Opinion
No. NNH CV 10 6014745 S
November 9, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#118)
I FACTS AND PROCEDURAL HISTORY
The plaintiff, Michael Sweeney, commenced the present action against the defendants, Friends of Hammonasset, Inc. (the Friends of Hammonasset) and Deanna Becker (Becker), by service of process on September 17, 2010. The operative version of the complaint was filed on February 24, 2011. It alleges the following facts. On January 8, 2010, at 6:45 p.m., the plaintiff was present at Hammonasset State Park (park) for a nature walk, to which he had been invited by the Friends of Hammonasset. The Friends of Hammonasset is a nonprofit organization that educates park visitors about the environment. Becker was a member and the president of the Friends of Hammonasset at all times relevant to the present action. The plaintiff slipped and fell on ice during the nature walk, and he was injured as a result.
The following two counts comprise the complaint. Count one is against both defendants. The plaintiff specifically alleges that the defendants were negligent in one or more of the following ways: they failed to provide a reasonably safe walking area for visitors; they failed to post signs or otherwise warn visitors, including the plaintiff, of the icy conditions at or near the walking area; they failed to reasonably inspect the walking area; they failed to remedy the icy conditions at or near the walking area; and they knew or should have known that the area where the plaintiff would be walking was icy. Count two is against Becker and alleges that she was negligent in the following ways: she failed to create a plan for the Friends of Hammonasset to inspect the park for safety hazards; she failed to assign a member of the Friends of Hammonasset to inspect the park for safety hazards; and she failed to notify or to assign a member of the Friends of Hammonasset to notify the state of Connecticut or any other party that would be responsible for plowing or sanding the walking area.
The defendants filed the present motion for summary judgment, a memorandum of law in support thereof and exhibits on January 12, 2011. The plaintiff in turn filed an opposition to the motion and exhibits on March 15, 2011. The defendants then filed a reply memorandum and exhibits on April 20, 2011. The plaintiff filed his surreply and exhibits on May 6, 2011. The court heard the matter at short calendar on August 8, 2011.
II DISCUSSION A Legal Standards and Parties' Arguments
"Summary judgment is a method of resolving litigation when 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 . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; internal quotation marks omitted.) Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).
"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 nonmoving 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 . . . 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.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
The defendants argue that they are entitled to judgment as a matter of law on both counts of the complaint. They specifically argue that they are entitled to summary judgment on count one, which sounds in premises liability, because there is no genuine issue of material fact about whether they had possession or control of the park at all times relevant to the present action. They further argue that Becker is entitled to summary judgment on count two because she is immune from civil liability under certain federal and state statutes. The defendants' reply memorandum repeats and elaborates upon these arguments.
In support of the present motion, the defendants submit the following evidence: interrogatories served upon the defendants by the plaintiff (Def.'s Ex. A to Motion for Summary Judgment); an affidavit given by Don Rankin, a Friends of Hammonasset volunteer (Def.'s Ex. B to Motion for Summary Judgment); a flyer advertising the nature walk (Def.'s Ex; C to Motion for Summary Judgment); an affidavit given by Russ Miller, the director of the Meigs Point Nature Center (Def.'s Ex. A to Reply Memorandum); and transcript pages from the plaintiffs March 30, 2011 deposition (Def.'s Ex. B to Reply Memorandum).
The plaintiff opposes the present motion by making the following arguments. First, he is not required to prove that the defendants possessed or controlled the park at the time of the nature walk, because count one sounds generally in negligence and not specifically in premises liability. This is because the conduct upon which the plaintiff bases the count is the defendants' alleged failure to exercise due care in sponsoring the nature walk. The plaintiff's second argument in opposition to the present motion is that Becker is not entitled to summary judgment on count two because the federal statute upon which the defendants rely only provides immunity from liability with respect to economic loss, not noneconomic loss. The plaintiff's surreply repeats and elaborates upon these arguments.
In opposition to the present motion, the plaintiff submits the following evidence: newspaper and website listings advertising the nature walk (Pl.'s Ex. A, B, C, D and E); certain interrogatories (Pl.'s Ex. G and H); certain transcript pages from a statement given by Shannon Schliesser, a Friends of Hammonasset volunteer, to the Friends of Hammonasset's insurer (Pl.'s Ex. G); minutes from the Friends of Hammonasset's board meetings on November 10, 2009 and December 8, 2009 (Pl.'s Ex. I); and an affidavit given by the plaintiff and his wife, which was filed on April 8, 2011.
