Great Northern Insurance Company v. 5K Development LLC
Filing
66
ORDER. For the reasons set forth in the attached, 5K Development's 51 motion for summary judgment is GRANTED. Because 5K Development's third-party/apportionment complaint against DiFulvio is conditioned on Great Northern's assertion of damages against 5K Development, the third-party apportionment complaint is moot and so DiFulvio's 54 motion for summary judgment is DENIED as moot. The Clerk is directed to enter final judgment in favor of defendant 5K Development and close the case. Signed by Judge Michael P. Shea on 9/4/2018. (Barclay, Michael)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
GREAT NORTHERN INSURANCE
COMPANY, A/S/O JEFFREY S. JACOB
AND MICHEL JACOB
Plaintiff,
No. 3:16-cv-01359 (MPS)
v.
5K DEVELOPMENT, LLC,
Defendant and Third
Party/Apportionment Plaintiff,
v.
DIFULVIO CONSTRUCTION, LLC,
Third Party/Apportionment
Defendant.
RULING ON MOTIONS FOR SUMMARY JUDGMENT
I.
Introduction
Great Northern Insurance Company (“Great Northern”) brings this suit as subrogee of
Jeffrey and Michel Jacob, the owners of a home at 687 Smith Ridge Road in New Canaan,
Connecticut that was damaged during a renovation. Great Northern alleges one count of
negligence against 5K Development, LLC (“5K Development”), a home renovation company,
for the partial collapse of the home’s pre-existing foundation during the excavation of the
foundation for a new addition. (ECF No. 1.) 5K Development in turn brought an apportionment
complaint and third-party claim for indemnification against excavation company DiFulvio
Construction, LLC (“DiFulvio”) for its role in the collapse. (ECF No. 56.) 5K Development and
DiFulvio now move for summary judgment against Great Northern on the grounds that Great
Northern failed to disclose experts necessary to prove its claim. (See ECF No. 52 at 5–7, ECF
No. 54-2 at 4–7.) 5K Development also argues that it owed no duty to the Jacobs, because
DiFulvio, rather than 5K Development, was responsible for the excavation. (See ECF No. 52 at
8–9.) For the following reasons, 5K Development’s motion for summary judgment is hereby
GRANTED, and DiFulvio’s motion for summary judgment is DENIED as moot.
II.
Preliminary Issues
As a threshold matter, I may consider only a limited body of facts in deciding the motions
for summary judgment, because both Great Northern and DiFulvio have failed to comply with D.
Conn. Local Rule 56(a).
5K Development supported its motion with a Local Rule 56(a)1 Statement of Facts. (ECF
No. 53, Defendant’s Local Rule 56(a)(1) Statement (“Def.’s L.R. 56(a)1 Stmt.”).) Although Great
Northern made a blanket assertion in its opposition brief that “genuine issues of fact exist,” it did
not identify which facts in 5K Development’s 56(a)1 Statement it contests or file a Rule 56(a)2
Statement in support of its opposition. (ECF No. 59 at 2.) Accordingly, the material facts set forth
in 5K Development’s Rule 56(a)1 Statement are deemed admitted to the extent they are adequately
supported by the record. See D. Conn. L.R. 56(a)1; Miron v. Town of Stratford, 976 F. Supp. 2d
120, 127 (D. Conn. 2013) (“Where a party fails to appropriately deny material facts set forth in the
moving party’s 56(a)1 statement, and where those facts are supported by evidence in the record,
those facts are deemed to be admitted.”).
Great Northern did, however, append an exhibit to its memorandum of law to support its
assertion that factual disputes exist. (See ECF Nos. 59 at 2, 59-2.) While I “may consider other
materials in the record” besides the materials specifically cited in the parties’ Rule 56(a)
statements, Fed. R. Civ. P. 56(c)(3), I choose not to consider this exhibit because Great Northern
has not demonstrated its authenticity or otherwise laid a foundation for its admissibility through
2
an affidavit or otherwise.1 See Parks v. Blanchette, 144 F. Supp. 3d 282, 292 (D. Conn. 2015) (“In
ruling on a motion for summary judgment, a court need only consider admissible evidence.”)
(citing Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997)).
