Lasso v. Valley Tree & Landscaping, LLC

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KLEBER GONZALO LOJA LASSO, ADMINISTRATOR
(ESTATE OF LUIS ALBARO ORTEGA ORTEGA),
ET AL. v. VALLEY TREE AND
LANDSCAPING, LLC, ET AL.
(AC 43813)
Bright, C. J., and Alvord and Harper, Js.

Syllabus

The plaintiffs, the administrator of the estate of the decedent, O, and O’s wife,
C, sought to recover damages from the defendant G Co., a construction
manager, for the wrongful death of O and for loss of consortium on
behalf of C, in connection with the death of O as he was using an
excavator to remove trees from certain premises. G Co. had been
awarded a contract with the borough of Naugatuck for a project to
renovate a high school. Subsequently, the building committee for the
borough determined that additional borough funds could be used to
remove trees near an upper parking lot that were adjacent to, but not
a part of, the grounds where the high school renovation project was
taking place. At the request of the building committee, G Co.’s project
director solicited bids from two companies and went to the site to point
out trees that were flagged for removal by the building committee. The
building committee then voted to award the tree removal work to the
defendant V Co. O was an employee of V Co. The trial court granted G
Co.’s motion for summary judgment as to the plaintiffs’ claims, finding
that there was no genuine issue of material fact that G Co. was not
contractually obligated to have the control or responsibility for the
supplemental work of overseeing any separate contractors, including V
Co., and that there was no genuine issue of material fact that G Co. did
not owe a duty to V Co. or its employees for the safety issues alleged
in the complaint, and thus, did not owe a duty of care to O. Held
that the trial court’s determination that the provisions of the contract
between G Co. and the borough did not give rise to a duty owed by G
Co. to V Co. and its employees was legally and logically correct and
supported by the language of the contract: the contract language was
clear and unambiguous in the description of the project area, the extent
of the project, and the work for which G Co. had the duty to perform,
the court correctly determined that the plaintiffs, in their opposition to
the motion for summary judgment, did not submit any admissible evi-
dence demonstrating that G Co.’s responsibilities under the contract
extended to the tree removal work, the plaintiffs’ reliance on the repre-
sentations made by G Co. in its bid, which was incorporated into the
contract, was misplaced, as those representations related to G Co.’s
responsibilities for work done within the area included for the renovation
project, the tree removal work occurred in an area that was not within
the scope of the project covered by the contract and the contractual
language did not designate the tree removal work as part of G Co.’s
management duties; moreover, the plaintiffs could not prevail on their
alternative claim that G Co., through its actions, assumed a voluntary
duty of care to O, and that its actions gave rise to a common-law duty
to ensure safe workplace practices, as the plaintiffs failed to present
any evidence of conduct on the part of G Co. demonstrating that it was
in charge of the project to remove the trees or in any way directed the
activities of the employees of V Co.; furthermore, C’s loss of consortium
claim necessarily failed because it was derivative of the negligence claim
on which the court properly rendered summary judgment.
Argued October 4, 2021—officially released January 4, 2022

Procedural History

Action to recover damages for the wrongful death
of the named plaintiff’s decedent as a result of the
defendants’ alleged negligence, and for other relief,
brought to the Superior Court in the judicial district
of Waterbury, where the court, Brazzel-Massaro, J.,
granted the motion for summary judgment filed by the
defendant O & G Industries, Inc., from which the plain-
tiffs appealed to this court. Affirmed.
Jeffrey I. Carton, for the appellants (plaintiffs).
Michael S. Lynch, with whom, on the brief, was
Nicole A. Carnemolla, for the appellee (defendant O &
G Industries, Inc.).
Opinion

HARPER, J. The plaintiffs, Kleber Gonzalo Loja
Lasso, as administrator of the estate of the decedent,
Luis Albaro Ortega Ortega (Ortega), and Marcia Del
Lourdes Gualan Coronel (Coronel), appeal from the
judgment of the trial court granting the motion of the
defendant O & G Industries, Inc. (O & G), for summary
judgment as to counts four and five of the revised com-
plaint, which alleged claims against O & G for the
wrongful death of Ortega pursuant to General Statutes
§ 52-555 and for loss of consortium on behalf of Coronel,
who was married to Ortega at the time of his death.1
On appeal, the plaintiffs claim that the court improperly
granted the motion for summary judgment filed by O &
G because (1) issues of material fact existed concerning
O & G’s responsibility for ensuring safe workplace prac-
tices with respect to certain tree removal work per-
formed by the defendant Valley Tree and Landscaping,
LLC (Valley Tree), and (2) the court erred in failing to
find, pursuant to a construction contract between O &
G and the borough of Naugatuck (borough), that O &
G owed a duty of care to Valley Tree and, hence, to
Ortega. The plaintiffs also claim that the court improp-
erly rendered summary judgment as to Coronel’s loss
of consortium claim against O & G, which was derivative
of the negligence claim against O & G. We disagree and
affirm the judgment of the trial court.
