Madore v. FIP Construction, Inc.

Billy Joe MADORE v. FIP CONSTRUCTION, INC. et al.

No. HHDCV176079495S

Superior Court of Connecticut, Judicial District of Hartford, Hartford

May 31, 2019

UNPUBLISHED OPINION

MATTHEW DALLAS GORDON, J.

Facts and Procedural History

This is a personal injury action in which the plaintiff alleges that he was working on a mobile scaffold located on the third floor of a construction project in Hartford, Connecticut, on June 2, 2016, when the scaffold rolled off a twelve-inch step and crashed to the ground. FIP Construction, Inc. (FIP) was the general contractor for the project, and the scaffold was owned by a subcontractor on the project called Advanced Performance Glass, Inc. (APG). By way of writ, summons, and complaint filed on June 15, 2017, the plaintiff alleges that the defendants acted negligently and recklessly in failing to properly recognize and address the defective condition of the locking mechanisms on the scaffold wheels. Both defendants deny all allegations of negligence and recklessness, and assert that the plaintiff caused his own injuries by failing to ensure that the wheels on the scaffold were locked, and by failing to properly anchor himself to the building.

FIP and APG have each moved for summary judgment asserting that they did not owe the plaintiff a duty of care because the plaintiff’s employer, Total Wall Systems, Inc. (Total Wall) had exclusive control over the scaffold.^[1] The plaintiff responds that summary judgment is, inappropriate as to APG because 1) APG owned the scaffold and knew or should have known that the caster wheels on the scaffold were worn to the point that none of them locked correctly; and 2) APG acted recklessly because despite knowing about the defective condition of the scaffold, it nevertheless allowed others on the jobsite to use it. As for FIP, the plaintiff asserts that summary judgment is inappropriate because FIP exerted broad and extensive control over all of the scaffolds on the project, including the one the plaintiff was using at the time of the incident. The plaintiff did not oppose FIP’s motion for summary judgment directed to his claims of recklessness.

For the reasons set forth in this memorandum, the court concludes that there are genuine issues of material fact that render summary judgment inappropriate in connection with the plaintiff’s claims of negligence against both defendants, and in connection with the plaintiff’s claims of recklessness against APG. The defendants’ motions for summary judgment directed to these allegations are therefore denied. The court also concludes that there are no genuine issues of material fact regarding the plaintiff’s claim of recklessness directed to FIP, and that FIP’s motion for summary judgment regarding that allegation is therefore granted.

Applicable Legal Standard

"The summary judgment standard is well established. 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 ... [T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ... A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case ... [T]he burden of showing the nonexistence of any material fact is on the party seeking summary judgment ... 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 ... 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 ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Citations omitted; internal quotation marks omitted.) Andrade v. Lego Systems Inc., 188 Conn.App. 652, 661-63, cert. denied, 331 Conn 921 (2019).

Discussion

I. FIP’s Motion for Summary Judgment

Although FIP and the plaintiff disagree regarding the conclusions the court should reach based on the evidence they have each gleaned through discovery, and the case law they have presented, they agree that the proper standard the court should utilize in deciding whether summary judgment is appropriate is whether fair and reasonable people could reach different conclusions regarding which entity had control over the scaffold. See Archambault v. Soneco/Northeastern, Inc., 287 Conn. 20, 54, 946 A.2d 839 (2008). "When the evidence on the question as to who had control of the area or instrumentality causing the injury is such that the mind of a fair and reasonable [person] could reach but one conclusion as to the identity of the person exercising control, the question is one for the court, but, if honest and reasonable [persons] could fairly reach different conclusions on the question, the issue should properly go to the jury ... In addition, the contractor’s control need not be exclusive; it is sufficient if it [is] shared with another." (Internal quotation marks omitted.) Id.

In addressing the issue of control, FIP focuses primarily on the extent to which the plaintiff’s employer, Total Wall, had control over the worksite, and the extent to which Total Wall was responsible for ensuring the safety of its employees. In contrast, the plaintiff focuses on the extent to which FIP retained and exercised control over the plaintiff, and all of the scaffolds on the worksite. FIP and the plaintiff each rely on Archambault, supra, 287 Conn. 20, and Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 591-92, 945 A.2d 388 (2008), as support for their respective positions. FIP relies on Archambault, and Pelletier to argue that although it had a safety manual, and the general authority to oversee worksite safety, it does not mean that FIP had control over the means or methods of the plaintiff’s work, or the corresponding duty to protect the plaintiff’s safety. The plaintiff contends that these cases support the proposition and conclusion that because FIP exercised broad and extensive control over the jobsite, the subcontractors, and the instrumentality of injury (namely, the scaffold), FIP had a duty to protect the plaintiff from injury.

As explained in the next section of this decision, the court concludes that summary judgment is inappropriate in connection with the plaintiff’s claims of negligence against FIP because reasonable minds could differ regarding whether and to what extent FIP had control over the worksite, the subcontractors, and the scaffold. As for FIP’s motion for summary judgment directed to the plaintiff’s claims of recklessness, the court concludes that the plaintiff’s failure to address this issue in its objection to FIP’s motion for summary judgment precludes him from challenging FIP’s motion now.^[2]

Our Supreme Court "repeatedly ha[s] stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief ... Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly ... Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned ... These same principles apply to claims raised in the trial court." (Citation omitted; internal quotation marks omitted.) Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003). Furthermore, where a plaintiff raises a claim for the first time during oral argument on a defendant’s motion for summary judgment, the trial court need not address the claim. See Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 132 Conn.App. 85, 97, 30 A.3d 38 (2011), aff’d, 311 Conn. 123, 84 A.3d 840 (2014). Accordingly, since the plaintiff failed to address the issue of recklessness in his objection to FIP’s motion for summary judgment, the court has not considered the plaintiff’s argument as to recklessness against FIP that he raised in his surreply.

FIP asserts that it is entitled to summary judgment because it did not direct, control, or supervise the means or methods of the plaintiff’s work on the day of the accident, and because it had no control over the plaintiff’s use of the scaffold. According to FIP, the plaintiff’s employer, Total Wall, had exclusive control over the plaintiff and his work, and exclusive responsibility for the plaintiff’s safety. FIP submitted numerous exhibits in support of its motion, including affidavits from Harold Chait and Peter Autunno; portions of the subcontracts between APG and Total Wall Systems, Inc.; excerpts from the deposition transcripts of Perry Cole, Gary Rooke, Jay Catubig, Travis Shaw, Jonathan Brand, and Paul Bushey; a transcript of plaintiff’s October 22, 2018 deposition; a Pre-Construction Meeting Agenda; FIP’s Quality Control Manual; and excerpts from the deposition transcript of Steven Levesque. According to FIP, these exhibits demonstrate that there are no genuine issues regarding the following facts.

On January 22, 2016, FIP and Total Wall entered into a...