DiFulvio did file a Rule 56(a)1 Statement in support of its own motion for summary
judgment. However, DiFulvio did not support its Rule 56(a)1 Statement with evidence, but instead
cites almost exclusively Great Northern’s complaint and 5K Development’s apportionment
complaint. (ECF No. 54-1 (citing ECF Nos. 1, 33).)2 Cf. Welch-Rubin v. Sandals Corp., No.
3:03CV481 (MRK), 2004 WL 2472280, at *1 (D. Conn. Oct. 20, 2004) (“[A]llegations in a
complaint are not evidence.”); see Jackson v. Fed. Exp., 766 F.3d 189, 194 (2d Cir. 2014) (“[T]he
district court must ensure that each statement of material fact is supported by record evidence
sufficient to satisfy the movant’s burden of production even if the statement is unopposed.”).
Putting aside whether DiFulvio has met its burden as movant, however, 5K Development’s thirdparty and apportionment complaint against DiFulvio is conditioned on whether Great Northern
recovers damages on its negligence claim against 5K Development. (ECF No. 56 at ¶¶ 11, 19.)
Accordingly, if I grant 5K Development’s summary judgment motion, its third-
1
Even if I could properly consider this exhibit, however, I would find that it does not
contradict any of 5K Development’s evidence set forth in Part III. (See, e.g., ECF No. 59-2 at 6
(observing that the home was “in the preliminary stages of excavations and preparations for the
underpinning of the existing foundation system.”) In particular, the exhibit’s summary
identification of 5K Development as the project’s “general contractor” (ECF No. 59-2 at 10, 13)
does not contradict the specific assertions in 5K Development’s affidavit that 5K Development
had no contractual relationship with DiFulvio and, more importantly, did not direct or manage its
work, nor does Great Northern make any argument to that effect. (ECF No. 53, Exhibit 1,
Affidavit of Jay Pirrone (“Pirrone Aff.”) at ¶¶ 15, 17.) See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986) (“When the moving party has carried its burden under
Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt
as to the material facts.”) (footnote omitted).
2
DiFulvio also cites the parties’ Rule 26(f) report for Great Northern’s failure to disclose
expert witnesses. (ECF No. 54-1 at ¶ 5.)
3
party/apportionment complaint against DiFulvio is moot. See Simmons v. Kaufman 8th Ave.
Assocs. of New York, No. 09 CIV 8502 JSR, 2010 WL 4967837, at *3 (S.D.N.Y. Nov. 30, 2010)
(“Since [Defendant’s] action against the third-party defendants is premised on [defendant] being
held liable for plaintiff’s injuries, the entire third-party complaint is moot.”); Davis v. Cumberland
Farms, Inc., No. 1:10-CV-480 FJS/RFT, 2013 WL 375477, at *8 (N.D.N.Y. Jan. 29, 2013) (“Since
the Court has granted [Defendant’s] summary judgment motion . . . it further dismisses
[Defendant’s] third-party complaint as moot.”). Because I grant 5K Development’s motion for
summary judgment, I need not address DiFulvio’s motion and simply deny it as moot.
III.
Factual Background
In light of the above, the following facts are taken from 5K Development’s Local Rule
56(a)1 Statement and the exhibits and are undisputed unless otherwise noted.
Jeffrey and Michele Jacob owned a home at 687 Smith Ridge Road in New Canaan,
Connecticut. (Def.’s L.R. 56(a)1 Stmt. at ¶ 2.) During the summer of 2014, the Jacobs began a
renovation project, which included an addition to one side of the home of two floors above grade
and a basement below. (Id. at ¶¶ 6–7; Pirrone Aff. at ¶¶ 9, 18.) The Jacobs contracted with Jay
Pirrone, 5K Development’s sole member, for Pirrone and 5K Development to complete “framing
and finishing work” in accordance with the renovation plans, which were prepared by a thirdparty architecture firm. (Def.’s L.R. 56(a)1 Stmt. at ¶¶ 4, 8; Pirrone Aff. at ¶¶ 9, 11, 18.) 5K
Development performs home renovations and remodelings in lower Fairfield County. (Pirrone
Aff. at ¶ 4.)3 In connection with the Jacobs renovation, Pirrone never held out himself or 5K
5K Development’s Local Rule 56(a)1 statement asserts that 5K Development is “in the
business of performing finish carpentry work” (Def.’s L.R. 56(a)1 Stmt. at ¶ 5), but this is not
supported by the Pirrone Affidavit or any other record evidence. Similarly, the affidavit does not
support the Local Rule 56(a)1 statement’s assertion that 5K Development was hired to “assist
scheduling of other contractors.” (Def.’s L.R. 56(a)1 Stmt. at ¶ 8.) Accordingly, neither of these
facts are deemed admitted.
