MICHAEL P. SHEA, District Judge.
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.
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 an affidavit or otherwise.
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).)
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 third-party 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.)
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.)
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 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.)
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).
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 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.
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 Partners v. Bouchard, 34 F.3d 1132, 1138 (2d Cir. 1994).
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. 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.
"[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).
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. ¶¶ 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.
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 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.
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.)
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.
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),
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,
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 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.
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.
