Opinion
No. 5001145
September 26, 2008
MEMORANDUM OF DECISION ON MOTION TO REARGUE
The plaintiff seeks reargument of the court's decision granting summary judgment based on both exceptions to the rule of Kraus v. Newton. Principally, however, he claims that, contrary to the court's conclusion, there was sufficient evidence that the plaintiff fell on "old ice."
I
The plaintiff's claim that he fell on "old ice" is based on his deposition testimony that he fell because of a glaze of ice under the new snow on which he admittedly fell. In his deposition, the plaintiff testified that a week earlier, he had seen some isolated patches of ice on the driveway. However, Joseph Frolish, owner of non-party HSS testified that there was no snow or ice on the driveway or parking area the day before the storm during which the plaintiff fell. The plaintiff also testified that he had not been to the site during the week before his fall. No admissible evidence of weather conditions during the week was offered by the plaintiff.
The plaintiff testified in his deposition that this was the first heavy snow storm of the season. The weather forecast was for snow all day. When he walked to HSS' office after parking his vehicle, it was snowing hard. According to Frolish, when the plaintiff arrived at the office, there was already 5" of snow that had accumulated during the storm. According to the plaintiff, he was in HSS' office for about five-to-ten minutes and then started to walk back to his car. At that time, he estimated that there was an accumulation of three-to-four inches of snow in the driveway. Some, but not all, of the footprints he had seen walking to the office were now covered in snow. In returning to his truck, the plaintiff followed the same path he had taken into the building. The following is a pertinent portion of the plaintiff's deposition testimony:
CT Page 15543
Q As you left the building, tell me what happened?
A Come out the door, started walking down the driveway, got maybe halfway down, my left foot hit a patch of ice and slid maybe a foot and a half, and down on my rear end I went. And my other foot, which was my right foot, bent down underneath me, and I hit the ground pretty good because, boy, I was stunned . . .
Q Now, at the time when you were walking back toward your truck, there was an accumulation in the driveway of some three to four inches?
A Yes, I'd say close enough.
Q When you were walking back on the driveway toward your truck, did you walk in the footsteps that you had created coming down to the office?
A I tried to stay in the same general area, yes.
Q Had any of those footprints been covered up with snow between the time you got to the office and when you were leaving?
A Not totally covered up. You could see there was snow in some of the footprints.
Q So enough snow had fallen in that five or ten minutes to cover up some of those footprints.
A Yes.
***
Q You say your left foot hit a patch of ice?
A Right.
Q How do you know your foot hit a patch of ice?
A Because I slid. I'm not going to slide unless you hit ice.
CT Page 15544
Q Did you see a patch of ice?
A After I was down I did, yes.
Q What did it appear to be?
A Looked like just a glaze right on the driveway.
Q How long that would have been there, you have no idea?
A I have no idea.
(Emphasis added.)
At rock bottom, the plaintiff's claim on reargument is that since there is evidence that he slipped and fell on a patch or "glaze" of ice that was under snow, the ice necessarily was "old" ice that preceded the storm. In his motion for reargument, the plaintiff indicates that this circumstance is the basis for the belief expressed in his affidavit. The court is not persuaded that there is a genuine issue of material fact.
A "glaze" is defined as "a glassy coating or surface." The Merriam-Webster Dictionary (1998).
The plaintiff relies on Cooks v. O'Brien Properties, Inc., 48 Conn.App. 339, 710 A.2d 788 (1998), in which the court stated:
The plaintiff presented uncontroverted evidence that on January 3 and 4, 1994, Storm Emma deposited approximately three to four inches of snow and ice in the Hartford area. The plaintiff further presented evidence that between the end of Storm Emma and the end of Storm Frank on January 8, 1994, the temperature in Hartford remained below freezing except for January 5, 1994, when the temperature reached thirty-three degrees and some slight melting occurred. The plaintiff's expert witness, meteorologist Furey, testified that, left uncleared, some precipitation from Storm Emma would have remained on the ground on January 8, 1994. Specifically, Furey testified that precipitation from Storm Emma would have remained on a concrete surface such as the stairs on which the plaintiff fell. Similarly, Schand testified that the steps had been covered with layers of snow and ice prior to Storm Frank. Finally, the plaintiff testified that she attempted to descend the stairs by walking in footsteps left in the snow by tenants who had exited prior to her. The jury reasonably could have found, therefore, that the underlying ice and snow left on the steps from Storm Emma may have been exposed by the footprints left in the snow of Storm Frank by tenants who had descended the stairs prior to the plaintiff, and that the accumulated snow and ice was a proximate cause of the plaintiff's injuries.
