Opinion
No. CV 03 0081879 S.
December 11, 2006.
MEMORANDUM OF DECISION RE MOTION #123 — MOTION FOR SUMMARY JUDGMENT
Facts
The plaintiffs allege in a revised complaint that in connection with their intention to purchase property located at 745 North Greenbrier Drive, Orange Connecticut, they hired the defendant Pro-Tech Home Inspections, LLC (hereinafter "Pro-Tech") to perform a complete home inspection on said property and to issue an inspection report. Pro-Tech performed an inspection and prepared and issued a report dated May 22, 2001. The report states in pertinent part that "[b]ased on the age and condition of the major components of this home, I do not anticipate any major replacement costs in the next five year."
The plaintiffs allege that Pro-Tech performed the aforementioned inspection services in a careless and negligent manner. They further allege that Pro-Tech referred the septic system inspection to Country Septic Service, who erroneously reported that the septic system was in excellent condition, despite the fact that a subsequent inspection by another company in the late fall/early winter of 2001 revealed that the septic system was over thirty years old. Furthermore an inspection in January 2002 concluded that the septic system was at the end of its useful life.
The plaintiffs allege that Pro-Tech knew or should have known that the plaintiffs would rely upon Pro-Tech's report and that as a direct and proximate cause of Pro-Tech's negligence they have sustained damages consisting of the cost to replace the septic system, restoring the property to its original condition and a diminution of property value.
In the second count of the complaint the plaintiffs allege that the defendant Pro-Tech's actions constitute a violation of the Connecticut Unfair Trade Practices Act (CUTPA).
On May 11, 2006 the defendant Pro-Tech filed a motion for summary judgment as to the first and second counts of the revised complaint. The defendant asserts that it owed no duty to the plaintiffs concerning the septic system.
Discussion
Before addressing the merits of the defendant's motion, a brief review of the standards for the granting of a motion for summary judgment is warranted:
"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.) Orkney v. Hanover Ins. Co., 248 Conn. 195, 201, 727 A.2d 700 (1999).
QSP, Inc. v. The Aetna Casualty Surety Co., 256 Conn. 343, 351 (2001).
Section 17-45 of the Connecticut Practice Book concerns the proceedings for motions for summary judgment. It provides that:
A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like. The motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion and the supporting materials, unless the judicial authority otherwise directs. The adverse party [prior to the day the case is set down for short calendar] shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already a part of the file, shall be filed and served as are pleadings.
The plaintiffs allege that the defendant negligently performed the inspection services that are the subject of this action. The defendant asserts that it owed no duty to the plaintiffs concerning the septic system. "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . Contained within the first element, duty, there are two distinct considerations . . . First, it is necessary to determine the existence of a duty, and then, if one is found, it is necessary to evaluate the scope of that duty . . . 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." (Citations omitted; internal quotation marks omitted.) Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 566, 707 A.2d 15 (1998).
The defendant submitted several documents in support of its motion to dismiss. The first document is an affidavit of Stanley J. Bajerski, an owner and member of the defendant Pro-Tech. The affidavit provides in pertinent part:
. . . 4. That on May 22, 2001, I inspected the property at 745 North Greenbrier Drive in Orange, Connecticut, pursuant to an agreement with Sol and Sharon Linet who were planning to purchase the property;
5. That I had previously inspected another property for the Linets pursuant to an executed written agreement, attached hereto as Exhibit B;
6. That on the day I inspected 745 North Greenbrier Drive for the Linets, Mr. Linet was not present for most of the inspection. As I recall, he was late due to work commitments and he had to leave early to pick up his children. Consequently he did not sign the inspection agreement for 745 North Greenbrier Drive;
The court notes the duration of Mr. Linet's presence at the property during the inspection is in dispute.
