Opinion
No. CV 04-5000194
December 11, 2007
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #118
The plaintiff, Bismark Guerra, commenced this action by service of process on the defendant, CT Paving, LLC, on October 18, 2004. In the complaint, the plaintiff alleges that on July 29, 2004, at about 9 p.m., he was injured when the minibike he was riding on North Second Street in Meriden suddenly struck a manhole cover which was raised approximately two inches above the street. He alleges that the street had been recently paved by the defendant pursuant to a contract with the city of Meriden (city). He further alleges that his injuries were caused by the defendant in that the defendant (1) failed to warn him of the raised manhole cover, (2) failed to reasonably inspect the manhole cover, (3) "left the premises in the aforesaid dangerous condition of the raised manhole cover," (4) "caused or allowed and permitted said highway to be dangerous for the plaintiff," and (5) "failed to remedy said dangerous raised manhole cover, when the same was reasonably necessary under the circumstances."
The city of Meriden was originally named as an additional defendant. On December 6, 2005, the plaintiff withdrew the action against the city of Meriden. CT Paving, LLC, is the sole remaining defendant.
On April 26, 2007, the defendant filed a motion for summary judgment. In support of its motion, the defendant has submitted a memorandum of law, an affidavit of Thomas Avery, a co-owner of the defendant, and a certified transcript of the deposition of John Hamlin, highway foreman for the city. On August 3, 2007, the plaintiff filed a memorandum in opposition to the motion for summary judgment, accompanied by a certified transcript of Avery's deposition.
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." Practice Book § 17-49. "[I]n seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. 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. The courts hold the movant to a strict standard. 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 . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent." Socha v. Bordeau, 277 Conn. 579, 585-86, 893 A.2d 422 (2006).
The defendant argues that it owed no duty to the plaintiff because it did not possess or control the street where the plaintiff's alleged injuries occurred, did not create the alleged defective condition and did not have any duty to erect or maintain safeguards, warnings or signs in the vicinity of the manhole. The plaintiff argues in response that this is not a case of premises liability, that possession and control are therefore not dispositive of the question of the defendant's duty, and that the defendant's duty instead flows from his status as a contractor. The plaintiff further argues that the defendant owed the plaintiff a duty because "[i]t is axiomatic that everyone is required to use reasonable care in the course of their activities" and because the defendant easily could have built "a little ridge" around the manhole to make it safer.
It is noted that the plaintiff's "memorandum of law" is entirely devoid of citation to legal authority in support of any of the legal assertions set forth therein. For example, the plaintiff, by way of analogy, asserts that "a house painter cannot leave ladders up and go home when it starts to rain, even though the homeowner may not object. Young neighborhood children may climb and fall." The plaintiff cites no legal authority in support of that proposition. Similarly, the plaintiff cites no legal authority for the principle that "everyone is required to use reasonable care in the course of their activities," labeling that proposition "axiomatic." "When a memorandum of law fails to cite any legal authority, the memorandum is functionally equivalent to no memorandum at all." (Internal quotation marks omitted.). Jasmin v. New England Plasma Development Corp., Superior Court, judicial district of Windham, Docket No. CV 04 4000706 (July 13, 2005, Foley, J.).
"In a negligence action, the plaintiff must meet all of 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).
The complaint in the present case does not specifically mention negligence, but the parties treat the plaintiff's claim as one of negligence.
Although the plaintiff now claims, in response to the motion for summary judgment, that his claim is not one of premises liability, the complaint could reasonably read as setting forth such a claim and the plaintiff has not amended the complaint. Moreover, the defendant has fully addressed the premises liability issue. Therefore, the analysis herein will begin by examining the issue of duty in the context of premises liability.
"Liability for an injury due to defective premises does not depend on title, but on possession and control." Farlow v. Andrews Corp., CT Page 21298 154 Conn. 220, 225, 224 A.2d 546 (1966); see also Lin v. National Railroad Passenger Corp., 277 Conn. 1, 16 n. 10, 889 A.2d 798 (2006). "The word control has no legal or technical meaning distinct from that given in its popular acceptation . . . and refers to the power or authority to manage, superintend, direct or oversee . . . [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." (Internal quotation marks omitted.) Alfano v. Randy's Wooster Street Pizza Shop II, Inc., 90 Conn.App. 766, 773-74, 881 A.2d 379 (2005). It is this question of possession and control that determines who owes the plaintiff a duty in a premises liability case. See, e.g., LaFlamme v. Dallessio, supra, 261 Conn. 251-52.