3
4
Development as being an excavator contractor or mason, or having engineering capabilities with
respect to home remodeling, renovations and construction. (Def.’s L.R. 56(a)1 Stmt. at ¶¶ 16,
17; Pirrone Aff. at ¶¶ 6–8.)
The Jacobs did not hire or retain 5K Development to oversee, manage or control
excavation work for the renovation project. (Def.’s L.R. 56(a)1 Stmt. at ¶ 9; Pirrone Aff. at ¶
12.) Rather, the Jacobs directly contracted with DiFulvio to perform the excavation work for the
project and paid DiFulvio directly. (Def.’s L.R. 56(a)1 Stmt. at ¶ 12; Pirrone Aff. at ¶ 14.) 5K
Development and DiFulvio had no contractual relationship in connection with the renovation
project. (Def.’s L.R. 56(a)1 Stmt. at ¶ 15; Pirrone Aff. at ¶ 15.) 5K Development also did not
pay DiFulvio for any of its work in connection with the project. (Def.’s L.R. 56(a)1 Stmt. at ¶
14; Pirrone Aff. at ¶ 16.)
DiFulvio excavated the new basement area for the addition to a depth below the adjacent,
pre-existing basement and its foundation. (Def.’s L.R. 56(a)1 Stmt. at ¶ 19; Pirrone Aff. at ¶ 20.)
Neither Pirrone nor 5K Development directed or managed DiFulvio’s work. (Def.’s L.R. 56(a)1
Stmt. at ¶ 13; Pirrone Aff. at ¶ 17.) During DiFulvio’s excavation of the new basement area, the
chimney and its foundation on the side of the house being renovated settled and moved. (Def.’s
L.R. 56(a)1 Stmt. at ¶ 20; Pirrone Aff. at ¶ 19.)4 In other words, part of the home’s pre-existing
foundation collapsed. (Pirrone Aff. at ¶ 19.)
After Great Northern commenced this suit against 5K Development, the parties agreed in
their Rule 26(f) report that the deadline for Great Northern to designate all expert witnesses and
provide opposing counsel with those witnesses’ reports was April 1, 2017. (Def.’s L.R. 56(a)1
The Pirrone Affidavit also does not support that the collapse occurred “before [the]
foundation footings were installed.” (Def.’s L.R. 56(a)1 Stmt. at ¶ 20; compare Pirrone Aff. at
¶¶ 19, 20.)
4
5
Stmt. at ¶ 22; ECF No. 53, Exhibit 2, Affidavit of Kevin S. Coyne, Esquire (“Coyne Aff.”) at ¶
4; see also ECF No. 29 (adopting the parties’ November 1, 2017 fact discovery deadline).)
When 5K Development moved for summary judgment on November 30, 2017, Great Northern
had not designated any expert witnesses or provided any expert reports. (Def.’s L.R. 56(a)1
Stmt. at ¶ 23; Coyne Aff. at ¶ 5.)
IV.
Legal Standard
Summary judgment is appropriate only when the moving party “shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “In making that determination, a court must view the evidence in the light
most favorable to the opposing party.” Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (internal
quotation marks and citations omitted). “A fact is material when it might affect the outcome of
the suit under governing law,” and “an issue of fact is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” McCarthy v. Dun & Bradstreet
Corp., 482 F.3d 184, 202 (2d Cir. 2007) (internal citations and quotation marks omitted). The
moving party bears the burden “of showing that no genuine factual dispute exists . . ., and in
assessing the record to determine whether there is a genuine issue as to any material fact, the court
is required to resolve all ambiguities and draw all factual inferences” in favor of the non-moving
party. Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995).
V.
Discussion
Under Connecticut law, “[t]he essential elements of a cause of action in negligence are
well established: duty; breach of that duty; causation; and actual injury.” Doe v. Saint Francis
Hosp. & Med. Ctr., 309 Conn. 146, 174 (2013) (quoting Ryan Transp., Inc. v. M & G Assocs.,
266 Conn. 520, 525 (2003)). 5K Development argues that it is entitled to summary judgment
because Great Northern has not disclosed any experts to prove its negligence claim, and 5K
6
Development’s duties to the Jacobs did not extend to DiFulvio’s supposedly tortious conduct.