7. That the cover letter to my inspection report, attached hereto as Exhibit C, states that in the event the client does not sign the agreement, the agreement becomes part of the inspection report, and acceptance of the inspection report constitutes acceptance of the agreement;
8. That my company does not perform septic system inspections. The agreement states that septic systems are not included in the inspection. The agreement is attached hereto as Exhibit D;
9. That the agreement also states that the client releases Pro-Tech Home Inspections, LLC and its inspectors and agents from any liability associated with any septic system evaluation by another contractor;
10. That the inspection report, attached hereto as Exhibit B, provides at page 4 under the heading "Plumbing" that septic systems are not included in Pro-Tech's inspections.
11. That the inspection report further states at page 10 under the heading "Plumbing" as follows: "Waste disposed of via private septic system. Septic Systems are not specifically evaluated during my inspection. The septic system was evaluated by COUNTRY SEPTIC SERVICE. It was found to be in satisfactory condition. Please review the report provided by COUNTRY SEPTIC which you will receive in the mail";
12. That the Linets asked me to make arrangements to have the septic system evaluated, and I called COUNTRY SEPTIC SERVICE to perform an inspection of the septic system;
13. That COUNTRY SEPTIC SERVICE did inspect the septic system for the Linets and provide them with a report.
(Emphasis in the original.)
It is undisputed that the contract that is the subject of this action contains the exclusion language cited by the defendant. However it is also undisputed that although the plaintiffs signed a similar previous agreement they did not sign the inspection contract that is at issue in this action.
On July 27, 2006, the plaintiffs filed a memorandum in opposition of the motion for summary judgment. The plaintiffs raise four arguments as to why summary judgment should not enter against them: 1) that there is a question of fact as to whether or not the contract was executed by the plaintiffs and as to whether the plaintiffs assented to the contact's terms; 2) that there is a genuine question of fact as to whether the contract was fairly negotiated; 3) that there is a question of fact as to whether the agreement relied upon by the defendant specifically waived the claim of negligence; and 4) that causes of action sounding in negligence are not appropriate for summary judgment.
The court will first address the issue of whether or not this matter is appropriate for the summary judgment process.
The plaintiff asserts that causes of action sounding in negligence are not appropriate for summary judgment; however, the issue that the defendant raises in the motion for summary judgment concerns whether under the facts as alleged in the complaint it had a duty to the plaintiffs. As was previously stated herein "[t]he 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." (Citations omitted; internal quotation marks omitted.) Maffucci v. Royal Park Ltd. Partnership, supra. Whereas the issues under consideration concern a question of law that must be decided before a finder of fact can even consider whether the duty was violated, the court finds that it is appropriate to raise matter in the summary judgment process.
The issues as raised by the parties to be rather difficult to address. Boiling the situation down to its essence, the plaintiffs are asserting that there is a genuine issue of material fact as to whether the defendant is entitled to a waiver of liability under the circumstances and to whether it can ever waive its own acts of negligence. The defendant, on the other hand, asserts that no duty was ever created under the facts as pleaded and therefore this is not an issue of waiver, but an issue of the existence of a duty at all.
In response to the defendant's arguments concerning the existence of a duty, the plaintiffs argue that there are genuine issues of material fact as to "whether or not the written contract relied upon by the defendant was executed by the plaintiffs, and further, whether the plaintiffs assented to its terms." The plaintiffs' arguments do not go to the issue of whether there was a duty in existence, but presumes the existence of a duty and then addresses the issue of the defendant's inability to waive negligence in the performance of said duty.
Despite the fact that the plaintiffs raise contract-based arguments in their objection to the motion for summary judgment, the cause of action alleged in the revised complaint sounds not in contract, but in tort, i.e. the careless and negligent performance of the inspection services. "Of course, a contract to undertake certain obligations may give rise to a duty that forms the basis for a claim of negligence. That is to be distinguished, however, from a cause of action based on breach of contract . . ." Pinette v. McLaughlin, 96 Conn.App. 769, 774 at footnote 3, 901 A.2d 1269 (2006). However the contract at issue not only does not provide for inspection services, it explicitly provides that the defendant does not perform sanitary system inspections.
