Opinion
HHDCV176079495S
05-31-2019
Billy Joe MADORE v. FIP CONSTRUCTION, INC. et al.
UNPUBLISHED OPINION
MATTHEW DALLAS GORDON, J.
Facts and Procedural History
This is a personal injury action in which the plaintiff alleges that he was working on a mobile scaffold located on the third floor of a construction project in Hartford, Connecticut, on June 2, 2016, when the scaffold rolled off a twelve-inch step and crashed to the ground. FIP Construction, Inc. (FIP) was the general contractor for the project, and the scaffold was owned by a subcontractor on the project called Advanced Performance Glass, Inc. (APG). By way of writ, summons, and complaint filed on June 15, 2017, the plaintiff alleges that the defendants acted negligently and recklessly in failing to properly recognize and address the defective condition of the locking mechanisms on the scaffold wheels. Both defendants deny all allegations of negligence and recklessness, and assert that the plaintiff caused his own injuries by failing to ensure that the wheels on the scaffold were locked, and by failing to properly anchor himself to the building.
FIP and APG have each moved for summary judgment asserting that they did not owe the plaintiff a duty of care because the plaintiff’s employer, Total Wall Systems, Inc. (Total Wall), had exclusive control over the scaffold. The plaintiff responds that summary judgment is, inappropriate as to APG because 1) APG owned the scaffold and knew or should have known that the caster wheels on the scaffold were worn to the point that none of them locked correctly; and 2) APG acted recklessly because despite knowing about the defective condition of the scaffold, it nevertheless allowed others on the jobsite to use it. As for FIP, the plaintiff asserts that summary judgment is inappropriate because FIP exerted broad and extensive control over all of the scaffolds on the project, including the one the plaintiff was using at the time of the incident. The plaintiff did not oppose FIP’s motion for summary judgment directed to his claims of recklessness.
Total Wall is not a defendant in this action.
For the reasons set forth in this memorandum, the court concludes that there are genuine issues of material fact that render summary judgment inappropriate in connection with the plaintiff’s claims of negligence against both defendants, and in connection with the plaintiff’s claims of recklessness against APG. The defendants’ motions for summary judgment directed to these allegations are therefore denied. The court also concludes that there are no genuine issues of material fact regarding the plaintiff’s claim of recklessness directed to FIP, and that FIP’s motion for summary judgment regarding that allegation is therefore granted.
Applicable Legal Standard
"The summary judgment standard is 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 ... [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 ... [T]he burden of showing the nonexistence of any material fact is on the party seeking summary judgment ... To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Citations omitted; internal quotation marks omitted.) Andrade v. Lego Systems, Inc., 188 Conn.App. 652, 661-63, cert. denied, 331 Conn. 921 (2019).
Discussion
I. FIP’s Motion for Summary Judgment
Although FIP and the plaintiff disagree regarding the conclusions the court should reach based on the evidence they have each gleaned through discovery, and the case law they have presented, they agree that the proper standard the court should utilize in deciding whether summary judgment is appropriate is whether fair and reasonable people could reach different conclusions regarding which entity had control over the scaffold. See Archambault v. Soneco/Northeastern, Inc., 287 Conn. 20, 54, 946 A.2d 839 (2008). "When the evidence on the question as to who had control of the area or instrumentality causing the injury is such that the mind of a fair and reasonable [person] could reach but one conclusion as to the identity of the person exercising control, the question is one for the court, but, if honest and reasonable [persons] could fairly reach different conclusions on the question, the issue should properly go to the jury ... In addition, the contractor’s control need not be exclusive; it is sufficient if it [is] shared with another." (Internal quotation marks omitted.) Id.
In addressing the issue of control, FIP focuses primarily on the extent to which the plaintiff’s employer, Total Wall, had control over the worksite, and the extent to which Total Wall was responsible for ensuring the safety of its employees. In contrast, the plaintiff focuses on the extent to which FIP retained and exercised control over the plaintiff, and all of the scaffolds on the worksite. FIP and the plaintiff each rely on Archambault, supra, 287 Conn. 20, and Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 591-92, 945 A.2d 388 (2008), as support for their respective positions. FIP relies on Archambault, and Pelletier to argue that although it had a safety manual, and the general authority to oversee worksite safety, it does not mean that FIP had control over the means or methods of the plaintiff’s work, or the corresponding duty to protect the plaintiff’s safety. The plaintiff contends that these cases support the proposition and conclusion that because FIP exercised broad and extensive control over the jobsite, the subcontractors, and the instrumentality of injury (namely, the scaffold), FIP had a duty to protect the plaintiff from injury.
