Opinion
HHDCV156060776S
05-08-2017
Jasmin Molina v. Freshwater Pond LTD, Partnership et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #180
A. Susan Peck, Judge.
This premises liability action arises from an alleged slip and fall on an icy patch located upon a pedestrian walkway within the plaintiff's apartment complex leading to the door of her residence. On September 2, 2016, the plaintiff, Jasmin Molina, filed a two-count amended complaint alleging negligence based on identical allegations against the defendants, Fresh Water Pond Limited Partnership (Fresh Water) and SHP Management Corporation (SHP).
Hereinafter, Fresh Water and SHP will be referred to collectively, as the defendants, and individually by name where appropriate.
In the operative third amended complaint, the plaintiff alleges the following facts. At all relevant times, the defendants owned a property located at 2A Thistle Lane in Enfield, Connecticut, which they, and their agents/employees, exercised control over and were responsible for maintaining, including the walkways and entranceways to the individual apartment units. On or about February 8, 2014, the plaintiff was attempting to enter her apartment when she was " caused to slip and fall on a smooth, clear layer of ice that was completely covering the walkway [of] the entrance to her apartment." The plaintiff's fall and injuries were " due to the negligence and carelessness of [the defendants] and their agents/employees" in that they, inter alia, failed to: (1) maintain the walkway in a safe condition, despite having a duty to do so; (2) adequately inspect the walkway to ensure it was safe; (3) remedy the unsafe condition when they knew or should have known, that an accumulation of ice upon the walkway created a defective condition; (4) properly apply salt, sand or other abrasive materials to the walkway; (5) adequately warn pedestrians that the walkway was in an unsafe condition due to an accumulation of ice; and (6) take the necessary steps to keep the premises in a reasonable condition and maintain the common areas of the premises in a safe manner, in violation of General Statutes § 47a-7. " As a direct and proximate result of the negligence and carelessness" of the defendants, the plaintiff suffered injuries.
General Statutes § 47a-7, entitled " Landlord's responsibilities, " provides, in relevant part: " (a) A landlord shall: (1) Comply with the requirements of chapter 368o and all applicable building and housing codes materially affecting health and safety of both the state or any political subdivision thereof; (2) make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition, except where the remises are intentionally rendered unfit or uninhabitable by the tenant, a member of his family or other person on the premises with his consent, in which case such duty shall be the responsibility of the tenant; (3) keep all common areas of the premises in a clean and safe condition . . ."
On July 29, 2015, Fresh Water filed a third-party complaint asserting claims for common-law and contractual indemnification in two separate counts against J.Z.'s Contracting, JZ's Landscaping, JZ Landscaping, and JZ Landscaping, LLC, alleging that they " are primarily or partly responsible for the damages sustained by [the] plaintiff in this matter." In the first count of the third-party complaint, labeled " Common Law Indemnification, " Fresh Water alleges the following facts.
For ease of reference throughout this memorandum, J.Z.'s Contracting, J.Z.'s Landscaping, JZ Landscaping, and J.Z. Landscaping, LLC, will hereafter be referred to, collectively, as JZ.
Fresh Water owned a property located at 4 Thistle Lane in Enfield (the premises), which includes the plaintiff's apartment unit, 2A Thistle Lane. " Upon information and belief, the plaintiff slipped and fell in the parking lot of the [p]remises." JZ entered into a [written] agreement with Fresh Water " to perform snow plowing and treatment for all parking lots, handicap areas, and access points of the premises, " which thereby induced Fresh Water to rely upon JZ to " properly perform, maintain, and furnish all work, labor, materials, equipment, and tools" necessary to " perform snow plowing . . . and treatment for all parking lots, handicap areas, and access points of the [p]remises . . ." Consequently, Fresh Water alleges that should negligence be found to exist in this matter, " the negligence was on the part of [JZ], as [it was] negligent in [the] performance of [its] snow removal and . . . treatment duties" as dictated by the agreement. The " injuries and damages claimed by the plaintiff . . . arose out of the work performed by [JZ], [its] agents . . . and employees" in that they, inter alia, failed to: (1) " take reasonable precautions to remedy" the defective icy condition, despite that they " knew, or in the exercise of due care should have known that said parking lot was in an unsafe . . . condition"; (2) provide proper snow removal, sanding or salting of the parking lot; (3) conduct a reasonable inspection of the parking lot; and (4) give any warning to the plaintiff of the defective condition which existed in the parking lot.
