Opinion
CV176067827S
06-07-2019
Herman CAPOZZI et al. v. BRANFORD HILLS APARTMENTS, LTD PARTNERSHIP et al.
UNPUBLISHED OPINION
Wilson, J.
FACTS
Herman Capozzi (Herman) and Gloria Capozzi (plaintiffs), filed a complaint against six defendants on January 26, 2017. All twelve counts of the complaint allege the following facts. On January 18, 2015, at approximately 8:30 a.m., Herman was walking along the common sidewalk outside of his apartment at 75 Florence Road, Branford, Connecticut, when he slipped and fell on an accumulation of ice and snow on the sidewalk. At all relevant times, the defendants "owned or leased, controlled, managed and/or maintained" the parking lots, sidewalks, and curbs serving 6599 Florence Road in Branford, Connecticut. Compl., Counts 1, 3, 5, 7, 9; and 11, ¶1. Herman’s injuries and losses were caused by the negligence and carelessness of the defendants in that they caused ice and snow to accumulate on the sidewalks, failed to clear the ice and snow from the sidewalks, failed to warn of the dangerous condition, failed to inspect the sidewalk, and failed to follow the policies and procedures for keeping the sidewalks clear of ice and snow. The ice and snow on the sidewalk were present for a sufficient period of time to put the defendants on notice. The plaintiffs further allege that because of the injuries to Herman, Gloria "suffered the loss of the society, affection, moral support, services, and companionship of her husband." Compl. Counts 2, 4, 6, 8, 10, and 12, ¶14.
Two defendants, Branford Hills Apartments Limited Partnership and Whitney Management and Maintenance Co. are nonappearing in the present action.
Branford Hills Condominium, Inc. (Branford Hills), Prime Property Management, Inc. (Prime), and Orchard Hills, LLC (Orchard Hills) filed a motion for summary judgment on February 21, 2018, with a supporting memorandum of law. Magenic Real Estate Services, LLC (Magenic) filed a motion for summary judgment on March 1, 2018, with a supporting memorandum of law. On December 3, 2018, Branford Hills, Prime, and Orchard Hills filed an amended motion for summary judgment on the grounds that there was an ongoing storm at the time of Herman’s slip and fall and that they were not put on notice as to the defective condition that caused Herman’s slip and fall. Magenic filed a separate amended motion for summary judgment on the same day and adopted the ongoing storm argument from Branford Hills, Prime, and Orchard Hills’ motion for summary judgment, but presented different arguments as to the issue of notice. The motions were filed with supporting memorandums of law. The plaintiffs filed an objection to the motion for summary judgment on December 31, 2018. Magenic, Branford Hills, Prime, and Orchard Hills filed reply briefs on February 8, 2019. Oral argument on the motions was heard at short calendar on February 11, 2019.
During short calendar arguments, Branford Hills and Prime both stated that they did not have possession or control over the area where Herman fell. Branford Hills and Prime stated that in the complex where the plaintiffs live, there is an apartment side and there is a condominium side. The plaintiffs live on the apartment side of the complex. Branford Hills and Prime are only in possession and control of the condominium side. Moreover, in Branford Hills, Prime, and Orchard Hills memorandum of law in support of the motion for summary judgment, they provide the affidavits of Peter Lathouris and Evelin Eberhardt that state that Orchard Hills is the landlord of the plaintiffs’ property and they hired Magenic to perform maintenance on the property and that Branford Hills and Prime did not have possession or control of the area where Herman fell. Therefore, the motion for summary judgment is granted as to Branford Hills and Prime. The remainder of this memorandum will only discuss the motion for summary judgment as it pertains to Magenic and Orchard Hills.
DISCUSSION
"Summary judgment is a method of resolving litigation when 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." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact ... 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 ... 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] ..." (Internal quotation marks omitted.) State Farm Fire & Casualty Co. v. Tully, 322 Conn. 566, 573, 142 A.3d 1079 (2016).
"[T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). "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 violated that duty in the particular situation at hand." (Internal quotation marks omitted.) Sic v. Nunan, 307 Conn. 399, 407, 54 A.3d 553 (2012).