As explained in the next section of this decision, the court concludes that summary judgment is inappropriate in connection with the plaintiff’s claims of negligence against FIP because reasonable minds could differ regarding whether and to what extent FIP had control over the worksite, the subcontractors, and the scaffold. As for FIP’s motion for summary judgment directed to the plaintiff’s claims of recklessness, the court concludes that the plaintiff’s failure to address this issue in its objection to FIP’s motion for summary judgment precludes him from challenging FIP’s motion now.
Although the plaintiff filed a surreply that may have addressed the recklessness issue in greater detail, the court has not considered the surreply because the plaintiff did not seek permission to file it. See Practice Book Section § 11-10(b), which states, in relevant part: "A reply memorandum shall be strictly confined to a discussion of matters raised by the responsive memorandum ..."; see also Wilton Meadows Ltd. Partnership v. Coratolo, 299 Conn. 819, 824 n.3, 14 A.3d 982 (2011) (noting that "[i]t is a well established principle that arguments cannot be raised for the first time in a reply brief" (Internal quotation marks omitted.)).
Our Supreme Court "repeatedly ha[s] 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 ... Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned ... These same principles apply to claims raised in the trial court." (Citation omitted; internal quotation marks omitted.) Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003). Furthermore, where a plaintiff raises a claim for the first time during oral argument on a defendant’s motion for summary judgment, the trial court need not address the claim. See Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 132 Conn.App. 85, 97, 30 A.3d 38 (2011), aff’d, 311 Conn. 123, 84 A.3d 840 (2014). Accordingly, since the plaintiff failed to address the issue of recklessness in his objection to FIP’s motion for summary judgment, the court has not considered the plaintiff’s argument as to recklessness against FIP that he raised in his surreply.
FIP asserts that it is entitled to summary judgment because it did not direct, control, or supervise the means or methods of the plaintiff’s work on the day of the accident, and because it had no control over the plaintiff’s use of the scaffold. According to FIP, the plaintiff’s employer, Total Wall, had exclusive control over the plaintiff and his work, and exclusive responsibility for the plaintiff’s safety. FIP submitted numerous exhibits in support of its motion, including affidavits from Harold Chait and Peter Autunno; portions of the subcontracts between APG and Total Wall Systems, Inc.; excerpts from the deposition transcripts of Perry Cole, Gary Rooke, Jay Catubig, Travis Shaw, Jonathan Brand, and Paul Bushey; a transcript of plaintiff’s October 22, 2018 deposition; a Pre-Construction Meeting Agenda; FIP’s Quality Control Manual; and excerpts from the deposition transcript of Steven Levesque. According to FIP, these exhibits demonstrate that there are no genuine issues regarding the following facts.
On January 22, 2016, FIP and Total Wall entered into a subcontract for work to be performed by Total Wall at a construction project in Hartford, including the installation of metal panel wall systems. Pursuant to this subcontract, Total Wall agreed to furnish all labor, materials, services, supervision, machinery, equipment, tools, and supplies necessary to complete the work, and to provide an on-site superintendent and/or foreman. FIP emphasizes that according to the subcontract, "[n[othing in this Subcontract shall be construed as reserving or granting to Contractor any right to exercise any control over or to direct in any respect the operation, conduct or management of the Subcontractor."
FIP contends that the subcontract delegated complete and exclusive control and supervision of the means and methods of the work, and all aspects of safety, to Total Wall. FIP also asserts that the plaintiff’s use of APG’s scaffolding was not discussed during any pre-job safety planning and that FIP does not get involved with the borrowing or lending of equipment between subcontractors. FIP also emphasizes that all employees are required to inspect scaffolds before using them, and that it was not part of FIP’s responsibility to provide safety training to subcontractors. FIP also asserts that APG brought the subject scaffold to the construction site; that the boom used to move APG’s scaffolding was rented by APG without FIP’s involvement; that APG had a competent person present when the scaffold was constructed; that Total Wall trained the plaintiff how to do his work; that Total Wall directed the plaintiff regarding the work he was to perform the day of the accident; and that the plaintiff did not ask anyone to inspect the scaffolding before he used it to determine if it was safe.
