Hawkins v. Target Corporation

Filing 67

ORDER: Motion for Summary Judgment (Doc. No. 60 ) is hereby GRANTED in part and DENIED in part. Summary judgment shall enter in favor of Barretta Enterprises, LLC with respect to Target Corporation's contractual indemnification claim. It is so ordered. Signed by Judge Alvin W. Thompson on 2/10/2015. (Wang, M.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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LINDA HAWKINS,
:
:
Plaintiff,
:
:
v.
:
:
TARGET CORPORATION,
:
:
Defendant/Third-Party
:
Plaintiff,
:
:
v.
:
:
BARRETTA ENTERPRISES, LLC,
:
:
Third-Party Defendant.
:
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Civil No. 12cv319 (AWT)

RULING ON MOTION FOR SUMMARY JUDGMENT
Third-party plaintiff Target Corporation (“Target”) brings
a contractual indemnification claim and a common law
indemnification claim against third-party defendant Barretta
Enterprises, LLC (“Barretta”).
judgment on these claims.

Barretta moves for summary

For the reasons set forth below,

Barretta‟s motion is being granted in part and denied in part.
I.

Factual Background
On January 22, 2011, plaintiff Linda Hawkins slipped and

fell on a frozen walkway at a Target store in Orange,
Connecticut.

The plaintiff has alleged that her slip and fall

was caused by Target‟s negligence, inter alia, negligently
permitting the walkway to “remain in a dangerous and unsafe

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condition due to accumulation of ice” and negligently
maintaining or placing a drain pipe.
¶¶ 5, a, g-h.)

(Complaint, Doc. No. 1-1,

At the time of the accident, Target had

contracted with U.S. Maintenance, Inc. (“USM”) to provide snow
and ice removal services at the store.

USM, in turn, asked its

subcontractor Barretta to provide such services there.
As explained by USM‟s supervisor for snow and exterior
services, William Farmer, USM‟s relationship with its
subcontractors is governed by three documents: “there‟s the
initial contract that they signed . . . to do work with USM.
Then there‟s the specs they would sign for the specific account
that they are servicing.
their payment amount.”

And then it‟s the exhibit that has
(Target‟s Memorandum of Law in

Opposition (“Mem. of Law in Opp.”), Ex. D, Doc. No. 64-4,
(“Farmer Dep.”), at 17:12-18.)

“[The] exhibit . . . provides

details of service for a particular location[.]”

(Id. at 67:14-

16.)
USM and Barretta entered into a Subcontractor Agreement in
January 2010.1

The agreement provides, in pertinent part, as

follows:
1.
Services: We will set forth in the specifications
and pricing on one or more schedules to this Agreement,
which you must sign and return prior to commencing any
1

Barretta‟s signature on the Subcontractor Agreement does not include the day
in January 2010 when it signed the agreement, but the fax line at the top of
the document indicates the document was sent to USM by Barretta on January 27,
2010.

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Services.
2.

Independent Contractor Indemnification:

A. Independent Contractor.
In the performance of
the Services hereunder, you shall be and act as an
independent contractor. . . .
B. Defense and Indemnification. You shall, at your
own cost and expense, defend us and our customer . . .
from and against all allegations (even if such
allegations may be later proven false, fraudulent or
groundless) asserted in any and all claims reasonably
related to Services you provided or failed to provide
under this Agreement, regardless of whether your
indemnity obligations, specified below, ultimately
apply . . . .
To the fullest extent permitted by applicable law,
you shall indemnify and hold harmless the Indemnified
Parties from and against any and all liabilities,
obligations, claims, demands, causes of action, losses,
expenses . . . including, without limitation, costs
and expenses whatsoever . . . arising out of . . . (1)
Your performance of (or failure to perform) your
duties under this Agreement[.]
. . . .
11. Termination or Cancellation: This Agreement or
any schedule to this Agreement may be terminated by
either party for any reason upon seven (7) days prior
written notice by the terminating party delivered to
the non-terminating party.
. . . .
12. Arbitration; Waiver of Jury Trial and Punitive
Damages; Governing Law and Jurisdiction:
. . . .
B. Governing Law and Jurisdiction. THE LAWS OF THE
STATE OF PENNSYLVANIA SHALL GOVERN THE VALIDITY,
PERFORMANCE,
INTERPRETATION,
AND
EFFECT
OF
THIS
AGREEMENT.

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(Mem. of Law in Opp., Ex. C, Doc. No. 64-3 (“Subcontractor
Agreement”), at 1, 5.)

From January 18, 2011 through February 1,

2011, prior to signing the specs and the exhibit for the Target
store, Barretta agreed to provide emergency snow and ice removal
services for the store, namely to scrape the site down to
blacktop and to salt it, and USM agreed to pay Barretta per
service as opposed to on a monthly basis.