In the present action, Magenic and Orchard Hills argue that there is no genuine issue of material fact that at the time of Herman’s slip and fall there was an ongoing storm and as a matter of law they did not owe a duty to Herman. Magenic and Orchard Hills also argue that there is no genuine issue of material fact that they did not have notice of the specific defect that caused Herman to slip and fall. In response, the plaintiffs argue that there is a genuine issue of material fact as to whether there was an ongoing storm at the time of the fall as well as whether the accumulation of ice and snow that caused Herman to fall was on the sidewalk for a sufficient period of time to put Magenic and Orchard Hills on notice of the defective condition. The plaintiffs further argue that there was a defective gutter that Magenic and Orchard Hills knew about that created the ice on the sidewalk.
I.
Ongoing Storm
"[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. 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, 197-98, 558 A.2d 240 (1989). "The rule in Kraus, however, does not foreclose submission to the jury, on a proper evidentiary foundation, of the factual determinations of whether a plaintiff’s injury has resulted from new ice or old ice when the effects of separate storms begin to converge." (Internal quotation marks omitted.) Leonard v. G&W Management, Inc., Superior Court, judicial district of Waterbury, Docket No. CV-05-5000179-S (August 28, 2007, Upson, J.).
"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." (Internal quotation marks omitted.) Brooks v. Sal-War, Inc., Superior Court, judicial district of New Haven, Docket No. CV-15-6051777-S (October 31, 2016, Wilson, J.) (63 Conn.L.Rptr. 257). "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." (Internal quotation marks omitted.) Phillips v. Meadow Landing I Limited Partnership, Superior Court, judicial district of New Haven, Docket No. CV-16-6065051-S (August 25, 2017, Wilson, J.). "For the purposes of the ongoing storm doctrine, both ongoing freezing rain fall and ongoing snow fall may prevent the imposition of the defendant’s duty of care." Leonard v. G&W Management, Inc., supra, Superior Court, Docket No. CV-05-5000179-S.
In Phillips v. Meadow Landing I Limited Partnership, supra, Superior Court, Docket No. CV-16-6065051-S, the court stated that the meteorological report was not sufficient to grant summary judgment "because the report is not specific to the area at issue ... In the court’s trial experience meteorologists can rely on records from towns multiple miles away from a site at issue but the court cannot import its personal experience or speculation into the decisional process on a technical matter. The report submitted ... does not explain how these records from noncontiguous towns can properly be relied upon to show weather conditions at a specific point ... where the accident happened." (Citation omitted; internal quotation marks omitted.)
In the present case, Magenic and Orchard Hills argue that they did not owe Herman a duty to clear the walkways of ice and snow because there was an ongoing storm at the time of Herman’s fall. In support, Magenic and Orchard Hills offer the following evidence: (1) the meteorological report of Brad Field; (2) reports from the emergency department, Branford Fire Department, and the patient chart from the Guilford ambulance; and (3) the affidavit and deposition of Olsi Nani (also known as George), the superintendent employed by Magenic Real Estate Services, LLC. The meteorological report of Brad Field does not support the conclusion that there was an ongoing storm at the time of Herman’s fall. Brad Field concludes that there was freezing rain at the time of Herman’s fall in Branford, Connecticut, however, the closest location to Branford in Brad Field’s data is the Tweed-New Haven Airport in New Haven, Connecticut. See Orchard Hills’ Mot. Summ. J. (#138). Brad Field’s report does not explain how the weather at the Tweed-New Haven Airport can be relied upon to determine the weather in Branford, Connecticut. Moreover, the meteorological report concludes that there was freezing rain at the time of Herman’s fall, but the actual data in the report only shows that it was lightly raining at the Tweed-New Haven Airport on the morning of January 18, 2015. See Orchard Hills’ Mot. Summ. J. (#138). Light rain at the time of Herman’s fall does not constitute an ongoing storm for the purposes of the ongoing storm doctrine. See Leonard v. G&W Management, Inc., supra, Superior Court, Docket No. CV-05-5000179-S.
Magenic and Orchard Hills provide the emergency department report, the report of the Branford Fire Department, and the patient chart from the Guilford ambulance. The only document that states it was raining when they arrived on the scene is the Branford Fire Department report (report). In the plaintiffs’ memorandum of law in opposition to the motion for summary judgment, they object to the statement relied upon by Magenic and Orchard Hills in the report. The plaintiffs argue that the statement is inadmissible because weather conditions are not relevant to the medical treatment of the patient, the source of the statement is not clear, and the statement is hearsay.
