Opinion
No. CV 05 5000179S
August 28, 2007
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT #152
PROCEDURAL HISTORY
On October 3, 2005, the plaintiff, Lori Leonard, filed a six-count second amended complaint in negligence against the defendants, GW Management, Inc., Lake Hills Village Condominium Association, Inc. and John's Lawncare and Landscaping, LLC (John's Lawncare). In her complaint, the plaintiff alleges the following facts. On or about February 6, 2004, the plaintiff was walking in the parking area located outside of her residence at 264 Lyman Road in Wolcott when she slipped and fell on an accumulation of ice and snow, resulting in her injuries. In count six, the plaintiff alleges negligence against John's Lawncare, as the party that owned, controlled, managed, possessed, and maintained the area in which the plaintiff fell.
In counts two, three and five of the second amended complaint, the plaintiff alleges negligence against Frank Cocca, Linda Cocca and Earl Benedetto, respectively. On January 9, 2007, the plaintiff withdrew her claims against these three defendants.
On May 21, 2007, John's Lawncare filed a motion for summary judgment as to count six on the ground that it did not have actual or constructive knowledge of the allegedly defective condition that caused the plaintiff's fall and injuries and, even if it had such knowledge, that the defective condition was eliminated within a reasonable amount of time. The plaintiff has not filed a memorandum of law in opposition to this motion.
On May 22, 2007, the plaintiff filed a memorandum of law in opposition to the motion for summary judgment filed by Lake Hills Village Condominium Association, Inc. on March 6, 2007. That motion for summary judgment essentially argues that the defendant's duty of care was not breached, while John's Lawncare's motion argues that, at the time of the plaintiff's fall, the defendant's duty of care had not yet arisen. Accordingly, the court will treat John's Lawncare's motion as unopposed.
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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing . . . that the party is . . . entitled to judgment as a matter of law." (Internal quotation marks omitted.) Powell v. Infinity Ins. Co., 282 Conn. 594, 599-600, 922 A.2d 1073 (2007). "It is also well established that [s]ummary judgment procedure is especially ill-adapted to negligence cases, where, as here, the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation." (Internal quotation marks omitted.) Maffucci v. Royal Park Ltd. Partnership, 42 Conn.App. 563, 568, 680 A.2d 333 (1996), rev'd on other grounds, 243 Conn. 552, 707 A.2d 15 (1998).
John's Lawncare argues that no genuine issues of material fact are in dispute, in that a snowstorm was in progress at the time of the plaintiff's fall, which precludes the imposition of its duty of care, pursuant to the Supreme Court's decision in Kraus v. Newton, 211 Conn. 191, 198, 558 A.2d 240 (1989). In support of its motion for summary judgment, John's Lawncare has submitted several admissible documents, consisting of portions of the plaintiff's deposition testimony, the deposition testimony of the plaintiff's fiance, Louis Lombard, and a weather report prepared by Cox Weather Services.
The deposition transcripts and the weather report are not certified. The court, in its discretion may consider the substance of these submissions, as there has been no objection to their use. See Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006) ("a court could properly consider [a submission of uncertified deposition transcripts] without objection").
In situations involving ice or snow removal, "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." Kraus v. Newton, 211 Conn. 191, 197-98, 558 A.2d 240 (1989). Thus, "a landowner's duty to remedy the effects of a storm does not arise until the end of a storm and a reasonable time thereafter." Sinert v. Olympia York Development Co., 38 Conn.App. 844, 850, 664 A.2d 791, cert. denied, 235 Conn. 927, 667 A.2d 553 (1995). For the purposes of the ongoing storm doctrine, both ongoing freezing rain fall and ongoing snow fall may prevent the imposition of the defendant's duty of care. Kraus v. Newton, supra, 211 Conn. 197 (laying out the ongoing storm doctrine in a situation involving an ongoing freezing rain storm); Cooks v. O'Brien Properties, Inc., 48 Conn.App. 339, 341, 710 A.2d 788 (1998) (applying the doctrine in a situation where a winter storm deposited snow and ice in the area where the plaintiff fell). Additionally, the ongoing storm doctrine has been held to apply to contractors hired to remove snow and ice. See Victoria v. Wilson, Superior Court, judicial district of New London, Docket No. CV 543819 (September 21, 1999, Corradino, J.) (25 Conn. L. Rptr. 502, 503). The rule in Kraus, however, "does not foreclose submission to the jury, on a proper evidentiary foundation, of the factual determinations of . . . whether a plaintiff's injury has resulted from new ice or old ice when the effects of separate storms begin to converge." Kraus v. Newton, supra, 211 Conn. 198.
