April 14, 2003
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT #155
The court rendered a denial of the motion for summary judgment of the defendant. The Bristol Spring Manufacturing Company on January 31, 2003, and the defendant filed a motion for reconsideration or a memorandum of decision on February 7, 2003, which appeared on the calendar and was claimed on March 10, 2003. The court articulates further, herein, its basis for its finding that material issues of fact exist and its denial of the motion for summary judgment. The court notes at the onset that the parties have not stipulated that there are no material facts in dispute.
This action arises out of the alleged electrocution of the plaintiff, Richard W. Robinson, on July 16, 1998, while he was working in a boiler room in a building located on Whiting Street, in Plainville. In the plaintiffs' revised complaint dated May 8, 2000, counts three and four are directed to the defendant, Bristol Spring Manufacturing Company ("Bristol Spring"). In count three, the plaintiffs allege that the defendant owned, controlled and maintained the building and boiler room in question and claim that the defendant is liable in negligence for the alleged injuries sustained by Richard W. Robinson. In count four, the plaintiffs claim that the defendant is liable to the plaintiff, Susan K. Robinson, for loss of consortium stemming from her husband's electrocution. On March 25, 2002, the defendant filed a motion for summary judgment on the third and fourth counts accompanied by a memorandum of law in support, #155. The plaintiffs filed their memorandum in opposition, #166, on May 6, 2002. On June 17, 2002, the defendant filed a reply, #171, and a motion to strike Richard Robinson's affidavit dated April 30, 2002, #172. The plaintiffs filed a supplemental memorandum in opposition, #173, on July 12, 2002, and the defendant filed a reply, #177, on August 23, 2002. On the day of the hearing on the defendant's motion for summary judgment, September 16, 2002, the plaintiffs filed their third memorandum in opposition, #181. Subsequent to the hearing, on September 23, 2002, the defendant filed a third reply brief, which included an objection to four items that were submitted by the plaintiffs on the day of the hearing.
The first two counts of the plaintiffs' revised complaint are directed at the named defendant, Yankee Energy Services Company d/b/a Yesco Industrial Services, Inc. On August 12, 2002, the plaintiffs filed a partial withdrawal of its complaint as to Yankee Energy Services Company. Therefore, all further references to "the defendant" refer to Bristol Spring.
The court does not rely on these four items in this decision.
The defendant's motion, #155, offers two grounds to grant summary judgment on the third count: (1) as a matter of law, the defendant, as a lessee, owed no duty to Robinson,, and (2) uncontested evidence leaves no genuine issue of material fact that Robinson's own negligence was entirely responsible for any injuries he may have suffered and therefore his claim is barred by General Statutes § 52-572h (b), which governs contributory negligence. The defendant does not offer additional arguments addressing the fourth count, the loss of consortium claim, on the basis that it depends entirely on the success of the negligence claim of the third count.
This and all further references to "Robinson" refer to Richard Robinson.
The defendant raised a similar argument in a motion to strike. In the order denying the motion, August 8, 2000, the court, Shortall, J., stated: "Alleged duty of Bristol is to provide safe premises."
In the defendant's original memorandum of law and subsequent briefs, the defendant makes the following arguments to support its claim that it owed no duty to Robinson: (1) it was merely a tenant/lessee of the building in issue and that the owner of the building, B H Realty Company ("B H"), not the defendant, hired Robinson's employer, Yankee Energy Services Company ("Yesco"), to perform the work Robinson was engaged in when he allegedly suffered injury; (2) a general rule of nonliability applies; (3) it had no involvement with or control over Robinson's method or means of his work; (4) Robinson was an experienced boiler-repair technician, employed by an independent contractor and engaged in the very work he was hired to perform when he was allegedly injured; (5) Robinson's electrocution was not foreseeable to any reasonable individual; and (6) the specific duties that the plaintiffs allege that the defendant breached are "untenable," "inherently unreasonable" or "otherwise unnecessary." In addition to claiming that it owed no duty and that the plaintiffs' claim is barred by Robinson's contributory negligence, the defendant also argues, in briefs filed subsequent to its original motion, that the court should grant summary judgment on the ground that the plaintiffs have offered no viable proof of causation.
