Opinion
No. CV 09-5028369S
August 10, 2010
MEMORANDUM OF DECISION
The plaintiff, William Myrick, Jr., commenced the present negligence action by service of process the defendant, Seigel Realty, Inc. ("Seigel Realty") on March 30, 2009 and against the defendants Glenda Walker and Prudential Real Estate Affiliates, Inc. ("PREA") on April 3, 2009. The plaintiff alleges the following facts in his three-count complaint. The plaintiff was on the premises of 189 Foxon Boulevard in the town of East Haven at approximately 11:40 a.m. on March 18, 2007 as a business invitee for the purposes of a real estate showing given by Robin Burgarella, an agent of PREA. At that time, a dangerous accumulation of snow and ice covered the exterior walkway upon which the plaintiff was situated. This accumulation of snow and ice caused him to slip and fall, which caused him to sustain injuries.
Count one of the plaintiff's complaint alleges negligence against Walker, the owner of the property. Count two alleges negligence against Seigel Realty, the listing agent retained by Walker to sell the property. Count three alleges negligence under a vicarious liability theory against PREA, whose alleged agent, Robin Burgarella, arranged the showing of and accompanied the plaintiff to the property.
Specifically, the plaintiff alleges that PREA was negligent in several ways, including: PREA permitted a defective, dangerous and unsafe condition to exist on the property; PREA knew or reasonably should have known of the presence of the defective condition; PREA permitted the plaintiff to use the walkway upon which he fell; PREA failed to properly inspect the property; PREA failed to ensure that the property was reasonably maintained and that the snow and ice accumulation was removed; PREA failed to give proper notice and warning of the dangerous condition; PREA failed to notify Walker and Seigel Realty of the condition of the property and; PREA failed to apply sand, salt or abrasive materials to the dangerous condition. In his complaint, the plaintiff seeks economic damages and noneconomic damages.
PREA filed the present motion for summary judgment and accompanying memorandum of law on January 11, 2010. PREA included the affidavit of David S. Beard, its vice president and corporate counsel, and appended thereto a copy of an excerpt from a franchise agreement. The plaintiff filed an objection to the PREA's motion for summary judgment and a memorandum of law in support thereof on April 30, 2010. Oral argument on the PREA's motion was heard at short calendar on May 17, 2010.
PREA is the only party to the present case that is moving for summary judgment.
"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." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
Initially, the burden is on the moving party to demonstrate the absence of any triable issue of material fact. "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 . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non-moving party has no obligation to submit documents establishing the existence of such an issue. Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
"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.) Provencher v. Enfield, supra, 284 Conn. 791. "Even where a trial court finds that the evidence strongly favors one party, that court may not arrogate to itself the role of trier of fact, and, thus, decide issues of material fact as a matter of law. A party has the same right to submit a weak case [to the jury] as he has to submit a strong one." (Internal quotation marks omitted.) Maffucci v. Royal Park Ltd. Partnership, 42 Conn.App. 563, 572, 680 A.2d 333 (1996), rev'd on other grounds, 243 Conn. 552, 707 A.2d 15 (1998).
In its memorandum of law, PREA argues that Burgarella was not its agent, but rather an independent contractor bound to PREA by a franchise agreement. Therefore, PREA maintains that it is not liable for Burgarella's negligent acts or omissions because she is an employee of the franchisee, CTRE, LLC d/b/a/ Prudential Connecticut Realty ("CTRE"), and the franchisee is bound by the franchise agreement to accept full responsibility for the negligent acts and omissions alleged by the plaintiff. See McLaughin v. Chicken Delight, Inc., 164 Conn. 317, 324, 321 A.2d 456 (1973) (affirming judgment of trial court in granting summary judgment for defendant franchisor where evidence showed that tortfeasor was not employee of franchisor); see also Snowberger v. Americo Henriques, Superior Court, complex litigation docket at Waterbury, Docket No. X06 01 0167144 (September 18, 2002, McWeeny, J.) [ 33 Conn. L. Rptr. 135] (granting summary judgment for defendant franchisor where evidence with respect to franchise agreement, ownership and control of operation was undisputed); Kenny v. Norville, Superior Court, judicial district of Waterbury, Docket No. CV 94 0120178 (October 3, 1996, Vertefeuille, J.) ( 17 Conn. L. Rptr. 687, 688) (granting summary judgment for defendant where parties had stipulated that defendant was franchisor).
