Opinion
No. CV 04 4000841
April 4, 2006
MEMORANDUM OF DECISION ON THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
STATEMENT OF THE CASE
In January 19, 2005, the plaintiff, Ajka Valagic, filed a single count complaint against the defendant Inline Plastics Corporation (Inline). The plaintiff is employed by Inline located at 42 Canal Street in Shelton. The complaint alleges that on December 12, 2002, while on her way to work, the plaintiff was injured when she slipped and fell on snow and ice on an exterior sidewalk at 42 Canal Street. The complaint further alleges that the defendant was negligent, inter alia, in its failure to remove snow and ice from this sidewalk. The defendant filed an answer with special defenses on January 26, 2005.
On September 30, 2005, the defendant filed a motion for summary judgment, with a supporting memorandum, making two arguments. First, the defendant argues that the plaintiff was injured in the course of her employment with the defendant and, therefore, the plaintiff's complaint is barred by the workers' compensation exclusivity rule. Second, the defendant argues that it did not have a duty to remove snow and ice during an ongoing storm. The defendant supports the motion for summary judgment with the plaintiff's answers to the defendant's request for admissions; an excerpt from the plaintiff's deposition; and a signed and sworn affidavit of Oscar Parente, a vice president of the defendant.
On November 15, 2005, the plaintiff filed a memorandum of law in response to the motion. The plaintiff argues that summary judgment is precluded because material issues of disputed fact exist about whether the plaintiff was in the course of her employment at the time of the fall. The plaintiff also argues that there are material issues of disputed fact as to whether unusual circumstances existed that imposed a duty on the defendant to remove the snow before the end of the snowfall.
The plaintiff's memorandum in opposition is supported by an excerpt from the plaintiff's deposition. On November 23, 2005, the defendant filed a reply memorandum of law, accompanied again by additional excerpts from the plaintiff's deposition. For the following reasons, the motion for summary judgment is granted.
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." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 399, 876 A.2d 522 (2005). "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 . . . 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, however, 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]." Martel v. Metropolitan District Commission, 275 Conn. 38, 46-47, 881 A.2d 194 (2005). When a party moves for summary judgment "and there [are] no contradictory affidavits, the court properly [decides] the motion by looking only to the sufficiency of the [movant's] affidavits and other proof." Heyman Associates No. I v. Insurance Co. of Pennsylvania, 231 Conn. 756, 795, 653 A.2d 122 (1995). Furthermore, "[i]ssues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984).
Addressing the defendant's second argument first, the defendant contends that there is no dispute that the snowfall was ongoing when the plaintiff fell, and because it did not have a duty to remove snow during an ongoing stain, it is entitled to summary judgment as a matter of law. Although the plaintiff agrees that it was snowing when she fell, she maintains that there are material factual issues about the existence of "unusual circumstances" implicating the defendant's duty to remove the snow despite the continuing nature of the snowfall.
The law on this issue has been well-articulated. "[I]n 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." Kraus v. Newton, 211 Conn. 191, 197-98, 558 A.2d 240 (1989).
In defining "unusual circumstances," the Appellate Court has held that a defendant's status as a commercial property owner does not constitute an unusual circumstance, Sinert v. Olympia York Development Co., 38 Conn.App. 844, 849, 664 A.2d 791, cert. denied, 235 Conn. 927, 667 A.2d 553 (1995). In Cooks v. O'Brien Properties, Inc., 48 Conn.App. 339, 346-47, 710 A.2d 788 (1998), the court held that "the trial court properly instructed the jury on the law of Kraus [v. Newton, supra, 211 Conn. 191], including the unusual circumstances exception that would permit the jury to consider the evidence presented with respect to the changeover in precipitation and the availability of alternative means of egress from the defendant's property in determining whether such unusual circumstances existed on the day of the plaintiff's accident so as to impose on the defendant, the duty to remove the snow and ice . . ." (Emphasis added.)
The defendant relies on the plaintiff's deposition testimony that it was snowing during the entire time that the plaintiff walked to work, slipped and fell. More specifically, in this deposition, the plaintiff testifies that it was snowing when she fell and that it had been snowing for the entire 20-25 minute period she was walking to work. She testified that even though she does not know precisely where she fell because snow covered the area of her fall, there was fresh snow falling when she slipped. Thus the parties do not dispute that snow was falling during the time at issue and that the plaintiff fell on this freshly fallen snow. Under these circumstances, the law is clear that in the absence of "unusual circumstances," the defendant was not obligated to remove unsafe accumulations of snow or ice and "could await the end of a storm and a reasonable time thereafter before removing ice and snow from outside walks and steps." Kraus v. Newton, 211 Conn. 191, 197-98, 558 A.2d 240 (1989). As explained by Kraus, it would be "inexpedient and impractical" to require a landlord to keep premises free of snow and ice during an ongoing storm. Id., 198.
