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Graham v. GJS Properties, LLC

Superior Court of Connecticut
Oct 24, 2019
CV186011651S (Conn. Super. Ct. Oct. 24, 2019)

Opinion

CV186011651S

10-24-2019

Kevin GRAHAM v. GJS PROPERTIES, LLC


UNPUBLISHED OPINION

OPINION

Nada K. Sizemore, Judge

This decision arises from short calendar arguments heard on October 15, 2019 regarding the Defendant GJS Properties, LLC Motion for Summary Judgment dated August 14, 2018 (Entry #110) and Plaintiff Graham’s Objection dated September 13, 2019 (Entry #130).

The court, having reviewed and considered the parties’ arguments and briefs, hereby DENIES the Defendant’s Motion for Summary Judgment and SUSTAINS the Plaintiff’s Objection to said Motion.

The court bases its decision on the following analysis.

PROCEDURAL BACKGROUND

By Revised Complaint dated February 26, 2018, the Plaintiff Kevin Graham brings suit as a result of an accident on December 24, 2015 at premises owned by the Defendant GJS Properties, LLC [hereinafter referred to as "Defendant GJS"] at 881 Boston Post Road in Milford, Connecticut.

Plaintiff Graham alleges that he was engaged by the Defendant GJS to install electrical conduit at that location through Geza Scap, a representative of GJS. While working at that location under Geza Scap’s direction, he alleges that he fell off a 20-foot defective ladder to the concrete floor claiming that he suffered serious injuries, losses and damages.

On the date of the accident, Plaintiff Graham was an employee of Scap Motors, Inc.- a separate business from the Defendant GJS Properties, Inc. and located at a different physical address than Scap Motors, Inc. Geza Scap was an owner/principal in both businesses.

Plaintiff Graham claims at the time and place of his accident, he was working at the direction of Geza Scap who was acting as an agent/servant/employee of Defendant GJS. The court notes that Plaintiff has filed a separate workers’ compensation claim against Scap Motors, Inc. and he has been receiving benefits in that forum. The parties have indicated that this lawsuit against Defendant GJS is not part of that workers’ compensation proceeding.

Plaintiff Graham brings suit in negligence against Defendant GJS alleging that it was the premises owner of 881 Boston Post Road in Milford at the time of the accident and that it possessed, controlled and maintained said premises. Specifically, he alleges that the Defendant GJS was negligent and careless in the following ways through its agents, servants and employees in the following ways:

(a) Failed to keep said premises reasonably safe or to guard Kevin from the danger of utilizing a defective ladder and utilizing a ladder on a concrete floor, which danger was reasonably to be anticipated under the circumstances by failing to repair and/or replace said defective ladder;
(b) Failed to take reasonable precautions to safeguard Kevin, who was lawfully on said premises, by failing to hold, support and/or monitor the ladder that GJS properties provided for Kevin to utilize;
(c) Knew, or in the exercise of due care should have known that there were conditions in, on or about said ladder likely to cause injury to persons lawfully using said ladder, and yet it failed to warn such person of the existence of said conditions, including but not limited to, the ladder was missing one of its rubber foot pads, had damaged cleats, dented rungs and warped side rails;
(d) Failed to make reasonable inspection of said concrete floor;
(e) Failed to make reasonable inspection of said ladder;
(f) Failed to maintain a reasonable standard of care in that it allowed Kevin to use its defective ladder and allowed Kevin to utilize said ladder on a concrete floor; and
(g) Failed to maintain the ladder free of oil, grease and other slipping hazards.

By Answer and Special Defense dated May 4, 2018, the Defendant GJS generally denies the allegations of the complaint and raises a special defense of comparative negligence. Specifically, it claims that the injuries and losses were the result of Plaintiff’s own negligence and carelessness in that he failed to exercise reasonable care for his own safety in the following ways: (a) He failed to make reasonable use of his faculties; (b) He failed to be watchful of his surroundings and the general conditions prevailing; (c) He was aware, or in the exercise of reasonable care should have been aware, of the risks present, yet he chose to walk as he did and where he did without due regard for his own safety; (d) He failed to watch where he was stepping; and (e) He failed to keep a proper lookout. The Plaintiff replied to said defenses by Reply dated May 8, 2018 so pleadings are closed.

