Opinion
No. CV 07-5012326 S
May 14, 2010
MEMORANDUM OF DECISION
FACTS AND PROCEDURAL HISTORY
The plaintiff, Daniel Vaicunas, commenced the present negligence suit against the defendants Travali Construction Services (Travali Construction), Steve Travali, Terumi Kaneyasu and Yoshizumi Associates, LLC (Yoshizumi), by summons and complaint on July 5, 2007. The plaintiff seeks to recover damages from the defendants for injuries that he sustained when he allegedly fell through a hole in the roof of a dwelling at 18 Hockanum Road in Westport, Connecticut (Hockanum Road) while on the premises as a business invitee performing his duties as a subcontractor. Count one of the plaintiff's complaint alleges negligence on the part of Travali and Travali Construction, and seeks to recover for economic and noneconomic damages.
The plaintiff's complaint refers to Kaneyasu as "Kaneyas," which Yoshizumi maintains is incorrect. The court will defer to Yoshizumi's spelling.
In count two of his complaint, which is subject to the present motion for summary judgment, the plaintiff alleges that this accident was the result of the negligence of Yoshizumi, which owned Hockanum Road, and Kaneyasu, who was a member of Yoshizumi. Therein, the plaintiff alleges, inter alia, that the defendants were negligent in that they did not provide an adequately safe construction site, including a failure to warn of the hole in the roof and a failure to erect safety barriers around the hole.
Kaneyasu moved for summary judgment as to count two on December 11, 2009. The court, Keegan J., granted the motion on February 16, 2010.
The plaintiff also alleges violations of the 1990 BOCA National Building Code, American National Standards Institute regulations and 29 C.F.R. §§ 1926 and 1910 of the Occupational Safety and Health Act of 1970 (OSHA) 29 U.S.C. § 651. Alleged violations of building standards and OSHA regulations do not constitute negligence per se, but rather serve as evidence of a breach of a standard of care. See Mazurek v. Great American Ins. Co., 284 Conn. 16, 26, 930 A.2d 682 (2007) (alleged violations of OSHA constitute evidence of breach of standard of care); Considine v. Waterbury, 279 Conn. 830, 863-66, 905 A.2d 70 (2006) ("statutes, regulations, ordinances, and other safety codes can be considered as some evidence of the standard of care in analogous situations").
On March 23, 2010, Yoshizumi filed the present motion for summary judgment and accompanying memorandum of law, arguing that there was no issue of material fact warranting trial, and that it did not owe a duty of care to the plaintiff because it was neither in possession nor control of the premises at which the plaintiff was injured. Yoshizumi's motion was heard unopposed by this court at short calendar on April 12, 2010.
DISCUSSION
"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). Pursuant to Practice Book § 17-49, 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." Webster Bank v. Oakley, 265 Conn. 539, 545, 830 A.2d 139 (2003), cert. denied, 541 U.S. 903, 124 S.Ct. 1603, 158 L.Ed.2d 244 (2004).
"The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." Mazurek v. Great American Ins. Co., 284 Conn. 16, 26-27, 930 A.2d 682 (2007). "Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." Socha v. Bordeau, 277 Conn. 579, 586, 893 A.2d 422 (2006). "[A] party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." Scinto v. Stamm, 224 Conn. 524, 530, 620 A.2d 99, cert. denied, 510 U.S. 861, 114 S.Ct. 176, 126 L.Ed.2d 136 (1993).
It is well settled that "[i]ssues of negligence are ordinarily not susceptible of summary judgment adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). "Summary judgment procedure is ill-adapted to negligence cases, since the conclusion of negligence is normally one of fact." (Citations omitted.) Velardi v. Ryder Truck Rental, Inc., 178 Conn. 371, 374, 423 A.2d 77 (1979). Nevertheless, "[t]he issue of whether [a] defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." Pion v. Southern New England Telephone Co., 44 Conn.App. 657, 660, 691 A.2d 1107 (1997). "[O]nly 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.) Petriello v. Kalman, 215 Conn. 377, 382-83, 576 A.2d 474 (1990).
In its memorandum of law in support of its unopposed motion for summary judgment, Yoshizumi argues that there is no genuine issue of material fact that would require trial because the undisputed facts lead to the conclusion that Yoshizumi did not owe a duty of care to the plaintiff. Yoshizumi bases this argument on premises liability. Specifically, Yoshizumi maintains that the party with possession or control of the property bears the liability for injuries caused by the defective premises. Yoshizumi contends that it hired Travali Construction as a general contractor who took possession and control of the property. Accordingly, Yoshizumi argues that Travali Construction had the duty to monitor the safety aspects of the job site, including the placement of safety devices such as guardrails and barriers.
"The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." (Internal quotation marks omitted.) Mafucci v. Royal Park, Ltd. Partnership, 243 Conn. 552, 566, 707 A.2d 15 (1998). "Where there is no duty, there can be no negligence." Hassett v. Palmer, 126 Conn. 468, 473, 12 A.2d 646 (1940). "Liability for injuries caused by defective premises . . . does not depend on who holds legal title, but rather on who has possession and control of the property." LaFlamme v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63 (2002). Ordinarily, control is a question of fact. Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 704, 694 A.2d 788 (1997). "Where 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 man 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 men could fairly reach different conclusions on the question, the issue should properly go to the jury . . . [T]he contractor's control need not be exclusive; it is sufficient if it be shared with another." (Citations omitted; internal quotation marks omitted.) Van Nesse v. Tomaszewski, 265 Conn. 627, 632, 829 A.2d 836 (2003).
