Superior Court of Connecticut, Judicial District of New Haven, Meriden
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #145, AND OBJECTION TO MOTION FOR SUMMARY JUDGMENT #150
Sheridan L. Moore, Judge.
The plaintiff, Dorothy Hawley, commenced the instant action as a result of a claimed slip and fall accident which allegedly occurred on the apron of the driveway located at 128 Church Street, Hamden, Connecticut January 25, 2011. The plaintiff has asserted claims against DeCesare and American Dance (hereinafter DeCesare) sounding in negligence. On March 5, 2014, the defendants/third-party plaintiffs, DeCesare served a third-party complaint against Rossotto Construction, Inc. (hereinafter Rossotto), the company DeCesare had hired to do snow removal from its property.
At issue here is the defendant Rossotto's motion for summary judgment of the two-count complaint dated March 6, 2015, asserting claims sounding in breach of contract and common-law indemnity. Rossotto argues that the breach of contract count is time barred by operation of the applicable statute of limitations contained in Connecticut General Statutes § 52-581. Rossotto further argues that the claim seeking common-law indemnity is also barred because it was not in exclusive control of the situation in which the plaintiff claims caused her injuries. DeCesare argues that the applicable statute of limitations is contained in Connecticut General Statutes § 52-576. Additionally, DeCesare argues that the question of exclusive control of the premises remains a question of fact for the jury.
In regards to the breach of contract, Section 52-581 provides in relevant part: " No action founded upon any express contract or agreement which is not reduced to writing, or of which some note or memorandum is not made in writing and signed by the party to be charged therewith or his agent, shall be brought but within three years after the right of action accrues." (Emphasis added.) Section 52-576, provides in relevant part: " (a) No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of the action accrues . . ." (Emphasis added.)
" Our Supreme Court has distinguished the statutes, however, by construing Section 52-581, the three-year statute of limitations, as applying only to executory contracts . . . A contract is executory when neither party has fully performed its contractual obligation and is executed when one party has fully performed its contractual obligations." (Emphasis in original: internal quotation marks omitted.) Bagoly v. Riccio, 102 Conn.App. 792, 799, 927 A.2d 950, cert denied, 284 Conn. 931, 934 A.2d 246 (2007).
Rossotto claims that the agreement with DeCesare constitutes an executory contract because it called for snow removal from the subject premises each time it snowed during the year. Since it was only January at the time of the alleged fall, Rossotto argues that its contractual obligations had not been completed and therefore, C.G.S. § 52-581 applies. DeCesare claims that the agreement with Rossotto constitutes an executed contract because each storm and its resulting snow removal represented a completed contract. Inasmuch, Rossotto had completed its obligation to remove the snow before 4 p.m. on the day in question, DeCesare argues that C.G.S. § 52-576 controls.
The Court is persuaded that the agreement to plow the property constituted separate and distinct contracts for each snow storm. The agreement between the parties, while slight in detail, was generally construed as services to be rendered by Rossotto by 4 p.m. and payment to be made by DeCesare after the services were completed. The Court is not persuaded that the services were not completed because Rossotto may or may not have applied salt or sand on this particular occasion. The Court finds that this element does not form a basis to determine if the service called for in the agreement was complete as the addition of salt and sand was completely discretionary by Rossotto.
The court was not presented any evidence that the agreement was based on a yearly or seasonal basis, i.e., a certain number of storms per year with payment to be made at the end of the year or season, that would support any conclusion other than separate and distinct contracts. Even if that scenario had been the contract, given the uncertainty of New England weather, the storm on the day in question could have been in fact, the last storm of the year, thereby having Rossotto fully perform its contractual obligations for the year as of that storm.
Therefore, having found that each storm represent a separate and distinct contract and Rossotto having performed its contractual obligations for that storm, the court finds that the contract between the parties was an executed contract. Hence, the court finds that C.G.S § 52-576 is the controlling statute which allows six years for the filing of an action. Since DeCesare served a third-party complaint against Rossotto Construction, Inc. on March 5, 2014, and the claimed slip and fall accident occurred on January 25, 2011, the action was timely filed and does not violate the statute of limitations.
As to the common-law indemnity, Rossotto is asking the court to grant its motion for summary judgment because it was not in exclusive control of the situation in which the plaintiff claims caused her injuries. They point to various pieces of deposition testimony in support of their position. DeCesare is requesting that the court deny the motion and counters that argument with other deposition testimony in support of their own position.
Ordinarily the applicable rule concerning the absence or presence of exclusive control of premises is a question of fact for the jury and cannot be resolved by motion. Weintraub v. Richard Dahn, Inc. 188 Conn. 570, 452 A.2d 117 (1982). In Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 705, 694 A.2d 788 (1997), the Court stated " [n]onetheless, special circumstances may give rise to the question of whether, in light of the facts alleged in the third party complaint, any reasonable juror could find that the third party defendants had exclusive control of the situation. Under such circumstances, this issue becomes a question of law."
In the present matter, this court can find no support for a determination of special circumstances. A review of the proffered evidence shows that each party claim that the other party may or may not have had exclusive control. The court's examination of the arguments leads to a sense that each party had, at least, some duties or responsibilities concerning the property. Exactly how much are matters that are traditionally reserved for the trier of the facts. In any event, without the determination of special circumstances, the court cannot ...