admissions and the corresponding responses are as follows:
"The defendants, Lawrence Forte and Jeffrey Forte, request the plaintiff John Sepulveda to admit the truth of the following facts:
"1. The plaintiff could have used his own extension ladder in discharging his obligations under the painting contract."
"RESPONSE: Admitted with the understanding that `could' is a form of `can' `expressing especially a shade of doubt or a smaller degree of ability or permission.' Webster's Dictionary 2d ed., Simon Schuster 1983."
"2. The defendant Lawrence Forte did not require the plaintiff to use the extension ladder."
"RESPONSE: Admitted with the understanding that the defendant did not `compel or demand, order or command.'" Id.
"3. The defendant Jeffrey Forte did not require the plaintiff to use the extension ladder."
"RESPONSE: Admitted with the understanding that the defendant did not `compel or demand, order or command.' Id."
"The request for admissions is an instrument of discovery . . . governed by Practice Book §§ 13-22 through 13-25 . . . A party's response to a request for admissions is binding as a judicial admission unless the judicial authority permits withdrawal or amendment . . ." (Citations omitted; emphasis added; internal quotation marks omitted.) East Haven Builders Supply, Inc. v. Fanton, 80 Conn.App. 734, 744, 837 A.2d 866 (2004). The court finds that these admissions demonstrate definitively that the plaintiff was given the option to use his own ladders or those provided for him. As such, the defendants did not control the plaintiff's method of work and he was therefore an independent contractor to whom the defendants owed no duty. See Mozeleski v. Thomas, supra, 76 Conn.App. 295 n. 4 ("the fact that [the defendant] may have given the plaintiff permission to use the scaffolding [from which the plaintiff fell] [was] not a material fact of consequence . . .").
The plaintiff next seems to argue that there is a genuine issue of material fact regarding whether what has become known as the "intrinsically dangerous" exception applies in this case, and cites Balogh v. Boehringer-Ingelheim Corp. supra, 37 Conn. L. Rptr. 622 as support for this notion. In Balogh, the trial court noted that there are three venerable exceptions to the general rule that an owner of a premises owes no duty to an independent contractor employed to do work on them, and that one such exception states that "where the work contracted for . . . is intrinsically dangerous" the owner may well owe a duty to take special precautions. (Internal quotation marks omitted.) Id., 623. The court explained that the exception contemplates a "situation . . . in which a risk is created which is not a normal, routine matter of customary human activity, such as driving an automobile, but is rather a special danger to those in the vicinity, arising out of the particular situation created, and calling for special precautions." (Internal quotation marks omitted.) Id., 623 (quoting 2 Restatement (Second), Torts § 413, comment (b)).
Balogh dealt with a situation in which an independent contractor fell "off a ladder while painting a smokestack atop buildings on" the owners' property. Id., 622. The court noted that "[c]ommon sense tells that placing a [forty-foot] extension ladder on the roof of a building against a [thirty-five-foot] circular smoke stack with a diameter of just [twenty-four and one-half] inches . . . is inherently dangerous." Id., 624. In the present case, the submitted evidence reveals that the plaintiff fell from a ladder of ordinary size while painting the ceiling of a condominium. Even examining these facts in a light most favorable to the plaintiff, they are so unlike those present in Balogh and contemplated by the intrinsically dangerous exception that no fair and reasonable person could determine that the exception could apply here. Accordingly, the defendants are entitled to judgment as a matter of law. Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003) ("summary judgment `is appropriate only if a fair and reasonable person could conclude only one way'").