The defendant argues that the present case is analogous to Pelligrino v. Jack, Superior Court, judicial district of Fairfield, Docket No. CV 06 5006035 (December 2, 2008, Bellis, J.) ( 46 Conn. L. Rptr. 736). In that case the plaintiff was a business invitee to the home of the defendants for the purpose of erecting a stage. Id., 736-37. The plaintiff suffered injuries at the defendants' home and sued them for negligence. Id., 737. The defendants moved for summary judgment, arguing that they owed no duty to the plaintiff because they retained neither possession nor control over the property. Id.
In deciding in favor of the defendants, the court, Bellis J., found that "here, the plaintiff was a subcontractor hired to unload and erect stage equipment who was allegedly injured when a deck cart loaded with staging material tipped over. No evidence was presented to ever suggest that the defendants here had any ability or obligation to maintain or control the deck cart, its placement, or the work of the people engaged in the location and erection of the tent and stage. The affidavits of [the defendants] established that the defendants neither retained nor exercised any control over the manner in which the work was to be done; the plaintiff has presented no evidence to the contrary." Id., 739. The court concluded that the defendants did not owe a duty to the plaintiff, stating that "the plaintiff's cause of action against the defendants is for damages arising from work performed by an independent contractor which was not controlled by the plaintiff directly or indirectly." Id., 739.
In support of its motion for summary judgment, Yoshizumi submitted an affidavit made by Terumi Kaneyasu in her capacity as a member of Yoshizumi. Therein, Kaneyasu avers that Yoshizumi and Travali entered into a contract for the expansion of the residence at Hockanum Road where the plaintiff was injured. Kaneyasu asserts that Yoshizumi was neither in possession nor in control of the construction project at the time of the plaintiff's injury. Moreover, Kaneyasu maintains that Yoshizumi did not oversee, direct or supervise the activities at the construction site and that Yoshizumi neither managed, superintended nor oversaw the safety aspects of the construction site. Kanyeasu avers that no one from Yoshizumi ever spoke with the plaintiff prior to his injury and that Yoshizumi did not give any directions as to the means or manner of the setup of the construction site.
Yoshizumi also submitted uncertified excerpts of a deposition given by the plaintiff in support of its motion for summary judgment. Therein, the plaintiff testified that he rarely saw people from Yoshizumi at the construction site, and never received any instruction nor direction from them in the carrying out of his work. Rather, the plaintiff testified that he received all of his instruction from Travali and Travali Construction as general contractor. Moreover, the plaintiff testified that no one was living at the house while he was on site, and that the owners of the house did not exercise any control over the safety of the project. The plaintiff further testified that he had never been in a situation where it was the homeowner's duty to warn of hazards on the construction site, and that the defendants did not have apparent control over the construction site.
Practice Book § 17-45 provides in pertinent part that "[a] motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like . . ." In considering documents that have been submitted in support of or in opposition to a motion for summary judgment, the purview of the court is limited to those that would be admissible at trial. City of New Haven v. Pantani, 89 Conn.App. 675, 680, 874 A.2d 849 (2005). Nevertheless, where the opposing party does not object, a court may, but is not required to, review uncertified deposition transcripts. Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006) (trial court did not abuse its discretion in not considering uncertified deposition testimony). In light of the absence of any objection by the plaintiff, the court will consider the uncertified deposition testimony submitted by the defendant.
This evidence demonstrates that the defendant has met its burden of establishing that no factual issues remain as to whether it had possession or control over the job site where the plaintiff was injured. The present case, like Pelligrino, arises out of work that the plaintiff performed as a subcontractor for Travali Construction as general contractor. It is apparent from the affidavit and deposition testimony submitted by the defendant in support of its motion for summary judgment that the plaintiff was at Hockanum Road as a business invitee. The plaintiff was invited to enter the land for a purpose directly connected with business dealings with the possessor of land. See 2 Restatement (Second), Torts § 332(3), comment (e) (1965) (business invitee includes "a workman who comes to make alterations or repairs on land used for residence purposes").
It is uncontroverted that Yoshizumi entered into a contract with Travali Construction to expand the residence located at Hockanum Road and to manage the construction site in accordance with that plan. It is clear from the plaintiff's own deposition that he never received any instruction or direction from Yoshizumi or any of its members. Moreover, the plaintiff has not offered any evidence that Yoshizumi had possession or control of the premises. Therefore, it is evident that Yoshizumi did not retain possession or control of Hockanum Road. As such, Yoshizumi did not owe a legal duty to the plaintiff to maintain the safety of its premises. Since Yoshizumi did not owe a legal duty to the plaintiff, the defendant's motion for summary judgment is granted.
CONCLUSION
For the foregoing reasons, the defendant's motion for summary judgment is granted.