The third-party complaint further alleges that if " negligence is found to exist, the negligence of [JZ] is the direct and immediate cause of the plaintiff's alleged . . . injuries." Finally, Fresh Water alleges that " at all times pertinent hereto, " JZ " had exclusive control of the snow plowing and snow treatment for all parking lots, handicap areas, and access points of the Premises"; that Fresh Water " had no knowledge of any negligence on the part of [JZ]"; Fresh Water " had no reason to anticipate any negligence on the part of [JZ]"; Fresh Water " could reasonably rely on [JZ] not to be negligent"; and, " there existed an independent legal relationship between Fresh Water and[ JZ] . . . as they entered into the Agreement."
The second count of the third-party complaint, labeled " Contractual Indemnification, " incorporates the allegations summarized in the preceding paragraph by reference and further alleges that paragraph eight (8) of the agreement between Fresh Water and JZ states that JZ " shall indemnify, defend and hold harmless Fresh Water . . . against all claims, damages, losses and expense for injuries . . . arising out of or resulting from the performance of its work." Finally, Fresh Water alleges that " upon information and belief, plaintiff's damages arose from her slipping and falling in the parking lot of the Premises. If Fresh Water is found liable for plaintiff's alleged damages, . . . [JZ] should indemnify and hold harmless Fresh Water Pond."
Thereafter, on November 23, 2016, JZ filed a motion for summary judgment on the ground that there is no genuine dispute of material fact that JZ had no control over, or responsibility to maintain, the area of the premises where the plaintiff's alleged slip and fall occurred, thereby entitling it to judgment as a matter of law with respect to the entire third-party complaint. The motion was accompanied by a memorandum of law in support, and seven exhibits: (1) a copy of the plaintiff's original complaint; (2) a copy of Fresh Water's third-party complaint and corresponding summons; (3) a copy of the snow removal service agreement for the premises between JZ and SHP; (4) an uncertified copy of the deposition transcript of Joel Ziemnicki, the owner of JZ; (5) an uncertified copy of the deposition transcript of Kenny Alford, Fresh Water's maintenance superintendent; (6) a certified copy of the plaintiff's deposition transcript; and (7) a copy of a photograph depicting the plaintiff at the scene of the alleged incident.
While certified copies of deposition transcripts are required to support summary judgment; Practice Book § 17-45; where no objection to the court's use of an uncertified copy is interposed, the court may exercise its discretion to consider or exclude them. Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006). Absent objection in the present case, the court has considered the uncertified deposition transcripts of Ziemnicki and Alford.
In opposition to the motion for summary judgment, on January 5, 2017, Fresh Water filed a memorandum accompanied by two exhibits: (1) Fresh Water's June 5, 2015 notice of discovery compliance, which included both a handwritten and electronic " Incident Report, " authored by Sasha Rodriguez, Fresh Water's property manager; and (2) the plaintiff's May 8, 2015 notice of discovery compliance, which included a run sheet authored on the date of the incident by the East Windsor Ambulance Association, documenting the plaintiff's reported injuries. On January 6, 2017, the third-party defendants submitted a reply brief to Fresh Water's opposition memorandum. The court held oral argument at the January 9, 2017 short calendar.
" 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.) Martin Franchises, Inc. v. Cooper U.S., Inc., 164 Conn.App. 486, 499, 137 A.3d 882 (2016). " [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." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). " In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact . . . but rather to determine whether any such issues exist." (Internal quotation marks omitted.) RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011), rev'd on other grounds, J.E. Robert Co., Inc. v. Signature Properties, LLC, 309 Conn. 307, 71 A.3d 492 (2013).
" 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.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). " 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 . . . Once the moving party has met its burden . . . 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." Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).
" [O]ne important exception exists . . . to the general rule that a party opposing summary judgment must provide evidentiary support for its opposition . . . On a motion by [the] defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint . . . It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial." (Internal quotation marks omitted.) Squeo v. Norwalk Hosp. Ass'n, 316 Conn. 558, 594-95, 113 A.3d 932 (2015). " A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." (Internal quotation marks omitted.) Mott v. Wal-Mart Stores East, LP, 139 Conn.App. 618, 632, 57 A.3d 391 (2012).
" 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 . . . In the case of a negligence action grounded upon a theory of premises liability, the nature of the duty owed to a plaintiff depends upon the plaintiff's status on the premises at the time of the alleged injury . . . 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." (Citations omitted; footnote omitted; internal quotation marks omitted.) Millette v. Connecticut Post Ltd. Partnership, 143 Conn.App. 62, 70-71, 70 A.3d 126 (2013).
" 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 . . .
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; footnotes omitted; internal quotation marks omitted.) Millette v. Connecticut Post Ltd. Partnership, supra, 143 Conn.App. 69-70.