The parties dispute whether these exhibits are inadmissible hearsay. Because the court need not consider them in order to decide the present motion, for reasons discussed infra, it need not resolve the issue of their admissibility.
B Count One
"A fundamental tenet in our law is that the plaintiff's complaint defines the dimensions of the issues to be litigated." Pergament v. Green, 32 Conn.App. 644, 650, 630 A.2d 615, cert. denied, 228 Conn. 903, 634 A.2d 296 (1993). Count one alleges the following: the plaintiff was a "visitor/invitee" to the park; conducting nature walks was the Friends of Hammonasset's "mode of operation"; and the defendants were negligent because they failed to inspect, provide alternatives to, remedy and/or warn about the icy conditions at the park, which they knew or should have known about. It does not explicitly or implicitly allege, however, that the defendants were negligent in how they oversaw the nature walk or guided the attendees of the nature walk, which is the alternative theory of liability upon which the plaintiff relies in opposing the present motion. The court also notes that the plaintiff himself has previously characterized the present action as sounding in premises liability, specifically in interrogatories that he served upon the defendants and that he entitled "Plaintiff's Interrogatories Premises Liability Cases." Def.'s Ex. A to Motion for Summary Judgment.
"[T]he allegations of a complaint limit the issues to be decided on the trial of a case . . . It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint . . . Thus, the failure to include a necessary allegation in a complaint precludes a recovery by the plaintiff under that complaint . . . [E]ssential allegations may not be supplied by conjecture or remote implication . . . (Citations omitted; internal quotation marks omitted.) Fusek v. Jaber, Superior Court, judicial district of Danbury, Docket No. 308622 (July 2, 1992, Moraghan, J.) ( 7 Conn. L. Rptr. 29, 29). "The concept of `premises liability' . . . is generally understood to include liability for a `dangerous condition,' which includes, but certainly is not limited to, `defects.' See, e.g., 65A Corpus Juris Secundum, Sec. 381, et seq." Marino v. Jackson, Superior Court, judicial district of Middlesex, Docket No. CV 04 0103925 (January 13, 2005, Silbert, J.) ( 38 Conn. L. Rptr. 553, 553). The only theory of liability presented in count one is based upon negligence for failure to exercise due care in responding to the icy conditions at the park on the night of the nature walk. The court is thus compelled to treat count one as sounding only in premises liability and will do so in deciding the present motion.
The present action is therefore distinguishable from Gazo v. Stamford, 255 Conn. 245, 765 A.2d 505 (2001), upon which the plaintiff relies in arguing the basis for the defendants' alleged liability. At issue in Gazo, a slip and fall action, was whether an independent contractor "owe[d] a direct duty of care to the plaintiff based on [the independent contractor]'s contractual relationship with Chase Bank" to remove snow from Chase Bank's premises. Id., 249. See also Adiletta v. Reckson Associates Realty Corp., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 03 083135 (March 12, 2007, Esposito, J.) (summary judgment denied in slip and fall action where genuine issue of material fact existed about whether defendant negligently performed its contractual duties to clean premises of plaintiff's employer). "[N]ot at issue [was] whether [the independent contractor could] be liable to the plaintiff on a theory of premises liability, which requires that the party to be held liable be in control of the property. That [was] not a basis of the plaintiff's claims." Gazo v. Stamford, supra, 255 Conn. 249. The plaintiff in the present action does not allege that the defendants owed him a duty based upon their arrangement with a third party to render certain services. For this reason, § 324A of the Restatement (Second) of Torts, to which the Gazo court looked and upon which the plaintiff also relies, is also inapplicable to the present action: "One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking." (Emphasis added.)
