Opinion
No. AAN-CV-02-0077110S
November 27, 2006
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This action arises from the plaintiff, Patricia Gargano's, allegations of negligence asserted against multiple defendants. The factual background is somewhat complex; however, distilling the undisputed facts to their basic components, the following occurred.
In 2001, defendants Josune Azpiri and Victor Fonesca were romantically involved in a boyfriend-girlfriend/fiancee relationship. Azpiri owned property and the appurtenant house located at 1190 Quinnipiac Avenue in New Haven, Connecticut. It was the intent of both Azpiri and Fonesca, that after their marriage, Fonesca would be a co-owner of the property.
In the fall of 2001, Azpiri decided to improve the house with renovations. Fonesca, who at one time was a partner in a business that bought, renovated, and re-sold houses, took an active role in the renovation of the property and, at times, acted as a general contractor. Victor Moura, another defendant, however, was hired as the general contractor. In addition, Azpiri hired Eric Creto, another defendant, to do the electrical work involved in the renovations. Creto was paid by Fonesca.
During the renovation, Creto had not accomplished the electrical work in a timely manner and, therefore, Alex DePalma was hired as a replacement. DePalma was hired with the agreement of Azpiri and the knowledge of Fonesca. The plaintiff was DePalma's electrician's assistant who helped DePalma perform electrical work on the property. On November 1, 2001, at approximately 7:00 p.m. while assisting DePalma on the top floor of the property, the plaintiff fell through a hole in the floor and suffered injuries.
All the defendants have filed motions for summary judgment with accompanying memoranda and exhibits. The plaintiff has filed memoranda in opposition to the respective motions along with accompanying exhibits. The case was heard on November 6, 2006.
DISCUSSION
"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.) Neuhaus v. DeCholnoky, 280 Conn. 190, 199, 905 A.2d 1135 (2006). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006). "Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Id., 319.
In the motion for summary judgment, Creto argues that he does not owe any duty to the plaintiff because he never met her, she was not his employee and he never paid her. Azpiri, Fonesca and Moura basically claim that they did not owe a duty to the plaintiff because she was aware of the open and obvious hole through which she fell. Azpiri and Fonesca also argue that the plaintiff was a licensee and so they are held to the lower level of duty owed a licensee. Moura argues that he owed the plaintiff no duty because he left the job site two to three weeks prior to the incident and he did not posses or control the property. Moura also argues that because he never spoke to the plaintiff, did not know her, had no knowledge of her being on the property, and never invited her onto the property, he only owes her, at most, a duty that a possessor owes a licensee.
The plaintiff argues that: (1) she did not knowingly or intentionally walk into the hole; (2) she was distracted when she fell into the hole; (3) the accident occurred approximately two hours after she first saw the hole and she could have forgotten about the hole; and (4) none of the defendants took any precautionary measures to prevent the plaintiff from falling into the hole, for example, by placing kickboards or barriers around the hole.
"The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action . . . Thus, [t]here can be no actionable negligence . . . unless there exists a cognizable duty of care." Murdock v. Croughwell, 268 Conn. 559, 566, 848 A.2d 363 (2004).
Initially, the court notes that the nature of the plaintiff's relationship with the defendants is properly characterized as a business invitee. "Invitees fall into certain general categories. A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public . . . A business invitee is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land . . . [General Statutes § 52-557a], which provides that [t]he standard of care owed to a social invitee shall be the same as the standard of care owed to a business invitee, in effect recognizes a third kind of invitee, namely, the social invitee." (Internal quotation marks omitted.) Sevigny v. Dibble Hollow Condominium Assn., Inc., 76 Conn.App. 306, 320, 819 A.2d 844 (2003); see also Corcoran v. Jacovino, 161 Conn. 462, 465, 290 A.2d 225 (1971). DePalma was a subcontractor and the plaintiff assisted him. The plaintiff was connected either directly or indirectly with the business dealings relevant to the property. Accordingly, the court finds that the plaintiff was a business invitee.