In its memorandum in support of its motion for summary judgment, JZ argues it is undisputed that it was not responsible for the maintenance of, nor did it exercise any control over the area of the premises where the plaintiff alleges she was caused to slip and fall. Specifically, JZ contends that it " owes no duty of contractual or common law indemnification to Fresh Water, " because " the plaintiff [allegedly] fell in an area for which JZ had no duty to maintain." In support of this argument, JZ first points to the plaintiff's complaint, in which she alleges that she slipped and fell on an icy patch situated " on the walkway leading up to her apartment, " as well as her certified deposition transcript, wherein she testified that she fell on the walkway of the premises, not in the parking lot. Moreover, JZ maintains that the agreement it entered into with Fresh Water for snow removal services on the premises provides that JZ was responsible for maintaining " all driveway, parking and handicap areas, " monitoring " the condition of all parking areas and roadways for ice [in order to] apply sand and salt when necessary, " and, most importantly, that " sidewalks will be maintained by the maintenance staff of the property." Furthermore, JZ cites to the deposition transcript of Alford, Fresh Water's maintenance superintendent, who testified that Fresh Water was responsible for " [a]ll walkways, " while JZ was responsible only for plowing, and JZs' employees never exited their plowing vehicles " because Fresh Water was responsible for the walkways." JZ contends that, taken together, all the foregoing evidence clearly demonstrates that it " had no responsibility for maintaining [the walkway where the alleged defect existed]" and, as such, " the plaintiff's injuries and losses cannot be said to arise out of JZ's work under [the agreement] and, therefore, JZ does not owe a contractual duty to indemnify Fresh Water pursuant to [such agreement]."
Fresh Water counters that summary judgment should be denied because a genuine issue of material factual remains in dispute regarding the precise location of the plaintiff's fall. Specifically, Fresh Water asserts that " JZ relies solely on the testimony of the plaintiff as a basis for its motion, " that SHP's employee, Sasha Rodriguez, " authored two separate documents which indicate the plaintiff informed her that she fell in the parking lot, " as well as that an " ambulance report indicates that the plaintiff reported slipping on ice in the parking lot, " not on the walkway leading to her residence. Fresh Water maintains that these " differing accounts" and " conflicting evidence" as to the exact location of the plaintiff's alleged fall raise a clear issue of fact which can only be resolved by the trier of fact. Fresh Water concludes its argument by stating that " a genuine issue of material fact exists as to whether plaintiff fell in the walkway to her apartment or the parking lot, which in turn raises genuine issues of material fact as to whether JZ or [Fresh Water was] responsible for [the] maintenance and control of the disputed loss location."
Based on the evidence submitted in support of its motion for summary judgment, JZ has presented admissible and essentially unrefuted evidence to demonstrate the absence of any genuine issue of material fact that the plaintiff fell on an area of the premises for which JZ had no responsibility pursuant to the specifications of its snow plowing agreement with SHP, and therefore, it is entitled to judgment as a matter of law. See Romprey, supra, 310 Conn. 319-20. The plaintiff's deposition testimony, and a photograph depicting the scene of the incident, attached as exhibits to JZ's motion, definitively establish that the plaintiff's premises liability claim against the defendants stems from injuries she suffered as a result of a slip and fall on ice on the pedestrian walkway leading to her individual unit, not in the parking lot. On the other hand, the evidence submitted by Fresh Water in opposition to the motion is in the form of unauthenticated hearsay handwritten statements of SHP's employee, Sasha Rodriguez, and a hearsay statement contained in an Enfield EMS run sheet from the date of the alleged fall. Finally, the express language of the snow removal contract between the parties specifies that JZ was responsible for the driveways, parking and handicap areas of the property. In addition, the deposition testimony of Ziemnicki and Alford (Fresh Water's employee), support JZ's position that its contract for snow removal services did not include the area where the plaintiff fell and that Fresh Water retained control of the maintenance of the sidewalks. Consequently, Fresh Water, not JZ, owed a duty of care to those entering upon its retained premises sufficient to establish Fresh Water as " the proper party to be charged with the responsibility of preventing the risk, and bearing and distributing it . . ." See Millette, 143 Conn.App. 70-71. Accordingly, since JZ's motion and supporting evidence establishes that there is no genuine issue of material fact that Fresh Water, not JZ, bear responsibility for the plaintiff's alleged injuries, JZ is entitled to judgment as a matter of law as to both counts of Fresh Water's third-party complaint.
CONCLUSION
Accordingly, JZ's motion for summary judgment as to both counts of Fresh Water's third-party complaint is hereby granted.