In support of its motion, the defendant submits the following evidence: (1) an affidavit of Edward J. Hittleman, president of Bristol Spring, dated March 22, 2002; (2) a copy of a letter signed by Dave Shaughnessy, Robinson's co-worker, and dated October 7, 1998, that describes the events on the day of the electrocution; (3) plaintiffs' responses to defendant's interrogatories and request for production dated June 9, 2000; (4) fourteen invoices for service calls by Robinson to Bristol Spring; (5) the defendant's second requests for admission dated October 22, 2001; (6) plaintiffs' responses to defendant's requests for admission dated November 20, 2001; (7) notice of plaintiffs' compliance to defendant(s)' interrogatories and requests for production dated January 25, 2002; (8) a letter dated February 7, 2002 from the plaintiffs to the defendant providing responses missing from previous responses to Bristol Spring's second set of interrogatories and requests for production; (9) Occupational Safety and Health Standards, Subpart S-Electrical; (10) supplemental affidavit of Edward J. Hittleman dated June 13, 2002; (11) selected pages of the deposition of Richard Robinson dated April 15, 2002; and (12) selected pages of the deposition of Richard Robinson dated July 17, 2002.
The plaintiffs oppose the motion for summary judgment on the ground that genuine issues of material fact exist as to whether the defendant owed Robinson a business invitee duty of due care. The plaintiffs argue that (1) Bristol Spring and B H are, for all practical purposes, one in the same; (2) exceptions to the rule of nonliability invoked by the defendant apply; (3) the term "owner" has a flexible meaning varying from absolute proprietary interest to a mere party who has possession and control; (4) the defendant retained possession and control of the premises at all relevant times; (5) the defendant has presented little, if any, competent evidence to support its motion. Further, the plaintiffs argue that the existence of contributory negligence is a question of fact and therefore not subject to summary judgment.
In support of its opposition to the motion, the plaintiffs submit the following evidence: (1) Robinson's April 30, 2002 affidavit; (2) a copy of the letter signed by Dave Shaughnessy and dated October 7, 1998, which was submitted by the defendants; (3) selected pages of certified transcript of Robinson's July 17, 2002 deposition; (4) Robinson's September 12, 2002 affidavit; (5) Robinson's September 13, 2002 affidavit; (6) a copy of the lease agreement between B H and Bristol Spring dated December 15, 1995; (7) a copy of a B H purchase order for a contract maintenance agreement addressed to Yesco and dated July 31, 1997.
The defendant moved to strike this affidavit. The court does not rely on this affidavit in this decision.
The defendant objected to this affidavit. The court does not rely on this affidavit in this decision.
The defendant objected to this affidavit. The court does not rely on this affidavit in this decision.
Summary Judgment Standard
"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." (Citation omitted.) Gaynor v. Payne, 261 Conn. 585, 590, 804 A.2d 170 (2002).
"The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . ." (Citation omitted.) Gaynor v. Payne, 261 Conn. 585, 590-91, 804 A.2d 170 (2002). "[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Id., 591. "Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 549-50, 791 A.2d 489 (2002). "Requiring the nonmovant to produce such evidence does not shift the burden of proof. Rather, it ensures that the nonmovant has not raised a specious issue for the sole purpose of forcing the case to trial. See Farrell v. Farrell, 182 Conn. 34, 39, 438 A.2d 415 (1980) (`[i]ndeed, the whole summary judgment procedure would be defeated if, without any showing of evidence, a case could be forced to trial by a mere assertion that an issue exists')." Great Country Bank v. Pastore, 241 Conn. 423, 435, 696 A.2d 1254 (1997). "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).