This witness was Joe Furey of the New England Weather Service. Cooks v. O'Brien Properties, Inc., 48 Conn.App. 339, 341 n. 1, 710 A.2d 788 (1998).
Id., 348.
Far from supporting the plaintiff's argument, Cooks highlights the deficiencies in it and in the plaintiff's proof First, in Cooks,
plaintiff presented uncontroverted evidence that on January 3 and 4, 1994, Storm Emma deposited approximately three to four inches of snow and ice in the Hartford area.
Id.
Here, there is no evidence of snow or ice in the Shelton area within the week before the storm on the day of the plaintiff's fall. At best, there was evidence of some "precipitation" in the Shelton area two days before the plaintiff fell. Second, in Cooks,
[t]he plaintiff further presented evidence that between the end of Storm Emma and the end of Storm Frank on January 8, 1994, the temperature in Hartford remained below freezing except for January 5, 1994, when the temperature reached thirty-three degrees and some slight melting occurred.
Id.
Here, the plaintiff merely averred in his affidavit that in the two days after the unspecified precipitation two days earlier, "I do not believe that the temperature ever got as high as 35 degrees . . ." Third, in Cooks,
However, at least one court has opined that "[t]o constitute personal knowledge, the affiant must know, not believe to be true, the fact to which the affiant attests." Rossi v. U.S., 755 314, 316 n. 1 (D.Or. 1990), aff'd 983 F.2d 1077 (9th Cir. 1993). The plaintiff also stated in his affidavit, that he fell on ice "which ice has been on the ground from prior precipitation." Neither belief appears to be a statement of fact based on personal knowledge. Practice Book § 17-45 requires that "opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein."
[t]he plaintiff's expert witness, meteorologist Furey, testified that, left uncleared, some precipitation from Storm Emma would have remained on the ground on January 8, 1994. Specifically, Furey testified that precipitation from Storm Emma would have remained on a concrete surface such as the stairs on which the plaintiff fell.
Id.
Here, there is no such evidence. Fourth, in Cooks,
another witness, Schand testified that the steps had been covered with layers of snow and ice prior to Storm Frank.
Id.
Here, there is only evidence that prior to the day of the storm during which the plaintiff fell, the driveway and parking areas were free of snow and ice.
Even crediting the plaintiff's affidavit that there may have been some "precipitation in the Shelton/Ansonia area within two days" before his fall and that the plaintiff did "not believe that the temperature ever got as high as 35 degrees during that two day period," Frolish, the only witness with personal knowledge, and who was neither a party nor associated with a party, testified without contradiction in his deposition that there was no snow or ice on the driveway the day before the storm. Moreover, common experience teaches that the fact that ice is found under snow during an on-going storm tells us nothing as to whether the ice formed as a result of the storm that dropped the snow or during earlier event of precipitation.
The mere presence of an adverse claim . . . will not in itself defeat the motion [for summary judgment].
Sharp v. Wyatt, 31 Conn.App. 824, 832, 627 A.2d 1347 (1993), aff'd 230 Conn. 12, 644 A.2d 871 (1994).
[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.
Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000).
The court is not persuaded that it should change its opinion as to whether there is a genuine issue of material fact as to whether the plaintiff fell on "old ice."
In his deposition, the defendant testified that the building housing HSS' offices was of a mixed commercial-residential use. The building also housed a real estate business and a residential tenant. The address of the building was 89 Bridgeport Avenue in Shelton. The point is that the building was not situated in some remote, unpopulated location; the plaintiff had ample time and opportunity for investigation and discovery in which to develop some evidence that there was ice in the area where he fell during the day or days immediately preceding his fall.
CT Page 15547
II
The plaintiff also argues in his motion that
at all times other than Friday mornings there was only two (2) persons who would enter and leave the defendant's premises. On Friday mornings, however, at least six (6) times that number would visit the premises. This constitutes a sufficient "unusual circumstance" . . .
For the reasons stated in its memorandum of decision, this court is not persuaded that this is an unusual circumstance.
The motion for reargument or to set aside the court's decision is denied.