Opinion
No. CV010506111S
November 7, 2003
MEMORANDUM OF DECISION RE MOTION 119.25 MOTION FOR SUMMARY JUDGMENT
The plaintiff in the instant action seeks to recover for personal injuries that she sustained as a result of falling on the defendant's Edison House Associates, LLC located at 745 Main Skeet, Plantsville, Connecticut (The Edison House Apartment Building).
The plaintiff alleges that on or about January 3, 1999 at approximately 2:30 p.m., she proceeded to walk in the parking lot of the aforementioned premises when she was caused to slip and fall due to the "slippery, icy, and defective conditions which remained in the parking lot thereon."
By way of a motion dated September 3, 2003, the defendant moved this court for summary judgment for reason that:
. . . [T]he plaintiff's claimed injuries occurred during an ongoing snow storm. The defendant therefore owed no duty to the plaintiff to make the subject premises safe during the continuing storm pursuant to the Supreme Court precedent of Krause v. Newton, 211 Conn. 191 (1998).
Section 17-45 of the Connecticut Practice Book concerns the proceedings for motions for summary judgment. It provides that:
A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like. The motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion and the supporting materials, unless the judicial authority otherwise directs. The adverse party [prior to the day the case is set down for short calendar] shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already a part of the file, shall be filed and served as are pleadings.
Before addressing the merits of the defendant's motion, a brief review of the standards for the granting of a motion for summary judgment is warranted.
"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.) Orkney v. Hanover Ins. Co., 248 Conn. 195, 201, 727 A.2d 700 (1999).
QSP, Inc. v. The Aetna Casualty Surety Co., 256 Conn. 343, 351 (2001).
On September 26, 2003, the plaintiff filed an objection to the motion for summary judgment, stating that genuine issues of material facts were in existence and therefore the defendant was not entitled to summary judgment.
Citing her previous deposition testimony, the plaintiff asserts that:
It is clearly evidence that the storm which took place occurred initially on December 29th, 1998. The plaintiff clearly testifies that the parking area had been frozen since the onset of the storm. The air temperature was well below freezing for the period of time from December 3rd, 1998 through January 3rd, 1999, with the snow and accumulated ice on exposed untreated and undisturbed areas throughout the parking lot where the plaintiff fell and was injured.
It is undisputed that there was an ongoing storm event on January 3, 1999 up to and including the time of the plaintiff's slip and fall. It is well-settled law in this state that a property owner may wait until a reasonable time after a winter storm before removing ice and snow hazards:
We believe that in 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. To require a landlord or other inviter to keep walks and steps clear of dangerous accumulations of ice, sleet or snow or to spread sand or ashes while a storm continues is inexpedient and impractical.
Kraus v. Newton, 211 Conn. 191, 197 (1989).
The plaintiff in the instant action asserts that the proximate cause of her fall on January 3, 1999, was ice left over from a previous winter storm event that occurred on December 29, 1998. She specifically states in her memorandum of law dated September 24, 2003 that:
The plaintiff clearly testified at her deposition that ice formed in the parking lot premises the day before. Thus, the affects of the parking lot were derivative from the separate storm which originated on December 29th, 1998. The defendant, Edison House, LLC, owed a duty to the plaintiff to remove dangerous accumulations of ice at the onset of the storm which commenced on December 29th, 1998.
The court notes that the plaintiff submitted twenty 26 pages of her October 29, 2002 deposition, but does not indicate any specific language to support her conclusory statement in the objection to summary judgment that there was an accumulation of ice left over from the December 29, 1998 storm.
This court thoroughly examined the weather reports and deposition excerpts that were provided by the parties. Although the plaintiff asserts in her objection to the motion for summary judgment that there was an accumulation of ice in the parking lot from an alleged December 29, 1998 winter event, there is nothing in her deposition testimony that supports this statement.
The plaintiff's statements concerning ice in the subject area all concern the conditions of the lot as the result of the on going storm.
Q. As you were exiting your building on the day of the accident, did you notice anything unusual about the parking lot area?
A. Yes.
Q. What did you notice?
A. There was no sand or salt or anything to break up the ice or make it less slippery.
Q. As you were exiting the building, did you look to see if there was any salt or sand?
A. Oh, yes. Yes.
Q. What made you look to see if there was anything?
A. Because I was afraid to walk.
Q. Why would you be afraid to walk?
A. Because it was ice and it was slippery I remember from the night before. I was afraid to walk to my car for fear I may fall. I was looking for sand or anything to step on.
Q. Did you happen to notice at that time any type of ice or slippery conditions in the parking lot on the date of the accident at the time that you were leaving?
A. Can you repeat that?
Q. Did you notice any specific ice or slippery condition in the parking lot at the time that you were leaving your apartment?
A. Yes it was a sheet of ice.
Q. When you say that there was a sheet of ice, can you be more specific? I mean —
A. Every step I walked there was ice. I was walking on ice. There weren't any patches or regular asphalt, it was all covered with ice.
Q. Can you describe the ice? I mean, I know you're saying that it was a sheet of ice.
A. It was clear. You could see the asphalt under it. Everywhere I stepped, I couldn't step anywhere without ice being there.
Deposition of Anne Barile, October 29, 2002, at pages 23-24.
A. Then I proceeded to walk down the stairs which were a sheet of ice too.
Deposition of Anne Barile, October 29, 2002, at page 26.
Q. And was it raining at this time or was it this drizzle that you were —
A. It was like a very light drizzle, a mist like.
Q. And now, you described this icy area as just a clear sheet of ice; correct?
A. Yes. Yes.
Q. But you could see the asphalt underneath; correct?
A. Yes.
Deposition of Anne Barile, October 29, 2002, at page 37.
Q. Do you know how long the ice had been present in that area?
A. No
Deposition of Anne Barile, October 29, 2002, at page 38.
The plaintiff does not offer any credible evidence by way of deposition testimony, sworn affidavit or other acceptable source that the ice that caused her to fall was the result of a winter weather event that occurred prior to the January 3, 1999 event that was ongoing when she fell.
As to the issue of that the "unusual circumstance" provision of Krause, id., applies to the instant action. The plaintiff has not specified any unusual circumstances that were in existence at the time of her fall.
"[A] party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an 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 [an issue of] material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]." (Internal quotation marks omitted.) Miller v. United Technologies Corp., supra, 233 Conn. 745.
Gould v. Mellick Sexton, 263 Conn. 140, 151 (2003).
In conclusion, the plaintiff in the instant action fell in an unsalted and unsanded parking area at her place of residence during an ongoing winter storm event. Under the circumstances of this case the defendant did not have a duty to sand or salt the subject premises while the storm event was continuing. There are no genuine issues of material fact outstanding; accordingly the defendant is entitled to summary judgment as a matter of law. The defendant's motion for summary judgment is granted. Summary judgment shall enter in favor of the defendant. So ordered.