The defendant's first ground for its motion for summary judgment is that it owed no duty to Robinson. The defendant structures this claim, in part, under the framework of the so-called "nonliability rule" and asserts that this doctrine provides it with immunity from liability. The plaintiffs respond that the various exceptions to this rule apply. The nonliability rule and its exceptions have been stated as follows: "Ordinarily, an employer of an independent contractor, absent an act of negligence on his own part, is not liable to others for the negligent acts of the contractor. Douglass v. Peck Lines Co., [ 89 Conn. 622, 627, 95 A. 22 (1915)]. There are, however, several exceptions to the nonliability rule. For example, where 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, the employer may be vicariously liable to others for the negligent acts of the independent contractor." Raboin v. North American Industries, Inc., 57 Conn. App. 535, 539, 749 A.2d 89, cert. denied, 254 Conn. 910, 759 A.2d 504 (2000).
This doctrine does not apply under the circumstances of this case. The nonliability rule and its exceptions govern whether to impose vicarious liability on an employer of an independent contractor for the negligence of the contractor toward a third party. In this case, the plaintiffs have not pleaded that the defendant is vicariously liable for the negligence of anyone else; rather, they have claimed that the defendant is directly liable for its own negligence. The nonliability rule itself states that it protects an employer of an independent contractor from liability "absent an act of negligence on [the employer's] own part." The Appellate Court has affirmed that "[the nonliability rule] does not . . . act as a general grant of immunity to employers. An employer owes a duty of care to business invitees such as independent contractors." Id., 538-39. "[W]hether the owner remain[s] in partial use of the premises or not, he is [still responsible] for injury caused to the contractor or his servants by his own negligence." Id., 539. (quoting Paige v. St. Andrew's Roman Catholic Church Corp., 247 Conn. 24, 41, 718 A.2d 425 (1998), rev'd on other grounds, 250 Conn. 14, 734 A.2d 85 (1999)).
With that in mind, the court considers the defendant's claim that it owed no duty to Robinson. "In a negligence action, the plaintiff must meet all the essential elements of the tort in order to prevail. These elements are: duty; breach of that duty; causation; and actual injury . . . Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual . . . Although the determination of whether a duty exists is ordinarily a question of law . . . under some circumstances, the question involves elements of both fact and law." (Citations omitted; internal quotation marks omitted.) LaFlamme v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63 (2002). Summary judgment is improperly rendered when the question of duty involves elements of both fact and law. Raboin v. North American Industries, Inc., 57 Conn. App. 535, 538, 749 A.2d 89, cert. denied, 254 Conn. 910, 759 A.2d 504 (2000).
"In order to assess the duty owed to the plaintiff, it is first necessary to establish the point from which that duty flows." LaFlamme v. Dallessio, supra, 261 Conn. 251. According to the revised complaint, the basis for the plaintiffs' specific claims of negligence is that the defendant owned, controlled and maintained the building, the main boiler room, the main boiler, the high voltage control panel, and all electrical and adjacent rooms related to the alleged incident. Thus, it is reasonable to infer that the alleged duty that the defendant owed Robinson was to provide a safe premises.
The defendant argues that it was merely a tenant of the building and that the owner of the building hired Robinson's employer. Even if that were the case, the defendant may still, nonetheless, owe Robinson a duty. "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 . . . Thus, the dispositive issue in deciding whether a duty exists is whether [the defendant] has any right to possession and control of the property." Id., 251-52. "The general rule regarding premises liability in the landlord-tenant context is that landlords owe a duty of reasonable care as to those parts of the property over which they have retained control . . . [L]andlords [however] generally [do] not have a duty to keep in repair any portion of the premises leased to and in the exclusive possession and control of the tenant . . . The issue of whether the landlord retained control over a specific area of the premises is essentially a matter of intention to be determined in the light of all the significant circumstances . . . Thus, [u]nless it is definitely expressed in the lease, the circumstances of the particular case determine whether the lessor has reserved control of the premises or whether they were under the exclusive dominion of the tenant, and it becomes a question of fact and is a matter of intention in the light of all the significant and attendant facts which bear on the issue . . . In other words, if the terms of control are not express between the parties, the question of who retains control over a specific part of the property is an issue of fact and a matter of intent that can be determined only in light of all the relevant circumstances." Id., 256-57.