The record before the court, viewed in the light most
favorable to the plaintiffs, reveals the following relevant
facts and procedural history. In 2011, O & G was
awarded a contract with the borough to act as construc-
tion manager for a project to renovate Naugatuck High
School in 2012 (renovation project). In 2015, the build-
ing committee for the borough determined that addi-
tional borough funds could be used to remove trees
near an upper parking lot for aesthetic purposes and
to improve the viewing of fields for sporting events.
The parking lot and trees to be removed were adjacent
to, but not a part of, Naugatuck High School grounds
where the renovation project was taking place. Two
members of the building committee viewed the site to
determine which trees to remove, and those trees were
flagged by the building committee members. At the
request of the building committee, Joseph Vetro, O &
G’s project director, solicited bids from two companies
and went to the site with representatives from those
companies in order to point out the trees that were
flagged for removal by the building committee. After
the bids were submitted, the building committee voted
to award the tree removal work to Valley Tree, issued
a purchase order to Valley Tree for the tree removal
work and sent an e-mail to the owner of Valley Tree
accepting its bid. On December 16, 2015, Ortega was
working for Valley Tree operating a mini excavator to
remove trees from the upper parking lot area. The mini
excavator had no door and there was no glass in the
front and right-hand side windows. While performing
that work, Ortega stood up to remove some branches
near the right side window when the boom arm of the
mini excavator suddenly came down, crushing him. He
died as a result of the significant internal injuries he
sustained in the accident.
In their revised complaint, the plaintiffs alleged in
count four that ‘‘[t]he mini excavator operated by
Ortega was in a dangerous and defective condition in
that it was missing several protective window enclo-
sures that were designed not to open, thereby pre-
venting its operator, including Ortega, from accessing
any area where the operator may come into contact
with the boom arms of the mini excavator.’’ The revised
complaint further alleged that the protective window
enclosures had been missing from the mini excavator
for approximately one month prior to Ortega’s accident
and that, as a result, it was operated by Valley Tree
in a hazardous condition. The revised complaint also
alleged that O & G, in its role as construction manager,
‘‘oversaw the entire renovation project,’’ and that,
‘‘[b]ecause of its role as construction manager, O & G
had numerous duties, which include[d], but [were] not
. . . limited to, the following: managing the construc-
tion; coordinating the construction; conducting daily
or other periodic inspections of the renovation site to
monitor conditions at the site; ensuring that the con-
struction at the site was performed in a safe and proper
manner; ensuring that contractors at the site performed
their work in compliance with federal and/or Connecti-
cut workplace safety standards and regulations;
obtaining satisfactory performance from contractors at
the site; notifying the owner of the property of any
hazardous or dangerous conditions; assisting the owner
of the property in arranging for contractors to actually
perform the construction work; ensuring that contrac-
tors at the site are coordinated; monitoring the field
activities of each contractor at the site; and recommend-
ing courses of action to the owner of the property with
respect to failures in the performance of the contractors
at the site.’’
According to the allegations of count four of the
revised complaint, O & G was negligent, inter alia, in
failing (1) ‘‘to prevent Ortega from operating the mini
excavator that was in a hazardous condition,’’ (2) ‘‘to
observe and detect that Valley Tree was performing its
work in an unsafe and hazardous manner’’ and to stop
Valley Tree from doing so, (3) to monitor the construc-
tion site and to secure a safe workplace, and (4) to
exercise reasonable care in fulfilling its duties as the
construction manager for the project. In count five of
the revised complaint, Coronel, based on the same alle-
gations in count four, alleged a claim against O & G for
loss of consortium.