"In general, there is an ascending degree of duty owed by the possessor of land to persons on the land based on their entrant status, i.e., trespasser, licensee or invitee . . . A possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe . . . In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover." (Internal quotation marks omitted.) Considine v. Waterbury, 279 Conn. 830, 859, 905 A.2d 70 (2006). "The duty to warn, however, does not arise if an invitee already has actual knowledge of the dangerous condition. Kaminski v. Fairfield, 216 Conn. 29, 38, 578 A.2d 1048 (1990); Warren v. Stancliff, 157 Conn. 216, 220, 251 A.2d 74 (1968); see also 2 Restatement [(Second), Torts § 343A (1965)]." Fleming v. Garnett, 231 Conn. 77, 84, 646 A.2d 1308 (1994). A possessor of land has "no duty to warn an invitee of a dangerous condition when the invitee has actual knowledge of the condition . . . The failure to warn an invitee of something he already knows is without legal significance." (Citations omitted) Warren v. Stancliff, 157 Conn. 216, 220, 251 A.2d 74 (1968).
Furthermore, regarding the issue of control or possession, our Supreme Court has noted: "[L]iability in a premises liability case is based solely on control and possession, not title. Moreover, in [Connecticut Supreme Court] cases involving claims of premises liability, it does not appear that [the court has] required the plaintiff to show that the defendant had exclusive possession." (Citation omitted). Lin v. National Railroad Passenger Corp., 277 Conn. 1, 16 n. 10, 889 A.2d 798 (2006). "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 . . . [T]he question of whether a defendant maintains control over property sufficient to subject him to . . . liability normally is a jury question . . . Where the evidence is such that the minds of fair and reasonable persons could reach . . . different conclusions on the question [of control], then the issue should properly go to the jury for its determination . . . [P]ossession cannot be fairly construed as anything short of the exercise of dominion and control similar to and in substitution for that which ordinarily would be exerted by the owner in possession." (Citations omitted; internal quotation marks omitted.) Silano v. Cumberland Farms, Inc., 85 Conn.App. 450, 453-54, 857 A.2d 439 (2004). Accordingly, whichever defendants controlled or possessed the property, if any, owed the plaintiff a duty to reasonably inspect and maintain the premises in order to render them reasonably safe, and to warn the plaintiff of dangers that the plaintiff could not reasonably be expected to discover. Assuming control or possession, however, the defendants had no duty to warn the plaintiff of dangerous conditions that the plaintiff had actual knowledge of.
Applying the foregoing principles, Creto cannot be said to have possession of the property and, therefore, the court finds, as a matter of law, that he did not owe the plaintiff any duty. Creto was neither the owner of the property, nor exercised any control over the property. He did not hire Gargano or DePalma and, in fact, DePalma was hired as Creto's replacement. At best, Creto is an individual who once worked on the property. Accordingly, the court grants Creto's motion for summary judgment.
With regard to Moura, however, there is a genuine issue of material fact as to whether he, as the general contractor, was in possession of the area where the incident occurred. Merely leaving the job site does not mean Moura was no longer the general contractor and without control of the area where the incident occurred. If, at the time of the incident, Moura was the general contractor, he may have been in control or possession. Similarly, Fonesca certainly took on some of the supervisory aspects of the renovation. As such, there is a genuine issue of material fact as to whether Moura or Fonesca were in control or possession of the property such that they would owe the plaintiff a duty. Moreover, Fonesca may have been the agent/general contractor for Azpiri and this too raises an issue of material fact because it relates to whether Fonesca could even be considered to have possession. There are also genuine issues of material fact as to whether Azpiri was in control or possession of the property when the incident occurred. Nevertheless, assuming Azpiri, Fonesca and Moura were in control or possession of the property at the time of the incident, their motions for summary judgment are granted because there is no genuine issues of material fact surrounding the plaintiff's knowledge of the hole through which she fell and, therefore, as a matter of law, the defendants did not owe her a duty. Warren v. Stancliff, supra, 157 Conn. 220.
All the defendants argue that the hole through which the plaintiff fell was open and obvious and, moreover, that the plaintiff had actual knowledge of it. According to the defendants, summary judgment should be granted in their favor because, as a matter of law, they should not be held liable on these facts. The plaintiff stated in her deposition that approximately one and one-half hours before the incident she went on a tour of the house with DePalma and another individual. During this tour she saw the hole that she eventually fell through. She also stated that she knew a spiral staircase was going where the hole was and she estimated the hole to be three to four feet in length. She stated in her deposition that generator-powered lights lit the room where the hole was, that there was no wall blocking the light, and that she did not think the hole was a danger. Based on the plaintiff's admissions, she fully discovered and knew of the danger on the premises. Because a possessor of land has "no duty to warn an invitee of a dangerous condition when the invitee has actual knowledge of the condition"; Warren v. Stancliff, supra, 220; the court grants Azpiri, Fonesca and Moura's motions for summary judgment.