In support of its opposition to the motion for summary judgment, the plaintiffs submitted a copy of the defendant's lease agreement. Under the terms of the lease agreement, the maintenance responsibilities for the premises were shared by B H and the defendant. Furthermore, the lease agreement does not conclusively establish that the defendant did not possess, control and maintain the specific parts of the property involved in the alleged accident. Therefore, the question of whether the defendant, rather than B H, had possession and control over the premises and, therefore, whether it owed a duty of care to the plaintiff to keep the property in a reasonably safe condition, is a question of fact that must be considered in light of all relevant circumstances and determined by further proceedings. As a result, it would be improper to render summary judgment on this basis.
Although this evidence was submitted on the day of the hearing, the defendant presumably had notice and possession of their own lease agreement. Furthermore, this tem was not objected to by the defendant.
The terms of the agreement provide, in pertinent part: "3. Bristol Spring will be totally responsible for all windows, doors, including overhead doors in the main building which they are occupying. Bristol Spring will be responsible for repairs to all air conditioning, heating or blower units in space occupied. 4. The heating furnace will be B H Realty responsibility for maintenance and repairs. However, Bristol Spring will pay for all oil bills plus treating of furnace for hard water. 5. All roofs and outside areas inclusive both front and rear parking lots will be maintained by B H Realty. The landscaping area in front of plant to be kept up by Bristol Spring."
Nevertheless, the defendant argues that it owed no duty to Robinson because it had no involvement with the work of Robinson or control of the premises related to such work. On the other hand, the plaintiffs argue that the defendant was involved with Robinson's work and had control and possession of the premises related to his work. Although most of the March 22, 2002 affidavit by Edward J. Hittleman, the president of Bristol Spring since 1978, supports the defendant's argument, other evidence submitted by the defendant undermines its claim.
In his affidavit dated March 22, 2002, Hittleman states: "To the best of my knowledge, since May 1994, no persons other than YESCo personnel have performed any maintenance or repairs on any boiler located in the Building" (¶ 9); "To the best of my knowledge, since May 1994, no persons other than YESCo employees have inspected, maintained, repaired, or altered any wiring related to electrical flow to any boiler or boiler-related equipment in the Building" (¶ 10); "To the best of my knowledge, prior to July 16, 1998, no employee or agent of Bristol Spring ever has added or removed any writing on any boiler-related electrical switch or box in the Building indicating to which boiler-related device such switch or box controlled the flow of electrical current" (¶ 11); "To the best of my knowledge, no YESCo employee who has ever inspected, maintained, or repaired any boiler in the Building has ever requested any aid of any Bristol Spring employee or agent with his work, except for the Bristol Spring employee to unlock the door to the main boiler room" (¶ 12); "To the best of my knowledge, no Bristol Spring employee has ever directed, supervised, or otherwise involved itself with the work of any YESCo employee at the Building" (¶ 13).
For example, there are several instances in the defendant's evidence that show involvement between the defendant's officers, employees or agents and Yesco employees in the course of their work. The president of Bristol Spring acknowledges that a Bristol Spring employee would have to unlock the door to the main boiler room for Yesco employees to perform their work. (Hittleman's March 22, 2002 Affidavit, ¶ 12.) On at least one occasion prior to the accident, Bristol Spring's maintenance personnel, Pete Zawlinski, had shut down the power to the boiler when Robinson was on the premises to service it. (Defendant's First Reply Brief, Exhibit B, Robinson's April 15, 2002 Deposition, p. 73.) During the years that Robinson did work at Bristol Spring, he and Pete Zawlinski did "quite a lot of work together." (Defendant's Second Reply Brief, #177, Exhibit A, Robinson's July 17, 2002 Deposition, p. 128.) On at least one occasion, Yesco personnel performing work at Bristol Spring informed the president of Bristol Spring as to when they would return to finish their boiler maintenance. (Hittleman's June 13, 2002 Affidavit, ¶ 13.)