On October 2, 2018, following the completion of dis-
covery, O & G filed a motion for summary judgment as
to counts four and five of the revised complaint, claim-
ing that ‘‘[a] wrongful death claim based on negligence
against O & G . . . [could not] be maintained as a mat-
ter of law since . . . O & G owed no duty to the plain-
tiffs,’’ and that no genuine issues of material fact
existed. Specifically, in its memorandum of law in sup-
port of its motion for summary judgment, O & G claimed
that ‘‘[t]he scope of [its] duties and obligations as con-
struction manager for the work performed on the [reno-
vation] project [was] limited to those [duties and obliga-
tions] set forth in its contract with the borough,’’ and
that it had no independent duty or obligation to perform
tasks or services for the project apart from the duties
and obligations set forth in the contract, which was
devoid of any reference to the tree removal work per-
formed by Valley Tree in the upper parking lot adjacent
to the high school grounds. Moreover, O & G asserted
that ‘‘there [was] no change order or other amendment
[to its contract with the borough] that ever brought
such work within [its] contractual scope of work.’’
In further support of its claim that it owed no legal
duty to Ortega, O & G argued that (1) ‘‘[i]t [was] undis-
puted that the borough directly hired Valley Tree to
perform tree removal work in an area outside the con-
tract limit line established in O & G’s contract,’’ (2)
‘‘O & G never exercised any dominion, rights or control
over that area, nor did it ever contractually agree to
oversee, direct, manage or supervise any of Valley
Tree’s work,’’ and (3) ‘‘Valley Tree worked indepen-
dently, utilizing its own equipment, machinery, man-
power, and means and methods to perform the work
contracted by the borough, completely outside O &
G’s scope of work.’’ Finally, given its claim that the
negligence count was insufficient as a matter of law,
O & G argued that the loss of consortium claim, which
was a derivative claim and not a separate cause of
action, necessarily failed as well.
On December 17, 2018, the court, Brazzel-Massaro,
J., heard arguments on the motion for summary judg-
ment. On January 9, 2020, the court issued a comprehen-
sive memorandum of decision granting O & G’s motion
for summary judgment. In its decision, the court
explained that ‘‘[t]he sole issue raised in opposition
to the [motion for] summary judgment is whether the
argument that the deposition testimony of various [bor-
ough] officials, the construction manager and the owner
of Valley Tree, as well as the contract documents sup-
port a duty owed by O & G.’’ In granting the motion for
summary judgment, the court analyzed the contractual
provisions, the actions of O & G in working on the
renovation project, the deposition ‘‘testimony of the
various officials of the [borough], the construction man-
ager and the owner of Valley Tree . . . as to the imple-
mentation of the contractual provisions and the opera-
tion of the project by O & G,’’ and ‘‘the circumstances
surrounding the hiring of Valley Tree for removal of
the trees, including the bidding, the award of the bid,
and the actions thereafter in accordance with the con-
tract.’’
The court ultimately concluded that ‘‘the plaintiffs
have [presented] no evidence or testimony that would
create a duty as to O & G or any of its employees
because the facts demonstrate that there is no genuine
issue of fact that (1) the area of the work by Valley
Tree was not a part of the construction limit line defined
for the contractual obligations of O & G; (2) the contract
clearly defines and establishes the duties and responsi-
bilities of O & G as the construction management group
for the [renovation project]; (3) the tree removal work
was not work included in the contract [to renovate]
. . . Naugatuck High School; (4) O & G was not respon-
sible to oversee the work of trade contractors who were
not hired by them or for whom they did not enter into
a change order with the borough or board of education
and their representatives in accordance with the con-
tract documents; (5) there were no change orders for
any tree removal work or responsibilities entered into
by O & G as part of the contract; (6) O & G did not amend
the contract by its actions of following the request by
the building committee and assisting them in walking
the property with Valley Tree but [was] coordinating
in accordance with the contract provisions; (7) the only
coordination by O & G was the timing of the work by
Valley Tree to fit within the timeline for completing the
work and not interfering with the contractors doing
work with O & G; and (8) the funding for the tree
removal was not part of the budget under O & G’s
control that had been approved for the [renovation proj-
ect]. The funds for the tree removal were from a sepa-
rate account for supplemental work.
‘‘Based upon the foregoing, there is no genuine issue
of fact that O & G was not contractually obligated to
have the control or responsibility for the supplemental
work of overseeing any separate contractors, including
Valley Tree, by change order or otherwise. Thus, there
is no genuine issue of fact that . . . O & G has a duty
to Valley Tree or [its] employees for the safety issues
alleged in the complaint.’’ From the summary judgment
rendered in favor of O & G, the plaintiffs appealed.
Additional facts and procedural history will be set forth
as necessary.
