Opinion
No. CV 10-6000902-S
July 12, 2011
MEMORANDUM OF DECISION MOTIONS FOR SUMMARY JUDGMENT #179; #181; #183
The defendants move for summary judgment to enter in their favor claiming they did not have a duty to remove snow and ice from the premises during an ongoing snowstorm.
FACTS
The plaintiff, Carolyn Hall, filed this action arising from her alleged slip and fall on the sidewalk in front of property located at 185 Asylum Street in Hartford. On November 30, 2010, the plaintiff filed a twelve-count revised complaint alleging causes of action sounding in negligence and nuisance against each of the named defendants, Morgan Stanley Realty, Inc. (Morgan Stanley), Jones Lang LaSalle Services, Inc. (Jones Lang LaSalle), the Brickman Group Ltd., LLC (Brickman), Pineset, LLC (Pineset), CityPlace Limited Partnership (CityPlace), and Max's Downtown, LLC (Max's Downtown). In her revised complaint, the plaintiff alleges that on December 31, 2008, at approximately 11 a.m., while walking on the property, she incurred injuries when "she was caused to slip and fall due to an accumulation of untreated ice that was exposed on [the] sidewalk after the snow had been removed." In separate counts, the plaintiff alleges that each of the defendants "owned, operated, managed, controlled, possessed and/or maintained" the property. The plaintiff further alleges that her injuries were caused by the negligence of each of the defendants and that the condition of the sidewalk constituted a nuisance, which was "created, permitted, continued and/or maintained" by the defendants.
In the plaintiff's summons, this defendant's name is spelled "CitiPlace," however subsequent briefs spell it "CityPlace." Therefore, the court finds that the proper spelling is "CityPlace."
The plaintiff filed her original complaint against Morgan Stanley, Max's Restaurant Group, LLC (Max's Restaurant), Jones Lang LaSalle, and Brickman on December 29, 2009. On May 18, 2010, Brickman filed an apportionment complaint against Pineset. Thereafter, the plaintiff filed a series of amended and revised complaints to include Pineset, CityPlace and Max's Downtown. Max's Restaurant was not named in the revised complaint, dated November 30, 2010. As a result, Max's Restaurant filed a motion for summary judgment, dated April 1, 2011, which was granted by order of the court, Markle, J., on May 11, 2011. The present motions for summary judgment were filed by Morgan Stanley, Brickman, Pineset and CityPlace. Hereinafter, they will be referred to collectively as "the defendants."
Count one (negligence) and count two (nuisance) are directed as to Morgan Stanley. Count seven (negligence) and count eight (nuisance) are directed as to Brickman. Count nine (negligence) and count ten (nuisance) are directed as to Pineset. Count eleven (negligence) and count twelve (nuisance) are directed as to CityPlace.
On February 8, 2011, Pineset filed a motion for summary judgment (#179) on the ground that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law because it had no duty to remove snow and ice during an ongoing snowstorm. Subsequently, on February 23, 2011, Brickman filed a motion for summary judgment (#181) on similar grounds. Thereafter, on March 8, 2011, Morgan Stanley and CityPlace filed a motion for summary judgment (#183) on the same grounds. All three motions were accompanied by the same memorandum of law. On April 12, 2011, the plaintiff filed an amended complaint.
The motion for summary judgment was directed as to both the plaintiff's revised complaint and as to Brickman's apportionment complaint.
The memorandum of law was originally filed by Pineset but was subsequently adopted by Brickman, Morgan Stanley and CityPlace. Brickman, however, excluded Pineset's argument with respect to Brickman's apportionment complaint.
The plaintiff filed a request to amend along with its amended complaint. None of the defendants objected to the request to amend, therefore, it is the operative complaint. See Practice Book § 10-60(a). As the allegations set forth in the plaintiff's amended complaint are substantially the same as those set forth in the plaintiff's revised complaint, dated November 30, 2010, it does not change the analysis applied by this court and, therefore, the defendants' motions are considered with respect to the plaintiff's amended complaint, dated April 12, 2011.
