Hansen v. Dominion Nuclear Ct., Inc.

Full title: Walter R. HANSEN v. DOMINION NUCLEAR CONNECTICUT, INC

Court: Connecticut Superior Court, Judicial District of New London at Norwich

Date published: Nov 13, 2006

2006 Ct. Sup. 20967 (Conn. Super. Ct. 2006)

42 CLR 334

Opinion

No. 5100038

November 13, 2006

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #138

DEVINE, JAMES J., J.

ISSUE

The issue is whether the court should grant Dominion's motion for summary judgment on the grounds that (1) it did not have a duty to remove snow or ice during an ongoing snowstorm and (2) there were no unusual circumstances that would give rise to a duty to do so.

FACTS

On February 10, 2005, the plaintiff, Walter Hansen, commenced this action by service of process on the defendant, Dominion Nuclear Connecticut, Inc. (Dominion), a Delaware corporation, which owns, manages and maintains the Millstone Power Station in Waterford. Hansen alleges that on March 5, 2003, at approximately 6:50 a.m., while walking in the parking lot adjacent to the south access point of the Millstone Power Station, he slipped and fell on snow or ice in the parking lot, and was injured as a result of the negligent maintenance of the lot by Dominion.¹

1 Pinkerton, Inc., Hansen's employer, filed an intervening complaint alleging that it has paid or will pay some money for this injury under the Workers' Compensation Act. Dominion had entered into a contract with McClure Construction Co., Inc. (McClure) on December 26, 2002, requiring McClure to remove snow and ice from its premises. Dominion served a third-party complaint against McClure on August 18, 2005, alleging contractual indemnification, breach of contract, and common-law indemnification, and that Hansen's injuries were the result of McClure's negligence. Hansen filed an amended complaint on October 11, 2005, adding a negligence claim against McClure. Pinkerton also filed an amended complaint to add a negligence claim against McClure on November 9, 2005. Neither McClure nor Pinkerton are parties to the motion for summary judgment presently before the court.

On July 24, 2005, Dominion filed the present motion for summary judgment on the grounds that (1) it did not have a duty to remove snow or ice during an ongoing snowstorm and (2) there were no unusual circumstances that would give rise to such a duty. In support of its motion, Dominion submitted a memorandum of law and an uncertified excerpt of Hansen's deposition. Hansen filed a memorandum in opposition to Dominion's motion and submitted an uncertified excerpt of his deposition, uncertified excerpts of the deposition testimony of Eugene McClure, who performs the snow removal operations at Millstone under a contract with Dominion; a copy of Dominion's "Employee Basic Incident Report," which describes the accident on March 5, 2003; and a copy of an uncertified page from a log book dated March 5, 2003.² The court heard the motion on October 2, 2006. CT Page 20968

2 Whether the court should consider an uncertified deposition when deciding a motion for summary judgment rests within the discretion of the court. Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006). Where neither party objected to the submission of uncertified depositions, this court may "properly . . . consider such a submission . . ." Id.

SUMMARY JUDGMENT LAW

"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.) Deming v. Nationwide Mutual Insurance Co., 279 Conn. 745, 756-57, 905 A.2d 623 (2006).

"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the 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 . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non-moving 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 . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). "Finally 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." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904 (2003).

ANALYSIS

Dominion argues it is entitled to summary judgment because it had no duty to clear the snow from the parking lot while the winter storm continued and no unusual circumstances existed that would give rise to a duty to take remedial action while the storm was in progress. In support of its argument that the storm was ongoing, Dominion submits Hansen's uncertified deposition testimony where Hansen testified that a mist or light rain was falling and that he used his windshield wipers on the drive to Millstone. Dominion maintains that light precipitation, such as mist or light rain, is evidence of an ongoing storm.