Before we address the plaintiffs’ claims on appeal,
we set forth the relevant legal principles and our well
settled standard of review of a court’s ruling on a motion
for summary judgment. ‘‘Practice Book § [17-49] pro-
vides that summary judgment shall be rendered forth-
with if the pleadings, affidavits and any other proof
submitted show that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law. . . . In deciding a motion
for summary judgment, the trial court must view the
evidence in the light most favorable to the nonmoving
party. . . . The party seeking summary judgment has
the burden of showing the absence of any genuine issue
[of] material [fact] which, under applicable principles
of substantive law, entitle him to a judgment as a matter
of law . . . and the party opposing such a motion must
provide an evidentiary foundation to demonstrate the
existence of a genuine issue of material fact.’’ (Internal
quotation marks omitted.) Augustine v. CNAPS, LLC,
199 Conn. App. 725, 728–29, 237 A.3d 60 (2020).
‘‘[I]ssue-finding, rather than issue-determination, is
the key to the procedure. . . . [T]he trial court does
not sit as the trier of fact when ruling on a motion for
summary judgment. . . . [Its] function is not to decide
issues of material fact, but rather to determine whether
any such issues exist.’’ (Internal quotation marks omit-
ted.) Id., 733. ‘‘Our review of the decision to grant a
motion for summary judgment is plenary. . . . We
therefore must decide whether the court’s conclusions
were legally and logically correct and find support in
the record.’’ (Internal quotation marks omitted.) Cuozzo
v. Orange, 178 Conn. App. 647, 655, 176 A.3d 586 (2017),
cert. denied, 328 Conn. 906, 177 A.3d 1159 (2018). ‘‘When
documents submitted in support of a motion for sum-
mary judgment fail to establish that there is no genuine
issue of material fact, the nonmoving party has no obli-
gation to submit 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 dis-
puted factual issue. . . . It is not enough, however, for
the opposing party merely to assert the existence of
such a disputed issue. Mere assertions of fact . . . are
insufficient to establish the existence of a material fact
and, therefore, cannot refute evidence properly pre-
sented to the court under Practice Book § [17-45].’’
(Internal quotation marks omitted.) Belevich v. Renais-
sance I, LLC, 207 Conn. App. 119, 124, 261 A.3d 1 (2021).
‘‘The essential elements of a cause of action in negli-
gence are well established: duty; breach of that duty;
causation; and actual injury. . . . Contained within the
first element, duty, there are two distinct considera-
tions. . . . First, it is necessary to determine the exis-
tence of a duty, and [second], if one is found, it is
necessary to evaluate the scope of that duty. . . . The
issue of whether a duty exists is a question of law . . .
which is subject to plenary review. . . .
‘‘Issues of negligence are ordinarily not susceptible
of summary adjudication but should be resolved by trial
in the ordinary manner. . . . Nevertheless, [t]he issue
of whether a defendant owes a duty of care is an appro-
priate matter for summary judgment because the ques-
tion is one of law.’’ (Citation omitted; internal quotation
marks omitted.) Goody v. Bedard, 200 Conn. App. 621,
631, 241 A.3d 163 (2020). Moreover, ‘‘[a] duty to use
care may arise from a contract . . . .’’ (Internal quota-
tion marks omitted.) Carrico v. Mill Rock Leasing, LLC,
199 Conn. App. 252, 262, 235 A.3d 626 (2020).
In the present case, the court, in granting O & G’s
motion for summary judgment, examined the contrac-
tual provisions contained in the contract between O &
G and the borough, and determined, on the basis of
those provisions, that O & G did not owe a duty of care
to Ortega. ‘‘Although ordinarily the question of contract
interpretation, being a question of the parties’ intent,
is a question of fact [subject to the clearly erroneous
standard of review] . . . [when] there is definitive con-
tract language, the determination of what the parties
intended by their . . . commitments is a question of
law [over which our review is plenary].’’ (Internal quota-
tion marks omitted.) Alpha Beta Capital Partners, L.P.
v. Pursuit Investment Management, LLC, 193 Conn.
App. 381, 403, 219 A.3d 801 (2019), cert. denied, 334
Conn. 911, 221 A.3d 446 (2020), and cert. denied, 334
Conn. 911, 221 A.3d 446 (2020). To the extent that the
plaintiffs’ claims on appeal are directed at the court’s
interpretation of the contract between O & G and the
borough, ‘‘our review is plenary and we must decide
whether its conclusions are legally and logically correct
and find support in the facts that appear in the record.’’
(Internal quotation marks omitted.) Id.
