Opinion
No. CV-09-5026150S
August 29, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
On January 17, 2009, Sarah Collins commenced a personal injury action against the counterclaim plaintiffs, Tabacco Plowing, LLC (Tabacco Plowing) and Thomas Tabacco (Tabacco). Collins alleges that on March 3, 2007, she was injured after slipping on ice in a parking lot owned by her employer, the counterclaim defendant, Webster Financial Corporation (the defendant). According to Collins, the plaintiffs maintained the defendant's parking lot. Collins further alleges, inter alia, that the plaintiffs "caused or allowed and permitted ice to . . . accumulate on [the] parking lot . . . [and] failed to remedy [the] icy, slippery and dangerous parking lot by placing sand, salt, sawdust or other abrasive substances thereon, when the same were reasonably necessary under the circumstances . . ." Therefore, Collins alleges that the plaintiffs' negligent maintenance of the defendant's parking lot caused her injuries.
Tabacco Plowing and Tabacco will be referred to collectively as "the plaintiffs."
On July 2, 2009, the defendant filed a revised intervening complaint alleging that Collins received compensation pursuant to the Connecticut Workers' Compensation Act, General Statutes § 31-275, et seq. Pursuant to General Statutes § 31-293, the defendant seeks to recoup workers' compensation benefits that it paid to Collins. On July 17, 2009, the plaintiffs filed a two-count counterclaim against the defendant. In count two, the plaintiffs allege that the defendant breached a contract between the parties, thereby entitling the plaintiffs to indemnification from the defendant.
Section 31-293 provides in relevant part: "When any injury for which compensation is payable under the [Workers' Compensation Act] has been sustained under circumstances creating in a person other than an employer who has complied with the [Workers' Compensation Act] . . . any employer . . . having paid, or having become obligated to pay, compensation . . . may bring an action against such person to recover any amount that he has paid or has become obligated to pay as compensation to the injured employee." "Section 31-293 is a detailed scheme governing the parties' rights in third party workers' compensation scenarios . . . The statute . . . allows an employer who is obligated to pay workers' compensation benefits either to intervene in the employee's action or, in the event that the employee fails to prosecute his claim, to bring an independent action against the alleged tortfeasor . . . [T]he employer's recovery is limited to the amount of workers' compensation benefits that it has paid or has become obligated to pay as a result of the tortfeasor's alleged negligence or malfeasance." (Internal quotation marks omitted.) Southbury v. Gonyea, 301 Conn. 405, 411 (2011).
The trial court, Alander, J., granted the defendant's motion to strike count one of the plaintiffs' counterclaim on June 1, 2010. The court, however, denied the motion to strike count two.
Specifically, the plaintiffs allege that "[i]f [Collins] suffered injuries as alleged in her complaint . . . [the defendant] breached its contract with the [plaintiffs] in that they did not inspect the [parking lot] and/or advise the [plaintiffs] of the need to remediate the ice and snow condition that was then and there existing in a timely manner despite their presence at said location on a daily basis." The plaintiffs further allege that "[i]f the [plaintiffs] are found to have breached their contract with the [defendant], it was the failure of the [defendant] to inspect and/or advise the [plaintiffs] of the conditions that they were aware of due to their presence on the [parking lot] on a daily basis that actually caused the ice and/or snow not to be removed in a timely manner." According to the plaintiffs, the defendant's breach of contract was the direct and immediate cause of the injury to Collins. Therefore, the plaintiffs seek "[r]eimbursement of any and all sums payable to [Collins] . . . all expenses and costs incurred . . . all attorneys fees incurred . . . and . . . any and all interest incurred with respect to this litigation."
The contract will be subsequently referred to as "the snow plowing contract." The services rendered by the plaintiffs under the snow plowing contract, including sanding, will be referred to as "snow plowing services."
