Opinion
WWMCV166010866S
07-03-2018
Christopher CHALUTO v. HULL FOREST PRODUCTS, INC.
UNPUBLISHED OPINION
OPINION
Cole-Chu, J.
In the present case, the incident and, apparently, the plaintiff’s injuries are extraordinary. The plaintiff, Christopher Chaluto, was riding a go-kart on an old trolley line trail in "the Preston Riverwalk," when he drove off a cliff into a ravine which crossed the trail, there being no bridge over the ravine nor any warning of the chasm. The plaintiff’s claim is that the defendant, Hull Forest Products, Inc., is liable to him for his injuries because it left the trail in that condition. On December 4, 2017, the defendant moved for summary judgment (# 114). The plaintiff filed an opposing brief (# 127), to which the defendant replied (# 129). The motion was argued and submitted on May 14, 2018.
Although many exhibits were submitted regarding the present motion, the essential issue is not whether the defendant has sustained its burden of proof of the absence of a genuine issue of material fact, such that it is entitled to judgment as a matter of law. See Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015). Rather, the issue is primarily legal. The basis for the motion is that the plaintiff "cannot establish that [the defendant] owed him a duty of care." Motion # 114, p. 1. More specifically, the defendant argues that it cannot be held liable "under traditional negligence principles" because 1) it did not perform its work under a logging contract with the Preston Redevelopment Agency (PRA) in a negligent manner; 2) the plaintiff’s accident was not foreseeable; and 3) the defendant cannot be held responsible for an open and obvious condition. Id.
The next sentence in the defendant’s motion is, "the undisputed facts reveal that [the defendant] was not in possession of the Preston Riverwalk at the time of the Plaintiff’s accident, thus it cannot be held liable under a theory of premises liability." That statement is correct. The complaint does not allege possession and control of the place where and when the plaintiff’s accident occurred; a general and ongoing duty to keep that place reasonably safe and free of defects; or the plaintiff’s status (e.g., invitee). However, those elements are not required because the complaint is for general negligence, not the subspecies of "premises liability."
As to the first ground, even assuming that the defendant executed its duties under its contract with the PRA flawlessly, such performance does not shield the defendant from any duty to third parties. See Minton v. Krish, 34 Conn.App. 361, 367-68, 642 A.2d 18 (1994); 2 Restatement (Second), Torts § 385 (1965). The court cannot determine as a matter of law that the plaintiff was not a "person ... whom [the defendant] ... should expect to be upon the land with the consent of [its] employer," even if the court considers the length of time- over one year- between the conclusion of the defendant’s work and the accident or the undisputed fact that neither the PRA nor the Town of which it is an agency consented to the plaintiff being on the property. Nor can the court conclude as a matter of law that the defendant did not turn over the subject PRA work site, with any hazards, "in a manner unlikely to be discovered by the possessor," such that a key condition under § 385 of the Restatement of the defendant’s exposure to liability in this case cannot be met. (Emphasis added.) 2 Restatement (Second), supra, § 385.
There is no claim that the contract between the defendant and the PRA prohibited the defendant from erecting warning signs or barriers to protect people from falling into the ravine, or that the defendant erected such signs or barriers and that they were removed by others.
Section 385 of the Restatement (Second) of Torts provides in relevant part: "One who on behalf of the possessor of land erects a structure or creates any other condition thereon is subject to liability to others ... for physical harm caused to them by the dangerous character of the structure or condition after his work has been accepted by the possessor ..."
Comment (c) to § 385 of the Restatement (Second) of Torts provides in relevant part: "As the liability of ... an independent contractor who ... changes [the] physical condition [of land] is determined by the same rules as those which determine the liability of a manufacturer of a chattel, it follows that such a ... contractor who turns over the land with knowledge that his work has made it dangerous in a manner unlikely to be discovered by the possessor [of the land] is subject to liability ... to those who come upon the land with the consent of the possessor ..."
As to the second ground, even though this particular accident can easily be deemed unforeseeable, that is not the applicable standard. "[T]he test for the existence of a legal duty entails (1) a determination of whether an ordinary person in the defendant’s position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant’s responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case." (Internal quotation marks omitted.) Mazurek v. Great American Ins. Co., 284 Conn. 16, 29, 930 A.2d 682 (2007).
The third ground of the present motion- that the defendant cannot be held responsible for an open and obvious condition- is without merit. As noted, this action is premised on general negligence, not premises liability. See, e.g., Rivera v. CR Summer Hill, Ltd. Partnership, 170 Conn.App. 70, 75, 154 A.3d 55 (2017) (principles of premises liability include duty of party in possession and control of premises to keep them in a reasonably safe condition and to warn invitees of dangers invitees could not reasonably be expected to discover). The court need not decide whether the plaintiff was an invitee, a licensee, or a trespasser, or whether the open ravine- due to the defendant’s removal of an old bridge structure or the defendant’s removal, without warnings or fencing, of the bridge the defendant constructed for its logging- was open and obvious such that the defendant had no duty to warn.
In Minton v. Krish, supra, 34 Conn.App. 368, in assessing a cause for general negligence, the court noted: "Liability hinges on foreseeability of injury to the plaintiff." This court perceives no pertinent distinction between this action and Minton. That the plaintiff was driving a "go-kart"- presumably very low to the ground- over terrain unfamiliar to him and, possibly if not presumably, at a much higher speed than walking may well affect the degree of the defendant’s liability or even, by a finding of over fifty percent comparative negligence, eliminate liability. But Coburn v. Lenox Homes, Inc., 186 Conn. 370, 384, 441 A.2d 620 (1982), makes clear that foreseeability is determined by general risks, not particular ones, even particularly unforeseeable ones. The essence of the plaintiff’s claim is that the defendant left part of its work site with a gap or chasm in the old trolley line- where, before the defendant’s work, there had been at least the vestige of a bridge- on public land where people at least sometimes walked, with zero warning of the gap or chasm. Whether the condition is called a cliff, a chasm, or a ravine, even a pedestrian could foreseeably have been injured by the failure to warn of it or to fence it off.
There is a dispute over the condition of the structure removed by the defendant. The plaintiff alleges that it was passable and, implicitly, that the structure, had it not been removed or had it been replaced, would at least have given the plaintiff some notice of the hazard. In opposition, the defendant claims that a pedestrian would have to be extraordinarily nimble to cross that structure because, though crossing it was possible, to do so would require toe-to-toe navigation of a narrow steel beam and, implicitly, it would not have prevented the plaintiff’s accident. This debate is impertinent to the resolution of the present motion. There is no evidence that the defendant removed warnings of the cliff/chasm or of any danger of attempting to cross the ravine by use of the vestiges of the trolley bridge. It is possible that the plaintiff would have been injured just as seriously as he actually was if the defendant had never been on the property and had never altered, let alone removed, the former structure. It is also possible that the logical result of the plaintiff’s claim is that the defendant had a duty to leave the site in a condition that was less dangerous than the site was before the defendant undertook its work for the PRA. That does not mean that result cannot be required by the law.
The saying "you break it, you bought it" comes to mind.
The essence of the present motion is that, based on the evidence, the defendant had no duty to the plaintiff as a matter of law, i.e., that the court can and should find as a matter of law that the plaintiff’s claim is not within the legal boundary of any liability of the defendant to the plaintiff. The court disagrees. Having undertaken to alter the site, it will be for the jury to determine the extent of the defendant’s liability, if any. For these reasons, the defendant’s motion for summary judgment is denied.