We first address the plaintiffs’ claim that the court
improperly determined that the contract between O &
G and the borough did not give rise to a legal duty owed
by O & G to Valley Tree and its employees. According
to the plaintiffs, the contract ‘‘created an obligation for
O & G to supervise and control Valley Tree’s work,’’
and its express terms compelled ‘‘the conclusion that
O & G owed Valley Tree and its employees a duty of
care.’’ We are not persuaded.
In its thorough and well reasoned decision, the court
first examined in great detail the contractual provisions
at issue in determining the duties of O & G under its
contract with the borough. Its findings in connection
therewith can be summarized as follows. There were
two contractual documents that specified the parame-
ters of the contract and the duties of O & G, which also
contained provisions relating to safety, insurance and
performance with respect to the renovation project. To
determine the site for the work that was within the
scope of the renovation project, the court also exam-
ined the site plan, which provided the footprint of the
work for the renovation, as well as an outline of the
property included within the project. The court
explained that O & G ‘‘contends that the scope of the
project which they were contracted to oversee as the
construction management company did not include the
area’’ where the tree removal was to be performed,
which O & G claimed was ‘‘outside of the construction
limits.’’ The plaintiffs, on the other hand, relied on a
proposal2 that was submitted by O & G in its bid for
the renovation project as defining the duties of the
construction manager. The court, however, concluded
that ‘‘contrary to the plaintiffs’ contentions [the pro-
posal] not change the duties set forth in the contract.’’
As the court explained: ‘‘The testimony and evidence
clearly demonstrate that the area included in the . . .
project for which O & G was the construction manager
is restricted to the area in the site drawings,’’ which
does not include the area near the upper parking lot
where the tree removal was performed. Although the
area where the trees were removed is owned by the
borough, it was never considered part of the high school
grounds, and, thus, ‘‘the tree removal work was sched-
uled for an area never within the project area noted by
O & G and the borough. . . . The site plan does . . .
outline the area to be renovated as part of the work
that is managed by O & G. Nowhere on the plan is there
a notation which includes the area for this tree removal
as part of the work or project. Additionally, the contrac-
tual language, contrary to the plaintiffs’ assertions, does
not designate this work as part of the management
duties of O & G.’’
With respect to the plaintiffs’ claim that O & G, as the
construction manager, was responsible for the safety
of all contractors and subcontractors, the court found
that the contract documents provide otherwise in that
they ‘‘[reserve] the right [for the owner] to perform
construction [and] operations related to the project
with the owner’s own forces, and to award separate
contracts in connection with other portions of the proj-
ect or other construction or operations on the site
. . . .’’ (Internal quotation marks omitted.) On the basis
of the contractual provisions, the court found that the
parties ‘‘intended that there would be subcontractors
outside of the work supervised by the construction
manager and that would not be within the responsibility
of O & G, but which may need to be ‘coordinated’ with
the work that O & G did supervise. This interpretation
is exactly the situation existing with the bid acceptance
for the supplemental tree removal work by Valley Tree.
Not only is this work not included within the scope of
work defined in sections E and F of the [renovation]
project, but the process of awarding the work to Valley
Tree supports the position of O & G.’’ The court, thus,
found that ‘‘the borough could hire separate contractors
as it did in this situation, and it would be responsible
for supervising and directing the work, including jobsite
safety.’’ That determination was supported by the depo-
sition testimony of the business manager for the bor-
ough, who controlled the expenditures, that ‘‘the
removal of the trees was not tied into the work by O &
G,’’ that it ‘‘wasn’t part of the original scope of the
project,’’ that it ‘‘was added as an item to be part of
the scope of the Naugatuck High School renovation
project,’’ and that it ‘‘was under the borough’s project.’’
(Internal quotation marks omitted.) The court found
that the testimony of the business manager for the bor-
ough ‘‘confirmed that Valley Tree was hired directly by
the borough.’’ (Internal quotation marks omitted.) The
court also relied on the deposition testimony of the
owner of Valley Tree that he had received an e-mail or
letter from the borough stating that the borough was
hiring Valley Tree to remove the trees, that he under-
stood that he was working for the borough, and that
he did not receive any written approvals or directives
from O & G.