The evidence submitted by the parties in the present case reveals the following facts, which are not contradicted by any other evidence. The defendant, at the time of the plaintiff's alleged injuries, was under contract with the city to pave city streets. (Avery affidavit, ¶ 6; Hamlin deposition, 6.) Before the defendant began paving North Second Street, the city had excavated the old blacktop, which involved stripping the street down completely, leaving just a layer of process stone, with manholes and catch basins exposed several inches above the stone. (Hamlin deposition, 7-8.) The defendant was not involved at all in the excavation process. (Hamlin deposition, 8.) The city put large orange signs at each end of the street to warn the public that there were raised structures in the roadway, and also painted the manholes and catch basins orange and placed a cone on each one. (Hamlin deposition, 9.)
The defendant began paving North Second Street on the morning of July 29, 2004, the same date as the plaintiff's alleged injury. The paving required two courses of blacktop, both of which were scheduled to be done on that date. (Hamlin deposition, 14, 24; Avery deposition, 8-9, 22.) City employees were present the entire time that the defendant was doing the paving. (Hamlin deposition, 12-13; Avery deposition, 16.) After the defendant had completed the first course of blacktop in the early afternoon, however, it was discovered that there was a "soft spot" in the ground below the asphalt that would require additional excavation. (Hamlin deposition, 14; Avery deposition, 9-10, 22-23.) The city instructed the defendant to stop paving, so that the city could investigate the soft spot and do any necessary excavation. (Hamlin deposition, 16; Avery deposition, 9-10.) Because only one layer of blacktop had been applied, the manholes and catch basins still extended above the pavement at that time. (Hamlin deposition, 16.) After the defendant left the work site on July 29, the city let the asphalt cool down for one or two hours and then reopened the street to traffic and placed cones back on the manholes and catch basins. (Hamlin deposition, 17-18, 27; Avery deposition, 28.) The defendant returned at a later date to apply the second course of blacktop. (Avery deposition, 15, 26.)
The city and the defendant's agreement regarding the paving of North Second Street was not in writing. (Avery deposition, 14.) The paving work was done pursuant to a work order and was based on the defendant's contract with the state of Connecticut. (Avery deposition, 14.) The purchase order did not address responsibility for the manhole. (Avery deposition, 14.) Both the city and the defendant understood, however, that diversion of traffic, as well as all warnings and other safety precautions related to the condition of the street generally, and the condition of the manhole in particular, were the responsibility of the city and not the defendant. (Hamlin deposition, 16-18; Avery deposition, 10-12, 14-17.) The defendant's sole involvement in the project was to do the paving. (Hamlin deposition, 11; Avery deposition, 17.)
Based on this undisputed evidence, there is no genuine issue regarding control and possession. Pursuant to the agreement of the city and the defendant, the defendant was only responsible for paving the street, and city employees were present at all times during the paving. Furthermore, the defendant had been instructed to discontinue paving and had left the street, which was still closed, in the control of the city, which subsequently reopened it to traffic prior to the plaintiff's alleged injury. Accordingly, there is no genuine issue regarding the fact that the defendant did not possess or control North Second Street when the plaintiff was allegedly injured there on the evening of July 29, 2004. The defendant, as a matter of law, did not owe the plaintiff a duty, based on possession and control, to keep the street in a reasonably safe condition.
Similarly, the undisputed evidence shows that the defendant did not have any duty based on the theory that it created a dangerous condition in the road. Although a person creating a dangerous condition in a highway does have a duty to use reasonable care to protect others from the condition; see, e.g., Calway v. William Schoal Son, Inc., 113 Conn. 586, 590, 155 A. 813 (1931); the undisputed evidence shows that the condition complained of here, that is, the raised condition of the manhole above the surface of the road, was created by the city, not the defendant.
