Opinion
No. CV 04 5000155 S
November 13, 2006
MEMORANDUM OF DECISION
On October 5, 2004, the plaintiff, Nancy DeSimone, filed this action against the defendant, the New Haven Housing Authority. In the complaint, the plaintiff alleges the following facts. On December 5, 2002, while working as a visiting nurse, the plaintiff was on the premises of an apartment building at 904 Howard Avenue in New Haven, Connecticut. After spending forty-five minutes to an hour inside the building, she exited from the building into the rear parking lot where her car was parked. While walking to her car, she slipped and fell on an accumulation of snow and ice.
On April 24, 2006, the defendant filed a motion for summary judgment on the ground that it owed no duty of care to the plaintiff. From April to July 2006, the defendant submitted three memoranda of law in support of the motion with various documents. The plaintiff filed two memoranda in opposition, on May 31, and on July 19, 2006, respectively. She submitted some documentation as well.
As required by § 17-44 of the Practice Book, the defendant requested and received permission to file its motion for summary judgment.
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith 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." (Internal quotation marks omitted.) Old Farms Associates v. Commissioner of Revenue Services, 279 Conn. 465, 479, 903 A.2d 152 (2006).
"The courts hold the [summary judgment] movant to a strict standard. To satisfy his burden the movant 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 . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation 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 disputed factual issue." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
The evidence filed by the parties relevant to the motion includes the certified excerpts of the plaintiff's deposition, certified copies of weather reports for Hartford and Bridgeport during December 2002, and a certified excerpt of the deposition of Albatis, an agent of the defendant. "Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997), citing Practice Book § 17-46. In the present case, the deposition testimony and climatological reports are certified, and, therefore, properly admissible. See New Haven v. Pantani, 89 Conn.App. 675, 678, 874 A.2d 849 (2005) (documents to a motion for summary judgment are to be made under oath or must be otherwise reliable to be admissible).
"The issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." Pion v. Southern New England Telephone Co., 44 Conn.App. 657, 660, 691 A.2d 1107 (1997). "Summary judgment procedure [however] is . . . ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law . . ." (Internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975). "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).
In support of its motion, the defendant argues it had no duty to clear ice and snow accumulations until a reasonable time after the storm subsided, and, at the time of the plaintiff's fall, the storm was ongoing. The defendant further argues that no unusual circumstances were present to circumvent this general rule. In opposing the motion, the plaintiff argues that there is a genuine issue of material fact as to the age and origin of the ice on which she fell. Specifically, the plaintiff argues that whether the ice that caused her fall preexisted the snowstorm or had fallen that day, is determinative as to whether the defendant had a duty to remove the ice and snow. Further, she argues that the defendant submitted no evidence to support its claim that her fall was caused by the ongoing storm and not the prior accumulated ice.
The primary case in Connecticut regarding the duty of care as to snow and/or ice removal is Kraus v. Newton, 211 Conn. 191, 55 A.2d 240 (1989). Therein, the court stated: We believe that in the absence of unusual circumstances, a property owner, in fulfilling the duty owed to invitees upon his property to exercise reasonable diligence in removing dangerous accumulations of snow and ice, may await the end of a storm and a reasonable time thereafter before removing ice and snow from outside walks and steps. To require a landlord or other inviter to keep walks and steps clear of dangerous accumulations of ice, sleet or snow or to spread sand or ashes while a storm continues is inexpedient and impractical . . . Our decision, however, does not foreclose submission to the jury, on a proper evidentiary foundation, of the factual determinations of whether a storm has ended or whether a plaintiff's injury has resulted from new ice or old ice when the effects of separate storms begin to converge." (Emphasis added.) Id., 197-98.
In Kraus, the plaintiff fell while descending the defendant's front steps during a freezing rain storm and suffered injuries. There was no evidence of preexisting ice. The Supreme Court stated that a property owner may await the end of an ongoing freezing rain or sleet storm and further wait a reasonable time before clearing outside walks and steps. Kraus v. Newton, supra, 211 Conn. 193, 197-98. In examining what constitutes "unusual circumstances," the court in Sinert v. Olympia York Development Co., 38 Conn.App. 844, 848-50, 664 A.2d 791, cert. denied, 235 Conn. 927, 667 A.2d 553 (1995), concluded that the defendant's commercial status was an impermissible jury consideration while the plaintiff's status as an invitee and whether the storm was ongoing were permissible considerations. In Cooks v. O'Brien Properties, Inc., 48 Conn.App. 339, 710 A.2d 788 (1998), the plaintiff fell while descending her landlord's steps shortly after the end of a winter storm. Based on the evidence that a snowstorm had previously deposited approximately three to four inches of snow and ice, which the landlord never cleared; that between the storms, temperatures remained low enough to prevent significant melting; and that snow and ice from the previous storm was observed on the steps, the court concluded that a trier of fact could find that the snow and ice from the previous storm caused the fall. Id., 348. The court further clarified that the existence of both circumstances, the termination of the storm and the lack of alternative means of egress, might result in unusual circumstances. Id., 346-47.
The key issue in the motion before the court is whether the storm was ongoing, and, therefore, the defendant owed no duty of care until the storm terminated or, if a reasonable time had not passed since the end of the storm, whether there was an unusual circumstance of ice or snow that preexisted the ongoing storm. In the present case, the defendant submitted deposition testimony from the plaintiff in which she testified that it was snowing when she entered the building and it was still snowing when she exited from the building to the parking lot. In addition, she testified that she had observed ice on both sides of the walkway but not in the middle where she slipped, and that upon entering the building, she noted that the walkway had been shoveled. The defendant also relied on the evidence from the climatological report to show that snow was falling on December 5, 2002. Thus, the defendant claims that there is no genuine issue of material fact as to whether the storm was ongoing and the existence of preexisting ice.
The plaintiff also relies on her deposition testimony in opposition to the defendant's motion. Therein, she testified that she had rubber traction on the bottom of each shoe, that she was taking careful steps to avoid a fall and, when she fell on the ice that accumulated between the sidewalk and the parking lot on her buttocks, she made a dent in the ice. Also, the plaintiff maintains that the weather reports submitted by the defendant showed the conditions thirty or more miles from where she fell, and not the conditions in New Haven where she did fall, and her claim is that her injuries were caused from the accumulated ice, not the falling snow.
In the present case, viewing the evidence in the light most favorable to the plaintiff, there is a factual issue as to whether a preexisting accumulation of ice caused the plaintiff's fall.
Accordingly, the motion for summary judgment is denied. CT Page 20732