Fortune Building & Remodeling, Inc. v. Leaska Contruction Co., No. CV 04-0083334 (CT 2/4/2005)

• Decision Date: 04 February 2005
• Docket Number: No. CV 04-0083334,CV 04-0083334
• Parties: Fortune Building & Remodeling, Inc. v. Leaska Contruction Co. Opinion No.: 87575.
• Court: Connecticut Supreme Court

Page 1

Unpublished Opinion

Fortune Building & Remodeling, Inc. v.Leaska Contruction Co Opinion No.: 87575.

No. CV 04-0083334

Superior Court of Connecticut

Judicial District of Tolland at Rockville

February 4, 2005

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT(#109) AND PLAINTIFF'S OBJECTION(#110)

SCHOLL, JUDGE.

Introduction

The amended complaint in this case alleges that the Plaintiff, Fortune Building and Remodeling, LLC, ("Fortune") was a subcontractor engaged to perform the building and/or remodeling and/or repairs to a home in Ellington.The Defendant, Leaska Construction Co., ("Leaska") was the general contractor of the project and hired the Plaintiff as a subcontractor.The Plaintiff alleges that the Defendant had contracted with the homeowner to do the project and was responsible for and had control over the construction means, methods, techniques, sequences and procedures and was to supervise and direct the work on the premises and was responsible for the safety precautions and programs in connection with the work.On December 28, 2001, an employee of the Plaintiff, Todd Brothers, was injured when he fell off staging that was lifted approximately fourteen feet off the ground by a fork lift when it collapsed.The Plaintiff claims that as a result it has been obligated to make payments to Brothers pursuant to the Workers' Compensation Act.The Plaintiff claims that Brothers' injuries were caused by the negligence and carelessness of the Defendant.Brothers has filed an intervening complaint against the Defendant claiming that it was Leaska's duty to keep and maintain the premises in a reasonably safe condition.

The Defendant has moved for summary judgment as to all claims against it in the complaint and the intervening complaint.The Defendant argues that it owed no legal duty to Brothers, an employee of the Plaintiff Fortune, because Fortune was an independent contractor and the Defendant did not have control over the premises or supervise the independent contractor's work.

Discussion

The standards for granting summary judgment are well settled." ' 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.Such questions of law are subject to plenary appellate review.'(Internal quotation marks omitted.)Mytych v. May Dept. Stores Co.,260 Conn. 152, 158-59, 793 A.2d 1068(2002)."Faigel v. Fairfield University,75 Conn.App. 37, 39-40(2003)." 'In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . 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 . . .'(Internal quotation marks omitted.)Gold v. Greenwich Hospital Assn.,262 Conn. 248, 253, 811 A.2d 1266(2002).' The test is whether a party would be entitled to a directed verdict on the same facts.'(Internal quotation marks omitted.)Haesche v. Kissner,229 Conn. 213, 217, 640 A.2d 89(1994).' A material fact is a fact that will make a difference in the result of the case . . . The facts at issue are those alleged in the pleadings.'(Citation omitted; emphasis added; internal quotation marks omitted.)Mountaindale Condominium Assn., Inc. v. Zappone,59 Conn.App. 311, 315, 757 A.2d 608, cert. denied, 254 Conn. 947, 762 A.2d 903(2000)."Vaillancourt v. Latifi,81 Conn.App. 541, 545(2004).

"In 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.6 Moore, Federal Practice(2d Ed.) ¶56.15 [3];Plouffe v. New York, N.H. & H.R. Co.,160 Conn. 482, 488, 280 A.2d 359(1971).As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent.D.H.R. Construction Co. v. Donnelly,180 Conn. 430, 434, 429 A.2d 908(1980).When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue.SeePlouffe v. New York, N.H. & H.R. Co., supra, 491.Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book§380[now §17-45].(Citations omitted; internal quotation marks omitted.)Burns v. Hartford Hospital,192 Conn. 451, 455, 472 A.2d 1257(1984)."(Internal quotation marks omitted.)Allstate Ins. Co. v. Barron,269 Conn. 394, 405-7(2004).