After February 1,

2011, with the specs and the exhibit signed, USM hired Barretta
full time to provide snow and ice removal services for the store,
and USM paid Barretta on a monthly basis for its services.
On the day of the slip and fall, January 22, 2011, USM‟s
records show that it was not contacted by Target to service the
store.

However, USM‟s records show that on January 21 around

9:58 p.m., a USM representative spoke with Barretta and was told
that Barretta “would have a crew [at the Target store] to take
care of everything.”

(Farmer Dep., at 74:23-24.)

Farmer

explains that Barretta was expected to be “in charge of
monitoring the site for safety conditions” (id. at 75:9-10)
because by the time USM would call Barretta for service, “it‟s
usually already too late. . . .
check that site.”

[Barretta] should go out and

(Id. at 75:14.)

For example, USM‟s records

show that it did not contact Barretta on January 20 to service
the Target store, but Barretta “went out and salted it.”
at 75:20.)

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(Id.

II.

Legal Standard
A motion for summary judgment may not be granted unless the

court determines that there is no genuine issue of material fact
to be tried and that the facts as to which there is no such
issue warrant judgment for the moving party as a matter of law.
Fed. R. Civ. P. 56(a).

See Celotex Corp. v. Catrett, 477 U.S.

317, 322-23 (1986); Gallo v. Prudential Residential Servs., 22
F.3d 1219, 1223 (2d Cir. 1994).

When ruling on a motion for

summary judgment, the court may not try issues of fact, but must
leave those issues to the jury.

See, e.g., Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986); Donahue v. Windsor Locks
Bd. of Fire Comm‟rs, 834 F.2d 54, 58 (2d Cir. 1987).

Thus, the

trial court‟s task is “carefully limited to discerning whether
there are any genuine issues of material fact to be tried, not
to deciding them. Its duty, in short, is confined . . . to
issue-finding; it does not extend to issue-resolution.”

Gallo,

22 F.3d at 1224.
Summary judgment is inappropriate only if the issue to be
resolved is both genuine and related to a material fact.
Therefore, the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment.

An issue is

“genuine . . . if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”

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Anderson, 477

U.S. at 248 (internal quotation marks omitted).

A material fact

is one that would “affect the outcome of the suit under the
governing law.”

Anderson, 477 U.S. at 248.

Only those facts

that must be decided in order to resolve a claim or defense will
prevent summary judgment from being granted.

Immaterial or

minor facts will not prevent summary judgment.

See Howard v.

Gleason Corp., 901 F.2d 1154, 1159 (2d Cir. 1990).
When reviewing the evidence on a motion for summary
judgment, the court must “assess the record in the light most
favorable to the non-movant and . . . draw all reasonable
inferences in its favor.”

Weinstock v. Columbia Univ., 224 F.3d

33, 41 (2d Cir. 2000)(quoting Delaware & Hudson Ry. Co. v.
Consolidated Rail Corp., 902 F.2d 174, 177 (2d Cir. 1990)).
However, the inferences drawn in favor of the nonmovant must be
supported by evidence.

“[M]ere speculation and conjecture” is

insufficient to defeat a motion for summary judgment.

Stern v.

Trustees of Columbia University, 131 F.3d 305, 315 (2d Cir. 1997)
(quoting Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118,
121 (2d Cir. 1990)).

Moreover, the “mere existence of a

scintilla of evidence in support of the [nonmovant‟s] position”
will be insufficient; there must be evidence on which a jury
could “reasonably find” for the nonmovant.
at 252.

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Anderson, 477 U.S.

III. Discussion
A.

Contractual Indemnification

Barretta asserts that it does not have a duty to indemnify
Target because “Target cannot establish that any service
provided to Target on January 22, 2011 was provided pursuant to
the Agreement.”

(Memorandum of Law in Support of Motion for

Summary Judgment, Doc. No. 61 (“Mem. of Law in Supp.”), at 21.)
The crux of Barretta‟s assertion is that it did not sign the
specs and the exhibit with USM until February 1, 2011, and
therefore, only services provided on or after February 1, 2011
are services governed by the Subcontractor Agreement.
“Where contract language is clear and unambiguous, the
court shall interpret the agreement as expressed, rather than
silently intended.”

Cnty. of Delaware v. J.P. Mascaro & Sons,

Inc., 830 A.2d 587, 591 (Pa. 2003).

“Indemnity agreements are

to be narrowly interpreted in light of the parties‟ intentions
as evidenced by the entire contract.”

Consolidated Rail Corp. v.

Delaware River Port Auth., 880 A.2d 628, 632 (Pa. Super. 2003).
“In interpreting the scope of an indemnification clause, the
court must consider the four corners of the agreement and its
surrounding circumstances.”

Cnty. of Delaware, 830 A.2d at 591.