Based on these assertions, FIP relies on Archambault, supra, 287 Conn. 53, for the proposition that "since the employer 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 employer, is the proper party to be charged with the responsibility of preventing the risk, and bearing and distributing it." (Internal quotation marks omitted.) Although FIP recognizes that there are exceptions to this general rule, including where a contractor negligently employs an incompetent or untrustworthy contractor, or the general contractor assumes general control of the work, FIP also relies on Pelletier, supra, 286 Conn. 591-92 (Pelletier II), for the proposition that these exceptions do not apply in this case because FIP did not exercise control over the area or instrumentality causing the injury, namely, the scaffold.
FIP acknowledges that it had several different on-site personnel conducting routine safety inspections and performing routine safety meetings with the subcontractors. These individuals included Perry Cole and Michael Barone, both of whom were highly knowledgeable and experienced safety professionals. FIP also acknowledges that under the terms of the Total Wall subcontract, Total Wall was required to comply with all of FIP’s safety rules and regulations. Total Wall was also required to assign a full-time, qualified, on-site superintendent to the project site, and to follow all safety rules and regulations promulgated by the Occupational Safety and Health Administration (OSHA), including the OSHA requirement that each worker personally inspect any scaffolding prior to using it. FIP also contends that Total Wall’s on-site "competent person," Paul Healy, was also required to inspect the plaintiff’s work area. According to FIP, applying the holdings of Pelletier and Archambault to these undisputed facts leads to the ineluctable conclusion that FIP is entitled to summary judgment in its favor as a matter of law.
Healy was also a job foremen for FIP.
The plaintiff has a different view of the facts and law and asserts that summary judgment is inappropriate because FIP exerted broad and extensive control over all of the scaffolding on the project. In support of this premise, the plaintiff observes that immediately after the accident, FIP’s representative, Perry Cole, went to the fourth floor where he found two of the scaffold wheels, one of which had a defective locking mechanism, and after determining that the scaffolding fell because the wheels were not fully locked, ordered the scaffolding seized and placed it in a secure location.
The plaintiff’s experts, Thomas W. Eagar, subsequently concluded that none of the locking mechanisms on the wheels were functioning properly and that normal wear and tear of the casters had rendered it impossible for the steel components to contact the rubber tires with sufficient force to prevent rotation of the wheels. Eagar also determined that the scaffolding had been defective for months, if not years.
Although the plaintiff agrees with FIP that the disposition of this case is controlled by Archambault and Pelletier, the plaintiff contends that summary judgment is nevertheless inappropriate because those cases support the proposition that where a general contractor "reserve[s] in his contract general control over the [subcontractor] or his servants, or over the manner of doing the work, or if he in the progress of the work assume[s] control or interfere[s] with the work ... [he] will be responsible for resultant injury." Archambault, supra, 287 Conn. 53-54. The plaintiff also emphasizes that even if Total Wall or APG, or the plaintiff himself, were in control of certain aspects of the worksite, including the scaffold, FIP nevertheless had a duty to protect the plaintiff’s safety because according to Pelletier, "the contractor’s control need not be exclusive; it is sufficient if it be shared with another." Pelletier, supra, 286 Conn. 599.
The plaintiff emphasizes that the contract for the Hartford project was not a standard contract for the construction of a building, pursuant to which the owner hires the architects, engineers, and other professionals to create a set of plans and then invites general contractors or construction managers such as FIP to bid on the job. Instead, the plaintiff asserts that this particular contract was a "design/build" contract where the owner first hired the general contractor (FIP), which then hired a professional design team to create the plans, after which FIP identified and hired subcontractors to take on the various construction tasks set forth in the project plans and specifications.
According to the plaintiff, FIP was required to handle all phases of the construction project, from pre-planning to final delivery, and the owner relied heavily on FIP for safety and quality control, as is reflected in the terms of the contract, pursuant to which FIP specifically promised that the work would be free of defects created by FIP’s subcontractors. The plaintiff asserts that in order to meet this obligation, FIP conducted regular quality control inspections. The contract also required FIP to ensure that reasonable precautions were taken to prevent injuries to employees on the worksite, or anyone else put at risk from the construction work. FIP’s contract with the owner also included a provision commanding FIP to employ an on-site safety supervisor.