As previously stated, the plaintiff contends that a factual dispute about the existence of unusual circumstances precludes summary judgment. According to the plaintiff, these unusual circumstances are created by the following facts of the plaintiff's deposition testimony: "1) the area where the plaintiff fell was immediately outside the premises of the employer; 2) the plaintiff was scheduled to work the second shift; and 3) the snow fall was getting lighter than from the morning." Plaintiff's Objection and Memorandum In Opposition to Motion for Summary Judgment, p. 5. The court is unpersuaded. Assuming these facts to exist as advanced by the plaintiff, the court concludes as a matter of law that they fail to establish any unusual circumstances under the holding of Kraus. See Sinert v. Olympian York Development, supra, 38 Conn.App. 844; Cafarelli v. First National Supermarkets, Inc., 46 Conn.Sup. 179 (1999); Cowes v. Fusco Harbour Association, Superior Court, judicial district of New Haven, No. CV 03 0473470 (Oct. 19, 2005; Thompson, J.) ( 40 Conn. L. Rptr. 140); Fryer v. Farmington Square, LLC, et al., Superior court, judicial district of Hartford at Hartford, No. CV 010804593 (Sept. 30, 2002; Rittenband, J.T.R.) ( 33 Conn. L. Rptr. 250).
Relying on the allegation that the incident occurred outside her employer's premises while she was on her way to work, the defendant argues that the defendant, as her employer owning the building, was under some unusually heightened or special duty of care to the plaintiff. This argument simply emphasizes the status of the defendant as a factor creating an "unusual circumstance." As previously explained, this is a contention that has been rejected by the Appellate Court: "[t]he status of the defendant has never been relevant in determining the duty owed a person injured on the defendant's premises." Sinert v. Olympian York Development, supra, 38 Conn.App. 849, (emphasis in original) (holding that the trial court erred in instructing the jury to consider as "unusual circumstances" factors relating to the status of the defendants as owners of commercial, rather than noncommercial property.) Moreover, the plaintiff's contention that the snowfall was decreasing or was "getting lighter" does not create any unusual circumstance because "extremely light means that it is still continuing, so there is really no dispute as to whether it was continuing." Cafarelli v. First National Supermarkets, Inc., supra, 46 Conn.Sup. 184.
In short, none of the factors identified by the plaintiff, either individually or collectively, creates any unusual circumstances sufficient to avoid the rule that the defendant ". . . in fulfilling the duty owed to invitees upon [its] 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 . . ." Kraus v. Newton, supra, 211 Conn. 197-98. The defendant is entitled to summary judgment as a matter of law because the undisputed facts establish that the defendant did not owe a duty to the plaintiff to remove the snow because the snowfall was continuing when she fell.
The defendant also argues that because it is the plaintiff's employer, she is barred from bringing this action under the workers' compensation exclusivity provision, General Statutes § 31-284(a). In light of the above disposition of the plaintiff's motion for summary judgment, the court will not address this issue extensively. Summary judgment is unavailable on the defendant's workers' compensation exclusivity claim because issues of fact exist as to whether the sidewalk at issue was used by the general public and whether the risk to the plaintiff while using this sidewalk was the same as the risk to the general public. Compare Hughes v. American Brass Co., 141 Conn. 231, 233-34, 104 A.2d 896 (1954) (finding that an employee's injuries caused by a slip and fall on snow and ice while walking to work from the employer's parking lot arose out of and in the course of his employment because the employer knew about the employee's route to work and acquiesced in it), with Flodin v. Henry Wright Mfg. Co., 131 Conn. 244, 247-48, CT Page 6191 38 A.2d 801 (1944) (finding that an employee's slip and fall on a public sidewalk directly in front of the employer's factory did not arise out of and in the course of his employment where the risk was not peculiar to the employment and did not differ from the risk of the general public using the same sidewalk).
General Statutes § 31-284(a) provides, in pertinent part: "An employer who complies with the requirements of subsection (b) of this section shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in course of his employment . . ."
CONCLUSION
Therefore, for the foregoing reasons, the defendant's motion for summary judgment is hereby granted.
So ordered.