The plaintiff, in his memorandum of law in support of his objection to the defendant's motion, argues that the determination of the legal status of a relationship, such as that of an agent or independent contractor, is ordinarily a question of fact and not predisposed to summary judgment. The plaintiff maintains that the defendant's evidentiary submissions in support of its motion for summary judgment are insufficient to reveal the nature of the legal relationship between PREA and Burgarella. Specifically, the plaintiff argues that the contract excerpts submitted by the defendant are insufficient to demonstrate the absence of a genuine issue of material fact because there is no way to determine the identity of the parties to the agreement. Therefore, the plaintiff contends that this case is not susceptible to summary judgment.
The issue before the court is whether PREA has established that there is no genuine issue of material fact as to whether Burgarella was the agent or employee of PREA. "Liability for injuries caused by defective premises . . . does not depend on who holds legal title, but rather who has possession and control of the property." LaFlamme v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63 (2002); Doty v. Shawmut Bank, 58 Conn.App. 427, 432, 755 A.2d 219 (2000). "[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." (Citations omitted; Internal quotation marks omitted.) Alfano v. Randy's Wooster Street Pizza Shop II, Inc., 90 Conn.App. 766, 774, 881 A.2d 379 (2005).
The Superior Court has dealt with the issue of possession or control within the context of a franchise numerous times. See, e.g., Garnett v. McDonald's Corp., Superior Court, judicial district of New Haven, Docket No. CV 92 0330016 (October 15, 1993, Zoarski, J.) (denying defendant's motion for summary judgment because genuine issue of material fact existed as to possession or control of premises). "[T]ypically, a franchise is not a principal-agent relationship." Oquendo v. G.V.L., Inc., Superior Court, judicial district of New Haven, Docket No. CV 07 5011963 (March 5, 2008, Bellis, J.) [ 45 Conn. L. Rptr. 171]. "[T]he issue is whether a particular franchisor in a given case has exercised such control over its franchise that it rises to the level of a principal-agent relationship, such that the franchisor owes a duty to a customer of its franchisee. This evaluation requires a court to examine both the relationship between the parties to the franchise agreement as well as the degree of control retained by the franchisor, not limited to possession and control of the physical premises." Id.; see also McLaughlin v. Chicken Delight, Inc., supra, 164 Conn. 324 ("the provisions of a written contract may be relevant to the fact question of whether an agency relationship exists").
In support of its argument that there is no genuine issue of material fact, PREA relies on an affidavit made by Beard and an excerpt from a franchise contract. In his affidavit, Beard testifies that Burgarella has never been an agent, servant or employee of PREA. Beard's affidavit states that a franchise agreement was made between PREA and CTRE on January 1, 1998. Beard testifies further that the excerpt attached is "a true and correct copy of Section 14.01 of the Franchise Agreement." The franchise agreement excerpt attached to the Beard's affidavit consists of a single page, and concerns the relationship of the franchisee to the franchisor.
