Tolu v. Ayodeji

• Decision Date: 20 March 2008
• Docket Number: No. 06-CV-193.,06-CV-193.
• Citation: 945 A.2d 596
• Parties: TOLU Tolu, Appellant, v. Muriel AYODEJI, et al., Appellees.
• Court: D.C. Court of Appeals

945 A.2d 596

TOLU Tolu, Appellant, v. Muriel AYODEJI, et al., Appellees.

No. 06-CV-193.

District of Columbia Court of Appeals.

Submitted May 8, 2007.

Decided March 20, 2008.

Tolu Tolu, pro se.

Robert K. Epstein, was on the brief, for appellee.

Before REID and BLACKBURNERIGSBY, Associate Judges, and BELSON, Senior Judge.

PER CURIAM:

Appellant, Tolu Tolu, appeals the trial court's order granting summary judgment in favor of appellees in her personal injury/negligence lawsuit. We conclude that on this record summary judgment was improper because there are genuine issues of material fact in dispute. Therefore, we reverse the trial court's judgment and remand this case for further proceedings.

FACTUAL SUMMARY

The record shows that, on January 9, 2004, appellant, Tolu Tolu, a resident of 1375 Florida Avenue, in the Northeast quadrant of the District of Columbia ("1375"), filed a complaint alleging that appellees, Muriel Ayodeji, her husband, Francis Ayodeji, and her husband's real estate corporation, New Concept Realty Services Inc. ("New Concept"), commenced "total renovation" of the neighboring attached row house at 1377 Florida Avenue ("1377"), including construction of an addition to the house. Ms. Tolu made the following allegations in her complaint. Appellees failed to obtain required inspections or permits from the District of Columbia government, and did not take precautions to protect her person and property by erecting a barrier, fence, or warning sign. She complained to appellees' "workers" about the presence of construction debris on her property, specifically about the workers throwing debris from 1377 onto her property, and about their lack of compliance with construction regulations. On February 2, 2001, upon returning home at 5:30 p.m., she tripped and fell over construction debris, "most probably a combination of trash, studs, and dry wall materials thrown by the defendant into the plaintiff's back yard." When Ms. Tolu grabbed her fence to break the fall, the fence, allegedly weakened by appellees' construction, collapsed. She claimed that appellees' "illegal, not licensed and negligent actions (specifically throwing debris) are the sole cause of the plaintiff's trip and fall accident." Ms. Tolu fractured her foot during her fall, and required surgery. She requested compensatory, consequential, and punitive damages. In an answer filed January 23, 2004, appellees denied Ms. Tolu's allegations and denied liability for her fractured foot.

During her deposition on April 13, 2005, Ms. Tolu testified that she employed a man named Rios to do odd jobs, including keeping her front and back yard clean of papers and trash. On the day of her injury, Ms. Tolu and Mr. Rios took appellant's car out "for a spin." When they returned, they were walking through the back yard, which Ms. Tolu kept "meticulous," when she tripped over an "item" while trying to avoid a piece of construction material. Between three and five "contractors" or "workmen" at 1377 came to the fence while she was on the ground. Appellees hired Mr. Rios "some weeks" after Ms. Tolu's fall to work on their "rehab" at 1377.

During his deposition on April 13, 2005, Mr. Ayodeji stated that there was no new construction at 1377, only "like painting and minor, minor work." Mr. Ayodeji had only one contractor, a man named Rio or Mr. Rio, who worked for him painting and carpeting.¹ He had "no need for a foreman" because he was there himself. When asked for the names of tradesmen or contractors who performed work at 1377, Mr. Ayodeji alternately replied, "[t]hat would be me" and "the name of the contractor was Rio." He did not recall whether he applied for or obtained a permit for work on 1377.

Ms. Ayodeji also gave a deposition on April 13, 2005. She testified that she was the only party on the deed to 1377. When asked when she purchased the house, she replied, in part, "I don't remember. . . . My husband is in charge of it." She added, "My husband was the one who's doing some things in the house, so I did not know rehab in the house. I'm not involved."

On December 20, 2005, after close of discovery, appellees moved for summary judgment, alleging that Ms. Tolu failed to prove the elements of duty and causation with respect to her negligence claim. They stated that the following material facts were undisputed: 1) Mr. Ayodeji and New Concept had no ownership interest in the property at 1377; 2) there were no witnesses to the alleged accident; 3) construction work was occurring on Ms. Tolu's property at the time of her injury; and 4) Ms. Tolu's employee, Mr. Rios, was charged with keeping her property free of debris. Appellees supported their motion with several documents, including 1) an affidavit by Mr. Ayodeji denying that he and New Concept had any ownership interest in 1377; 2) an affidavit by Ms. Ayodeji indicating that she is the sole owner of 1377; and 3) excerpts from Ms. Tolu's deposition testimony of April 13, 2005.