On March 4, 2011, the defendant filed a motion for summary judgment as to count two of the plaintiffs' counterclaim on the ground that the defendant does not owe an independent legal duty to the plaintiffs under the snow plowing contract. In support of its motion for summary judgment, the defendant submits the following evidence: (1) a copy of the transcript from oral argument in connection with the defendant's motion to strike count two of the plaintiffs' counterclaim, (2) a copy of Tabacco Plowing's responses to the defendant's requests for admission directed only to Tabacco Plowing, and (3) a copy of Tabacco Plowing's responses to the defendant's interrogatories and requests for production.
On May 13, 2011, the plaintiffs filed a memorandum in opposition to the defendant's motion for summary judgment. In support of their opposition, the plaintiffs submit the following evidence: (1) an uncertified portion of Collins' deposition transcript, and (2) the snow plowing contract. The matter was heard at short calendar on May 23, 2011.
LEGAL ANALYSIS
"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.) Unifund CCR Partners v. Schaeppi, 126 Conn.App. 370, 379-80, 11 A.3d 723 (2011). "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." (Internal quotation marks omitted.) Jackson v. Tohan, 113 Conn.App. 782, 786, 967 A.2d 634, cert. denied, 292 Conn. 908, 973 A.2d 104 (2009).
"Before a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . . Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Citation omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 129 Conn.App. 481, 493 (2011).
The defendant argues that the court must decide whether a genuine issue of material fact exists as to whether "[the defendant] had any obligation under the [snow plowing contract] to 'come out and to [call the plaintiffs] if there was a need for [the plaintiffs] to come out and sand.'" Specifically, the defendant asserts that the snow plowing contract lacks a provision that sets forth an obligation for the defendant to call the plaintiffs if additional snow plowing services are needed. The defendant further argues "that there is no basis for the counterclaim against [the defendant] alleging that it breached the contract between the parties." (Emphasis in original.)
The defendant attempts to authenticate the snow plowing contract by submitting Tabacco Plowing's admission to the genuineness of the contract. The defendant's requests for admission, however, are only directed at Tabacco Plowing; not Tabacco. Consequently, the contract is not properly authenticated as to Tabacco. Nevertheless, Tabacco Plowing fails to object to the improper authentication, and in fact, submits the same contract as an exhibit in opposition to the defendant's motion for summary judgment. Therefore, the court, within its discretion, may admit the contract. See Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006) ("a court properly could consider [an unauthenticated evidentiary] submission without objection"); see also Rigi Bros. v. Verderame, Judicial District of Waterbury, Docket No. CV 99 4020475 (July 28, 2010, Shaban, J.) (since the parties did not object to the evidence, "any objection is deemed waived and all documents are admissible within the court's discretion," [internal quotation marks omitted]).
In their opposition, the plaintiffs rely on a provision in the snow plowing contract that provides: "[The defendant], without invalidating this agreement, may order extra work or make changes by altering, adding to or deducting from the work, the charges to be adjusted accordingly." The plaintiffs interpret the provision as permitting the defendant to call the plaintiffs if additional snow plowing services are necessary. Because of this provision, the plaintiffs argue that "[the defendant] should have requested [the plaintiffs] to perform additional [snow plowing] services to remedy any issues" on the parking lot. The plaintiffs further assert that "[a]t best, the contract is ambiguous as to who has the responsibility for inspection." The plaintiffs claim that the defendant, as the possessor of the parking lot, cannot delegate its duty to inspect and maintain. Thus, the plaintiffs argue that "there are numerous factual determinations and contractual interpretations that must be made," and therefore, summary judgment is inappropriate.
This provision will be referred to as "the provision."
Throughout oral argument and their memorandum, the plaintiffs also assert that they fulfilled their contractual obligations with the defendant. Whether the plaintiffs fulfilled their contractual duties is irrelevant to the defendant's motion for summary judgment. The defendant's motion only addresses the plaintiffs' counterclaim against the defendant; not Collins' claim against the plaintiffs or the defendant's claim against the plaintiffs to recover workers' compensation benefits allegedly paid to Collins.