From the materials submitted by the parties¹ in support and in opposition to the Motion for Summary Judgmentthe court has determined that the following facts are undisputed.Fortune was hired as a subcontractor by Leaska to perform the framing of a home in Ellington.Fortune assumed responsibility for supervising its employees.It utilized its own crew for the job and supplied its own trucks, box vans and "lulls" or lifts for material handling and hoisting for the work.All scaffolding or staging utilized by Fortune on the premises was provided and erected by Fortune and no representative of Leaska was present when the scaffolding was erected.For some time Fortune had erected and used the 24-foot staging held up by a fork lift on the premises.No employee or representative of Leaska was involved in any way with the scaffolding or staging which was involved in the incident in which the alleged injury to Brothers occurred.Fortune was responsible for and did assume responsibility for the safety of its employees while performing its framing and construction operations at the site.Fortune assumed responsibility for providing, maintaining and supervising all necessary safety devices, precautions, systems and protection, including protection against falls, for its employee at the site.Fortune did not rely on Leaska to provide safety instruction or equipment to Fortune's employees at the site or to provide supervision or advice with regard to the erection or use of the platform which collapsed.No employee or representative of Leaska was present at the site at the time the alleged injury to Brothers occurred.

In Pelletier v. Sordoni/Skanska Construction Company,264 Conn. 509, 517-18(2003), the Court noted that "[a]s a general rule, 'an employer is not liable for the negligence of its independent contractors.Douglass v. Peck & Lines Co.,89 Conn. 622, 627, 95 A. 22(1915);W. Prosser & W. Keeton, Torts(5th Ed. 1984) §71, p. 509;41 Am.Jur.2d, Independent Contractors§29(1995).'Gazo v. Stamford,255 Conn. 245, 256-57, 765 A.2d 505(2001);Alexander v. Sherman's Sons Co.,86 Conn. 292, 298, 85 A. 514(1912);2 Restatement (Second), Torts§409, p. 370(1965).'The explanation for [this rule] most commonly given is that, since the employer has no power of control over the manner in which the work is to be done by the contractor, it is to be regarded as the contractor's own enterprise, and [the contractor], rather than the employer, is the proper party to be charged with the responsibility of preventing the risk, and bearing and distributing it.'2 Restatement (Second), supra,§409, comment (b).This same rule applies, as a general matter, to general contractors as employers of independent subcontractors: a general contractor is not liable for the torts of its independent subcontractors.Douglass v. Peck & Lines Co., supra,89 Conn. 627.We have long held, however, that '[t]o this general rule there are exceptions, among them these: If the work contracted for be unlawful, or such as may cause a nuisance, or is intrinsically dangerous, or in its nature is calculated to cause injury to others, or if the contractee negligently employ an incompetent or untrustworthy contractor, or if he reserve in his contract general control over the contractor or his servants, or over the manner of doing the work, or if he in the progress of the work assume control or interfere with the work, or if he is under a legal duty to see that the work is properly performed, the contractee will be responsible for resultant injury.Norwalk Gas Light Co. v. Norwalk,63 Conn. 495, 28 A. 32[1893];Lawrence v. Shipman,39 Conn. 586[1873];Alexander v. Sherman's Sons Co.,[supra,86 Conn. 293];St. Paul Water Co. v. Ware,83 U.S. (16 Wall.) 566[21 L.Ed. 485(1873)];Creed v. Hartmann,29 N.Y. 591[1864]. So, too, the contractee or proprietor will be liable for injury which results from his own negligence.Lawrence v. Shipman,[supra, 590].'(Emphasis added.)Douglass v. Peck & Lines Co., supra, 627.Consistent with these exceptions, we have long held that, in the absence of statutory immunity based on the principal employer doctrine, discussed later in this opinion, a general contractor may, depending on the circumstances, be held liable to an employee of its subcontractor for its own negligence.See, e.g., Gigliotti v. United Illuminating Co.,151...