The affidavit of Olsi Nani also does not support the conclusion that there was an ongoing storm at the time of Herman’s fall. He merely states that there was no ice on the walkway for several days prior to the storm that began on the morning of Herman’s fall and that no one complained of ice prior to Herman’s fall. See Magenic’s Mot. Summ. J. (#148), Ex. B. He does not state that the storm was still going at the time of Herman’s fall. Moreover, in his deposition, he states that he does not remember the weather on January 18, 2015. See Orchard Hills’ Exhibits to Mot. Summ. J. (#191), Nani Dep. 60:17-21.
In viewing the evidence in the light most favorable to the nonmoving party, Magenic and Orchard Hills have not met their burden to show that there is no genuine issue of material fact and that as a matter of law there was an ongoing storm at the time of Herman’s fall. A jury should decide the issue of whether there was an ongoing storm in Branford, Connecticut between 8 a.m. and 9 a.m. on January 18, 2015. Therefore, Magenic’s and Orchard Hills’ motions for summary judgment are denied as to the issue of an ongoing storm.
Even if Magenic and Orchard Hills met their burden on summary judgment, the plaintiffs raise a genuine issue of material fact regarding whether there was an ongoing storm at the time of Herman’s fall. The plaintiffs provide the following evidence: deposition of Olsi Nani (Ex. A); deposition of Peter Lathouris (Ex. B); defendant’s compliance with plaintiff’s interrogatories, including the statement of Peter Lathouris (Ex. C); deposition of Gloria Capozzi (Ex. D); deposition of Gloria Capozzi II (Ex. E); notarized statement of Sam Iacono (Ex. F); and affidavit of Richard Miller (Ex. G). In Gloria’s deposition, she testifies that it was not raining and that it was a clear day when Herman fell. See Pl.’s Obj. Mot. Summ. J., Gloria Capozzi Dep., 93:2594:5. In the notarized statement of Sam Iacono he also states that it was not raining at the time of Herman’s fall. See Pl.’s Obj. Mot. Summ. J., Iacono Aff. The evidence presented by the plaintiffs is enough to create a genuine issue of material fact as to whether there was an ongoing storm at the time of Herman’s fall. Therefore, the court would still deny the motion for summary judgment even if Magenic and Orchard Hills had met their burden.
II.
Notice
"The controlling question in deciding whether the [defendant] had constructive notice of the defective condition is whether the condition existed for such a length of time that the [defendant] should, in the exercise of reasonable care, have discovered it in time to remedy it ... What constitutes a reasonable length of time is largely a question of fact to be determined in the light of the particular circumstances of a case." (Internal quotation marks omitted.) Diaz v. Manchester Memorial Hospital, 161 Conn.App. 787, 792, 130 A.3d 868 (2015). "A plaintiff must prove that the defendant had notice that is, knew or should have known of the unsafe condition long enough before the plaintiff’s injury to have taken steps to correct the condition or to take other suitable precautions. If the condition is one that was created by the defendant, then that constitutes actual notice ... In the absence of proof that the defendant created the condition, the plaintiff must prove that the defendant had constructive notice. That means that the defendant using reasonable care should have known of the unsafe condition in time to have taken steps to correct the condition or take other suitable precautions." (Citation omitted.) Picone v. Carriage Park Association, Superior Court, judicial district of Hartford, Docket No. CV-16-60873087-S (November 17, 2017, Shapiro, J.). "The notice to the defendant must be of the specific defect or unsafe condition that the plaintiff claims caused the injury, and not merely of conditions naturally productive of the defect, even though subsequently in fact producing it." Id.
In the present case, Magenic and Orchard Hills argue that they did not have notice of the icy condition on the walkway nor did they have notice of the specific defect in the overhang and gutter system. In support, Magenic and Orchard Hills offered the following evidence: the meteorological report of Brad Field, deposition of Gloria Capozzi, deposition II of Gloria Capozzi, answers to requests for admission, deposition of Peter Lathouris, deposition of Olsi Nani, and the affidavit of Peter Lathouris.