(ECF No. 52 at 5–8.) Great Northern responds that summary judgment is premature because of
outstanding discovery issues and, in any event, its negligence claim against 5K Development
survives under the doctrine of res ipsa loquitur. (ECF No. 59 at 2–3.) I find that summary
judgment is not premature, that DiFulvio’s performance of the excavation work was beyond the
scope of 5K Development’s duties to the Jacobs, that Great Northern could not prove negligence
in any event because it disclosed no expert, and that res ipsa loquitur does not apply. I therefore
GRANT 5K Development’s motion for summary judgment.
A. Summary Judgment is Not Premature
Great Northern asserts in its opposition that summary judgment is premature because of
third-party motion practice in the case and 5K Development’s failure to respond to Great
Northern’s discovery requests. (ECF No. 59 at 1–2.)
5K Development responds that the
dispositive motion deadline of December 1, 2017, was set by the Court, Great Northern has “not
explained what discovery is necessary for it to defeat the subject motion for summary judgment,”
and Great Northern too has failed to comply with 5K Development’s discovery requests. (ECF
No. 60 at 2.)
Rule 56(d) of the Federal Rules of Civil Procedure permits a court, in the exercise of its
discretion, to defer or deny a decision on summary judgment if a “nonmovant shows by affidavit
or declaration that, for specified reasons, it cannot present facts essential to justify its opposition[.]”
Fed. R. Civ. P. 56(d). “The affidavit must include the nature of the uncompleted discovery; how
the facts sought are reasonably expected to create a genuine issue of material fact; what efforts the
affiant has made to obtain those facts; and why those efforts were unsuccessful.” Paddington
7
Partners v. Bouchard, 34 F.3d 1132, 1138 (2d Cir. 1994).5 A “bare assertion that the evidence
supporting plaintiff’s allegations is in the hands of the moving party is insufficient to justify the
denial of summary judgment.” Crye Precision LLC v. Duro Textiles, LLC, 689 Fed. App’x 104,
108 (2d Cir. 2017) (quoting In re Dana Corp., 574 F.3d 129, 149 (2d Cir. 2009)).
Here, Great Northern has submitted “no affidavit or declaration to address any need for
additional discovery, and thus is not entitled to relief under Rule 56(d).” Sacks v. Gandhi Eng’g,
Inc., 999 F. Supp. 2d 629, 645 (S.D.N.Y. 2014). Great Northern’s “reference . . . to the need for
additional discovery in a memorandum of law in opposition to a motion for summary judgment is
not an adequate substitute for a Rule 56([d]) affidavit . . ., and the failure to file an affidavit under
Rule 56([d]) is itself sufficient grounds to reject a claim that the opportunity for discovery was
inadequate.” Paddington Partners, 34 F.3d at 1137 (citing Burlington Coat Factory Warehouse
Corp. v. Esprit De Corp., 769 F.2d 919, 926 (2d Cir. 1985)). Moreover, as 5K Development
correctly notes, Great Northern has not identified what specific discovery is outstanding, how that
discovery will create a genuine dispute of material fact, or its prior efforts to obtain that discovery.
While the Court did permit third-party motion practice, the Court did not stay Great Northern’s
obligation to conduct discovery, and the Court is not aware of any attempt by Great Northern to
raise a discovery dispute with the Court before filing its opposition to 5K Development’s summary
judgment motion. Nor did Great Northern seek to extend the discovery deadline of November 1,
2017 – which the Court set at the initial status conference – to allow for further time to conduct
discovery. (ECF No. 29.) Since Great Northern’s bare assertions in an unsworn brief about the
need for further discovery are insufficient for the Court to defer decision under Fed. R. Civ. P.
5
Former Rule 56(f) of the Federal Rules of Civil Procedure discussed in Paddington
Partners has been renumbered as Rule 56(d) without substantive changes.
8
56(d), and since Great Northern has not otherwise shown that it exercised diligence in prosecuting
discovery in this case, I reject the notion that summary judgment is premature and turn to the merits
of 5K Development’s motion.