"Liability for an injury due to defective premises does not depend on title, but on possession and control." Farlow v. Andrews Corp., 154 Conn. 220, 225, 224 A.2d 546 (1966). "[P]ossession cannot be fairly construed as anything short of the exercise of dominion and control similar to and in substitution for that which ordinarily would be exerted by the owner in possession." (Internal quotation marks omitted.) Silano v. Cumberland Farms, Inc., 85 Conn.App. 450, 454, 857 A.2d 439 (2004). "[T]he word `control' has no legal or technical meaning distinct from that given in its popular acceptation . . . and refers to the power or authority to manage, superintend, direct or oversee." (Internal quotation marks omitted.) Doty v. Shawmut Bank, 58 Conn.App. 427, 432, 755 A.2d 219 (2000). "Generally, one does not owe a duty to entrants unless such person asserts control or possession over the property." Silano v. Cumberland Farms, Inc., supra, 85 Conn.App. 453.
Russ Miller, the director of the Meigs Point Nature Center, has averred the following. The nature center is located at the park. Def.'s Ex. A to Reply Memorandum. It is under the jurisdiction of the state Department of Environmental Protection. Id. The nature walk was not sponsored by the Friends of Hammonasset. Id. In order for the Friends of Hammonasset to have sponsored the nature walk, it would have been required to obtain a special use permit from the state department of environmental protection, which it did not do. Id. The Friends of Hammonasset was invited by the nature center to participate in the nature walk. Id. At all times relevant to the present action, the defendants lacked possession or control over the park; the state, which owned the park, was responsible for its maintenance. Id. The court concludes that this evidence, in light of the well established standards for premises liability actions, is sufficient for the defendants to meet their initial burden of establishing that no genuine issue of material fact exists regarding the defendants' lack of possession and control over the park. This evidence, even when viewed in the light most favorable to the plaintiff, documents the defendants' lack of power or authority to direct, exercise control or dominion, manage, oversee or superintend with respect to the park, due to the state's continuous ownership and maintenance of it at all times relevant to the present action.
The plaintiff challenges these attestations by arguing in his surreply that the minutes of the November and December 2009 board meetings "clear[ly]" show "that Friends of Hammonasset run the park or at least the park appears to have no employees other than Russ and that the volunteers of Friends of Hammonasset fulfill any duties of which Russ needs assistance." This argument repeats and elaborates upon the argument made in the plaintiff's opposition memorandum that the Friends of Hammonasset "had possession and control of the area that night. The park was closed for winter. It was dark. The purpose of the walk to Willard Island was to view the owls." Neither argument addresses how the defendants and not the state of Connecticut, which owned and maintained the park, exercised dominion and control over the park at all times relevant to the present action. Both arguments also fail to address how the defendants had the power or authority to direct, manage, oversee or superintend with respect to the park, where the state of Connecticut maintained and owned the park, and the Friends of Hammonasset had not applied for a special use permit so that it could officially sponsor or host the nature walk.
Furthermore, the plaintiff conceded during oral argument that he has not alleged that the defendants possessed or controlled the park at all times relevant to the present action and that the issue is not dispositive of the present motion with respect to count one, because count one can be read to sound generally in negligence and not specifically in premises liability. This is not the case, however, for the reasons stated above, and the plaintiff must therefore demonstrate with evidence that genuine issues of material fact exist regarding the defendants' lack of possession and control, in order to meet his burden on summary judgment with respect to count one. He has not done so. Because there is no genuine issue of material fact that the defendants lacked possession and control of the park at all times relevant to the present action, they cannot be held to have owed a duty of inspecting, maintaining, providing safe alternatives to, repairing and/or warning about the icy conditions to the plaintiff. They are thus entitled to a judgment as a matter of law, and the court grants the present motion with respect to count one.
In Fernandez v. Ayers, 56 Conn.App. 332, 335, 742 A.2d 836 (2000), summary judgment was granted in a premises liability action where "[t]he plaintiff failed to plead possession and control; she did not bring forth evidentiary facts or substantial evidence from outside the pleadings from which, even if pleaded, those allegations could be inferred."