Magenic and Orchard Hills have met their burden to show that they did not have notice of the icy condition that caused Herman to fall on January 18, 2015. In Peter Lathouris’ deposition, he states that he did not have any knowledge of the weather on the date of Herman’s fall nor the condition of the property at Branford Hills because he was not at the property on January 17 or January 18. See Orchard Hills’ Amend. Mot. Summ. J., Lathouris Dep., 110:1-6. Olsi Nani also has no recollection of the weather conditions or if there was ice on the sidewalks prior to Herman’s fall, but that he would have put salt down on the sidewalk in January because there was constantly bad weather. See Orchard Hills’ Amend. Mot. Summ. J., Nani Dep. 61:25-66:16. Moreover, the conclusion of Brad Field’s report states that there was no precipitation in the five days prior to the fall. See Orchard Hills’ Mot. Summ. J. (#138).
The burden now shifts to the plaintiffs to show that there is a genuine issue of material fact that Magenic and Orchard Hills were aware of the icy condition that caused Herman to fall. The plaintiffs offer the following evidence: deposition of Olsi Nani (Ex. A); deposition of Peter Lathouris (Ex. B); defendant’s compliance with plaintiff’s interrogatories, including the statement of Peter Lauthoris (Ex. C); deposition of Gloria Capozzi (Ex. D); deposition of Gloria Capozzi II (Ex. E); notarized statement of Sam Iacono (Ex. F); and affidavit of Richard Miller (Ex. G).
The plaintiffs have provided enough evidence to create a genuine issue of material fact as to whether the icy condition existed prior to Herman’s fall, whether Magenic and Orchard Hills had notice of the icy condition, and whether they knew of the defect in the overhang and gutter system. In Peter Lathouris’ statement to Ron Gorski, an insurance agent, he states that he believes there was a storm the day before Herman’s fall. Pl.’s Obj. Mot. Summ. J., Ex. C. In Gloria’s deposition, she testified that there was "thin ice" and "thick ice" on the ground where Herman fell. See Pl.’s Obj. Mot. Summ. J., Gloria Capozzi Dep., 105-06. She also testified that the thick ice was from a defect in the overhang where the water went onto the sidewalk instead of into the gutter and would cause a puddle to form on the walkway and subsequently freeze. See Pl.’s Obj. Mot. Summ. J., Gloria Capozzi Dep., 107-08. Gloria testified that she complained about the damaged overhang and gutter many times to the maintenance managers. See Pl.’s Obj. Mot. Summ. J., Gloria Capozzi II Dep., 244. Moreover, in Sam Iacono’s notarized statement, he stated that the ice was old ice and had been there prior to January 18, 2015. See Pl.’s Obj. Mot. Summ. J., Ex. F. The plaintiffs have presented enough evidence to show that there is a genuine issue of material fact as to whether Magenic and Orchard Hills were aware of the icy condition and of the defect in the overhang and gutter system. Moreover, what constitutes a reasonable length of time in which Magenic and Orchard Hills had to remedy the ice and the defect in the overhang and gutter system is a question of fact. Therefore, Magenic’s and Orchard Hills’ motions for summary judgment is denied because there is a genuine issue of material fact as to whether they had notice of the icy condition and the defect.
In Magenic’s and Orchard Hills’ reply briefs they allege that Sam Iacono made false statements in his statement dated March 27, 2018. They also allege that he rescinded his statements made in the March 27, 2018 statement. After reviewing Iacono’s deposition taken January 29, 2019, it does not appear that Iacono rescinded his comments made in the statement. in his deposition, he testified that there was old ice on the ground from the overhang and gutter. See Orchard Hills’ Reply Br., Iacono Dep., 41:20-43:25. Sam Iacono testified that the ice on the walkway from the defect in the overhang and the gutter would sometimes stay there for three or four days at a time without anyone coming to take care of the ice. See Orchard Hills’ Reply Br., Iacono Dep., 43:21-25. He further testified that he did not know if this was the ice that caused Herman to fall. See Orchard Hills’ Reply Br., Iacono Dep., 44:4-14. Nonetheless, whether Iacono made false statements in his statement or whether he rescinded those statements in his deposition testimony are issues which go to the credibility of Iacono, and which are more appropriate for the trier of fact. This is enough to create a genuine issue of material fact as to whether the icy condition existed prior to the morning of January 18, 2015, and as to whether this was the ice that caused Herman to fall
CONCLUSION
Magenic and Orchard Hills have not met their burden to show that there is no genuine issue of material fact and that as a matter of law, they did not owe a duty to Herman. Moreover, the defendants, Branford Hills and Prime, were not in possession or control of the property where Herman fell. Accordingly, the motions for summary judgment as to Magenic and Orchard Hills and is denied. The motion for summary judgment as to Branford Hills and Prime is granted.
