Opinion
No. CV01-0168532S
May 5, 2004
MEMORANDUM OF DECISION
Background
In this matter, the Plaintiff, Theodore Derouin allegedly sustained injuries in the course of his employment with the City of Waterbury, ("City") claiming he fell on accumulated ice in the parking lot portion of the property formerly known as the Naugatuck Valley Mall, on February 18, 2000. He was present at the former mall to mark utility lines owned by the City, in advance of new construction. Pursuant to the amended complaint dated May 18, 2002, Defendants Stamford Wrecking Company and General Growth Properties, Inc. (among other named defendants) "owned, controlled, maintained and possessed" the property where the plaintiff allegedly fell and said incident and injuries were caused by the carelessness and negligence of Stamford Wrecking and General Growth.
Both Stamford Wrecking and General Growth have filed motions for summary judgment, accompanied by memoranda of law and sworn affidavits. The plaintiff has filed objections, with memoranda, in response.
Defendant Stamford Wrecking moves for Summary Judgment on two bases: 1) that it "was not in control and possession of the area where plaintiff fell" and 2) the area where plaintiff fell was not in the area where it performed demolition activities or where it removed demolition debris using heavy equipment. In support of its motion, Stamford Wrecking provided two affidavits of Stephan Goldblum, the individual responsible for the former mall project and excerpts from the deposition of the plaintiff. In pertinent part, the Supplemental Affidavit of Stephen Goldblum states: "1. At no time on or prior to February 18, 2000 did Stamford Wrecking Company have any equipment or material in the area where the plaintiff claims to have fallen, as that area was identified by the plaintiff in his deposition testimony and in Exhibit 4 of said deposition. "2. At no time on or prior to February 18, 2000 did Stamford Wrecking Company drive or park any vehicles or machinery of any type in the area or across the area [w]here the plaintiff claims to have fallen, as that area was identified by the plaintiff. "3. All of the work performed by Stamford Wrecking Company was performed within the footprint of the mall building, as it was not hired to perform any demolition work with regard to the mall parking lot and, 4. Throughout Stamford Wrecking Company's involvement in the . . . Mall project, its equipment and materials were located on the side of the mall buildings opposite from where the plaintiff claims to have fallen, as identified by the plaintiff . . ."
Defendant General Growth Properties ("GCP") moves for Summary Judgment on the basis that 1) they "did not own the property where the plaintiff's alleged incident occurred" and 2) they "did not possess, control or maintain the property where the plaintiff's alleged incident occurred." In support of its motion, General Growth provides: a copy of the relevant Warranty Deed and an Affidavit of Karl Wence, Operations Manager of the Company. In pertinent part, the Affidavit states: "4. On or about February 18, 2000, GCP did not own the mall, including the subject parking lot. Prior to said date, GCP had sold the mall to Starwood Ceruzzi Naugatuck, LLC. 5. On or about February 18, 2000, GCP did not possess, control or maintain the mall. Specifically, GCP did not possess, control or maintain the mall parking lot area on or about February 18, 2000 and, 6. Months prior to and including February 18, 2000, Starwood had assumed responsibility for maintaining the former Mall property, including the parking lot."
Legal Standard
Summary judgment is appropriate where "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." Barasso v. Rear Still Hill Road, LLC, 81 Conn. App. 798 (2004). Because litigants ordinarily have a constitutional right to have issues of fact decided by the finder of fact, the party moving for summary judgment is held to a strict standard. "[H]e must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." (Internal quotation marks omitted.) Id. at 802-03. "A material fact is a fact that will make a difference in the result of the case. [T]he burden of showing the nonexistence of any material fact is on the party seeking summary judgment . . . It is not enough for the moving party merely to assert the absence of any disputed factual issue; the moving party is required to bring forward . . . evidentiary facts, or substantial evidence outside the pleadings to show the absence of any material dispute. The party opposing summary judgment must present a factual predicate for his argument to raise a genuine issue of fact. Once raised, if it is not conclusively refuted by the moving party, a genuine issue of fact exists, and summary judgment is inappropriate. The court is required to view the facts presented in a motion for summary judgment in the light most favorable to the party opposing the motion. [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 omitted.) Id. at 804. Kroll v. Sebastian, 58 Conn. App. 262, 265, 753 A.2d 384 (2000). DeJesus v. Smith, No. 063771 (Apr. 18, 2001) 29 Conn. L. Rptr. 689, 2001 Ct. Sup. 5741-fa.
Practice Book § 17-46 provides that an affidavit in support of a motion for summary judgment "shall be made on personal knowledge [and] shall set forth such facts as would be admissible in evidence . . ." "[A]ffidavits filed in connection with a motion for summary judgment must be made on personal knowledge, must set forth facts which would be admissible in evidence, and must show that the affiant is competent to testify to all matters stated in the affidavit . . . Mere statements of legal conclusions or that an issue of fact does exist are not sufficient to raise the issue." (Citations omitted; internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 377, 260 A.2d 596 (1969). When deciding a motion for summary judgment, the court must consider only the factual statements contained in the affidavit. See Compass Bank for Savings v. Katz, Superior Court, judicial district of New London at New London, Docket No. 536458 (March 11, 1997, Booth, J.).
Conclusion
This court's review of the record persuades it that both the Stamford Wrecking and General Groth Properties affidavits satisfy that standard, presenting the necessary factual predicate for a lack of control defense. Plaintiff and both defendants agree that: "plaintiff's complaint alleges an action for premises liability against these defendants and that premises liability is an action in negligence. They further agree that liability for injuries arising out of defective premises depends on possession and control." See Plaintiff's March 10, 2004 Memorandum in Objection to Motion for Summary Judgment. Yet, in its objections to both motions for summary judgment, the Plaintiff does not present any factual evidence refuting the factual allegations, raised in the Wence and Goldblum Affidavits and the sale of property documentary evidence, that the defendants did not own, possess or control the area where the plaintiff allegedly fell. The plaintiff's legal conclusions, in its memoranda in opposition, are not factual in nature, and thus must be disregarded by this court for purposes of these motions.
Accordingly, the court concludes that no genuine issue of material fact exists as to whether either defendant owned, possessed or controlled the premises and for that reason, summary judgment is appropriate.
ALVORD, J.