In addition, among the fourteen invoices offered by the defendant to show the number of times that Robinson serviced the boilers in the building, all name Bristol Spring as the customer, three appear to be signed by Peter Zawlinski and at least four or five appear to be signed by another person, presumably also an employee or agent of Bristol Spring. (Defendant's Original Memorandum of Law, #155, Exhibit E.) According to the invoices, the signature is an acceptance of "the material and service of the above discussed work" and the terms of payment. Id.
This signature is partly illegible. The court speculates, however, that the signature may be of a person named "Eric," which may or may not be the same Eric that would normally meet Yesco employees when they arrived at Bristol Spring and open the boiler room for them. (Defendant's Second Reply Brief, #177, Exhibit A, Robinson's July 17, 2002 Deposition, pp. 135, 159, 162.)
Furthermore, the defendant submitted evidence of two events occurring after the accident that are relevant to the issue of control. First, one of Bristol Spring's employees, Peter Zawlinski, performed a demonstration where he unscrewed and removed a portion of the electrical control panel involved in the accident. (Hittleman's March 22, 2002 affidavit, ¶ 18.) Although this demonstration occurred after the accident, it shows that the defendant had control and some familiarity with the electrical control panel.
Second, after the accident, B H Realty made several changes to the main boiler room, including the installation of a supplemental breaker to control power flow to all devices so that future technicians working in the main boiler room would not have to turn off power from the main power room. (Hittleman's June 13, 2002 affidavit, ¶ 18.) This is evidence that someone beyond a Yesco employee had control over the relevant premises. Although it is B H, the defendant's landlord, who would be implicated with such control and not the defendant, Bristol Spring, the plaintiffs have argued that the agents of the two entities are somewhat indistinguishable. Indeed, the B H purchase order for a contract maintenance agreement with Yesco is signed by Edward J. Hittleman, as the vice president of B H, who is also the president of the defendant, Bristol Spring.
Considering this evidence in the light most favorable to the plaintiffs, it would be reasonable to conclude that the defendant may have had some degree of control, familiarity and involvement with Robinson's work and the relevant premises related to such work. Since the disputed issue of control could make a difference as to whether the defendant owed a duty to the plaintiff, there exists a genuine issue of material fact. Therefore, the court cannot conclude, as a matter of law, that the defendant owed no duty to Robinson and cannot render summary judgment on this ground.
The defendant's second ground for its motion is that a reasonable finder of fact could only conclude that Robinson's own negligence was greater than the defendant's alleged negligence and that therefore the plaintiffs' claim is barred by General Statutes § 52-572h (b), which governs contributory negligence actions. At the outset, the court notes that determining whether Robinson was negligent and what proportion any such negligence contributed to his injuries are issues that inherently involve questions of fact. "Issues of negligence and contributory negligence ordinarily are ones of fact and should be reserved for the jury." Visoky v. Lavoie, 64 Conn. App. 501, 505, 779 A.2d 1284 (2001); see also, Trzcinski v. Richey, 190 Conn. 285, 295, 460 A.2d 1269 (1983); Reilly v. Panaroni, Superior Court, judicial district of New Haven, Docket No. CV 000439030 (December 3, 2001, Silbert, J.) ( 31 Conn.L.Rptr. 104) ("Because the defendants have asserted a legally valid special defense of contributory negligence, the comparison of negligence must be left to a jury to determine. The genuine issues of material facts as to contributory negligence created by the special defense also preclude summary judgment . . ."). Therefore, contributory negligence is not a proper basis to render summary judgment.