In response, Hansen does not dispute that a mist or light rain continued to fall, but counters that the storm had substantially ended because a storm is no longer ongoing when the precipitation has abated to a mist. Hansen also argues that there were unusual circumstances present because Dominion was aware that the busiest time in the Millstone parking lot is between 5:30 and 7:30 a.m., yet it did not remove snow from the parking lot until 7:00 a.m.

"[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. 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." Kraus v. Newton, 211 Conn. 191, 197-98, 558 A.2d 240 (1989).

Although determining duty is a matter of law, "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" are factual determinations that the trier of fact should decide. Kraus v. Newton, 211 Conn. 191, 198, 558 A.2d 240 (1989). If the precipitation changes to light precipitation, but the snow or ice continues to accumulate, the storm is still ongoing as a matter of law. Cafarelli v. First National Supermarkets, Inc., 46 Conn.Sup. 179, 186 n. 1, 740 A.2d 1010 (1999) ( 25 Conn. L. Rptr. 207). While a defendant does not have a duty to clear ice during an ongoing storm, the court in Rolfe v. Betts, Superior Court, judicial district of Danbury, Docket No. CV 97 0327101 (June 5, 1998, Radcliffe, J.), stated that evidence of "non-freezing light rain" presents a genuine issue of material fact as to whether the storm was ongoing. In Cooks v. O'Brien Properties, Inc., 48 Conn.App. 339, 344, 710 A.2d 788 (1998), the court determined that if "any further precipitation was so light that it would not result in any further accumulation on the ground," a trier of fact can reasonably conclude that the storm had stopped.

Both parties in the present case rely on the deposition testimony of Hansen. Therein, he testified that there was a mist or light rain, but was unclear whether he was operating his windshield wipers.³ This evidence raises a genuine issue as to whether the storm had ended because the precipitation was only a mist or light rain at the time of the accident, not snow.

3 In Hansen's deposition, he testified as follows:

Q: Do you remember what the weather was like that day?

A: It was misting.

Q: It was misting out at the time?

A: If I recall, I think it was misting.

Q: Okay. Was it-did it-was it foggy, or was it actual just mist?

A: If I recall, it was more like a mist, light rain or a mist, if I recall.

Q: Had you been using your windshield wipers on your car on your way in?

A: I don't recall if I really was. I think I was. I think I was.

Even if the storm were ongoing, Hansen has presented a genuine issue as to whether unusual circumstances exist in this case. In Cooks v. O'Brien Properties, Inc., supra, 48 Conn.App. 339, the court held the combined presence of two factors to constitute unusual circumstances. "[T]he unusual circumstances exception . . . would permit the [trier of fact] to consider the evidence presented with respect to the changeover in precipitation and the availability of alternative means of egress from the defendant's property in determining whether such unusual circumstances existed on the day of the plaintiff's accident so as to impose on the defendant the duty to remove the snow and ice from the steps prior to [the time the plaintiff fell]." (Emphasis added.) Id., 346-47. The defendant's status as a commercial property is not an unusual circumstance. Sinert v. Olympia and York Development Co., 38 Conn.App. 844, 846, 664 A.2d 791 (1995). The Cooks court, however, read Sinert narrowly and did consider some similar circumstances surrounding the injury, stating that " Sinert, therefore, stands for the limited proposition that the defendant's status as a commercial property owner does not constitute an unusual circumstance within the decisional parameters of Kraus." See Cooks v. O'Brien Properties, Inc., supra, 48 Conn.App. 346.

In the present case, Hansen has submitted evidence that Dominion was aware that many of its employees would arrive at the Millstone parking lot between the hours of 5:30 and 7:30 a.m., as well as that the storm had abated to a mist or non-freezing light rain without further accumulation of snow or ice. The evidence submitted by Dominion does not show the absence of genuine issues of the material facts raised herein. Hansen, however, has met his burden of showing the existence of a genuine issue of material fact.

ORDER

Based on the foregoing reasons, it is submitted that genuine issues of material fact remain as to whether the storm was ongoing and whether there were unusual circumstances. Accordingly, the motion for summary judgment is hereby denied.