ROBERT F. VACCHELLI, Judge.
This case is an action for wrongful death. Plaintiff's decedent died after falling one flight between floors of a condominium under construction when he opened a cellar door to inspect the basement of the unit being built for him. He was allegedly unaware that the stairs had been removed. The defendants are Half Moon Associates, LLC, owner; Housewright Development, Inc., general contractor; and New Place Carpentry, LLC, subcontractor. Presently before the court is a motion for summary judgment by New Place Carpentry, LLC as to all counts against it: Counts Five, Six and Seven. For the following reasons the motion is denied as to Counts Five and Seven and denied without prejudice as to Count Six.
I
The law governing summary judgment and the accompanying standard of review are well settled. Practice Book § 17-49 requires that 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. A material fact is a fact that will make a difference in the result of the case. See Rockwell v. Quintner, 96 Conn.App. 221, 227-30, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006); see also Vitale v. Kowal, 101 Conn.App. 691, 923 A.2d 778, cert. denied, 284 Conn. 904, 931 A.2d 268 (2007).
In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). The party seeking summary judgment has the burden of showing the absence of any genuine issue of material fact, such that he or she is entitled, under principles of substantive law, to a judgment as a matter of law. Id. CT Page 19600
In ruling on a motion for summary judgment, the court's function is not to decide the 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). Summary judgment is appropriate only if a fair and reasonable person could conclude only one way, based on the substantive law and the undisputed material facts. Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995).
II
This action arises out of an alleged fall through an open stairway on November 24, 2008, at approximately 1:34 p.m. At that time it is alleged that Frederick W. Myers was on the premises known as Unit No. 4 Woods Edge a/k/a 286 Beth Lane, Unit 4, Waterbury, CT. It is alleged that Mr. Myers intended to open a door to the basement and to descend a temporary staircase to the basement. As the temporary staircase was not in fact in place, it is alleged that Mr. Myers stepped into empty space and fell to the concrete floor below. As a result of his fall, it is alleged that Mr. Meyers sustained injuries and ultimately died.
With regard to the premises in question, the plaintiffs allege that on or about May 1, 2008, Frederick W. Meyers and Rosemary O. Meyers had signed a "Sale and Purchase Agreement" with the defendant Half Moon Associates, LLC, pursuant to which the Meyerses agreed to buy the premises in question, i.e. Unit No. 4 Woods Edge a/k/a/ 286 Bell Lane, Unit 4, Waterbury, CT.
The plaintiffs allege that pursuant to the Agreement, the unit was to be constructed by the co-defendant, Housewright Development, Inc. The plaintiffs allege that, the co-defendant, New Place Carpentry, LLC, entered into a contract or agreement with Half Moon and/or Housewright pursuant to which New Place was to undertake the framing and carpentry work for the condominium unit in question, including the construction and installation for both the temporary staircase and finished staircase leading from the first floor of the unit to the basement. The plaintiffs allege that the temporary staircase had been in place since September 22, 2008. The plaintiffs further allege that sometime prior to 1:34 p.m. on November 22, 2008, Half Moon removed or allowed New Place to remove the temporary stairway leading to the basement, "without immediately replacing it with any other means of access to the basement from the first floor . . ." The plaintiffs allege that there were no operative lights in the area and that the condominium remained "under construction." CT Page 19601
The claims against New Place appear in Counts Five, Six and Seven. Count Five alleges wrongful death sounding in negligence. Specifically, it is alleged that New Place was negligent in removing the temporary stairs without replacing them, failing to provide any warning, failing to block or obstruct the doorway to the basement, and/or failing to inspect the unit for dangerous conditions. The Sixth Count alleges wrongful death sounding in recklessness alleging a conscious disregard of the rights and safety of Mr. Meyers and highly unreasonable conduct involving an extreme departure from ordinary care in a situation where a high degree of danger was apparent. The Seventh Count alleges loss of consortium suffered by Mrs. Myers.
Both sides have filed affidavits and/or deposition transcripts and exhibits in support of their respective positions. Defendant argues that judgment should enter in its favor because the plaintiffs were trespassers to whom no duty of safety was owed due to the fact that their Sale and Purchase Agreement specifically prohibited plaintiffs from visiting the site unless in the presence the owner's real estate agent, and not during construction. They were not in the company of a real estate agent on this occasion, and the property was under construction. Defendant also argues that the allegations of the Third Amended Complaint, and the facts, fail to rise to the level of recklessness. On these points, plaintiffs counter argue that they were not trespassers because they were frequently supplying fixtures to be installed to the mutual benefit of all; and, even if they were classified as trespassers, their frequent visits with the knowledge of the parties renders the defendant potentially liable under the constant intruder doctrine as explained in the case of Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 560, 707 A.2d 15 (1998). They also argue that their recklessness claim should not be stricken for at least three months due to the defendant's intransigence in failing to respond to plaintiffs' discovery requests. A motion for summary judgment can be denied, or action on it postponed, if the court finds a valid need for additional discovery and a valid excuse for not yet completing that discovery. See Peerless Insurance Co. v. Gonzales, 241 Conn. 476, 489, 697 A.2d 680 (1997); Plouffe v. New York. N.H. H.R. Co., 160 Conn. 482, 491, 280 A.2d 359 (1971).