DISCUSSION
"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." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "[T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact . . . Once the moving party has met its burden . . . the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough . . . for the opposing party merely to assert the existence of such a disputed issue." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). "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). Moreover, the "court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, supra, 284 Conn. 791.
In their memorandum of law, with respect to the plaintiff's negligence claims, the defendants argue that they are entitled to judgment as a matter of law because they had no duty to remove the snow and ice at the time of the plaintiff's fall due to the ongoing nature of the snowstorm and because there were no unusual circumstances existing that required the defendants to remove the snow and ice prior to the end of the snowstorm. With respect to the plaintiff's nuisance claims, the defendants contend that allegations of negligent nuisance do not avoid the rule that there is no duty to remove snow and ice during an ongoing snowstorm. Furthermore, the defendants argue that the plaintiff has insufficiently pleaded its nuisance claims because she failed to plead that the defendants created the dangerous condition or that the defendants' use of the land was unreasonable or unlawful. Finally, Pineset argues that it cannot be liable to Brickman if it had no duty to the plaintiff. In support of their memorandum, the defendants submitted the following evidence: (1) the affidavit of John R. Papp, senior meteorologist with WeatherSearch, Inc., along with his resume and a meteorological report, dated December 6, 2010, and signed by Papp (Papp's report); and (2) the affidavit of Brian Picard, managing member of Pineset.
As the defendants have filed identical memoranda, their arguments shall be considered together. To the extent that an argument is inapplicable to one or more defendants, it will be considered separately.
There is some ambiguity as to the application of this argument. In particular, at one part of the memorandum, the argument is directed as to count nine of the plaintiff's amended complaint, which only concerns Pineset. Furthermore, count nine is a negligence count that has included an allegation for "nuisance or in the nature of nuisance." This is the only negligence count that includes an allegation for nuisance. There is a separate count of nuisance directed against each of the defendants. Nevertheless, at a later part of the memorandum, the defendants appear to adopt this argument with respect to the plaintiff's nuisance claims in general.
This argument is more properly raised in a motion to strike. See Practice Book § 10-39.
In response, the plaintiff counters that, while the defendants have no duty to remove snow and ice during an ongoing snowstorm, the defendants, by engaging in snow removal, assumed a duty to perform such snow removal in a safe and reasonable manner that would be most likely to best protect pedestrians traversing the property on that day. In this regard, the plaintiff contends that the defendants failed in that duty and, instead, made the property more dangerous for pedestrians. In support of her objection, the plaintiff submitted the following additional evidence: (1) the affidavit of William Hall, husband of the plaintiff; and (2) the affidavit of William G. Jacquemin, meteorologist and president of the Connecticut Weather Center, Inc., along with his resume and a meteorological report, dated March 30, 2011, and signed by Jacquemin (Jacquemin's report).
Pineset and Brickman reply that public policy undercuts the plaintiff's argument. In particular, they contend that if property owners are liable for slip and fall injuries when they commence to address snow removal and treat ice conditions before the end of a snowstorm then they will not take any actions prior to a storm's cessation, which would promote unsafe conditions.
I NEGLIGENCE CLAIMS
"The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." (Internal quotation marks omitted.) Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 593, 945 A.2d 388 (2008). "Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual . . . Although the determination of whether a duty exists is ordinarily a question of law . . . under some circumstances, the question involves elements of both fact and law." (Citations omitted; internal quotation marks omitted.) LaFlamme v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63 (2002).
The Supreme Court has had an opportunity to consider the duty of a property owner with respect to removal of snow and ice during an ongoing snowstorm. See Kraus v. Newton, 211 Conn. 191, 558 A.2d 240 (1989). "[I]n 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." Id., 197-98. The Supreme Court reasoned that "[t]o 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." Id., 198.
Nevertheless, there is a "recognized principle of Connecticut law that one who gratuitously undertakes an act will be liable for performing it negligently." Coville v. Liberty Mutual Ins. Co., 57 Conn.App. 275, 281, 748 A.2d 875 (2000); see also Zatkin v. Katz, 126 Conn. 445, 450, 11 A.2d 843 (1940). In this regard, "[o]ne who gratuitously undertakes a service that he has no duty to perform must act with reasonable care in completing the task assumed." Coville v. Liberty Mutual Ins. Co., supra, 282; see also 2 Restatement (Second), Torts § 323 ("One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other's reliance upon the undertaking").