"[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." Nash v. Stevens, 144 Conn.App. 1, 15, 71 A.3d 635, cert. denied, 310 Conn . 915, 76 A.3d 628 (2013). "[B]efore a document may be considered by the court [in connection with] a motion for summary judgment, there must be a preliminary showing of [the document’s] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings ... Conn. Code Evid. § 9-1(a), commentary. Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Internal quotation marks omitted.) Bruno v. Geller, 136 Conn.App. 707, 714-15, 46 A.3d 974, cert. denied, 306 Conn . 905, 52 A.3d 732 (2012). "[I]n considering a motion for summary judgment, [i]t is within the court’s discretion whether to accept or decline [to accept] ... supplemental evidence." (Internal quotation marks omitted.) Bank of America, N.A. v. Aubut, 167 Conn.App. 347, 364, 143 A.3d 638 (2016). Moreover, "[h]earsay is generally inadmissible ... and therefore when deciding a motion for summary judgment a court may not consider material that would be hearsay at trial." (Internal quotation marks omitted.) Bozelko v. Webster Bank, N.A., 159 Conn.App. 821, 826 n.4, 123 A.3d 1250, cert. denied, 320 Conn . 910, 128 A.3d 954 (2015). The portion of the Branford Fire Department report relied upon by the defendants is not relevant on the issue of medical treatment and, in addition, the statement in the report is hearsay. The report is not accompanied by an affidavit nor is it a certified copy of the report. Even if the report could be considered a business record pursuant to General Statutes § 52-180, the statement in the report that it was raining is not attributed to a specific individual and is not set forth based upon that individual’s personal observation that it was raining upon arrival at the scene of the accident." ‘An out-of-court statement that is offered to establish the truth of the matters contained therein is hearsay ... The business records exception to the hearsay rule is set forth in General Statutes § 52-180 ... Not every statement contained in a document qualifying as a business record is necessarily admissible. To be admissible under § 52-180 the contents of a business record must be based on the entrant’s own observations or on information transmitted to him by an observer whose business duty it was to transmit it to him. Statements obtained from volunteers are not admissible, although included in a business record, because it is the duty to report in a business context that provides the reliability to justify this hearsay exception. Information in a business record obtained from a person with no duty to report is admissible only if it falls within another hearsay exception ... To qualify under this statute the report must be based entirely upon the police officer’s own observations or upon information provided by an observer with a business duty to transmit such information ... For example, a report prepared by an officer in charge of an accident investigation is admissible in its entirety, despite the fact that it contains information received from other officers assisting in the investigation. Such a report is not admissible, however, if it contains information furnished by a mere bystander. (Citation omitted; footnote omitted.) Hous. Auth. of the City of Hartford v. Deleon, 79 Conn.App. 300, 307, 830 A.2d 298 (2003).’" Medina v. Valentin, Superior Court, judicial district of Hartford at Hartford, Docket No. CV-1660660515 (June 9, 2017, Shapiro, J.). Here, as previously noted, the statement in the report is not attributable to any specific individual, based upon that individual’s personal observations of the weather conditions when the Fire Department arrived on the scene of the accident. In addition, although Branford Fire Department personnel have a duty to report the plaintiff’s medical condition, they do not necessarily have a duty to report the weather. Therefore, the report is hearsay and is insufficient to show that there is not a genuine issue of material fact that as a matter of law Magenic and Orchard Hills did not owe a duty to Herman. See Ciotti v. Homick, Superior Court, judicial district of Waterbury, Docket No. CV-99-0155748 (May 31, 2001, Doherty, J.) (where unauthenticated EMT report was not enough to show that there was a genuine issue of material fact). Moreover, even if the court were to allow the document to be admitted as evidence, the report merely states that it was raining and cold. It does not state whether there was an ongoing freezing rain or snow storm, so it would not support Magenic’s or Orchard Hills’ argument that there was an ongoing storm at the time of Herman’s fall.