Opinion
No. CV 05-5001569
April 10, 2008
MEMORANDUM OF DECISION ON MOTIONS FOR SUMMARY JUDGMENT
Plaintiff Aubery Phillips seeks damages arising from his slip and fall accident on December 2, 2003, allegedly caused by icy and slippery conditions on a parking lot walkway on property controlled or managed by defendants 1290 Realty LLC, Irving Bork d/b/a Nutmeg Management, Nutmeg Management of New York Corp. and Central Property Services, LLC. In his four-count Second Amended Complaint, plaintiff alleges that these defendants were negligent in permitting large quantities of snow and ice to accumulate on the premises and in failing to take steps to clear and sand the premises.
Defendants 1290 Realty LLC, Irving Bork and Nutmeg Management of New York Corp. filed a Motion for Summary Judgment on February 5, 2008 and defendant Central Property Services LLC filed a similar motion on February 13, 2008 both claiming that they were under no obligation to remove snow and ice during an ongoing storm under Kraus v. Newton, 211 Conn. 191.
Plaintiff disputes that there was an ongoing storm, despite significant evidence to the contrary, and argues that the rule articulated in Kraus only applies absent unusual circumstances, and that here, under Cooks v. O'Brien, 48 Conn.App. 339, 344-45 (1998), the unusual circumstances existed in this case because it was foreseeable that employees would be arriving at the premises at the time of the accident, that they would be using this particular entrance, and that the defendants had a duty to make an effort to make the walkway safe for pedestrian use prior to the employee's arrival at work on December 2, 2003. Thus, plaintiff claims that questions of fact exist as to the defendants' claim of the applicability of the "ongoing storm" doctrine and whether the situation on that morning fell under the "unusual circumstances" exception under Kraus.
In Cooks v. O'Brien Properties, Inc., 48 Conn.App. 339, 346-47, our Appellate Court determined that Kraus, "does not foreclose submission to the jury, on a proper evidentiary foundation, of the factual determination of whether a storm has ended . . ." Id., 344. Additionally, the court in Cooks instructed the jury on several considerations that would constitute unusual circumstances; i.e. whether the entrance where the plaintiff fell was the only means of access to the building and whether all "perceptible accumulation of snow had ceased . . . even if some light precipitation continued." Id., 345.
Although [the plaintiff's] deposition indicates that the storm may have continued through the time of the accident, it also indicates that the storm may have subsided enough so that other property owners were able to make their premises reasonably safe. Whether or not the defendant breached a duty to the plaintiffs is a question of fact for a jury to decide at trial. Muraca v. Bailey's Express, Inc., Superior Court, judicial district of Middlesex, Docket No. CV 92-0065809 (June 1, 1993, Higgins, J.) (9 Conn. L. Rptr. 187).
Whether unusual circumstances existed because the storm had abated and whether it was foreseeable that employees would be arriving on the premises at the time of the accident and whether some attempt should have been made to spread sand or clear the path to the back of the building claimed to be the only entrance, all present questions of material fact.
Motions for Summary Judgment denied.