The defendant claims that this provision does not create a duty for the defendant to call the plaintiffs if additional snow plowing services are needed on the parking lot. The defendant further argues that the plaintiffs are simply trying to create a factual dispute in connection with the allegations in count two. Therefore, the defendant asserts that there is no genuine issue of material fact as to count two and the defendant is entitled to judgment as a matter of law.
General Statutes § 31-284 provides in relevant part: "An employer who complies with the requirements of [the Workers' Compensation Act] shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained . . ." In the seminal case of Ferryman v. Groton, 212 Conn. 138, 561 A.2d 432 (1989), however, "[our] Supreme Court held that . . . § 31-284 does not in every circumstance provide the exclusive remedy in negligence actions and that indemnification is possible under appropriate circumstances." Lombardo v. Timex Corp., Superior Court, Judicial District of Litchfield, Docket No. CV 99 0080002 (May 14, 2002, DiPentima, J.).
"The [Connecticut] Workers' Compensation Act . . . provides the sole remedy for employees and their dependents for work-related injuries and death . . . Its purpose is to provide a prompt, efficient, simple and inexpensive procedure for obtaining benefits related to employment . . . The exclusivity provision in § 31-284(a) manifests a legislative policy decision that a limitation on remedies is an appropriate trade-off for the benefits provided by workers' compensation." (Internal quotation marks omitted.) Stearns Wheeler, LLC v. Kowalsky Bros., Inc., 289 Conn. 1, 10-11, 955 A.2d 538 (2008). "Under the Workers' Compensation Act, both the employer and the employee have relinquished certain rights to obtain other advantages. The employee no longer has to prove negligence on the part of the employer, but, in return, he has to accept a limited, although certain, recovery . . . The employer, in turn, guarantees compensation to an injured employee in return for the exclusivity of the workers' compensation liability to its employees." (Internal quotation marks omitted.) Barry v. Quality Steel Products, Inc., 263 Conn. 424, 451, 820 A.2d 258 (2003).
Specifically, "[w]hen the third party, in a suit by the employee, seeks recovery over against a contributorily negligent employer, contribution [or indemnification] is ordinarily denied on the ground that the employer cannot be said to be jointly liable in tort to the employee because of the operation of the exclusive-remedy clause. But if the employer can be said to have breached an independent duty toward the third party, [arising from an independent legal relationship] . . . recovery in the form of indemnity may be allowed." (Emphasis added; internal quotation marks omitted.) Ferryman v. Groton, supra, 212 Conn. 144-45; see also Barry v. Quality Steel Products, Inc., 263 Conn. 424, 451, 820 A.2d 258 (2003) ("[our Supreme Court] has limited a third party's right to seek indemnification from an employer to those situations where there is an independent legal relationship between the third party and the employer, thereby generating a legal duty from the employer to the third party seeking indemnification . . ."). "Although establishing . . . an independent duty . . . may overcome the workers' compensation exclusivity bar, courts have construed this exception very narrowly." (Internal quotation marks omitted.) Vecchitto v. Turner Construction Co., Superior Court, Judicial District of New Haven at Meriden, Docket No. CV 02 0279231 (September 24, 2004, Wiese, J.); Rowan v. Briasco, Superior Court, Judicial District of Middlesex, Docket No. CV 99 0088887 (January 25, 2000, Gordon, J.) [ 25 Conn. L. Rptr. 309].
"[A] third party's right to seek indemnity from an employer is clear when the obligation springs from a separate contractual relation, such as an employer-tenant's express agreement to hold the third-party landlord harmless, or a bailee's obligation to indemnify a bailor, or a contractor's obligation to perform his work with due care . . ." (Internal quotation marks omitted.) Barry v. Quality Steel Products, Inc., supra, 263 Conn. 451-52. "[A]llegations that are based solely upon the 'active or primary negligence' versus the 'passive or secondary negligence' principles [however] . . . are simply inadequate to establish the independent relationship that would obviate the operation of the exclusive remedy doctrine [under § 31-284]. . ." (Citation omitted.) Ferryman v. Groton, supra, 212 Conn. 145.