Finally, in rejecting the plaintiffs’ claim that O & G
had a duty by virtue of its obligation to provide a safe
work environment under the contract, the court stated:
‘‘Although the contract provides a clear duty for certain
aspects of safety during the term of the [high school
renovation] project and within the scope of the project
and the site, this duty is defined by the contract and
the site plan drawings. . . . The plaintiffs have
expanded th[e] safety aspects of the work to include
work outside of the physical boundaries of the proposed
project and oversight which is not clearly set forth in
the contract language.’’ (Citation omitted.) The court,
thus, found that the plaintiffs ‘‘espouse[d] an incorrect
interpretation of [the deposition] testimony and the
safety responsibilities of O & G.’’ Ultimately, the court
concluded that there was nothing in the contract that
required O & G to ‘‘inspect the equipment or procedures
for contractors that were hired by the building commit-
tee to do work outside of the site, contract and [certain
safety] proposals [submitted by O & G in its bid for the
work].’’
We conclude that the court’s determination that the
contract between O & G and the borough did not give
rise to a duty owed by O & G to Valley Tree and its
employees was legally and logically correct and sup-
ported by the language of the contract. After thoroughly
examining the provisions of the contract, we agree with
the court that they are ‘‘clear and unambiguous in the
description, the extent of the project, and the work for
which O & G [had] the duty to perform.’’ Consequently,
the court correctly determined that they simply did not
support the plaintiffs’ claims or suggested interpreta-
tion.
Because O & G, as the party moving for summary
judgment, met its burden of proving the absence of any
genuine issue of material fact as to the issue of whether
the contract created a duty owed by O & G to Ortega,
it was incumbent on the plaintiffs to present evidence
demonstrating the existence of a disputed issue of mate-
rial fact. See Belevich v. Renaissance I, LLC, supra,
207 Conn. App. 124. The court, however, found that the
plaintiffs, in their opposition to the motion for summary
judgment, did not submit any admissible evidence dem-
onstrating that O & G’s responsibilities under the con-
tract extended to the tree removal work. We agree with
the court’s determination. The plaintiffs’ reliance on the
representations made by O & G in its bid, which was
incorporated into the contract, to create a duty by O &
G for the tree removal work is misplaced, as those
representations related to O & G’s responsibilities for
work done within the area included in the renovation
project, and the tree removal work occurred in an area
that was not within the scope of the project covered
by the contract, nor does the contractual language des-
ignate the tree removal work as part of O & G’s manage-
ment duties.
The plaintiffs alternatively argue that O & G, through
its actions, assumed a voluntary duty of care to Ortega.
Specifically, the plaintiffs argue that O & G’s actions
gave rise to a common-law duty to ensure safe work-
place practices and that the court erred in failing to
address the existence of such a common-law duty.
According to the plaintiffs, ‘‘O & G took upon itself to
control and direct Valley Tree’s work, and as a conse-
quence thereof, owed a duty to Ortega.’’3 Moreover,
the plaintiffs claim that the court, in finding no duty,
improperly decided issues of disputed fact. Specifically,
they argue that because questions of fact existed as to
the extent of O & G’s control over Valley Tree, the
motion for summary judgment should have been
denied. We disagree.
In its memorandum of decision, the court found that,
‘‘[a]t the request of the building committee . . . Vetro
. . . [O & G’s] project director, contacted the two tree
removal companies that were designated by the build-
ing committee as possible contractors for the propos-
als.’’ As the court explained, when Vetro ‘‘walked the
site with the contractors, Vetro simply showed the trees
that had been flagged by the [two members of the build-
ing committee] . . . .’’ The court, therefore, rejected
the plaintiffs’ claim that ‘‘Vetro’s actions of contacting
the two companies for the tree removal bids, walking
the site with the contractors and board members to
designate the trees flagged for removal, and taking the
bid documents back to the building committee
extended the contractual work to be completed and
the project area to include the tree removal within its
responsibilities pursuant to the contract.’’ Specifically,
the court found that the plaintiffs’ claim ‘‘ignore[d] the
provisions in the contract [that] allow changes to work
and responsibility,’’ which outline a method for change
to the original work set forth in the contract documents.
Without any change orders or amendments to the con-
tract, the court found that ‘‘[t]here [was] no evidence
that the minor assistance provided by the construction
manager was significant to change the terms of the
contract,’’ and that the plaintiffs were attempting to
create a duty where none existed.
Although the court did not expressly reference
whether a common-law duty existed, the court did
address the substance of the plaintiffs’ claim, namely,
whether O & G exercised control over the work per-
formed by Valley Tree and its employees sufficient to
give rise to a duty of care owed to Valley Tree. The
court explained that, the fact that Valley Tree was to
coordinate its work with Vetro ‘‘did not involve O & G
dictating to Valley Tree how, when, or where to do their
work, but it was a simple coordination with O & G so
the work would be completed before the fencing was
installed by O & G. . . . O & G was still the overall
general contractor and any work being done would
have to be coordinated with them.’’ (Citations omitted.)