The minimum safety standards that the owner expected of FIP, and that FIP consequently expected of its subcontractors, are set forth in FIP’s Health and Safety Program: a 114 page document that contains 41 separate bullet points regarding specific procedures to be followed regarding the use of scaffolds, including scaffold erection, dismantling, access, fall protection, falling object protection, training, and retraining. The plaintiff claims that these provisions were presented and highlighted during preconstruction safety training meetings, and were enforced by FIP during the weekly jobsite inspections. It is the plaintiff’s contention that all of the subcontractors were subject to FIP’s control because they were contractually bound to follow FIP’s Health and Safety Program, which was specifically incorporated into both the FIP-APG and FIP-Total Wall subcontracts and distributed to all subcontractors prior to the commencement of work.
The plaintiff also claims that after completing the FIP sponsored training, all subcontractor employees, including the plaintiff, were required to sign a form acknowledging that they were contractually bound to adhere to the terms of the FIP program. According to the plaintiff FIP’s safety procedures were not merely the "informational tools" at issue in Pelletier, but were instead actively enforced by FIP via weekly inspections of the jobsite during which FIP’s representative, Cole, would check the equipment and work methods being utilized by the various subcontractors to ensure that all of the equipment, including the scaffolds, and methods were safe. The plaintiff also asserts that if Cole found a subcontractor employee in violation of FIP’s Safety & Health Program, OSHA, or any other safety rule, Cole and FIP had the power to initiate a three-tiered disciplinary system overseen by FIP’s project superintendent, Mike Barone. FIP also had the power to expel the subcontractor employee from the jobsite.
The plaintiff testified that he was required to sign a document verifying that he had watched and understood FIP’s safety orientation video, and an acknowledgment recognizing that as a subcontractor employee on FIP’s project, "I’m contractually obligated to comply with all legally constituted safety requirements, FIP’s safety & health program, and the owner’s safety program."
According to the plaintiff, Cole conducted scaffold inspections by checking footings and ensuring that the brakes on mobile scaffolds were engaged, and shortly before the plaintiff’s fall, Cole cited a subcontractor for failing to lock the wheels on a mobile scaffold. Cole also inspected the scaffold at issue during his last site visit before the plaintiff’s accident and concluded that the wheels were "good." The owner and president of Total Wall, Steven Levesque, confirmed that Cole had the power to enforce FIP’s Health and Safety Program, and one of the Total Wall employees testified that Cole would stop subcontractors from working on any scaffold that had not been inspected. Total Wall’s foreman, Paul Healy, testified that FIP "owned" safety on the jobsite, and that FIP would direct workers to change working methods that did not conform to the FIP safety guidelines.
The court concludes that the level of oversight and control exerted by FIP was more stringent and detailed than that of the general contractors in Pelletier and Archambault . For example, in Archambault, the court specifically noted that although the general contractor’s safety manual described the general contractor’s interest in providing safe conditions on the work site, it did not indicate that the general contractor would engage in daily supervision of its subcontractor’s employees. Archambault, supra, 287 Conn. 55. Moreover, "[n]one of the safety concerns discussed in the manual involved control over the manner in which specific tasks would be performed by the subcontractors’ employees." Id., 55-56. Here, compliance with FIP’s Safety and Health Plan was an express term of the FIP-Total Wall contract, which gave FIP control over the manner in which specific tasks would be completed while using the instrumentality at issue, namely, the mobile scaffold. Moreover, FIP employed a three-tiered disciplinary system pursuant to which it could remove subcontractor employees if they failed to adhere to the program. These circumstances are significantly different than those at issue in Archambault, where the court noted that "[n]either [the general contractor supervisor] testified that [the general contractor] retained direct control over [the subcontractor’s] work, over [the subcontractor’s] employees or over the manner in which the work was to be performed, nor did, either testify that the [general contractor] assumed direct control over, or interfered with, [the subcontractor’s] responsibility to perform its work safely." Id., 56.
The court concludes that because FIP retained and exercised at least some direct control over the subcontractors’ work and employees, especially with regard to the use of mobile scaffolds, there is a genuine issue of material fact as to whether FIP was in control of the worksite, and the scaffold the plaintiff was using when he fell. Pelletier and Archambault ultimately turn on a lack of control over the specific instrumentality that caused the injury. Here, FIP was charged with ensuring that all workers performed their tasks in a safe manner, and in furtherance of that duty, FIP regularly inspected all of the scaffolds on the jobsite to ensure compliance with FIP’s specific and mandatory safety rules.
