Opinion
No. CV 09-5010818
August 4, 2010
MEMORANDUM OF DECISION
FACTS
The plaintiff, Richard Taylor, brought this action against the defendants, Allied Snow Plowing, Removal, and Sanding Services Corporation (Allied) and Charter Oak Federal Credit Union (Charter Oak). The complaint alleges that on February 21, 2007, Taylor was traversing the parking lot of Charter Oak when he fell on unsanded black ice, which caused him injuries. In count one, Taylor alleges that his injuries were due to the negligence of Allied, the party responsible for snow removal, in that it failed to properly sand or treat the area, remove any snow that could melt and subsequently form ice, or warn of the unsafe condition. In count two, Taylor alleges that Charter Oak, the owner and party in control of the parking lot, caused his injuries through its own negligent failure to ensure the area was sanded and treated, that snow was removed so that it would not subsequently melt and refreeze causing ice, and failed to warn of the unsafe condition.
Both Allied and Charter Oak filed motions for summary judgment arguing that no duty is owed to Taylor because he was a trespasser and the only duty owed to a trespasser is to refrain from intentionally or willfully injuring him. To support their claim, they each submitted certified copies of Taylor's deposition. In his deposition, Taylor testified that at the time of the alleged fall he was not in the parking lot in order to conduct any business at Charter Oak. Rather, he testified that he was traversing the parking lot on his way to work as was his daily habit. Furthermore, he testified that the black ice, as alleged in his complaint, was formed because a pile of snow had melted the night of the day before and had refrozen by the morning of February 21, 2007 forming a thin layer of ice. Charter Oak and Allied argue that because Taylor was not on the premises for a business purpose, they only owed him a duty to refrain from intentionally harming him. Since the freezing of melted snow into ice was not an intentional or wilful act, they argue they are not liable. Additionally, Allied argues that even if the court decides that Taylor was an invitee, because Allied is the subcontractor for Charter Oak, it cannot be held liable for the duties of the landowner. Thus, because Allied had no duty to Taylor, it cannot be held liable for negligence.
Taylor filed an objection to each motion for summary judgment and attached his own certified affidavit to refute Charter Oak and Allied's claims. First, he argues first that because Charter Oak is a credit union, which by definition all account holders own stock in, as an account holder he has an ownership interest. Thus, as a partial owner of Charter Oak, Taylor argues he is an invitee and Charter Oak owes a higher standard of care to him. Second, Taylor argues that even if he is deemed a trespasser, Charter Oak and Allied both knew or should have known of his continued use of the parking lot, which gives rise to a duty of reasonable care.
DISCUSSION
"[S]ummary 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.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "The facts at issue [in a motion for summary judgment] are those alleged in the pleadings." (Internal quotation marks omitted.) McKinney v. Chapman, 103 Conn.App. 446, 450, 929 A.2d 355, cert. denied, 284 Conn. 928, 934 A.2d 243 (2007). "A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). "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.) Voris v. Middlesex Mutual Assurance, 297 Conn. 589, 601 (2010).
"The status of an entrant on another's land, be it trespasser, licensee or invitee, determines the duty that is owed to the entrant while he or she is on a landowner's property." Salaman v. Waterbury, 246 Conn. 298, 304-05, 717 A.2d 161 (1998). "Ordinarily, the status of one who sustains injury while upon the property of another is a question of fact . . . Where, however, the facts essential to the determination of the plaintiff's status are not in dispute, a legal question is presented." (Internal quotation marks omitted.) Gargano v. Azpiri, 110 Conn.App. 502, CT Page 15709 506, 955 A.2d 593 (2008).
"It is well established that a possessor of land is under no duty to keep his or her land reasonably safe for an adult trespasser, but has the duty only to refrain from causing injury to a trespasser intentionally, or by willful, wanton or reckless conduct . . . There is an equally well established exception to this general rule. [I]f the owner . . . know[s] that the presence of trespassers is to be expected, then the common obligation of exercising reasonable care gives rise to the correlative duty of taking such precautions against injuring trespassers as a reasonable foresight of harm ought to suggest." (Citation omitted; internal quotation marks omitted.) Maffucci v. Royal Park, Ltd. Partnership, 243 Conn. 552, 558-59, 707 A.2d 15 (1998). "[L]iability in negligence for a dangerous condition on land will attach only if the possessor has actual or constructive knowledge that trespassers constantly intrude[d] upon a limited area of the land." (Internal quotation marks omitted.) Id., 560.
The parties dispute whether Taylor had invitee status or whether he was a known or unknown trespasser. If he was an invitee or a known trespasser, Charter Oak and Allied would have some type of a duty such that, if they neglected that duty, Taylor might have a viable claim for negligence. If, however, Taylor was an unforeseen and unknown trespasser, as Charter Oak and Allied argue he is, neither would have a duty of care the breach of which would permit a claim of negligence.
Taking the facts in the light most favorable to the nonmoving party, Charter Oak and Allied have not provided the court with sufficient evidence to show that Taylor's status can be determined as a matter of law. In order to prevail on a claim of summary judgment, the defendants must show they had no duty of care to Taylor because he was a trespasser. To meet their burden, the defendants must show that they did not know of Taylor's presence and had no constructive knowledge of his presence. To support their claims, the defendants have done nothing more than argue in their briefs that they did not know of Taylor's presence. The only evidence Charter Oak and Allied have provided the court with is Taylor's deposition wherein he states that he was not on the premises for a business purpose. While this may help determine that Taylor was not an invitee, it fails to address whether Taylor was a known trespasser who would be entitled to a standard of care. Furthermore, Taylor has provided the court with his affidavit wherein he states that he crossed the parking lot on his way to work and had been doing so for a year. It further states that he observed his co-workers crossing the lot on their way to work. Looking at the evidence presented, the question of fact remains as to whether the defendants should have known Taylor was repeatedly entering the property.
Considering whether the defendants owed Taylor a duty beyond refraining from intentionally causing him harm rests on Taylor's status, and Taylor's status turns on the question of whether the defendants should have known of Taylor's use, which is a question of material fact, the motions for summary judgment are denied.