The plaintiff, apparently recognizing that a duty in the present case cannot be based on possession and control, argues in its memorandum of law that this is not a premises liability case, and that his claim is instead "based upon a failure of the contractor to use due care in its operations." Specifically, the plaintiff argues that the defendant, as a contractor, had a duty to take reasonable steps to ensure that the manhole was left in a safe condition. He further argues that "everyone is required to use reasonable care in the course of their activities," thereby suggesting that all persons owe all other persons a duty to exercise reasonable care in all activities. The latter conclusion is not supported by the case law in this state. Our Supreme Court has "often observed that [t]he law does not recognize a `duty in the air.'" (Internal quotation marks omitted.) Waters v. Autuori, 236 Conn. 820, 826, 676 A.2d 357 (1996). "Because foreseeability is a necessary component of duty, the absence of foreseeability forecloses the existence of a duty of care . . . The converse is not, however, true: the conclusion that a particular injury to a particular plaintiff or class of plaintiffs possibly is foreseeable does not, in itself, create a duty of care . . . Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed . . . A further inquiry must be made, for we recognize that duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection . . . While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree." (Citations omitted; internal quotation marks omitted.) Id., 827-28.
The plaintiff is correct, however, that Connecticut law recognizes that a contractor under some circumstances may be liable to a third party injured as a result of the contractor's negligent work. See, e.g., Gazo v. Stamford, 255 Conn. 245, 765 A.2d 505 (2001) (holding that plaintiff who slipped and fell on icy sidewalk may bring action for personal injuries against snow removal contractor hired by possessor of property); Minton v. Krish, 34 Conn.App. 361, 642 A.2d 18 (1994) (holding contractor liable for foreseeable injuries resulting from negligent work, even after work has been completed and accepted by possessor of property). Nevertheless, our Supreme Court has made clear that the scope of such liability is dependent on the terms of the contract between the possessor of the property and the contractor because the contractor's duty in such a case arises from the fact that the possessor has bargained with the contractor to perform, in full or in part, the possessor's duty of care. See Gazo v. Stamford, supra, 249 and n. 4. Thus, in the case of a personal injury action brought by a contractor hired by the possessor of land to remove snow and ice, the court stated: "[I]t may well be that, depending on the nature and scope of [the contractor's] contractual undertaking with [the possessor of the property], the plaintiff may not be able to establish successfully [the contractor's] breach of [the possessor's] duty of care to the plaintiff. Thus, for example, at one end of the liability spectrum, if [the contractor's] undertaking was simply to clear the premises of ice and snow reasonably soon after a snowstorm ended — a typical, albeit not exclusive contractual undertaking of a snow plowing contractor — and the plaintiff's slip and fall resulted from a subsequent thawing and refreezing hours later, presumably [the contractor] would not be liable to the plaintiff, although [the possessor] might well continue to be liable. At the other end of the spectrum . . . if [the contractor's] contractual undertaking had been to perform the entirety of [the possessor's] duty to keep its premises safe, then presumably [the contractor] would be liable in such an instance . . . It should be emphasized that [the contractor] may be held liable to the plaintiff only to the extent that (1) his contractual undertaking permits, and (2) his breach of duty to the plaintiff is part and parcel of [the possessor's] duty to the plaintiff." Id., 249 n. 4.
In the present case, as previously discussed, there is no genuine issue regarding the fact that the agreement between the city and the defendant required the defendant to do nothing more than pave the street. The defendant, in accordance with the principles articulated by the Supreme Court, therefore could be held liable for injuries resulting from a failure to exercise reasonable care in the paving of North Second Street. There is no claim in the present case, however, that the defendant was in any way negligent in paving the street. The plaintiff's claim is that the defendant should have taken additional steps between applying the two courses of blacktop to ensure the safety of the plaintiff and other individuals traveling on the street during the interim. The undisputed evidence discussed above makes clear, however, that the defendant's agreement with the city did not require the defendant to take any such safety measures, and that such measures were mutually understood to be the responsibility of the city. Accordingly, the defendant did not have any duty as a contractor to make the manhole safe for the plaintiff.
Finally, the plaintiff argues that the defendant's duty is clear because there is evidence showing that the defendant easily could have built "a little ridge" around the manhole to make it safer. As with his other legal arguments, the plaintiff has cited no legal authority in support of this proposition. Furthermore, research has revealed no authority for the proposition that a legal duty to take action may arise solely from the ease or convenience of the action.
The defendant has demonstrated that there is no genuine issue with regard to the fact that it did not control or possess the property on which the plaintiff was allegedly injured, that it did not create the dangerous condition, and that its contract with the city of Meriden did not require it to do anything more than pave the street. Accordingly, the defendant has demonstrated that it owed no duty to the plaintiff to keep reasonably safe the manhole that allegedly caused the plaintiff's injuries, and therefore, the defendant's motion for summary judgment is granted.