By Motion for Summary Judgment dated August 14, 2018, the Defendant GJS moves for summary judgment per Conn. Practice Book Section 17-44 arguing that it is entitled to judgment as a matter of law and that there are no genuine issues of material fact. It argues that it owed no duty to the plaintiff with regard to the ladder. Second, it further argues that Plaintiff cannot identify any dangerous or defective condition with or on the concrete floor at the premises. Alternatively, it claims that there is no genuine issue of material fact that the alleged defects in the ladder did not cause the plaintiff’s fall. In support of its Motion, it files a Memorandum of Law dated August 14, 2018 and the following documentary evidence: Exhibit A- Affidavit dated August 7, 2018 of Geza Scap; Exhibit B- Affidavit dated Aug. 7, 2018 of Julie Scap; and Exhibit C- Excerpts from deposition transcript of Plaintiff Kevin Graham taken on June 27, 2018.

The Defendant GJS, by Memorandum of Law in Opposition to Summary Judgment dated Sept. 13, 2019 objects to the Motion for Summary Judgment and files the following documentary evidence in opposition to the motion: Exhibits A through G. Exhibit A is Deposition Excerpts of Geza Scap taken on Oct. 8, 2018; Exhibit B- Deposition Excerpts of Joseph Delvecchio taken on May 29, 2019; Exhibit C- Deposition Excerpts of Plaintiff Graham taken on June 27, 2018; Exhibit D- Deposition Excerpts of Mark Tebbets taken on June 26, 2019; Exhibit E- Affidavit of Plaintiff Kevin Graham dated September 20, 2019; Exhibit F- Medical Records from Milford Hospital ER visit on Dec. 24, 2015; Exhibit G- Affidavit of David Poirier dated September 13, 2019 and medical records from Milford Hospital, Yale New Haven Hospital and Yale Orthoepaedic and Rehabilitation.

The parties presented for oral argument at short calendar on October 15, 2019, thereby submitted this to court determination.

LEGAL STANDARD OF REVIEW

"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.) Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016).

"Summary judgment is a method of resolving litigation when 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 ... 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 ... However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ... the moving party for summary judgment is held to a strict standard ... of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012).

"[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 ... [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Citations omitted; emphasis in original; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).

"Issues of negligence are ordinarily not susceptible of summary 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 especially ill-adapted to negligence cases, where ... the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation ... [T]he conclusion of negligence is necessarily one of fact ..." (Citations omitted; internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).

"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). "[I]ssue-finding, rather than issue-determination, is the key to the procedure." (Internal quotation marks omitted.) DiMiceli v. Cheshire, 162 Conn.App. 216, 222, 131 A.3d 771 (2016). "In summary judgment, the court’s role is not to weigh the credibility of the parties, which falls within the province of the finder of fact When a court, in ruling on a motion for summary judgment, is confronted with conflicting facts, resolution and interpretation of which would require determinations of credibility, summary judgment is not appropriate." (Citation omitted.) Straw Pond Associates, LLC v. Fitzpatrick, Mariano & Santos, P.C., 167 Conn.App. 691, 710, 145 A.3d 292, cert. denied, 323 Conn. 930, 150 A.3d 231 (2016).

LEGAL ANALYSIS

When applying the above standards to the case at bar, the Defendant GJS first asks this court to find as a matter of law that it owed no duty to the Plaintiff Graham when he was working on the ladder at the 881 Boston Post Road location in Milford. But, based on the court’s review of all briefs, arguments and documentary evidence submitted by both parties, this court cannot agree with that conclusion.

Since Plaintiff Graham was lawfully on those premises as a business invitee allegedly invited by Geza Scap, as a principal or agent/servant/employee of GJS Properties, Inc., he is potentially owed the following duties.

