Gargano v. Azpiri

• Decision Date: 23 September 2008
• Docket Number: No. 28527.,28527.
• Citation: 955 A.2d 593,110 Conn.App. 502
• Parties: Patricia GARGANO v. Josune AZPIRI et al.
• Court: Connecticut Court of Appeals

955 A.2d 593

110 Conn.App. 502

Patricia GARGANO v. Josune AZPIRI et al.

No. 28527.

Appellate Court of Connecticut.

Argued May 29, 2008.

Decided September 23, 2008.

Carl A. Secola, Jr., New Haven, for the appellant (plaintiff).

Jack G. Steigelfest, with whom, on the brief, were Thomas P. Cella and Christopher M. Harrington, Hartford, for the appellees (named defendant et al.).

Miles N. Esty, New Haven, for the appellee (defendant Victor Moura).

McLACHLAN, ROBINSON and WEST, Js.

WEST, J.

The plaintiff, Patricia Gargano, appeals from the judgment of the trial court rendered upon the granting of the motions for summary judgment filed by the defendants Josune Azpiri, Victor Fonseca and Victor Moura, also known as Victor Rodriguez doing business as Moura's Construction and Remodeling (Rodriguez), in this premises liability action.¹ On appeal, the plaintiff claims that the court (1) properly determined that she was an invitee at the time of the incident in question and (2) improperly held that the defendants misconstrued the duty owed to her. We affirm in part and reverse in part the judgment of the trial court.

The following procedural and factual history is relevant to our disposition of the plaintiff's claims. The plaintiff brought this action in 2002, seeking damages for personal injuries sustained in November, 2001, when she fell through an opening in the third floor of an unoccupied house that was being renovated. In 2001, Azpiri was the owner of that house, and she and Fonseca hired Rodriguez' company, Moura's Construction and Remodeling, to be the general contractor for the renovation of the house. Additionally, they hired Eric Creto, an electrician, to do the electrical work. Creto, who was otherwise fully employed, contacted an acquaintance, Allesandro DePalma, a licensed electrician, to assist in the electrical work. DePalma was hired with the agreement and knowledge of Fonseca and Azpiri. The plaintiff was DePalma's assistant who helped him perform electrical work on the property. On November 1, 2001, at approximately 7 p.m., while assisting DePalma on the third floor of the property, the plaintiff fell through a hole in the floor and suffered extensive injuries. She subsequently filed this action against the defendants.

Azpiri and Fonseca filed their motion for summary judgment, contending that the plaintiff was aware of the open and obvious condition of the hole through which she fell, and, as such, they owed no legal duty to her. Rodriguez filed his motion for summary judgment on the same ground. On November 27, 2006, the court granted the defendants' motions for summary judgment. On December 8, 2006, the plaintiff moved for rehearing, reconsideration and reargument. The court allowed reargument, but it declined to alter its original order granting the defendants' motions for summary judgment. This appeal followed. Additional facts will be set forth as necessary.

Prior to examining the plaintiff's claims, we set forth the applicable 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. . . . 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. . . . The test is whether the party moving for summary judgment would be entitled to a directed verdict on the same facts. . . . Our review of the trial court's decision to grant the defendant's motion for summary judgment is plenary." (Internal quotation marks omitted.) Mazurek v. Great American Ins. Co., 284 Conn. 16, 26-27, 930 A.2d 682 (2007).

I

The plaintiff first claims that the court properly determined that she was an invitee at the time of the incident in question.² We agree. In its memorandum of decision, the court stated that "the nature of the plaintiff's relationship with the defendants is properly characterized as [that of] a business invitee." The court supported this statement by stating that "DePalma was a subcontractor, and the plaintiff assisted him. The plaintiff was connected either directly or indirectly with the business dealings relevant to the property. Accordingly, the court finds that the plaintiff was a business invitee."

Fonseca and Azpiri argue that they did not indicate their willingness to have an out-of-work person with no experience in construction come upon the house in the middle of the renovation. Further, they argue that even if an invitation extended to a proper assistant, it did not extend to the plaintiff. Therefore, they contend that the plaintiff merely was a licensee on the property.

"Ordinarily, the status of one who sustains injury while upon the property of another is a question of fact. . . . Where, however, the facts essential to the determination of the plaintiff's status are not in dispute, a legal question is presented." (Internal quotation marks omitted.) Kolaniak v. Board of Education, 28 Conn. App. 277, 282, 610 A.2d 193 (1992). In the present case, the facts essential to the determination of the plaintiff's status are not in dispute.

The law regarding the definition of an invitee is well established. "Invitees fall into certain general categories. A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. . . . A business invitee is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with 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). "The distinction between one who is an invitee and one who is merely a licensee turns largely on whether the visitor has received an invitation, as opposed to permission, from the possessor of land, to enter the land or remain on the land. Although an invitation itself does not establish the status of an invitee, it is essential to it." (Internal quotation marks omitted.) Kurti v. Becker, 54 Conn.App. 335, 338, 733 A.2d 916, cert. denied, 251 Conn. 909, 739 A.2d 1248 (1999).

In the present case, there is no dispute that the plaintiff was invited onto the land by DePalma to assist him in performing electrical work and, therefore, was directly or indirectly connected with the business dealings relevant to the property. The uncontroverted deposition testimony submitted by the parties supports this conclusion. As a matter of law, on the basis of undisputed facts, the plaintiff fell into the category of a business invitee, in that she was invited to enter the land for a purpose directly or indirectly connected with business dealings with the possessor of land. See 2 Restatement (Second), Torts § 332(3) (1965), and comment (e) ("a workman who comes to make alterations or repairs on land used for residence purposes [is also a business invitee]"). As a result, we conclude that the court properly concluded as a matter of law that the plaintiff was a business invitee in the present case.

II

The plaintiff also claims that the court improperly held that the defendants owed no legal duty to her. In its memorandum of decision, the court first determined that "the plaintiff's relationship with the defendants is properly characterized as [that of] a business invitee." Additionally, the court held that a possessor of land has "no duty to warn an invitee of a dangerous condition when the invitee has actual knowledge of the condition. . . . The failure to warn an invitee of something he already knows is without legal significance." (Citations omitted.) Warren v. Stancliff, 157 Conn. 216, 220, 251 A.2d 74 (1968). The court concluded, on the basis of the plaintiff's deposition testimony, that there was no genuine issue of material fact that "she fully discovered and knew of the danger on the premises." The court stated that the defendants' motions for summary judgment were granted "because there is no genuine issue of material fact surrounding the plaintiff's knowledge of the hole through which she fell, and, therefore, as a matter of law, the defendants did not owe her a duty."

The plaintiff argues that although the property owner has no duty to warn an invitee of an open and obvious danger known to the invitee, he does have a duty "to inspect and maintain the premises in order to render them reasonably safe for the reasonably foreseeable activities which would occur there during the invitee's presence." We agree.

"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.) Considine v. Waterbury, 279 Conn. 830, 858, 905 A.2d 70 (2006). The law is clear that "[a] possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe. . . . In addition, the possessor of land must warn an...