Millette v. Connecticut Post Limited Partnership
In a negligence action grounded upon a theory of premises liability, the duty of care owed to an invitee attaches only if the defendant exercised possession and control over the area at the time and place of injury. The jury reasonably could have found the following facts. Metroguard, Inc. was hired to provide security for a construction site at the Connecticut Post Mall and assigned employee Jack Millette to duty there. Millette fell on a stairway covered in plastic and scaffolding, fracturing his wrist and requiring surgeries. Millette filed this action alleging that Connecticut Post Limited Partnership, Connecticut Post Mall, LLC and Westfield Corporation, Inc., doing business as Westfield Design and Construction, were negligent in failing to keep the area of injury in a safe condition and to inspect and correct or warn of the hazardous condition. The jury returned a verdict for the plaintiff awarding damages. The court granted the defendants' motion for judgment notwithstanding the verdict. The plaintiff appealed, first challenging the court's finding that he produced insufficient evidence from which the jury reasonably could have found the defendants in possession and control of the relevant area. The Appellate Court affirmed the judgment. The trial court instructed the jury that the plaintiff's status was that of a business invitee. To satisfy his burden of proof as to the duty element, the plaintiff needed to establish by a preponderance of the evidence that the defendants retained control over the construction site where he fell. No evidence was presented as to who had control over the site when the plaintiff fell. The jury was left to speculate about whether the defendants oversaw and performed the work with their own employees, employed a general contractor or hired and oversaw independent contractors. The nondelegable duty doctrine did not apply as contended. Case law suggests that the doctrine applies only when the plaintiff establishes that the defendant maintained possession and control of the property. The 2008 Supreme Court case of Archambault v. Soneco/Northeastern, Inc., governed and held that a general contractor did not owe a nondelegable duty to a subcontractor's employee to ensure a safe work site because the evidence failed to establish that the general contractor retained or exercised control over the site.