The court has reviewed the voluminous documents supplied and concludes that they demonstrate that there are material facts in dispute critical to resolution of the issues of status of the parties, duty and breach of duty and other issues raised by the defendant. Resolution requires interpretation of a contract and a determination of its applicability in context, and an evaluation of competing claims of fact. The credibility CT Page 19602 of witnesses will be very important to the resolution of these issues. Under the circumstances, the court must conclude that material facts are in genuine dispute. Such a conclusion requires denial of the motion for summary judgment. See United Oil Co. v. Urban Redevelopment Common, 158 Conn. 364, 378, 260 A.2d 596 (1969); Harvey v. Berringer Ingelheim Corp., 52 Conn.App. 1, 9, 724 A.2d 1143 (1999). Indeed, our Supreme Court has long cautioned that trial courts should not resolve these types of cases on motion; rather, the matters should be resolved by trial. See R. Bollier, N. Cioffi, K. Emmett, J. Kavanewsky and L. Murphy,
1 Stephenson's Connecticut Civil Procedure (Third Edition, 1997) § 100(c) citing Spencer v. Good Earth Restaurant Corp., 164 Conn. 194, 198-99, 319 A.2d 403 (1972). Accordingly the motion for summary judgment is denied as to Counts Five and Seven.
With respect to the recklessness claim in Count Six, the plaintiffs have presented a valid reason for postponement. Plaintiffs need more time for discovery because the defendant has failed to answer their discovery requests. The motion for summary judgment on this point is denied, without prejudice to renew.
III
For all of the foregoing reasons, the defendant's motion for summary judgment is denied as to Counts Five and Seven and denied without prejudice as to Count Six.
ROBERT F. VACCHELLI, Judge.
This case is an action for wrongful death. Plaintiff's decedent died after falling one flight between floors of a condominium under construction when he opened a cellar door to inspect the basement of the unit being built for him. He was allegedly unaware that the stairs had been removed. The defendants are Half Moon Associates, LLC, owner; Housewright Development, Inc., general contractor; and New Place Carpentry, LLC, subcontractor. Presently before the court is a motion for summary judgment by Half Moon Associates, LLC and Housewright Development, Inc. as to all counts against them: Counts One, Two, Three and Four. For the following reasons the motion is denied as to all counts.
I
The law governing summary judgment and the accompanying standard of review are well settled. Practice Book § 17-49 requires that 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 CT Page 19603 fact and that the moving party is entitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case. See Rockwell v. Quintner, 96 Conn.App. 221, 227-30, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006); see also Vitale v. Kowal, 101 Conn.App. 691, 923 A.2d 778, cert. denied, 284 Conn. 904, 931 A.2d 268 (2007).
In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). The party seeking summary judgment has the burden of showing the absence of any genuine issue of material fact, such that he or she is entitled, under principles of substantive law, to a judgment as a matter of law. Id.
In ruling on a motion for summary judgment, the court's function is not to decide the 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). Summary judgment is appropriate only if a fair and reasonable person could conclude only one way, based on the substantive law and the undisputed material facts. Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995).
II
This action arises out of an alleged fall through an open stairway on November 24, 2008, at approximately 1:34 p.m. At that time it is alleged that Frederick W. Myers was on the premises known as Unit No. 4 Woods Edge a/k/a 286 Beth Lane, Unit 4, Waterbury, CT. It is alleged that Mr. Myers intended to open a door to the basement and to descend a temporary staircase to the basement. As the temporary staircase was not in fact in place, it is alleged that Mr. Myers stepped into empty space and fell to the concrete floor below. As a result of his fall, it is alleged that Mr. Meyers sustained injuries and ultimately died.
With regard to the premises in question, the plaintiffs allege that on or about May 1, 2008, Frederick W. Meyers and Rosemary O. Meyers had signed a "Sale and Purchase Agreement" with the defendant Half Moon Associates, LLC, pursuant to which the Meyers agreed to buy the premises in question, i.e. Unit No. 4 Woods Edge a/k/a/ 286 Bell Lane, Unit 4, Waterbury, CT. The plaintiffs allege that pursuant to the Agreement, the unit was to be constructed by the co-defendant, Housewright Development, Inc.
CT Page 19604 The plaintiffs allege that the co-defendant, New Place Carpentry, LLC, entered into a contract or agreement with Half Moon and/or Housewright pursuant to which New Place was to undertake the framing and carpentry work for the condominium unit in question, including the construction and installation for both the temporary staircase and finished staircase leading from the first floor of the unit to the basement. The plaintiffs allege that the temporary staircase had been in place since September 22, 2008. The plaintiffs further allege that sometime prior to 1:34 p.m. on November 22, 2008, Half Moon removed or allowed New Place to remove the temporary stairway leading to the basement, "without immediately replacing it with any other means of access to the basement from the first floor . . ." The plaintiffs allege that there were no operative lights in the area and that the condominium remained "under construction."