The Connecticut courts have long recognized the duty of care owed to business invitees. First as a business invitee, he is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with the business dealings with the possessor of the land. (Citation Omitted; internal quotation marks omitted.) Corcoran v. Jacovino, 161 Conn. 462, 465, 290 A.2d 225 (1971). Under common law, a possessor of land owes an invitee two duties: (1) the duty to inspect and maintain premises to render them reasonably safe; and (2) the duty to warn of dangers that the invitee could not reasonably be expected to discover. Morin v. Bell Court Condominium Assn., 223 Conn. 327, 612 A.2d 1197 (1992); Kopjanski v. Festa, 160 Conn. 61, 65, 273 A.2d 692 (1970). In this instance, it is readily admitted that Defendant GJS is the property owner/possessor of 881 Boston Post Road, Milford. As such, Defendant GJS owed the above duties to the Plaintiff Graham on the date of this incident.

Defendant GJS attempts to carve out an argument that it owed no legal duty as to the ladder only, because it did not own the ladder in question and had no control over such. However, such an argument flies in the face of premises liability theories recognized by Connecticut courts. If the ladder was defective as alleged and brought onto the property owned, controlled and maintained by Defendant GJS through its representative Geza Scap, then Defendant GJS may have breached some standard of reasonable care by allowing such a device onto its premises. At the very least, this situation creates a genuine issue of material fact for the jury to contemplate.

When furnishing equipment for a job, the defendant owed a duty of exercising reasonable care to see that the equipment provided was reasonably safe for its intended use. Minicozzi v. Atlantic Refining Company, 143 Conn. 226, 231, 120 A.2d 924 (1956). As applied to the furnishing of tools or equipment to perform a particular task, reasonable care requires that the article should be reasonably safe for the use intended. Phenning v. Silansky, 144 Conn. 223, 226, 129 A.2d 224 (1956); Vacca v. Camera, 149 Conn. 277, 179 A.2d 616 (1962).

As its second argument, Defendant GJS argues that Plaintiff has presented no proof of a dangerous defective condition of the concrete floor. Based on the court’s review of the documentary proof submitted by both parties, the court agrees with the Defendant GJS on this point. There is no evidence presented on the Motion for Summary Judgment about any defects or issue with the concrete floor other than the alleged defective ladder being placed on such. In fact the Plaintiff Graham’s brief contains no argument or reported case law controverting this issue. A close reading of the complaint also reveals that there is no allegation of a defective concrete floor. Based on the above, this court does not find this issue sufficient to grant judgment as a matter of law to the Defendant GJS on a seemingly non-existent issue.

Last, Defendant alternatively argues that there is insufficient evidence to support any causation that the defective ladder caused Plaintiff’s accident and the resulting injuries, losses and damages. The court disagrees. This court finds that the proximate cause whether those alleged defects in the ladder caused the Plaintiff to fall become an issue for the trier of fact. The Defendant GJS has not conclusively met its burden of proof on summary judgment demonstrating clearly what caused the plaintiff to fall on December 24, 2015. The affidavit and testimony of Plaintiff Graham, and the testimony of plaintiff’s expert Mark Tebbet alone present sufficient information to submit this causation issue to the jury for ultimate determination.

CONCLUSION

Therefore, based on the foregoing, the court DENIES the Defendant GJS Motion for Summary Judgment per Practice Book Section 17-44 finding that it is not entitled to judgment as a matter of law, and finding that there are several genuine issues of material fact for the trier of fact. The Defendant GJS Motion is DENIED.


Summaries of

Graham v. GJS Properties, LLC

Superior Court of Connecticut
Oct 24, 2019
CV186011651S (Conn. Super. Ct. Oct. 24, 2019)
Case details for

Graham v. GJS Properties, LLC

Case Details

Full title:Kevin GRAHAM v. GJS PROPERTIES, LLC

Court:Superior Court of Connecticut

Date published: Oct 24, 2019

Citations

CV186011651S (Conn. Super. Ct. Oct. 24, 2019)