Opinion
CV156051777S CV146048210S
10-31-2016
Paulette Brooks v. Sal-War, Inc. et al.; Paulette Brooks v. Wellmakara, LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT (#134) (#143)
Robin L. Wilson, J.
FACTS
The plaintiff, Paulette Brooks, brought two separate actions, which were later consolidated. The plaintiff filed her first action against the defendants, Wellmakara, LLC, The Stop & Shop Supermarket Company, LLC and ACRE Group, LLC. The plaintiff filed her second action against the defendants, Sal-War, Inc. and Warren Luciani, d/b/a Advanced Paving & Excavating, Inc. Both complaints sound in negligence and allege that on December 29, 2012, at approximately 5 p.m., the plaintiff slipped and fell in the parking lot of 112 Amity Road in New Haven, Connecticut (the premises) due to an accumulation of unsalted and unsanded snow and ice. The plaintiff alleges that the defendants were responsible for removing snow from the premises and that the defendants knew or should have known that a hazardous condition existed.
On March 16, 2015, the court consolidated Paulette Brooks v. Wellmakara, LLC, Docket No. NNH-CV14-6048210-S and Paulette Brooks v. Sal-War, Inc., Docket No. NNH-CV-15-6051777-S.
On July 21, 2016, the plaintiff withdrew the action as to Warren Luciani. She conceded that there is no liability as to Warren Luciani, as he was acting as the agent for the defendant, Sal-War, Inc., in signing the snow removal contract.
This memorandum will refer to Wellmakara, LLC, The Stop & Shop Supermarket Company, LLC, ACRE Group, LLC, and Sal-War, Inc., collectively, as the defendants.
On May 2, 2016, and June 20, 2016, the defendants filed motions for summary judgment in their respective actions, along with memoranda of law and evidence in support thereof. The plaintiff responded to both motions on June 28, 2016, with memoranda of law and evidence in support thereof. In essence, the defendants put forth the same arguments, namely that they did not owe the plaintiff any duty and are not liable for her injuries because the plaintiff fell during an ongoing snowstorm. Oral argument was heard on both motions on July 18, 2016. Because these motions implicate the same facts and law, this memorandum will resolve both motions simultaneously.
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.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015). " [T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). " In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact . . . The courts hold the movant to a strict standard." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013).
The defendants assert, through evidence, that there was an ongoing snowstorm at the time of the plaintiff's fall. Accordingly, pursuant to the ongoing storm doctrine articulated in Kraus v. Newton, 211 Conn. 191, 558 A.2d 240 (1989), the defendants claim they owed no duty to the plaintiff because they are permitted a reasonable time before removing snow from the premises. The defendants state that, at the time of the plaintiff's alleged fall, the snowstorm had not concluded, and therefore they did not have a reasonable time to remove the snow. The plaintiff counters that she fell due to an accumulation of ice underneath the snow from prior precipitation and not because of the fresh accumulation of snow. She asserts that a genuine issue of material fact in dispute remains as to: (1) whether the falling snow was part of a continuing storm or whether sufficient time had passed between the earlier precipitation and the precipitation at the time of the plaintiff's fall so as to constitute a new snow event; and (2) whether she fell because of the snow that was falling at the time she fell or because of the accumulation of ice from prior precipitation that had not been sanded or treated.
In support of the motion, the defendants filed the following evidence, including but not limited to: (1) pertinent pages of discovery responses with enclosures from the plaintiff; (2) pertinent pages of the deposition transcript of the plaintiff; and (3) recorded statements made by the plaintiff to the insurance agent.
" The existence of a duty of care is a prerequisite to a finding of negligence . . . The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant [breached] that duty in the particular situation at hand . . . If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant." (Internal quotation marks omitted.) Leon v. DeJesus, 123 Conn.App. 574, 576, 2 A.3d 956 (2010).
" [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, supra, 211 Conn. 197-98. In other words, " [a] landowner's duty to remove ice and snow does not arise until after a reasonable period has passed following the conclusion of the storm." Umsteadt v. G.R. Realty, 123 Conn.App. 73, 83, 1 A.3d 243 (2010). " 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 . . . [This] 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 ." (Emphasis added.) Kraus v. Newton, supra, 211 Conn. 197-98. " How much time is reasonable for a landowner to wait . . . is an issue of fact to be resolved by the finder of fact at trial after considering all of the circumstances.'" Leonard v. G& W Management, Inc., Superior Court, judicial district of Waterbury, Docket No. CV-05-5000179-S, (April 7, 2008, Upson, J.), citing Cooks v. O'Brien Properties, Inc., 48 Conn.App. 339, 344 n.4, 710 A.2d 788 (1998); see also Dease v. Housing Authority of the City of New Haven, judicial district of New Haven, Docket No. CV-08-5016434, (September 29, 2009, Robinson, J.).
In Berlinger v. Kudej, 120 Conn.App. 432, 991 A.2d 716 (2010), the court held that there was enough evidence to create a genuine issue of material fact as to " whether the driveway contained an icy accumulation prior to the morning" of the plaintiff's fall, based on the plaintiff's deposition, in which he testified that he slipped on ice that he saw on the ground, as well as the plaintiff's affidavit, which stated he believed the ice was from a prior precipitation. Id., 435-36. Similarly, in Bok-Lopez v. Ceruzzi Properties, LLC, Superior Court, judicial district of New Haven, Docket No. CV-10-6015041-S, (March 23, 2012, Wilson, J.), the court denied the defendant's motion for summary judgment, on the basis of the ongoing storm doctrine. The defendant argued that the doctrine applied because the uncontradicted evidence showed that there was an ongoing snowstorm at the time of the plaintiff's fall. The plaintiff countered that she slipped on ice that was located underneath the fresh snow, asserting that a genuine issue of material fact remained as to whether the dangerous condition was created by the ongoing snowstorm. See id. The court held that " [a] genuine issue of material fact remained as to whether the condition that caused the plaintiff's fall was created by the ongoing storm or had existed prior to it." Id.; see also Sinert v. Olympia & York Development Co., 38 Conn.App. 844, 664 A.2d 791 (1995) (the court held it was unclear whether the plaintiff slipped on ice as a result of freezing rain from a separate storm or a continuation of the original storm).
After separately reviewing the evidence submitted with each motion for summary judgment, three issues of material fact remain in dispute in each action. First, there is a genuine issue of material fact in dispute as to whether the plaintiff fell on new snow or old ice. Though the plaintiff admits in her affidavit that it was snowing earlier in the day and also when she exited the store at 5 p.m., she states that she slipped on old ice underneath that fresh snow and that there was no sand or other abrasive material on the ice. Second, even assuming that the plaintiff fell due to snow or ice that formed on that day, there is an issue of fact in dispute as to whether the precipitation constituted a single, ongoing storm or separate storms. The plaintiff's affidavit states that the snow started at 12 p.m., stopped at 2 p.m., and still had not resumed by the time she entered the store between 3:45 p.m. and 4 p.m. If the jury found that the plaintiff slipped on snow or ice that fell prior to 2 p.m., the jury could also find that it was a separate storm. It is also possible that the old ice was formed by an entirely different storm from another day, as the defendants submit no evidence that the premises previously was free of snow and ice. Third, assuming that the plaintiff slipped on snow or ice that formed prior to 2 p.m. and that it was a separate storm, a jury could find that the defendant reasonably should have cleared the premises by 5 p.m. The defendants, therefore, have failed to meet their burden of proving the absence of a genuine issue of material fact in these actions.
CONCLUSION
For the foregoing reasons, the defendants' motions for summary judgment are denied.