Ms. Tolu filed an opposition to appellees' motion for summary judgment. She disputed appellees' above-stated facts and submitted several documents in support of her opposition, including: 1) excerpts from Mr. Ayodeji's deposition; 2) excerpts from her own deposition; and 3) photographs of alleged construction debris in the backyard at 1377.

On January 24, 2006, the trial court granted appellees' motion for summary judgment. The court concluded that Ms. Tolu failed to establish that appellees owed her a duty because she "[did] not place any of the [appellees] on the property on February 2, 2001, nor did she witness or provide any evidence of actions that could constitute negligence." The trial court found "no dispute that contractors were hired to do work on the property and that `Rio' were the contractors." The court determined that Ms. Tolu provided "no proof that any of the [appellees] actually performed any of the work themselves, or that the contractor was an employee of the [appellees]." Because someone other than the appellees, such as their "contractors," may have been responsible for the debris, the court decided that Ms. Tolu failed to prove a duty of care, and hence, did not establish a prima facie case of negligence.

Ms. Tolu filed a Notice of Appeal on February 14, 2006.

ANALYSIS

Ms. Tolu contends that the trial court erred in granting summary judgment in favor of appellees on her complaint. She argues on appeal, as she did in the trial court, that appellees exercised control over 1377 and the construction work performed there, and that appellees, acting individually or through their employees, had a duty of care arising from (1) a statutory duty to protect adjoining property during construction, pursuant to 12A DCMR § 3310.1 (2001); and (2) a duty of reasonable care to persons on adjacent property while performing construction activities. She asserts that appellees breached their duty of care by failing to control the construction debris that landed in her yard, and that she would not have tripped and fractured her ankle if appellees had not caused debris to appear in her yard and weakened her fence with their construction activity.

Appellees contend that Ms. Tolu failed to put forth sufficient evidence to support her claim against summary judgment. They maintain that Ms. Tolu did not establish that they owed her a duty of care to protect against a fall that occurred on her own property. They assert that Ms. Tolu's fall occurred in an area controlled by her and her employee; she was engaged in her own construction activity; and there were no witnesses to her fall. They also argue that Mr. Ayodeji and New Concept are not liable for any purported negligence arising from construction activities at 1377 because they did not own the property.

Summary judgment is appropriate when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Super. Ct. Civ. R. 56(c); Lowrey v. Glassman, 908 A.2d 30, 35-36 (D.C.2006); Weakley v. Burnham Corp., 871 A.2d 1167, 1173 (D.C.2005). The moving party has the initial burden of demonstrating that there is no genuine issue of material fact and that he or she is entitled to judgment as a matter of law. Murphy v. Schwankhaus, 924 A.2d 988, 991 (D.C.2007); Beard v. Goodyear Tire & Rubber Co., 587 A.2d 195, 198 (D.C.1991). The moving party may meet its burden by showing an absence of evidence supporting plaintiff's claim. Murphy, supra, 924 A.2d at 991; Beard, supra, 587 A.2d at 198 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The burden then shifts to the non-moving party to present evidence showing the existence of genuine issues of material fact. Murphy, supra, 924 A.2d at 991; Beard, supra, 587 A.2d at 198. The non-moving party may not rest upon conclusory allegations or denials, but must provide affidavits, depositions, or answers to interrogatories that "set forth specific facts showing that there is a genuine issue for trial." Super. Ct. Civ. R. 56(e); Beard, supra, 587 A.2d at 198-99.

"On appeal, this court reviews summary judgment de novo, conducting an independent review of the record and applying the same substantive standard used by the trial court." Murphy, supra, 924 A.2d at 991; see also Weakley, supra, 871 A.2d at 1173. We determine the existence of any genuine issue of material fact by reviewing the pleadings, depositions, admissions and any affidavits on file. Graff v. Malawer, 592 A.2d 1038, 1040 (D.C. 1991); Holland v. Hannan, 456 A.2d 807, 815 (D.C.1983). We view the record in the light most favorable to the non-moving party. Murphy, supra, 924 A.2d at 991; Weakley, supra, 871 A.2d at 1173. The party opposing summary judgment "is entitled to all favorable inferences which may reasonably be drawn from the evidentiary materials." Beard, supra, 587 A.2d at 198; see also Holland, supra, 456 A.2d at 815. "On summary judgment, the court does not...