C Count Two
The specific statutes upon which the defendants rely in moving for summary judgment on count two are 42 U.S.C. § 14503(a) and General Statutes § 52-557m. The federal statute, 42 U.S.C. § 14503(a), which is part of the Volunteer Protection Act, 42 U.S.C. § 14501 et seq., provides in relevant part: "Liability protection for volunteers — Except as provided in subsections (b) and (d) of this section, no volunteer of a nonprofit organization or governmental entity shall be liable for harm caused by an act or omission of the volunteer on behalf of the organization or entity if — (1) the volunteer was acting within the scope of the volunteer's responsibilities in the nonprofit organization or governmental entity at the time of the act or omission . . ." Similarly, the state statute, General Statutes § 52-557m provides in relevant part: "Any person who serves as a director, officer or trustee of a nonprofit organization qualified as a tax-exempt organization under Section 501(c) of the Internal Revenue Code . . . who is not compensated for such services . . . shall be immune from civil liability for damage or injury . . . resulting from any act, error or omission made in the exercise of such person's policy or decision-making responsibilities if such person was acting in good faith and within the scope of such person's official functions and duties, unless such damage or injury was caused by the reckless, wilful or wanton misconduct of such person."
In opposing the present motion, the plaintiff cites to 42 U.S.C. § 14504(a), which provides: "In any civil action against a volunteer, based on an action of a volunteer acting within the scope of the volunteer's responsibilities to a nonprofit organization or governmental entity, the liability of the volunteer for noneconomic loss shall be determined in accordance with subsection (b) of this section." Subsection (b) of § 14504 in turn provides: "(1) In general — Each defendant who is a volunteer, shall be liable only for the amount of noneconomic loss allocated to that defendant in direct proportion to the percentage of responsibility of that defendant (determined in accordance with paragraph (2)) for the harm to the claimant with respect to which that defendant is liable. The court shall render a separate judgment against each defendant in an amount determined pursuant to the preceding sentence. (2) Percentage of responsibility — For purposes of determining the amount of noneconomic loss allocated to a defendant who is a volunteer under this section, the trier of fact shall determine the percentage of responsibility of that defendant for the claimant's harm." The plaintiff specifically argues that § 14504 precludes the present motion with respect to count two, because it provides that a volunteer may still be held liable for noneconomic loss, notwithstanding § 14503, and he alleges that he has suffered both economic loss — e.g., medical expenses and lost wages — and noneconomic loss e.g., pain, suffering, emotional distress and loss of enjoyment of life — due to Becker's negligence.
"The term `noneconomic losses' means losses for physical and emotional pain, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium (other than loss of domestic service), hedonic damages, injury to reputation and all other nonpecuniary losses of any kind or nature." 42 U.S.C. § 14505(3).
The parties do not dispute the following facts. The Friends of Hammonasset was and is a nonprofit, tax-exempt organization under § 501(c) of the Internal Revenue Code. Becker was both a volunteer with and the president of the Friends of Hammonasset at all times relevant to the present action. The plaintiff alleges that he was injured by Becker's negligent — not reckless, wilful or wanton conduct. Based on these undisputed facts, Becker should therefore be able to avail herself of the protections provided by § 52-557m. The terms of § 52-557m, however, conflict with those of § 14503, because § 52-557m provides total immunity to Becker, whereas § 14503 does not provide Becker with immunity from liability for the plaintiff's alleged noneconomic losses. To resolve this conflict, the court looks to 42 U.S.C. § 14502 (a), which provides: "Preemption. This chapter preempts the laws of any State to the extent that such laws are inconsistent with this chapter, except that this chapter shall not preempt any State law that provides additional protection from liability relating to volunteers or to any category of volunteers in the performance of services for a nonprofit organization or governmental entity." (Emphasis added.) See also Gaudet v. Braca, Superior Court, judicial district of Fairfield, Docket No. CV 98 351943 (November 27, 2001, Thim, J.), vacated on other grounds by Gaudet v. Braca, Superior Court, judicial district of Fairfield, Docket No. CV 98 351943 (October 15, 2002, Thim, J.) ( 33 Conn. L. Rptr. 200). Since section 52-557m provides additional protection from liability relating to a category of volunteers by granting total immunity in the performance of services for a nonprofit organization, it is therefore not preempted by § 14503. Thus, Becker is entitled to complete immunity per § 52-557m as a matter of law. Accordingly, the court grants the motion for summary judgment as to count two of the plaintiff's complaint.
III CONCLUSION
For the foregoing reasons, the court grants the defendants' motion for summary judgment in its entirety.