Opinion
No. CV06-5001820S
November 2, 2007
MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT #124 AND #125
Issue
Whether the court should grant the defendants motions for summary judgment on the ground that there is no genuine issue as to any material fact and therefore is entitled to judgment as a matter of law. As there are genuine issues of material fact in dispute, the court hereby denies the defendants' motions for summary judgment.
FACTS
On June 9, 2006, the plaintiff, Earl Briley, filed a two-count complaint against the defendants, Dolce-AEW Investments No. 1, LLC (Dolce) and The Brickman Group (Brickman), for injuries sustained as a result of a fall on snow and ice in the parking area located at 522 Heritage Road, Southbury, Connecticut. In the complaint, the plaintiff alleged that the defendants owned, maintained, or possessed the parking area and walkway at 522 Heritage Road and were negligent in that they: (1) failed to properly maintain the area; (2) failed to inspect the area; (3) permitted the walkway to become slippery; (4) permitted an accumulation of ice and snow in the area; (5) failed to remove ice and snow from the area; (6) failed to warn of the ice and snow in the area; (7) failed to keep the area in a reasonably safe condition; and (8) failed to apply sand or other abrasive materials to the area.
On September 17, 2007, Dolce and Brickman filed motions for summary judgment, along with a memorandum of law, a certified weather report and certified pages from the plaintiff's deposition. On October 3, 2007, the plaintiff filed objections to Dolce's motion for summary judgment and Brickman's motion for summary judgment, accompanied by a memorandum of law and his own affidavits. The court heard argument on this matter on October 9, 2007.
CT Page 18671
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.) Neuhaus v. Decholnoky, 280 Conn. 190, 199, 905 A.2d 1135 (2006). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). "`Issue of fact' encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969). "[T]he court, however, may consider not only the facts presented by the parties affidavits and exhibits, but also the inferences which could be reasonably and logically drawn from them . . ." Id., 381. Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." (Internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003)."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 . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). "[T]he party opposing the motion 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 . . . Rather, the [nonmoving party] must recite specific facts . . . which contradict those stated in the [moving party's] affidavits and documents . . ." (Internal quotation marks omitted.) Farmington v. Dowling, 26 Conn.App. 545, 549, 602 A.2d 1047, cert. granted on other grounds, 221 Conn. 921, 608 A.2d 687 (1992).
Dolce and Brickman move for summary judgment on the ground that there are no genuine issues of material fact in dispute and they are entitled to judgment as a matter of law. Both argue that there are no genuine issues as to any material fact because they have submitted uncontradicted evidence that it began snowing the night before the plaintiff was injured and it continued to snow up until the time of the injury. Both defendants contend that based on this uncontradicted evidence, they are entitled to judgment as a matter of law under the rule of Kraus v. Newton, 211 Conn. 191, 558 A.2d 240 (1989).
The plaintiff counters that as provided in his affidavit, he fell on "old ice." Therefore, he contends that "[w]hether it was snowing at the time he fell on the parking area is irrelevant . . . Kraus v. Newton, does not apply to the facts of this case. A genuine issue of fact exists as to whether a reasonable period of time elapsed since the prior storm ended for the [defendant] to remove the snow and ice . . . While a [d]efendant is not ordinarily charged with the duty of removing snow or sleet while the storm is still in progress, situations may arrive when the approximate cause of the accident was a preexisting accumulation of ice and snow, the danger of which was increased by the more recent precipitations. [Therefore, there] are questions of fact for the trier of fact to consider in order to determine whether the [defendant] owed the [p]laintiff a duty to clear the parking area from ice and snow."
In Kraus v. Newton, supra, 211 Conn. 197-98, the Supreme Court stated: "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. Our decision, however, does not foreclose submission to the jury, on a proper evidentiary foundation, of the factual determinations of whether a storm has ended or whether a plaintiff's injury has resulted from new ice or old ice when the effects of separate storms begin to converge." Ultimately, the court held that because there was no evidence of any preexisting dangerous condition upon the defendant's premises, but there was evidence that the storm that produced the dangerous condition was still in progress at the time of the plaintiff's injury, there was no error in the trial court's charge to the jury. Id., 198.
The trial court charged the jury as follows: "[T]he rule of law is that an owner may await the end of a freezing rain or sleet storm and a reasonable time thereafter before removing ice and snow from its outside entrance walks, platforms, and steps." Kraus v. Newton, supra, 211 Conn. 193.
In the present case, Dolce and Brickman have not met their respective burdens in showing that there exists no genuine issue as to any material fact because although they have put forth uncontradicted evidence that it was snowing at the time of plaintiff's injury, they have failed to provide evidence that shows there was no "old ice" on its property at that time. Therefore, the parties are still in disagreement as to what kind of ice the plaintiff fell on — old or new. As there is a genuine issue of material fact still in dispute, the court denies respectively the defendants' motions for summary judgment.