Opinion
No. CV-04 0486335 S, 40 CLR 122
October 11, 2005
MEMORANDUM OF DECISION
The plaintiff commenced this action against the defendant seeking to recover for injuries sustained while attending a hockey game at an ice rink owned by the defendant. The defendant filed a special defense to the complaint which alleges the defendant is immune from the claim of the plaintiff pursuant to Connecticut General Statutes § 52-557 et seq. The defendant has now filed this motion for summary judgment based upon the recreational use statute and therefore seeks judgment on the claims of the plaintiff.
The defendant has filed a motion for summary judgment in its favor pursuant to the recreation use statute of the State of Connecticut.
This case relates to an incident which occurred at a hockey rink on the defendant's premises on February 6, 2002. The plaintiff was a spectator of a hockey match between the defendant's hockey team, and Pomfret Academy. The plaintiff's son played for the visiting Pomfret team. The plaintiff, while taking photographs in close proximity to a Plexiglas protective viewing area, was injured when the force of players caused the flexible Plexiglas to strike his head. The plaintiff thereafter commenced this action against the defendant based upon claims of negligence.
The defendant now contends the plaintiff was not charged admission to enter the rink to watch the hockey match, and that the rink "was open to any and all members of the public to enter and watch recreational activities conducted therein."
The defendant in support of its motion filed an affidavit from John C. Burditt, the vice president of administration which alleges the rink was open to the public to watch recreational activities conducted therein with no fees charged to members of the public. He also alleges plaintiff was not charged to watch the hockey game at the time of the incident.
The defendant also introduced portions of the plaintiff's deposition which made reference to the plaintiff going into the rink on a later date to take photographs of the interior. That he was not charged a fee on that occasion, and he had access to the interior for that purpose.
The plaintiff presented his own affidavit which disputes the defendant's reference to his deposition testimony. He alleges he was not charged a fee to attend the hockey game or to take photographs. He also states he had no knowledge regarding public access to the rink.
In Genco v. Connecticut Light and Power Co., 7 Conn.App. 164, 168-69, 508 A.2d 58 (1986), in a quote from the legislature it was stated "a review of the legislative history reveals that the clear purpose of § 52-557 is an attempt to satisfy the public's need for recreational and open space by encouraging private land owners, through limiting their liability, to open their land to public use."
Practice Book § 17-49 states that summary judgment shall be rendered if there is no genuine issue to any material fact. The recreation land use act relates to an owner of land making all or any part of the land available to the public without charge for recreational purposes. The plaintiff was present in the ice rink as a spectator and not as an active participant in the recreational use of the rink by hockey players.
The supporting documents of the defendant do not satisfy this court that permitting a father as a spectator to a hockey game grants immunity to the defendant for alleged acts of negligence during that event because he was not charged an entrance fee.
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 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." 6 Moore, Federal Practice (2d Ed.) ¶ 56.15[3]; Plouffe v. New York, N.H H.R. Co., 160 Conn. 482, 488, 280 A.2d 359 (1971). As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent. Evans Products Co. v. Clinton Building Supply, Inc., 174 Conn. 512, 516, 391 A.2d 157 (1978); DHR Construction Co. v. Donnelly, 180 Conn. 430, 434.
The affidavits of the defendant refer only to the fact the plaintiff was not charged a fee to watch the hockey game, and that the rink was open to the public to watch the game. The affidavits do not satisfy this court to conclude this rink at this private educational institution was open to the general public uses beyond being only a spectator of this hockey game.
For the foregoing reasons, this court finds there are genuine issues of fact regarding the application of the recreational land use statute to the circumstances of this case. The motion of the defendant for summary judgment is therefore denied.