Bray v. Decker, No. Cv 98 035 76 40 (Mar. 5, 2002) , 2002 Conn. Super. Ct. 2704 ( 2002 )

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION RE: MOTION FOR SUMMARY JUDGMENT (#128) The issue before the court is whether to grant the defendant's motion for summary judgment on the basis that there is no genuine issue of material fact which can only be resolved at trial. This case arises from the plaintiff's allegation that he fell from a scaffold present on defendant's property. The defendant contends that he has no duty to the plaintiff to ensure the plaintiff's safety because the defendant did not own, possess, maintain or control the scaffold. The plaintiff argues that the question of whether there is any duty flowing from the plaintiff to the defendant is a factual one, and cannot be decided on a motion for summary judgment.

"In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500,538 A.2d 1031 (1988). Summary judgment is improper when duty is an issue, because the determination of whether a duty exists is a question involving elements of both law and fact. Raboin v. North AmericanCT Page 2705Industries, Inc., 57 Conn. App. 535, 538, 749 A.2d 89, cert. denied,254 Conn. 910, 759 A.2d 504 (2000).

After a review of the evidence presented by the parties, the court finds that the issue of whether the defendant landowner owed a duty to the contractors present on his property is still in question. Therefore, because duty is an issue of material fact, this case is not ripe for summary judgment, and the defendant's motion is denied.

GALLAGHER, J.