Under the “Services” section of the agreement, USM “will
set forth the specifications and pricing on one or more
schedules to this Agreement, which [Barretta] must sign and

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return prior to commencing any Services.”
Agreement, at 1.)

(Subcontractor

Under the indemnification provision, Barretta

“shall . . . defend [USM and USM‟s customers] . . . from and
against all allegations . . . asserted in any and all claims
reasonably related to Services [Barretta] provided or failed to
provide under this Agreement[.]”

(Id. at 4.)

Under the express

terms of the agreement, “Services” that fall under the agreement
are those set forth in the specifications, and Barretta‟s duty
to indemnify USM and its customer Target arises only with
respect to “Services” in the specifications that Barretta signed
and returned to USM.

It is undisputed that Barretta did not

sign the specifications and the exhibit for the Target store
until February 1, 2011.

Therefore, Barretta has no duty to

indemnify Target for services rendered prior to February 1, 2011,
and summary judgment is being granted in favor of Barretta with
respect to Target‟s contractual indemnification claim.
Target contends that summary judgment with respect to the
contractual indemnification claim should be denied because the
Subcontractor Agreement contemplates that a subcontractor‟s
services performed without signing a specification would still
be covered by the agreement and that genuine issues of material
fact exist as to whether the Subcontractor Agreement was in
effect on January 22, 2011 and whether Barretta provided
services to the Target store on January 22, 2011.

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However,

Target‟s contention rests upon a silent intention that
“Services” as used in the agreement covers both services set
forth in the specifications and the exhibit and any other
services orally agreed to by USM and a subcontractor.

This

interpretation contradicts the express language of the agreement.
In addition, the issue is not whether the Subcontractor
Agreement was in effect on January 22, 2011.

Rather, the issue

is whether the services rendered by Barretta prior to signing
the specifications and the exhibit are “Services” under the
agreement, and under the express language of the agreement, they
are not.

Finally, whether Barretta serviced the Target store on

January 22, 2011 is not a material fact with respect to the
contractual indemnification claim because any service Barretta
performed that day does not fall under the agreement.
B.

Common Law Indemnification

Barretta asserts that summary judgment should be granted in
its favor with respect Target‟s common law indemnification claim
because Barretta did not have exclusive control over the
dangerous condition that gave rise to the slip and fall.

In

support of its assertion, Barretta points to the plaintiff‟s
expert report, which states that “[t]he contributing factor to
Ms. Hawkins fall was the presence of ice on the walkway surface.
The manner in which the roof of the storage building is drained
is a direct cause of the hazardous condition that Ms. Hawkins

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encountered.”
3.)

(Mem. of Law in Supp., Ex. 2, Doc. No. 61-2, at

The report also states that “[t]he manner in which the roof

of the storage building is drained is a poor design . . . .

The

discharge from the pipe is subject to freezing and
thawing . . . .”

(Id. at 4.)

Because Barretta was not

responsible for the design of the roof drain and because the
drain contributed to the slip and fall, Barretta asserts that it
did not have exclusive control.
In Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694 (1997),
the Connecticut Supreme Court, in the context of common law
indemnification, answered in the negative the question of
“whether the exercise of exclusive control over a sidewalk, by
failing to remove its snow cover, can be equated to the exercise
of exclusive control over the „the situation,‟ that is to say
over an accident caused by an unrelated party and occurring in
the adjoining public roadway.”

Id. at 794.

Here, the question

is whether the exercise of exclusive control over ice removal on
a walkway can be equated to the exercise of exclusive control
over a slip and fall that occurred at the site for which
Barretta was responsible for providing emergency snow removal
services and was caused by ice forming over the walkway due to a
poorly designed drain pipe.
It is undisputed that from January 18, 2011 through
February 1, 2011, Barretta was responsible for scraping the

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Target store down to blacktop and salting it, and during that
period of time, the plaintiff slipped and fell on a frozen
walkway at the Target store.

While Barretta might not have been

responsible for the design of the drain pipe, a reasonable jury
could conclude that despite the poorly designed drain pipe the
dangerous condition that caused the slip and fall was the ice on
the walkway, and that Barretta had exclusive control over that
walkway.

Genuine issues of material fact exist as to what is

the dangerous condition and whether Barretta had exclusive
control over that condition.

Therefore, summary judgment is

being denied with respect to the common law indemnification
claim.
IV.

Conclusion
Accordingly, the Motion for Summary Judgment (Doc. No. 60)

is hereby GRANTED in part and DENIED in part.

Summary judgment

shall enter in favor of Barretta Enterprises, LLC with respect
to Target Corporation‟s contractual indemnification claim.
It is so ordered.
Signed this 10th day of February 2015, at Hartford,
Connecticut.

/s/
Alvin W. Thompson
United States District Judge

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