In Ferryman v. Groton, supra, 212 Conn. 144-45, did not simply hold that an independent legal relationship between an employer and a third party is sufficient to recover in the form of indemnity. Instead, the employer must breach an independent legal duty to a third party arising out of an independent legal relationship before indemnity may be allowed. Id. Therefore, § 31-284 "is not a bar to indemnity where such a right can be predicated on some legal relationship between the third party and employer giving rise to a duty on the part of the employer to the third party which is . . . contractually . . . breached." (Internal quotation marks omitted.) Bremseth v. Connecticut Light Power Co., Superior Court, judicial district of Hartford, Docket No. CV 93 0526545 (August 11, 1995, Corradino, J.).
See also Atkinson v. Berloni, 23 Conn.App. 325, 327, 580 A.2d 84 (1990) ("[i]mplicit in indemnification cases is the requirement of an independent legal relationship between the indemnitor and the indemnitee giving rise to a special duty"), rev'd on other grounds, 240 Conn. 694, 694 A.2d 788 (1997); see also LaRosa v. Napoletano, Superior Court, Judicial District of Stamford-Norwalk at Stamford, Docket No. CV 07 5003456 (March 19, 2010, Brazzel-Massaro, J.) ("virtually all of the Superior Court judges interpreting Ferryman have determined that simply alleging a contract between the counterclaim plaintiff and counterclaim defendant is insufficient to overcome the workers' compensation exclusivity barrier"); see also Rodrigues v. Kachmarik, Superior Court, Judicial District of Waterbury, Docket No. 095210 (April 15, 1992, Meadow, J.) ( 6 Conn. L. Rptr. 312, 313) (" Ferryman . . . did not simply hold that a relationship need be demonstrated, but that only if the employer can be said to have breached an independent legal duty toward the third party . . . [can] recovery in the form of indemnity be allowed" [internal quotation marks omitted]).
Here, the parties do not dispute that they entered into the snow plowing contract and therefore, there is no issue as to whether an independent legal relationship exists. An independent legal relationship, however, is insufficient to bypass the exclusivity provision of § 31-284. An independent legal duty arising from an independent legal relationship must exist in order to recover in the form of indemnity. Therefore, within the context of a motion for summary judgment, the court must determine, as a matter of law, whether there is a genuine issue of material fact as to whether the defendant owed an independent legal duty to the plaintiffs.
"[A] legal duty [is defined] as 'a duty arising by contract or by operation of law; an obligation the breach of which would be a legal wrong.'" (Emphasis added.) Hill v. Williams, 74 Conn.App. 654, 660 n. 7, 813 A.2d 130, cert. denied, 263 Conn. 918, 822 A.2d 242 (2003). "The existence of a duty is a question of law"; Sic v. Nunan, 128 Conn.App. 692, 699, 18 A.3d 667 (2011); "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.) Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 593, 945 A.2d 388 (2008).
In order to determine whether a legal duty exists, the court recognizes the principles that govern the interpretation of contracts. "Although ordinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law." (Internal quotation marks omitted.) DiRienzo Mechanical Contractors, Inc. v. Salce Contracting Associates, Inc., 122 Conn.App. 163, 170, 998 A.2d 820, cert. denied, 298 Conn. 910, 4 A.3d 831 (2010). "A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction . . . [T]he intent of the parties [to a contract] is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract." (Internal quotation marks omitted.) Ocsai v. Exit 88 Hotel, LLC, 127 Conn.App. 731, 736, 17 A.3d 83 (2011).
"[A] presumption that the language used is definitive arises when . . . the contract at issue is between sophisticated parties and is commercial in nature." (Internal quotation marks omitted.) Neubig v. Luanci Construction, LLC, 124 Conn.App. 425, 432-33, 4 A.3d 1273 (2010).