Finally, the defendant argues that the court should grant summary judgment because the plaintiffs have offered no viable proof of causation, specifically, proximate causation. To support this claim, the defendant points to Robinson's statement in his April 15, 2002 deposition that he has no recollection of any events whatsoever occurring from July 15, 1998 to July 16, 1998, the day before and the day of the alleged accident. The defendant concludes, therefore, that Robinson cannot testify on personal knowledge that an act or omission of the defendant on the day of the alleged accident caused his alleged injuries. Furthermore, the defendant submits that the written statement by Dave Shaughnessy, dated October 7, 1998, provides no indication that the defendant played any role in the alleged accident. Although it may be true that Robinson is unable to testify as to the events on the day of the accident and that David Shaughnessy's written statement is not relevant to the issue of causation, raising these facts is not enough to meet the defendant's burden of showing the nonexistence of any genuine issue of material fact.
"The `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." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). "`Issue of fact' encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969). "[T]he court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). "Although the issue of causation generally is a question reserved for the trier of fact . . . the issue becomes one of law when the mind of a fair and reasonable person could reach only one conclusion, and summary judgment may be granted based on a failure to establish causation." (Internal quotation marks omitted.) Abrahams v. Young Rubicam, Inc., 240 Conn. 300, 307, 692 A.2d 709 (1997).
The court finds, based on the direct and circumstantial evidence, that this is not a case where the mind of a fair and reasonable person could reach only one conclusion regarding causation. It is warrantable to infer from the evidence: (1) that prior to the accident, Robinson thought that pulling the three toggle/knife switches terminated all power to the electrical control panel; (Defendant's Second Reply Brief, #177, Exhibit A, Robinson's July 17, 2002 Deposition, p. 126-27, 129, 134, 153, 157); (2) that since Robinson, prior to servicing any boiler, electrical control panel or boiler-related part or device powered by electricity, would, as a matter of general practice, always shut off the electrical power, or request another person to do so; (Defendant's Original Memorandum of Law, Exhibit G, Plaintiffs' Answers to Request for Admissions #8-16 dated November 20, 2001, Defendant's First Reply Brief, Exhibit B, Robinson's April 15, 2002 Deposition, pp. 74-76, and Defendant's Second Reply Brief, #177, Exhibit A, Robinson's July 17, 2002 Deposition, p. 134); (3) that he acted in accordance with such general practice on the day of his accident; (4) that the defendant knew that from 1978 through the day of the accident, power to all boiler-related devices in the main boiler room, other than the oil pump condensate, was controlled through breakers located in the facility's main power room located about seventy-five feet from the main boiler room (Hittleman's June 13, 2002 Affidavit, ¶ 12); and (5) that since Robinson did not know, prior to the accident, that the main breaker for the electrical control panel was in another room; (Defendant's Second Reply Brief, #177, Exhibit A, Robinson's July 17, 2002 Deposition, p. 125, 156); that the defendant failed to inform Robinson of this electrical power deactivation switch, despite the fact that it knew or should have known that Mr. Robinson would otherwise be unaware of it and that he needed to be aware of it in order to perform his job safely.
The court finds that based on the evidence, a fact finder could reasonably conclude that the defendant's failure to inform Robinson of the unknown electrical power source constituted a breach of its duty to warn Robinson of and protect him from dangers on the premises of which he could not reasonably be expected to be aware; and further, that its breach was legal cause of Robinson's alleged electrocution.
Whether a person is negligent is a question of fact for the jury. Abraham v. Young Rubicam, 240 Conn. 300, 307, 692 A.2d 709 (1997). The movant has the burden of proving that there are no genuine issues of material fact. The court is not responsible on a motion for summary judgment for finding and weighing the facts. Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). For the foregoing reasons, the defendant's motion for summary judgment was denied.
BY THE COURT
Hon. Vanessa L. Bryant, P.J.