In rejecting the plaintiffs’ claim that, because Valley
Tree interacted with Vetro only to schedule the work,
O & G was responsible to inspect and oversee that
work, the court stated: ‘‘O & G never relayed to Valley
Tree that O & G was to be the final authority and
controller for the work to be done by Valley Tree. The
plaintiffs . . . in their opposition to the motion . . .
[do] not include any admissible evidence placing O &
G in charge of the tree removal project. . . . In fact,
in performing the work it was clear that Valley Tree
decided the location for its equipment, the work deci-
sions for the brush to be cut, the trees that would get
cut, how big the logs would be, what the order of tree
removal would be, and the pulling back of brush to
locate machinery. . . . None of these decisions were
made by O & G and none were conveyed to Valley Tree
by the construction manager. . . . Coordination of the
various subcontractors does not create a responsibility
for O & G to check the equipment for safety issues or
to provide other safety amenities to the workers at
Valley Tree. There is no contractual provision requiring
that O & G coordinate or control the work of a contrac-
tor hired outside the parameters of the original con-
tract.4 The interpretation of the construction site limits
and the work responsibilities of O & G does not support
the plaintiffs’ expansive interpretation of the contract.’’
(Citations omitted; footnote added; footnote omitted.)
We agree with the court’s analysis of this argument,
which is supported by the record viewed in a light most
favorable to the plaintiffs. On the basis of our review
of the record, we conclude that the trial court properly
determined that, in opposing the motion for summary
judgment, the plaintiffs failed to present any evidence
of conduct on the part of O & G demonstrating that
O & G was in charge of the project to remove the trees
or in any way directed the activities of the employees
of Valley Tree. The plaintiffs, therefore, failed to meet
their burden of demonstrating the existence of a genu-
ine issue of material fact as to whether O & G controlled
the work of Valley Tree and its employees, thereby
giving rise to a duty of care owed to Ortega.5 See Shukis
v. Board of Education, 122 Conn. App. 555, 566, 1 A.3d
137 (2010) (‘‘[a] party opposing a motion for summary
judgment must substantiate its adverse claim by show-
ing that there is a genuine issue of material fact together
with the evidence disclosing the existence of such an
issue’’ (internal quotation marks omitted)).
On the basis of our thorough review of the record,
we conclude that the court’s determination, as a matter
of law, that O & G did not owe a duty to Ortega concern-
ing the safety issues raised in count four of the revised
complaint was legally and logically correct. Accord-
ingly, because the existence of a duty is an essential
element of a negligence cause of action; see Goody v.
Bedard, supra, 200 Conn. App. 631; the court properly
granted O & G’s motion for summary judgment as to
count four of the revised complaint.
Finally, the plaintiffs claim that the court improperly
rendered summary judgment in favor of O & G with
respect to the loss of consortium claim alleged in count
five of the revised complaint. Because the loss of con-
sortium claim in count five is derivative of the negli-
gence claim alleged in count four, on which the court
properly rendered summary judgment in favor of O &
G, the loss of consortium claim in count five necessarily
must fail. Therefore, the court properly granted O &
G’s motion for summary judgment as to count five of
the revised complaint as well.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In the original complaint, Coronel also alleged claims as parent and
natural guardian of her three minor children with Ortega for loss of parental
consortium. After motions to strike those counts were filed, the plaintiffs
did not object and agreed to withdraw the claims.
2
In the proposal, O & G made the following representations: O & G’s field
‘‘team will coordinate the efforts of all of the trade contractors and maintain
a safe and secure worksite that does not disrupt the educational process
of the Naugatuck High School’’; ‘‘[i]t is our intent to deliver this project
assuring a safe environment for all and with minimal disturbance to the
educational function of the building’’; ‘‘[w]e expect zero accidents and injur-
ies on all of our projects [and] [a]ll of our safety planning is based upon
this goal, and we actively encourage all workers on the site to participate
and follow the safety guidelines’’; ‘‘[e]veryone involved with O & G is respon-
sible for preserving health and safety [and] [t]he success of this safety
program depends on the full participation of every employee, subcontractor,
manager and vendor’’; and the project manager for O & G will ‘‘[c]oordinate
and monitor safety and security programs as conditions dictate.’’