Our Supreme Court has established well settled principles that guide the court's analysis in determining whether contract language is ambiguous. "[A] contract is unambiguous when its language is clear and conveys a definite and precise intent . . . The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity . . . Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous . . . In contrast, a contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself . . . [A]ny ambiguity in a contract must emanate from the language used by the parties . . . The contract must be viewed in its entirety, with each provision read in light of the other provisions . . . and every provision must be given effect if it is possible to do so . . . If the language of the contract is susceptible to more than one reasonable interpretation, the contract is ambiguous." (Internal quotation marks omitted.) Harbour Pointe, LLC v. Harbour Landing Condominium Assn., Inc., 300 Conn. 254, 260-61, 14 A.3d 284 (2011).
In the present case, the court finds that the provision is unambiguous and does not impose a duty on the defendant to call the plaintiffs if additional snow plowing services are needed for the parking lot. Specifically, the provision's use of the word "may" instead of "shall," is dispositive of the issue before the court. Our Supreme Court has noted the difference between the use of "shall" and "may" in a contract provision. "The use of the word 'shall' denotes that [a] directive in the contract . . . was mandatory . . . [At the same time,] [t]he word 'may,' unless the context in which it is employed requires otherwise, is not normally used as a word of command . . . The term 'may' generally imports permissive conduct and the use of discretion." (Citations omitted.) A Dubreuil Sons, Inc. v. Lisbon, 215 Conn. 604, 610-11, 577 A.2d 709 (1990); see also Morales v. Trinity Ambulance Service, 9 Conn.App. 386, 390, 519 A.2d 90 (1986), cert. denied, 202 Conn. 806, 520 A.2d 1287 (1987) ("our Supreme Court has often held that the word 'may' is discretionary and not mandatory"); see also Black's Law Dictionary (9th Ed. 2009) (defining "shall" as "[h]as a duty to [or] . . . is required to . . . [or] [s]hould . . . [for example] 'all claimants shall request mediation' . . .").
Even if the court assumes that the provision permits the defendant to order additional snow plowing services, as argued by the plaintiffs, it does not command or require the defendant to order any such work. Rather, the provision permits the defendant, in its discretion, to order additional work. The plaintiffs are essentially arguing that the defendant breached a nonexistent duty; whether the defendant should have called the plaintiffs is irrelevant. At most, the defendant has the right to call or to order extra work, not the obligation. The plaintiffs' interpretation contrasts with the provision's plain terms, which do not create a legal duty for the defendant to call the plaintiffs if the parking lot requires additional snow plowing services.
The plaintiffs argue that "the contract is ambiguous [and at best unclear] as to who has the responsibility for inspection." The plaintiffs, however, do not articulate any legal analysis in support of this conclusory argument. "We repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly." (Internal quotation marks omitted.) Hogan v. Dept. of Children Families, 290 Conn. 545, 578, 964 A.2d 1213 (2009). Moreover, "[i]t is not enough . . . for the opposing party merely to assert the existence of . . . a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact . . ." (Internal quotation marks omitted.) Mitchell v. Redvers, 130 Conn.App. 100, 108 (2011). Nevertheless, similar to the plaintiffs' argument regarding a duty to call, the use of the word "may" is dispositive of any claim that the defendant owed the plaintiffs a duty to inspect pursuant to the language within the provision.
Furthermore, even if the court looks to the subsequent terms in the provision, the court does not find that the defendant owed the plaintiffs a legal duty to inspect by according the "common, natural, and ordinary meaning and usage" to the provision's language. Ocsai v. Exit 88 Hotel, LLC, supra, 127 Conn.App. 736. The provision makes no reference to an inspection of the parking lot and the court will not torture the words or stretch their meaning in order to create such a duty. The mere absence of contractual language regarding a duty to inspect does not necessarily make the provision ambiguous. Therefore, as a matter of law, the court determines that the provision does not create a duty for the defendant to inspect the parking lot.
