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Vichas v. Heckman

Superior Court of Connecticut, Judicial District of Hartford, Hartford

January 3, 2017

RICHARD VICHAS
v.
TIMOTHY HECKMAN, ET AL

          RULING ON MOTION FOR SUMMARY JUDGMENT

          ROBERT B. SHAPIRO, Judge

         This matter is before the court concerning defendant Timothy Heckman'`s (Heckman) motion for summary judgment (#152). Heckman asserts that the plaintiff was employed by an independent contractor performing work on Heckman's home and that he owed no duty of care to the plaintiff. The plaintiff asserts that genuine issues of material fact exist and submitted evidence in opposition to Heckman's presentation.

         The court heard oral argument on November 21, 2016. After consideration, for the reasons stated below, the motion is denied." In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. 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 of proof is on the movant, the evidence must be viewed in the light most When documents submitted in support of a motion for summary there is no genuine issue of material fact, the nonmoving party has no 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..." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of. America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013).It is undisputed that, at the time he was working at Heckman's home, the plaintiff was on the premises as a business invitee. "

         [A] duty of care to an invitee, however, only attaches if the defendant exercised possession and control over the area at the time and place the injury occurred ... accord 2 Restatement (Second), [Torts], § 328E, p. 170 (defining 'possessor of land' for purposes of premises liability as one 'in occupation of the land with intent to control it').'Thus, the dispositive issue in deciding whether a duty exists is whether the [defendant] has any right to possession and control of the property.... Retention of control is essentially a matter of intention to be determined in the light of all the significant circumstances ....The word control has no legal or technical meaning distinct from that given in its popular acceptation ... and refers to the power or authority to manage, superintend, direct or oversee." (Citation omitted; internal quotation marks omitted.) Millette v. Connecticut Post Ltd. Partnership, 143 Conn.App. 62, 70, 70 A.3d 126 (2013)."

         [T]he question of whether a defendant maintains control over property sufficient to subject him to ... liability normally is a jury question... Where the evidence is such that the minds of fair and reasonable persons could reach ... different conclusions on the question [of control], then the issue should properly go to the jury for its determination." (Internal quotation marks omitted.) Silano v. Cumberland Farms, Inc., 85 Conn.App. 450, 453-54, 857 A.2d 439 (2004)." The general rule is that where the owner of premises employs an independent contractor to perform work on them, the contractor, and not the owner, is liable for any losses resulting from negligence in the performance of the work... The basic premise is that the assumption and exercise of control over the offending area is deemed to be in the independent contractor." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 291, 818 A.2d 893, cert, denied, 264 Conn. 904, 823 A.2d 1221 (2003). " Exceptions to that rule arise when the employer retains control of the premises or supervises the work of the contractor, or where the work to be performed by the contractor is inherently dangerous, or where the employer has a nondelegable duty to take safety precautions imposed by statute or regulation...." (Internal quotation marks omitted.) Id., 292.The circumstances in Mozeleski v. Thomas, supra, 76 Conn.App. 287, cited by the movant, are distinguishable.

         In Mozeleski, where the plaintiff and his employer erected scaffolding while the defendant owner was not on the premises, the Appellate Court affirmed the trial court's determination, as a matter of law, that the defendant did not have possession and control. See id., 295. In that matter, the plaintiff presented no evidence in opposition to the motion. See id., 293." [T]he mere fact that [the owner] observed the progress of the work is not sufficient to establish control. The owner may exercise a limited degree of control or give the contractor instructions on minor details without destroying the independent character of the contractor." Mozeleski v. Thomas, supra, 76 Conn.App. 293.Here, there is evidence, in the deposition testimony of the plaintiff and Heckman, that there are material facts in dispute as to the extent to which Heckman retained control of the premises and supervised the work being done at his home. The evidence in the record goes beyond that which was present in Mozeleski.

         According to his own testimony, Heckman did some of the painting. See plaintiff's Exhibit B (Heckman deposition), pp. 43, 54. In addition, while Heckman argues that he relied on defendant T & T Complete Landscaping, LLC to use its own tools and methods to perform work on the residence, he testified that he provided various items used for the project, including brushes, sandpaper, and a paper machine used to cover items which were to be painted. See Heckman deposition, p. 66.In his testimony, the plaintiff testified that Heckman also worked on the project by painting; and by filling holes and cracks with wood putty, and directing him to sand those areas. See plaintiff's Exhibit A (plaintiff's deposition), pp. 54, 65. In addition, he stated that his supervisor instructed him to " do what [Heckman] asked you to do." See plaintiff's deposition, p. 54. Also, during the project, Heckman kept telling him to " hurry up." See plaintiff's deposition, p. 59.Based on the evidence, material issues of fact are presented as to control and supervision. See Mozeleski v. Thomas, supra, 76 Conn.App. 291.Under these circumstances, the court need not consider the parties' other arguments.

         The movant has not shown that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. For the reasons stated ...


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