While there is no specific appellate authority with regard to the duty of a property owner who begins snow and ice removal during an ongoing snowstorm, there is a split of authority in the Superior Court. In Rodriguez v. MidState Medical Center, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 07 5002619 (June 17, 2008, Taylor, J.) ( 45 Conn. L. Rptr. 730), the plaintiff fell on a thin layer of packed snow left by a plow during an ongoing snowstorm. The plaintiff alleged that the defendant "negligently removed the snow in a manner causing it to be packed down, creating an icy effect, resulting in a fall and injury . . ." Id., 731. The court concluded that the allegations did not "involve something so unusual as to constitute an exception to the holding in Kraus [because] [i]t is not unusual to plow during a snowstorm." Id., 732. In particular, the court stated that "[t]o suggest that one should not begin to plow because they may then become liable for an icy condition during the snowstorm is contrary to the holding of Kraus, which did not find a duty to clear snow ` or to spread sand or ashes while a storm continues . . .'" (Emphasis in original.) Id.
In Victoria v. Wilson, Superior Court, judicial district of New London, Docket No. CV 97 0543819 (September 21, 1999, Corradino, J.) ( 25 Conn. L. Rptr. 502), the plaintiff slipped on ice and fell in a parking lot. The plaintiff alleged that "the defendant plowed away the snow, left sheer ice and did not spread any abrasive material on the ice." Id., 503. The court concluded that, pursuant to Kraus, "it is impractical to require a party, who has the responsibility to do so, to keep an area safe while ice and snow still falls . . . [b]ut if you do take this gratuitous obligation on yourself, you face liability if you make the situation worse." Id., 504. In particular, the court stated that "[n]o rational social policy should encourage affirmative acts of negligence in a situation where the actor could have chosen to do nothing at all." Id., 503.
More recently in Manning v. S.R. Weiner Associates, Inc., Superior Court, judicial district of New London, Docket No. CV 10 6002710 (March 22, 2011, Cosgrove, J.) ( 51 Conn. L. Rptr. 584), the plaintiff fell due to an accumulation of snow and ice. The plaintiff alleged that "she was forced to walk over an accumulation of snow and ice that had been plowed slick by a snow plow, but not salted or sanded, which made the surface slippery and dangerous." Id. The court concluded that "[t]he determination of whether the defendants acted reasonably — including whether they spread sand or salt on the plowed snow — properly lays within the province of a fact finder." Id., 587. In doing so, the court adopted the reasoning set forth in Victoria and stated that this ruling "appears to be in line with Connecticut law in the area of negligence while not running afoul of" Kraus. Id., 586.
The rationale set forth in Victoria and Manning is persuasive. While "[i]t is not unusual to plow during a snowstorm"; Rodriguez v. MidState Medical Center, supra, 45 Conn. L. Rptr. 732; this fact is beside the point. There is a "recognized principle of Connecticut law that one who gratuitously undertakes an act will be liable for performing it negligently." Coville v. Liberty Mutual Ins. Co., supra, 57 Conn.App. 281. Furthermore, "[n]o rational social policy should encourage affirmative acts of negligence in a situation where the actor could have chosen to do nothing at all." Victoria v. Wilson, supra, 25 Conn. L. Rptr. 503. Therefore, while there is no duty to remove snow and ice during an ongoing snowstorm, once a party begins the process, there is a duty to act with reasonable care.
In the present case, Papp's report states that in Hartford on December 31, 2011, at 11 a.m., at the time of the plaintiff's fall, "it was windy and moderate to heavy intensity snow was falling" with a temperature of approximately 25 degrees Fahrenheit. Papp's report further states that, at this time, approximately three-quarters of an inch to one and three-quarters of an inch of snow had accumulated, which "was entirely the result of the ongoing storm." In his affidavit, Picard attested that, at the time of the plaintiff's fall, the "storm had been in progress for several hours and had deposited snow, sleet and ice onto the [sidewalk adjacent to the property and that] this precipitation was freezing on the sidewalks and forming ice and was continuing to do so at that time." Moreover, Picard attested that at this time, "workers were attempting to remove snow, prevent ice from accumulating and applying ice melt material to the sidewalks."