The excerpts state, in relevant part: "14.01 Relationship of the Franchisee to Franchisor It is expressly agreed that the parties intend by this Agreement to establish between Franchisor and Franchisee the relationship of franchisor and franchisee. It is further agreed that Franchisee has no authority to create or assume in Franchisor's name or on behalf of Franchisor, any obligation, express or implied, or to act or purport to act as agent or representative on behalf of Franchisor for any purpose whatsoever. Neither Franchisor nor Franchisee is the employer, employee, agent, director, officer, member, manager, partner, fiduciary or co-venturer of or with the other, each being independent. Franchisee agrees that it will not hold itself out as the agent, employee, director, officer, member, manager, partner or co-venturer of Franchisor or the owner of the Service Marks. All employees or agents hired or engaged by or working for Franchisee shall be only the employees or agents of Franchisee and shall not for any purpose be deemed employees or agents of Franchisor or the owner of the Service Marks, nor subject to Franchisor's control; and in particular, Franchisor shall have no authority to exercise control over the hiring or termination of such employees, officers, managers, independent contractors, or others who work for Franchisee, their compensation, working hours or conditions, or the day-to-day activities of such persons, except to the extent necessary to protect the Service Marks. Franchisee agrees to respond to customer indications of dissatisfaction with services rendered by Franchisee in a diligent and professional manner and agrees to cooperate with representatives of Franchisor or the owner of the Service Marks in any investigation undertaken by Franchisor of complaints respecting Franchisee's activities. Each of the parties agrees to file its own tax, regulatory and payroll reports with respect to its respective employees or agents and operations, saving and indemnifying the other party hereto of and from any liability of any nature whatsoever by virtue thereof.
"14.02 Indemnity Except as otherwise expressly provided in paragraph 7.07 hereof, Franchisee hereby agrees to protect, defend and indemnify Franchisor its direct or indirect parents, their subsidiaries, affiliates and designees and hold them harmless from and against any and all costs and expenses actually incurred by them or for which they are liable, including attorneys fees, court costs, losses, liabilities, damages, claims and demands of every kind or nature, and including those incurred pursuant to a settlement entered into in good faith, arising out of or in connection with the Franchised Business, including specifically without limitation any claim or controversy arising out of (a) any Transfer by Franchisee referred to in paragraph 10.02 hereof, (b) acts or omissions of Franchisee that are not in strict compliance with this Agreement and the Operations Manual in respect of use or display of the Service Marks, or (c) acts or omissions of Franchisee that tend to create an impression that the relationship between the parties hereto is other than one of Franchisor and Franchisee. Notwithstanding the foregoing, (x) Franchisee shall have no obligation to protect, defend or indemnify the Franchisor, its direct or indirect parents, their subsidiaries, affiliates or designees from and against any such costs or expenses arising from conduct of Franchisor found to be willful, malicious or grossly negligent, and (y) in any proceeding in which Franchisor has been found to have been actively negligent (as opposed to passively negligent or vicariously liable), Franchisor and Franchisee shall each bear all of such costs and expenses (I) in proportion to any finding of comparative negligence made in such proceeding or (ii) if no such finding has been made, as shall be determined in a communication and dispute resolution proceeding pursuant to Article XII hereof, based on application of comparative negligence standards."
A review of the excerpted sections of this contract appear to ensconce PREA in the role of a franchisor and insulate PREA from liability for the negligent acts of a franchisee. The defendant's affiant never testifies, however, that the agreement excerpted is the actual contract that the defendant executed with CTRE. The excerpted provisions from the contract do not name either party to the agreement, nor does it contain the signatures of the parties to the agreement. Furthermore, the paragraphs excerpted reference other sections of the agreement, the content of which is unknown. The cases relied upon by the defendant in its memorandum of law are distinguishable from the present case in that in each of those cases, the court was able to determine the parties to the franchise agreement either by stipulation, accord or the evidentiary record before the court. Therefore, without a full and complete copy of the franchise agreement entered into between PREA and CTRE it is impossible for the court to draw any conclusion, on the record at this stage, as to the legal status of the relationship between PREA and Burgarella, be that of a franchise, independent contractor or agency.
Because the documents submitted by PREA fail to establish that there is no genuine issue of material fact as to the status of the relationship between PREA and Burgarella, PREA has failed to meet its burden, which renders this case unsuitable for summary judgment.
CONCLUSION
For the foregoing reasons, the court denies the defendant's motion for summary judgment.