In their memorandum in support of their objection to the motion to dismiss, the plaintiffs cite to their complaint and allege that the defendant: "a) failed to observe, report, and/or detect the age of the septic system; b) failed to observe, detect, and/or report the fact that the septic system was at the end of its useful life; c) failed to observe, detect and/or report the fact that the leaching field was impervious to water; d) referred to the septic inspection to Country Septic Service, who erroneously reported the septic system was in excellent condition and had no problems." (See memorandum of law in opposition to motion for summary judgment at pages 2-3.)
It is undisputed that the defendant called Country Septic Service to perform an inspection of the septic system. Defendant's Exhibit F in support of its motion for summary judgment is a Country Septic Service invoice. It provides in part that Pro-Tech was the name of the "Owner/Occupant" of the property located at 745 Greenbrier Rd., Orange, Connecticut.
See paragraph 12 of the defendant's affidavit in support of the motion for summary judgment.
Although the defendants assert that they owed no duty to the plaintiffs, this assertion is based at least in part upon the language of a contract that the plaintiffs vehemently argue that they did not agree to enter.
It is undisputed that the plaintiffs did not sign the inspection agreement that is the subject of this action. Defendant's Exhibit C provides:
Thank you for selecting PRO-TECH HOME INSPECTIONS LLC for your home inspection needs. Enclosed you will find a copy of the inspection report for the property at 745 North Greenbrier Drive, Orange, CT. You will also find the inspection agreement that I should have asked you to review and sign at the inspection report. Acceptance of the report is an acceptance of the terms of the agreement.
In support of their objection to the motion for summary judgment the plaintiffs submitted the affidavit of the plaintiff Sol Linet. It provides in pertinent part:
4. I did sign an agreement with respect to the inspection of a house which is not the subject of our claim against Pro-Tech. At the time I signed that agreement, it was never explained to me that Pro-tech would not be responsible for the negligent inspection or reporting on any part of the house, including the septic system. I was asked to sign the agreement on the spot, and I was not advised to consult with an attorney before I signed the agreement.
5. The agreement presented and relied upon by the Defendant in its Motion for Summary Judgment that purportedly pertains to the Property in question (745 North Green Brier Drive, (Defendant's Exhibit D) was never explained to me by any agent of the Defendant. In fact, it was sent to me along with the inspection report that had been prepared following the actual inspection of the Property.
6. When the Defendant performed its home inspection, I was aware that it would not be performing inspection of the septic system, but it was my understanding that Pro-tech was ultimately responsible for the entire inspection of the Property. I was never told to go out and hire my own septic system inspector. I was never given the name of the company who performed the septic inspection until after the purchase of the Property when we first began to experience problems with the system. It was Pro-tech who reported to me on the condition of the septic, which ultimately led me to purchase the Property.
There is a genuine issue of material fact in existence as to whether the parties did in fact enter into the agreement cited by the defendant. Additionally if they did enter into a contract with the terms and provisions cited by the defendant, then the release from liability language in the contract does not include language specifically alerting the plaintiffs that the defendant sought to have the plaintiffs waive claims for the defendant's own negligence.
If the parties did not enter into the contract as specified by the defendant, i.e. if the agreement has terms other then those cited by the defendant, then a genuine issue of material fact exists as to whether the defendant, by undertaking the obligation to find a third party to conduct the septic inspection, created a duty where ordinarily one would not have existed.
There are genuine issues of material fact as to whether despite the contractual language of the subject agreement, the defendant created a duty to the plaintiffs when it engaged the services of Country Septic Services to provide the subject services.
Viewing the evidence in the light most favorable to the non-moving party and placing the onus of proving that there are no genuine issues of material fact, this court concludes that the defendant has failed to met its burden of proof to show that there are no genuine issues of material fact to show that the defendant did not owe the plaintiffs a duty under the facts as alleged in the complaint.
The motion for summary judgment is denied.