B. 5K Development’s Duties Did Not Extend to the Excavation
“[A] general contractor is not liable for the torts of its independent subcontractors”
unless the general contractor “reserves in his contract general control over the subcontractor or
his servants, or over the manner of doing the work, or if he in the progress of the work assumes
control or interferes with the work, or if he is under a legal duty to see that the work is properly
performed . . . .” Archambault v. Soneco/Ne., Inc., 287 Conn. 20, 53–54 (2008) (quoting
Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 517–18 (2003)) (internal
modifications omitted).6 Where “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 . . . .” Id. at 54 (quoting Pelletier v. Sordoni/Skanska Construction Co., 286 Conn.
563, 599 (2008)).
The undisputed record makes clear that 5K Development’s duties to the Jacobs did not
include any responsibility for the excavation that allegedly caused the partial collapse of the
foundation. DiFulvio performed all excavation work at 687 Smith Ridge Road, and the
foundation collapsed during the excavation. (Def.’s L.R. 56(a) Stmt. ¶¶ 20–21; Pirrone Aff. ¶¶
Although, as noted above, the undisputed evidence in the record shows that the Jacobs
contracted separately with DiFulvio and thus that 5K Development was not a “general
contractor” in the sense that it hired DiFulvio as a subcontractor, that fact only makes it clearer
that 5K Development had no duty with respect to the work DiFulvio was hired to perform. In
other words, if a general contractor is not liable for the torts of its subcontractor absent specific
language in the subcontract reserving control for the general contractor, then an independent
contractor that has no contractual relationship with another independent contractor cannot be
liable for the latter’s torts.
6
9
13, 19–20.) Because it is undisputed that DiFulvio, not 5K Development, committed the
supposedly tortious conduct, 5K Development is not responsible for that conduct unless 5K
Development exercised control over DiFulvio. Even under the analogous principles of general
contractor liability (see note 6, supra), 5K Development had no control of DiFulvio, either on
paper or in practice. DuFulvio and 5K Development had no contractual relationship at all—both
contractors were independently hired by the Jacobs to do separate work. (Def.’s L.R. 56(a) Stmt.
¶¶ 8, 12, 15; Pirrone Aff. ¶¶ 11 (5K Development was hired for “framing and finishing work”),
14 (DiFulvio was hired for “excavation work”), 15 (no contractual relationship).) 5K
Development did not direct or manage DiFulvio’s excavation work, nor did it pay DiFulvio for
those services. (Def.’s L.R. 56(a) Stmt. ¶¶ 13, 14, 21; Pirrone Aff. ¶¶ 16, 17.) Moreover,
because DiFulvio performed all of the excavation work, and 5K Development did not “instruct,
oversee, or manage” DiFulvio’s excavation work at any time (Def.’s L.R. 56(a) Stmt. ¶ 13), a
reasonable person could reach only one conclusion as to who controlled the excavation site—
DiFulvio. The Court thus may properly conclude as a matter of law that 5K Development is not
liable to the Jacobs for DiFulvio’s allegedly tortious conduct. Accordingly, Great Northern
cannot recover in negligence from 5K Development.
C. Great Northern’s Failure to Disclose Experts Provides An Independent Basis for
Summary Judgment
Even if 5K Development had not shown that it bore no responsibility for the excavation
work, I would find that Great Northern’s failure to disclose the necessary experts to prove the
duty, breach, and causation elements of its negligence claim also warranted summary judgment.
(ECF No. 52 at 5–7.) Under Connecticut law, expert testimony is generally “required only when
the question involved goes beyond the field of the ordinary knowledge and experience of the
trier of fact.” Brye v. State, 147 Conn. App. 173, 182 (2013) (citation omitted). This
10
requirement applies to issues of duty and breach, as well as causation. See id. (applied to breach
of standard of care); Green v. Ensign–Bickford Co., 25 Conn. App. 479, 488 (applied to
causation), cert. denied, 220 Conn. 919 (1991). “Whether expert testimony is required in a
particular case” is a legal determination that is made “on a case-by-case basis and its necessity is
dependent on whether the issues are of sufficient complexity to warrant the use of the testimony
as assistance to the . . . court.” State v. Buhl, 321 Conn. 688, 700 (2016) (quoting Johnson v.