Jacquemin's report stated, however, that in this situation, "it would be best to leave the fallen snow on the ground to serve as a source of traction." Jacquemin's report further stated that "snow is an insulator and when the snow is removed from a surface, the outside elements would be able to reach the surface that was snow covered." In his affidavit, William Hall attested that, prior to the plaintiff's fall, he and the plaintiff had walked on sidewalks covered in snow and "were able to find traction in the snow and safely traverse those sidewalks." Furthermore, William Hall attested that the sidewalk adjacent to the property had been scraped of snow and "was much more slippery and difficult to traverse than the snow covered sidewalks." Moreover, William Hall attested that he observed a layer of ice on the sidewalk adjacent to the property with no sand, salt or other abrasive substance.
"[I]t is impractical to require a party, who has the responsibility to do so, to keep an area safe while ice and snow still falls . . . [b]ut if you do take this gratuitous obligation on yourself, you face liability if you make the situation worse." Victoria v. Wilson, supra, 25 Conn. L. Rptr. 504. "The determination of whether the defendants acted reasonably — including whether they spread sand or salt on the plowed snow — properly lays within the province of a fact finder." Manning v. S.R. Weiner Associates, Inc., supra, 51 Conn. L. Rptr. 587. Therefore, while there is no genuine issue of material fact as to whether there was an ongoing storm at the time of the plaintiff's fall, there is a genuine issue of material fact as to whether the defendants acted with reasonable care in removal of the snow, in particular, as to whether the defendants made the situation worse.
CT Page 15120
II NUISANCE CLAIMS
"Whenever any party wishes to contest . . . the legal sufficiency of the allegations of any complaint, . . . or of any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39(a). "[T]he use of a motion for summary judgment instead of a motion to strike [to challenge the legal sufficiency of a complaint] may be unfair to the nonmoving party because [t]he granting of a defendant's motion for summary judgment puts the plaintiff out of court . . . [while the] granting of a motion to strike allows the plaintiff to replead his or her case." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005). Accordingly, "the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate [only] when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading." Id."[I]n determining the sufficiency of a complaint . . . all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "[W]hat is necessarily implied [in an allegation] need not be expressly alleged." Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010). "If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not [legally insufficient]." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). Nevertheless, a complaint is legally insufficient if it "alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
With respect to the plaintiff's nuisance claims, the defendants argue that the plaintiff has insufficiently pleaded her claims because she has not pleaded that the defendants created the dangerous condition or that the defendants' use of the land was unreasonable or unlawful.
"[The Supreme Court] has stated often that a plaintiff must prove four elements to succeed in a nuisance cause of action: (1) the condition complained of had a natural tendency to create danger and inflict injury [on] person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the plaintiffs' injuries and damages." (Internal quotation marks omitted.) Picco v. Voluntown, 295 Conn. 141, 146, 989 A.2d 593 (2010).
In her amended complaint, the plaintiff alleges that the nuisance was "created" by the defendants, but does not allege that the use of the land was unreasonable or unlawful. Nevertheless, "[w]hat is necessarily implied [in an allegation] need not be expressly alleged." Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, supra, 295 Conn. 252-53. In particular, the plaintiff alleges that "she was caused to slip and fall due to an accumulation of untreated ice that was exposed on said sidewalk after the snow had been removed" by the defendants. Thus, the plaintiff's amended complaint is legally sufficient and, in any event, the defendants have failed to establish that any defects could not be cured by repleading.
Finally, to the extent that the defendants argue that allegations of negligent nuisance or in the nature of nuisance do not avoid the rule that there is no duty to remove snow and ice during an ongoing snowstorm, as stated previously, once a party begins the process, there is a duty to act with reasonable care. Therefore, these claims do not avoid the ruling in Kraus.
CONCLUSION
For the foregoing reasons, the defendants' motions for summary judgment are denied in their entirety.