Based on all of the evidence submitted, the court cannot conclude that "the evidence on the question as to who had control of the area or instrumentality causing the injury is such that the mind of a fair and reasonable [person] could reach but one conclusion as to the identity of the person exercising control ..." Archambault, supra, 287 Conn. 54. Accordingly, the court concludes that the issue of control is properly left for the trier of fact and that FIP’s motion for summary judgment must therefore be denied.
II. APG’s Motion for Summary Judgment
APG contends that it is entitled to summary judgment because there is no genuine issue of material fact that it did not have control over the plaintiff’s work, and did not have control or possession over the scaffold, or the area where the scaffolding was located at the time of the incident. APG asserts that the plaintiff’s employer, Total Wall, directed the plaintiff’s work, including when, where and how to complete it, and that the plaintiff single-handedly moved the scaffold to where the incident occurred without requesting APG’s permission to do so. APG also asserts that it had no work to perform in the area where the plaintiff moved the scaffolding, and, therefore, would not have used the scaffolding in that area. In short, APG asserts that it is entitled to summary judgment because it did not have control of the scaffold, and therefore no duty to ensure the plaintiff’s safety.
In support of its motion for summary judgment, APG relies on Mozeleski v. Thomas, 76 Conn.App. 287, 295, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003), in which the Connecticut Appellate Court affirmed the trial court’s granting of summary judgment in favor of the defendant-contractor after determining that the contractor did not owe the plaintiff, another contractor injured while using the defendant’s scaffold, a duty of care. Prior to the fall, and while the scaffold owner was not present, the plaintiff improperly erected the scaffold, thereby creating the condition that caused his injuries. Id., 293. The Appellate Court rejected the plaintiff’s contention that the scaffold owner was also the project’s general contractor, and owed the plaintiff a legal duty to ensure the safety of the work site, including the scaffold, because it controlled the premises. Id., 293-94. Although the defendant owned the scaffold, and may have given the plaintiff permission to use it, the Appellate Court concluded that the owner did not owe the plaintiff a duty of care because the plaintiff had constructed and used the scaffold while the owner was not present, and because the plaintiff failed to contradict the scaffold owner’s evidence that the plaintiff was in possession and control of the scaffold at the time of the incident. Id.
APG also asserts that there is no genuine issue of material fact that the plaintiff has failed to demonstrate that APG’s alleged conduct rises to the level of recklessness.
The plaintiff opposes APG’s motion for summary judgment arguing that APG owed the plaintiff a duty of care because APG owned and controlled the scaffold, which it supplied to the plaintiff’s employer for use on the jobsite. The plaintiff also argues that APG acted recklessly in bringing the scaffold to the job site when it knew, or had reason to know, of the scaffold’s dangerous and/or defective condition. The plaintiff asserts that by providing the scaffolding for use by others, APG breached its duty not to provide a chattel, which APG "knew or had reason to know was dangerous for its intended use." Restatement (Second), Torts § 388. The plaintiff also relies on Piertrantuono v. Gonzalez Construction, LLC, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-06-5001733, 2010 WL 2593272 (May 25, 2010, Adams, J.), wherein the court denied summary judgment on the basis that the defendant had a duty of care based on leaving unsafe scaffold brackets on a jobsite where others could use them. The plaintiff also asserts that Mozeleski, is inapposite because in that case there was no claim that the scaffold was defective, and no evidence that the owner of the scaffold was negligent in any respect.
The plaintiff also asserts that pursuant to APG’s subcontract with FIP, APG was contractually obligated to inspect the scaffold before each use, and that as the owner and supplier of the scaffold, APG, controlled access to and was responsible for the initial assembly and frequent inspection of the scaffolding. The plaintiff also asserts that the caster wheels on the scaffold were worn to the point that none of them locked correctly, and that it was reasonably foreseeable to APG that someone using the scaffold in this condition might fall and sustain serious injury.
The plaintiff contends that a number of Connecticut Superior Courts have analyzed the responsibilities of parties loaning equipment for use on a jobsite and have consistently held that the owner owes a duty of reasonable care to the borrower. As one example, the plaintiff refers the court to Piertrantuono v. Gonzalez Construction, LLC, supra, Superior Court, Docket No. CV- 06-6001733, 2010 WL 2593272, where the defendant furnished defective and/or dangerous scaffold brackets that were utilized by the plaintiff. That court, in denying summary judgment, found that a duty existed because there was evidence that the defendant had installed the allegedly defective portion of the scaffold. Id.