Commissioner of Correction, 34 Conn. App. 153, 158 (1994)); see also Brye, 147 Conn. App. at
181 (citation omitted). If I conclude that these issues require expert testimony, summary
judgment is appropriate, as Great Northern has disclosed no expert.7 See Walters v. Howmedica
Osteonics Corp., 676 F. Supp. 2d 44, 52–55, 57 (D. Conn. 2009) (granting summary judgment
where plaintiff failed to disclose expert testimony on the “design and construction of surgical
trays” to show duty and breach or that defendant’s faulty design caused plaintiff’s physical
injuries).
This case presents circumstances far closer to those in which Connecticut courts have
found expert testimony was required than those in which they have found the issues to fall within
the “ordinary knowledge and experience of the trier of fact.” Brye, 147 Conn. App. at 182. This
case presents at least three questions a fact-finder would have to resolve at trial: what standard of
care is required when excavating a foundation adjacent to and below the depth of a pre-existing
home; whether 5K Development breached that standard of care; and, if so, whether that breach
caused the collapse of the pre-existing foundation. (See Def.’s 56(a)1 Stmt. at ¶¶ 18–20.)8 In
7
It is undisputed that Great Northern did not disclose any expert witnesses by the
scheduling order’s deadline, April 1, 2017, or at any point before 5K Development filed its
motion for summary judgment. (Def.’s L.R. 56(a)1 Stmt. ¶¶ 22–23; Coyne Aff. ¶¶ 4–5.)
8
Though I do not consider it, Great Northern’s substantive exhibit actually supports the
need for expert testimony on causation, because it documents multiple other potential causes of
11
Brye v. State, the Appellate Court held that the “question of whether it was a breach of the
standard of care and, therefore, negligent, for the state to use one-quarter inch thick plywood to
cover [a] lighting pit” required expert testimony, because the court found that the average factfinder would not know whether the plywood would support a person’s weight. 147 Conn. App.
at 182. Similarly, the Appellate Court held in Matyas v. Minck that “[t]he preparation, design
and drawing of an engineered septic system require training and technical expertise beyond the
ordinary knowledge and experience of jurors and judges” and thus required expert testimony to
demonstrate whether an engineer had breached the duty of care in designing a system that
crossed onto another property. 37 Conn. App. 321, 327 (1995). The question whether the
excavation for a new foundation next to an existing one supporting a home breached the requisite
standard of care is more technically complex than whether a plywood board will support a
person’s weight and about as complex as whether an underground septic system was properly
designed. More specifically, whether the excavation was to a proper depth, whether it was
properly conducted following a rainstorm, and whether it should have been accompanied by
supports or other precautions to protect the existing adjacent foundation are questions that are not
so obvious that all of the ordinary laypersons on a jury could answer them based on their
experience alone. Cf. Bader v. United Orthodox Synagogue, 148 Conn. 449, 454 (Conn. 1961)
(“Expert testimony was not required to support the claim of the plaintiff that the absence of a
proper or suitable porch railing was a structural defect” where photos of the porch were
submitted in evidence); Mazier v. Signature Pools, Inc., 159 Conn. App. 12, 34 (2015) (holding
that the fact-finder could determine without expert testimony whether defendant’s departure
the settling, including the weight of the fireplace, drainage from an existing water filtration
system, and rain on the day before the collapse. (See ECF No. 59-2 at 7–8.)
12
from the plot plan approved by the town’s planning and zoning commission in his placement of a
pool constituted negligence). For the same reasons, I would conclude that whether any departure
from the applicable standard of care caused the partial collapse of the pre-existing foundation is
not a question that the average fact finder would be able to answer from its ordinary experience.
See Canale v. KBE Bldg. Corp., No. UWYCV156026262S, 2017 WL 4621399, at *4 (Conn.
Super. Ct. Sept. 5, 2017) (holding that expert testimony was required to determine whether
architect breached a duty in designing ceiling and whether such breach caused the ceiling to
collapse).
Accordingly, because Great Northern has not disclosed any expert to show duty, breach,
or causation, it cannot prove its negligence claim against 5K Development, and 5K Development
is entitled to summary judgment on this ground too.