The claims against Half Moon Associates, LLC and Housewright Development, Inc. are in Counts One through Four. Counts One and Two allege wrongful death sounding in negligence. Specifically, it is alleged Half Moon and Housewright were negligent in removing or allowing the removal of the temporary stairs without replacing them, failing to provide any warning, failing to block or obstruct the doorway to the basement, and/or failing to inspect the unit for dangerous conditions. Counts Three and Four allege loss of consortium suffered by Mrs. Myers.
Both sides have filed affidavits and/or deposition transcripts and exhibits in support of their respective positions. Defendants argue that judgment should enter in their favor because the plaintiffs were trespassers to whom no duty of safety was owed due to the fact that their Sale and Purchase Agreement specifically prohibited plaintiffs from visiting the site unless in the presence the owner's real estate agent, and not during construction. They were not in the company of a real estate agent on this occasion, and the property was under construction. Defendants also argue that, under the facts, they cannot be held responsible because they did not have possession or control of the site; rather it was in the control of New Place, an independent contractor. Also, they claim that the facts show that they had neither actual nor constructive notice of the defect and, therefore, cannot be held liable. On these points, plaintiffs counter argue that they were not trespassers because they were frequently supplying fixtures to be installed to the mutual benefit of all; and, even if they were classified as trespassers, their frequent visits with the knowledge of the parties renders the defendants potentially liable under the constant intruder doctrine as explained in the case of Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 560, 707 A.2d 15 (1998). They also argue that the contract and facts show that the defendants retained control of the work site CT Page 19605 because they were present and/or had a general contractor and project manager on site daily, and they retained final inspection rights. They also argue that the defendants had constructive knowledge of the defect: they knew or should have known that the stairs were removed due to their daily presence and the presence of their representatives instantly after the accident.
The court has reviewed the documents supplied and concludes that they demonstrate that there are material facts in dispute critical to resolution of the issues of status of the parties, duty, breach of duty, notice, control, causation and other issues raised by the defendants. Resolution requires interpretation of a contract and a determination of its applicability in context, and an evaluation of competing claims of fact. The credibility of witnesses will be very important to the resolution of these issues. Under the circumstances, the court must conclude that material facts are in genuine dispute. Such a conclusion requires denial of the motion for summary judgment. See United Oil Co. v. Urban Redevelopment Common, 158 Conn. 364, 378, 260 A.2d 596 (1969); Harvey v. Berringer Ingelheim Corp., 52 Conn.App. 1, 9, 724 A.2d 1143 (1999). Indeed, our Supreme Court has long cautioned that trial courts should not resolve these types of cases on motion; rather, the matters should be resolved by trial. See R. Bollier, N. Cioffi, K. Emmett, J. Kavanewsky and L. Murphy,
1 Stephenson's Connecticut Civil Procedure (Third Edition, 1997) § 100(c) citing Spencer v. Good Earth Restaurant Corp., 164 Conn. 194, 198-99, 319 A.2d 403 (1972).
The fact that the stairs were being built by an arguably independent contractor does not resolve the issue of whether the defendants had control or a duty. While the presence of an independent contractor is often dispositive, if the defendants nevertheless retained control of the premises or supervised the work, inter alia, they can still be subject to liability, See, Mozeleski v. Thomas, 76 Conn.App. 287, 292, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). The court finds that the plaintiffs have collected enough facts in dispute to raise a genuine issue of material fact to defeat a motion for summary judgment on that point.
Defendants also argue they are entitled to summary judgment in their favor because they owed no non-delegable duty of safety to the plaintiffs, citing Archambault v. Sonoco/Northeastern, Inc., 287 Conn. 20, 946 A.2d 839 (2008). That case is not dispositive of the issues in the instant case. In that case, the trial court was reversed for instructing the jury that the general contractor had a non-delegable duty for CT Page 19606 assuring workplace safety. The Supreme Court ruled that the only reasonable finding under the facts in that case was that the subcontractor had control of the site, therefore, the non-delegable duty instruction was in error. Archambault v. Sonoco/Northeastern Inc., supra, 287 Conn. 54. The case was remanded for a new trial on the issue, inter alia, as to whether the general contractor's or subcontractor's negligence was the cause of the plaintiff's injuries. Id. at 41. Thus, the ruling in that case did not result in judgment for the defendant. It resulted in more litigation to resolve the contested issues of fact. Similarly, in this case, the court finds that the plaintiffs have collected enough facts in dispute to raise a genuine issue of material fact to defeat a motion for summary judgment on the point.
III
For all of the foregoing reasons, the defendants' motion for summary judgment is denied as to Counts One through Four.
CT Page 19607