3
Specifically, the plaintiffs claim that ‘‘O & G directed Valley Tree’s work
in the following ways: [1] O & G told Valley Tree it was in charge of the
overall high school project, as well as Valley Tree’s piece of that project
. . . [and] never disclaimed supervision; [2] O & G contacted Valley Tree
to submit a bid and communicated with Valley Tree’s principal during the
bidding process; [3] O & G directed when Valley Tree should start its work
and when the tree removal work had to be completed; [4] O & G directed
Valley Tree as to which trees were to be removed and which trees were to
remain; [5] O & G instructed Valley Tree how to dispose of the trees—by
chipping them—and then to leave the chips in the surrounding woods; [and]
[6] Vetro visited the upper parking lot on at least one occasion to compliment
Valley Tree’s work.’’ According to the plaintiffs, those facts were consistent
with a statement made by O & G in its proposal that it would ‘‘coordinate
the efforts of all of the trade contractors and maintain a safe and secure
worksite.’’ (Internal quotation marks omitted.) The plaintiffs’ claim, how-
ever, ignores the fact that the representation made by O & G in its proposal
related solely to the work and area within the scope of the renovation project.
4
The plaintiffs argue on appeal that their claim should not be limited to
the geographic reach or precise terms of the contract because there is
evidence that O & G did work outside the area of the renovation project
and, at times, did work without requesting a change order. Specifically, they
argue that O & G worked outside the construction limit line to install
fencing and curbing near the upper parking lot area and, thereby, voluntarily
assumed a duty of care over Valley Tree and its employees. We are not
persuaded. The plaintiffs have presented no evidence demonstrating how
O & G’s work installing the fencing and curbing gave rise to a duty of care
to Valley Tree and its employees for the work they performed in the upper
parking lot. The fact that O & G did some work outside of the scope of the
work set forth in the contract does not raise a genuine issue of material
fact that it thereby voluntarily assumed a duty to Valley Tree or Ortega,
especially in the absence of evidence that O & G exercised control over the
work of Valley Tree and its employees, and that the outside work performed
by O & G did not occur in the upper parking lot and was unrelated to the
tree removal work for which Valley Tree was hired directly by the borough.
Thus, even if, as claimed by the plaintiffs, O & G’s responsibilities were not
solely limited to those outlined in the contract, it was still incumbent on
the plaintiffs to present some evidence demonstrating how the work per-
formed by O & G outside of the contract gave rise to a duty of care to Valley
Tree and its employees. Our review of the record simply does not support
the plaintiffs’ contention that there is a genuine issue of material fact that
O & G assumed a duty to Valley Tree and its employees for the tree removal
work in the upper parking lot.
5
The plaintiffs’ reliance on Pelletier v. Sordoni/Skanska Construction
Co., 264 Conn. 509, 825 A.2d 72 (2003), and Van Nesse v. Tomaszewski, 265
Conn. 627, 829 A.2d 836 (2003), is misplaced, as those cases are distinguish-
able from the present case. In Pelletier, our Supreme Court held that,
although, as a general rule, ‘‘a general contractor is not liable for the torts of
its independent subcontractors’’; Pelletier v. Sordoni/Skanska Construction
Co., supra, 518; there are exceptions to that general rule, including when
the general contractor ‘‘in the progress of the work assume[s] control or
interfere[s] with the work’’ of the subcontractor. Id. Control means the
‘‘[p]ower or authority to manage, direct, superintend, restrict, regulate, gov-
ern, administer, or oversee.’’ Black’s Law Dictionary (6th Ed. 1990) p. 329.
Pelletier and Van Nesse both involved actions by an injured employee of a
subcontractor against the general contractor. Van Nesse v. Tomaszewski,
supra, 628; Pelletier v. Sordoni/Skanska Construction Co., supra, 512–13.
In Pelletier, our Supreme Court rejected the plaintiff’s claim that the contract
between the general contractor and the owner of the building under con-
struction, which charged the general contractor with certain safety and
inspection responsibilities, created a duty owed by the general contractor
to the plaintiff, concluding that the plaintiff was not a party to that agreement.
Pelletier v. Sordoni/Skanska Construction Co., supra, 530–31. In the present
case, a general contractor-subcontractor relationship did not exist between
O & G and Valley Tree, as the record demonstrated that Valley Tree was
hired directly by the borough to do tree removal work, which was outside
the scope and area covered by the contract between O & G and the borough
for the high school renovation project, nor was Valley Tree a party to that
contract. Moreover, the plaintiffs did not present any evidence in opposition
to the motion for summary judgment showing that O & G had the authority
to control, or interfered with, the work of Valley Tree.