The plaintiff also asserts that APG’s reliance on Mozeleski is misplaced because in Mozeleski there was no evidence that anything was wrong or defective with the scaffolding. The plaintiff essentially asserts that when APG provided the scaffolding for use by others on the Hartford project, APG assumed a duty to provide equipment that was in a reasonably safe condition, and that APG breached that duty by providing a scaffold with inoperable brakes. See Syrbe v. Burns, Superior Court, judicial district of Fairfield, Docket No. CV-87-0245826-S, 1992 WL 79662, *3 (April 14, 1992, Melville, J.) (denying summary judgment where there existed a genuine issue of the scaffold’s defective condition at the time of the accident when scaffolding was provided by defendant); Sutera v. Natiello, Superior Court, judicial district of New London, Docket No. CV-14-6022399, 2017 WL 4080400, *1 (August 3, 2017, Bates, J.), aff’d, Sutera v. Natiello, 189 Conn.App. 631 (2019) (discussing that even if the plaintiff was the sole individual on site at the time of incident the defendant was still in control of the scaffolding in question as defendant had sole responsibility for its erection).
The court concludes that there are numerous issues of material fact regarding APG’s knowledge of the condition of the scaffold prior to its delivery to the Hartford project, as well as APG’s erection and continued control over the scaffold following its delivery, that make summary judgment inappropriate in connection with the plaintiff’s claims of negligence.
The court also concludes that summary judgment is inappropriate in connection with the plaintiff’s claims of recklessness because if APG knew the caster brakes on the scaffold were inoperable, yet nevertheless allowed the plaintiff and others to use it, such wilful indifference to an unreasonable risk of substantial bodily harm could support a finding of recklessness. "Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater ... than that which is necessary to make his conduct negligent." Doe v. Boy Scouts of America Corp., 323 Conn. 303, 330, 147 A.3d 104 (2016). "Recklessness requires one of two types of knowledge: knowledge of the serious danger to others or knowledge of facts which would disclose this danger to any reasonable man ..." (Internal quotation marks omitted.) Salvatore v. Skovinski, Superior Court, judicial district of New Haven, Docket No. CV13-6041882-S, 2014 WL 7272280, *3 (November 17, 2014, Nazzaro, J.) (citing Restatement (Second) Torts § 500, comment (c), p. 589 (1965)). "[A]n allegation of the defendants’ II knowledge of a hazard and the failure to take steps to prevent danger is sufficient to state a cause of action in recklessness." (Internal quotation marks omitted.) Policastro v. Property Group of Connecticut, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-13-6016793-S, 2013 WL 3307346, *3 (June 7, 2013, Tobin, J.T.R.). "[T]o determine whether the plaintiff[’s] ... complaint states a cause of action sounding in recklessness, we look first to the definitions of wilful, wanton and reckless behavior." (Internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 342, 813 A.2d 1003 (2003). "Recklessness is a state of consciousness with reference to the consequences of one’s acts ... It is more than negligence, more than gross negligence ... The state of mind amounting to recklessness may be inferred from conduct." Id. However, "in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them ... Wanton misconduct is reckless misconduct ... It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action." Id. The gravamen of the plaintiff’s claim is that although APG knew that the caster brakes on its scaffold were inoperable, it nevertheless allowed the scaffold to be used by workers at the construction site. This claim is buttressed by the claim of the plaintiff’s expert that the scaffolding had been in a defective condition for months, and potentially years. If true, these facts, combined with APG’s assertion that the scaffold is inspected every time it leaves the warehouse, and every day that it is used, creates a permissible inference that APG acted recklessly in allowing others to use the scaffold despite knowing of its defective condition.
Conclusion
Having carefully considered the plaintiff’s complaint, the defendants’ motions for summary judgment, the plaintiff’s opposition, and all of the supporting materials submitted by the parties, including the affidavits, exhibits, and deposition testimony; and having entertained oral argument at which the parties had a full opportunity to set forth their respective positions, the court concludes that there are genuine issues of material fact concerning who was in possession and control of the worksite and instrumentality of injury, and that based on the evidence already submitted, reasonable minds could differ regarding which entity was in control, keeping in mind that control need not be exclusive and may be shared with others, see Archambault, supra, 287 Conn. 54. The defendants’ motions for summary judgment regarding the plaintiff’s claims of negligence as to both defendants, as well as the plaintiff’s claim of recklessness directed to APG, are therefore denied. For the reasons explained previously, FIP’s motion for summary judgment directed to the plaintiff’s claim of recklessness is granted.