Opinion
DBDCV186027752S
08-05-2019
TOWN OF BROOKFIELD v. Tomasz FIDZIUKIEWICZ et al.
UNPUBLISHED OPINION
OPINION
Krumeich, J.
Defendants Tomasz Fidziukiewicz and Katarzyna Jackiewizain have moved for summary judgment to dismiss the claims against them brought by the Town of Brookfield related to personal injuries sustained by its subrogee, Donald Waterbury ("Waterbury"), a building inspector injured at a house owned by defendants while under construction in Brookfield. Defendants have asserted they were neither in possession nor control of the portion of the property where Waterbury was injured. For the reasons stated below, the motion is granted.
The Standards for Deciding a Motion for Summary Judgment
"The standards ... [for] review of a ... motion for summary judgment are well established. 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 ... The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ... A material fact ... [is] a fact which will make a difference in the result of the case ..." DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 115-16 (2012), quoting H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 558-60 (2001). (Citations omitted.)
Once the movant for summary has satisfied the initial burden of showing the absence of a material issue of fact, the burden shifts to the opponent to establish that there is a genuine issue of material fact: "it is then ‘incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists.’" Iacurci v. Sax, 313 Conn. 786, 799 (2014), quoting Connell v. Colwell, 214 Conn. 242, 251 (1990).
Defendants Were Not in Possession Nor Control of the Premises
In Cuozzo v. Town of Orange, 178 Conn.App. 647, 655-56 (2017), the Appellate Court stated the well-established elements of a premises liability claim:" ‘The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury ... If a plaintiff cannot prove all of those elements, the cause of action fails ... The status of an entrant on another’s land, be it trespasser, licensee or invitee, determines the duty that is owed to the entrant while he or she is on a landowner’s property.’ ‘[T]he dispositive issue in deciding whether a duty exists is whether the [defendant] has any right to possession and control of the property ... Retention of control is essentially a matter of intention to be determined in the light of all the significant circumstances ... 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.’" (Citations omitted.)
The defendants have submitted evidence that they owned the subject property but were not in residence while the property was being renovated by an independent contractor. Without evidence defendants were in possession or control of the area where Waterbury was injured, the nondelegable duties owed by a possessor of land do not apply. See Cuozzo, 178 Conn.App. at 655-56. The conditions that led to the injury were created by the contractor not the owner and there is no evidence the owners controlled the contractor’s means and methods. There is no evidence of intentional or reckless conduct by defendants. There is no evidence defendants were on notice of the conditions. During the renovation the contractor removed the banister to stairs leading to a lower level and placed plastic sheeting over the opening, which is where Waterbury fell through the sheeting while visiting the site. Defendants were not responsible for the conditions that led to the accident and no evidence has been submitted to counter defendants’ denial they were not in possession or control of that location at the time of the accident.
Waterbury came to the property under the mistaken belief he was supposed to conduct an inspection. The Court does not reach the issue of Waterbury’s status as a visitor to the property. Defendants contend he was a trespasser; plaintiff states he was a business invitee.
There is a line of cases that absolve homeowners from premises liability claims for lack of a duty of care where the location of the accident was under control of an independent contractor and the owner retained no control over the contractor’s means and methods or instrumentalities leading to the injury. See Mozelski v. Thomas, 76 Conn.App. 287, 291-92 (2003); Lucibello v. Whitney Manor Realty, LLC, 2019 WL 3248577 *3 (Conn.Super. 2019) (Wilson, J.); Bethea v. Mill Brook Estates, LLC, 2019 WL 2245955 *3-4 (Conn.Super. 2019) (Wilson, J.). See also Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 600-02 (2008) (general contractor had no control over area or instrumentality); Sepulveda v. Forte, 2009 WL 1334042 *3 (Conn.Super. 2009) (Fischer, J.) (owner did not control contractor’s work methods); Piwko v. LaCava Construction Co., 2009 WL 4916522 *2-3 (Conn.Super. 2009) (Sheldon, J.) (general contractor not liable for injury to subcontractor’s employee because did not control over area or instrumentality). In Millette v. Connecticut Post Ltd. Partnership, 143 Conn.App. 62, 70-71 (2013), the Appellate Court recited the rationale for this rule:" ‘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 ...
"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. Wright v. Coe & Anderson, Inc., 156 Conn. 145, 151, 239 A.2d 493; Mann v. Leake & Nelson Co., 132 Conn. 251, 254, 43 A.2d 461. The basic premise is that the assumption and exercise of control over the offending area is deemed to be in the independent contractor." Darling v. Burrone Bros., Inc., 162 Conn. 187, 196 (1972).
‘Exceptions to that rule arise when the employer retains control of the premises or supervises the work of the contractor, or 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 ...’ (Citations omitted; internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 291-92, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). Accordingly, in order to satisfy his burden of proof as to the duty element of the cause of action alleged, the plaintiff needed to establish by a preponderance of the evidence that the defendants retained control over the construction site where the plaintiff fell."
No evidence was submitted that the area or instrumentality were under shared control. See Van Nesse v. Tomaszewski, 265 Conn. 627, 632 (2003). Nor was the activity leading to the injury "intrinsically dangerous" so that exception to the independent contractor rule has no application. See e.g., Green v. Ensign Bickford Co., 25 Conn.App. 479, 482-83 (1991). The activity was a normal incident of construction and could be safely undertaken if ordinary and reasonable safety measures were followed by the contractor, see Pelletier, 286 Conn. at 588; the owner had no duty to take special precautions to protect a visitor to the site being renovated. See Sepulveda, 2009 WL 1334042 *3.
Defendants have borne their burden of showing they had no duty of care to protect Waterbury from falling through the plastic sheeting over the stair opening. Plaintiff has not shown there is a genuine issue of material fact concerning defendants’ control or possession of the premises or any responsibility for the conditions causing Waterbury’s injury.