D. Res Ipsa Loquitur Does Not Apply
Great Northern does not directly respond to any of 5K Development’s above arguments,
but instead argues that the excavation project presents a viable claim of res ipsa loquitur. (ECF
No. 59 at 2–3.) Putting aside whether it is appropriate for Great Northern to raise this theory at
all given its apparent reliance on specific acts of negligence in its complaint (ECF No. 1),9 I find
that the doctrine does not apply in these circumstances. “The doctrine of res ipsa loquitur,
literally the thing speaks for itself, permits a jury to infer negligence when no direct evidence of
negligence has been introduced.” Barretta v. Otis Elevator Co., 242 Conn. 169, 173 (1997)
(citation and internal quotation marks omitted). “Whether the doctrine of res ipsa loquitur
9
See White v. Mazda Motor of Am., Inc., 313 Conn. 610, 627 (2014) (collecting cases
holding that plaintiff could not raise res ipsa loquitur claim in an opposition to summary
judgment where plaintiff did not plead the theory in its complaint).
13
applies in a particular case is a question of law . . . .” Giles v. New Haven, 228 Conn. 441, 447
(1994).
The undisputed evidence demonstrates that the doctrine does not apply. “The doctrine of
res ipsa loquitur applies only when two prerequisites are satisfied. First, the situation, condition
or apparatus causing the injury must be such that in the ordinary course of events no injury
would have occurred unless someone had been negligent. Second, at the time of the injury, both
inspection and operation must have been in the control of the party charged with neglect.”
Barretta, 242 Conn. at 173–74. Although the evidence in the record does not clearly indicate
whether the settling of the Jacob’s home would have occurred unless someone had been
negligent,10 5K Development has already shown that it had no control, oversight, or management
of the excavation that allegedly caused the settling of the Jacob’s home. Cf. Giles, 228 Conn. at
452–53 (affirming reversal of directed verdict under res ipsa loquitur doctrine where defendant
was responsible for maintaining elevator that malfunctioned, notwithstanding that plaintiff
operated the elevator at the time of the accident).
The case relied on by Great Northern, Schurgast v. Schumann, 156 Conn. 471 (1968), is
clearly distinguishable on these grounds. (ECF No. 59 at 2; see also ECF No. 60 at 6.) In
Schurgast, the Connecticut Supreme Court held that res ipsa loquitur applied in part because the
Notably, although I do not consider it for purposes of this motion, Great Northern’s
exhibit suggests that this first element is not met because other factors that have nothing to do
with 5K Development’s negligence may have caused the collapse. (See ECF No. 59-2 at at 7–8
(identifying the “weight of the fireplace,” a “water filtration system/water softening system” that
flushed water through a drain system in the floor, and “rain . . . on the day prior to this event” as
preliminary identified causes of the structural collapse).) See Barretta, 242 Conn. at 176 (“The
doctrine of res ipsa loquitur does not extend to situations in which the plaintiff’s own evidence
provides no basis on which to conclude that the defendant has been negligent and, in fact,
suggests as the only possible causes of the accident factual scenarios that do not arise from the
defendant’s negligence.”).
10
14
stove that allegedly caused a house fire was in the exclusive control of the defendant and his
employees. See 156 Conn. at 480–81. The defendant there directed his employees how to work,
and his employees were the only individuals in the home in the morning of the fire. Id. at 476–
77. There is no dispute here that DiFulvio did all of the excavation work at the time of the
collapse, and unlike the employee-employer relationship in Schurgast, 5K Development had no
contractual relationship with DiFulvio and did not direct or manage its work. (See Def.’s L.R.
56(a)1 Stmt. at ¶¶ 13, 21; Pirrone Aff. ¶¶ 13, 15, 17, 19.) Accordingly, no genuine dispute of
material fact exists that 5K Development lacked control over the excavation, and so Great
Northern could not recover under res ipsa loquitur.
VI.
Conclusion
For the reasons described above, 5K Development’s motion for summary judgment is
GRANTED. (ECF No. 51.) Because 5K Development’s third-party/apportionment complaint
against DiFulvio is conditioned on Great Northern’s assertion of damages against 5K
Development (ECF No. 56 at ¶¶ 11, 19), the third-party apportionment complaint is moot and so
DiFulvio’s motion for summary judgment is DENIED as moot. (ECF No. 54.) The Clerk is
directed to enter final judgment in favor of defendant 5K Development and close the case.
IT IS SO ORDERED.
/s/
Michael P. Shea, U.S.D.J.
Dated:
Hartford, Connecticut
September 4, 2018
15
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?