Next, the plaintiffs cite Morin v. Bell Court Condominium Assn., Inc., 223 Conn. 323, 327, 612 A.2d 1197 (1992), for the proposition that "[a] possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe." The plaintiffs argue that "[t]his is so even when a owner hires another to keep the premises in a reasonably safe condition . . . [and therefore,] [the defendant] cannot delegate its duty to inspect and maintain its property . . ." (Citation omitted.) Under this argument, however, it is unclear to whom this duty to inspect is owed; the plaintiffs or Collins. Nevertheless, the court finds the plaintiffs' argument to be unavailing. First, the plaintiffs argue that the duty to inspect is owed to Collins, as an invitee. The court does not find this to be consistent with the holding in Ferryman v. Groton, supra, 212 Conn. 144-45. In order to succeed in an indemnification claim and bypass § 31-284, the relationship between the plaintiffs and the defendant cannot be "based upon any duty that [the defendant] owed to [Collins] but upon an entirely independent and separate duty [the defendant] owed to [the plaintiffs]." Id., 144, citing Farm Bureau Mutual Automobile Ins. Co. v. Kohn Bros. Tobacco Co., 141 Conn. 539, 554, 107 A.2d 406 (1954); see also McGahee v. Safeway Moving, Superior Court, judicial district of Waterbury, Docket No. 119854 (October 31, 1994, Sullivan, J.) (granting a motion to strike against a claim that the employer failed to provide a reasonably safe environment on the ground that the third party did not allege a breach of the duty owed to the third party, but instead, alleged a breach of the employer's duty of care owed to the employee).
The plaintiffs also rely on Gazo v. Stamford, 255 Conn. 245, 249-50 n. 4, 765 A.2d 505 (2001). After hearing oral argument and reviewing the plaintiffs' memorandum in opposition, the court determines that Gazo does not support the plaintiffs' position. The court's discussion involving Morin v. Bell Court Condominium Assn., Inc., supra, 223 Conn. 327, precludes the plaintiffs' reliance on Gazo to the extent that it involves a nondelegable duty. Moreover, Gazo is readily distinguishable from the present case, as our Supreme Court was not discussing a matter involving the exclusivity provision of Connecticut's Workers' Compensation Act.
"The scope of the duty owed to an invitee . . . is to avoid physical harm to the particular invitee, not to indemnify." (Emphasis in original.) Hajjar v. Frederick L. Bultman, Inc., Superior Court, judicial district of Danbury, Docket No. 316244 (February 9, 1995, Leheny, J.) ( 13 Conn. L. Rptr. 434, 435); see also Mable v. Bass Transportation Co., 3 Conn.App. 547, 549, 490 A.2d 538 (1985) ("the duty owed to business invitees is to prevent physical injury, not the kind of indirect and contingent economic harm" as alleged by the invitee that the employer was actively negligent). The plaintiffs fail to offer any authority under our Workers' Compensation Act for an invitee's right of indemnification against an employer for the invitee's liability to the employee injured by the invitee's negligence.
Under the exclusivity provision of § 31-284, "[t]he important principle is whether the employer has imposed on itself through contract or has imposed on it by statute an independent legal duty to the third party apart from any claim by a third party that the employer should be held responsible for its active negligence in causing the injury to the employee." Bremseth v. Connecticut Light Power Co., supra, Superior Court, Docket No. CV 93 052654. Here, the duty to inspect, as relied upon by the plaintiffs and articulated in Morin v. Bell Court Condominium Assn., Inc., supra, 223 Conn. 327, does not arise from any language within the snow plowing contract. Rather, the plaintiffs cite the applicable rule for premises liability. As a result, the plaintiffs' argument is misplaced and therefore, the counterclaim does not bypass the exclusivity provision of § 31-284.
CONCLUSION
For the foregoing reasons, the court finds that no genuine issue of material fact exists as to whether the defendant owed an independent legal duty to the plaintiffs and the defendant is entitled to judgment as a matter of law. Therefore, the court grants the defendant's motion for summary judgment.