In the plaintiff's deposition testimony, she testifies that she fell approximately at 9:30 a.m. on February 6, 2004, as she and Lombard were walking in the parking lot towards her car. She also acknowledges, however, that she was admitted to the hospital for treatment for her injuries at 9:15 a.m. that morning. She further testifies that she is unsure about whether there was snow or ice on the ground from a prior storm, but that the plows "never cleared up the parking lot well . . ." She also attests that, at the time of the fall, it was not snowing. Lombard, in his deposition testimony, testifies that he was with the plaintiff when she fell and that her fall occurred at some point between 8:45 a.m. and 9:15 a.m. He also attests that the snow had stopped falling between one and two hours before the plaintiff fell.
The weather report provides the following evidence. On February 3, 2004, approximately two to three inches of snow fell, adding to a prior snow fall, resulting in about eight inches of snow on untreated and undisturbed ground surfaces. No precipitation fell on either of the next two days, and by the end of the day on February 5, 2004, the snow depth in untreated areas had decreased to about six inches. Thereafter, snow began falling in the morning of February 6, 2004, approximately between 4:30 a.m. and 5:00 a.m. The snow accumulated to about three inches before changing to freezing rain approximately between 9:00 a.m. and 10:00 a.m. The freezing rain changed to nonfreezing rain approximately between 1:30 p.m. and 2:00 p.m. that afternoon.
Viewing the evidence in the manner most favorable to the nonmoving party, the court concludes that the plaintiff fell at some time between 8:45 a.m. and 9:30 a.m. on February 6, 2004. The evidence indicates that snow was falling from 5:00 a.m. until it changed to a freezing rain fall between 9:00 a.m. and 10:00 a.m. that morning. The freezing rain continued until at least 1:30 p.m. that afternoon. Regardless of whether the specific precipitation at the time of the plaintiff's accident was snow or freezing rain, the evidence submitted shows that one of those two forms of precipitation was occurring at that moment. The plaintiff testified that it was not snowing at the time that she fell, but she has not stated whether freezing rain fell at that time.
Notwithstanding an ongoing storm at the time of the plaintiff's fall, John's Lawncare has not established that there are no genuine issues of material fact as to the existence of an accumulation of ice and snow from a prior storm. In fact, John's Lawncare has provided evidence which suggests that there was such an accumulation. The weather report it submitted states that, as late as the end of the day preceding the plaintiff's fall, February 5, 2004, six inches of snow was on the ground from a prior snowfall. John's Lawncare has also provided evidence to suggest that the lot was usually not cleared properly after snowstorms, which further disputes its assertion that there was no accumulation of ice and snow at the time of the plaintiff's fall.
John's Lawncare argues that the plaintiff has not alleged that there was such an accumulation at the time of her fall, but this is of no legal consequence. As previously stated, "the party moving for summary judgment has the burden of showing that the party is . . . entitled to judgment as a matter of law." (Internal quotation marks omitted.) Powell v. Infinity Ins. Co., supra, 282 Conn. 599-600. To meet its burden of proving that the ongoing storm doctrine applies so as to preclude the imposition of the duty of care, John's Lawncare would have to establish that any accumulation of snow or ice was not the result of a prior storm. See Kraus v. Newton, supra, 211 Conn. 198. John's Lawncare has not met this burden; therefore, the court denies its motion for summary judgment.