Opinion
No. CV09 5026294
December 7, 2009
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (#109)
On January 15, 2009, the plaintiff, Dawn Correia, filed a complaint against the defendants Roche-Davis Street, Dinkeloo-Davis Street and Robert Kessler in which she alleged the following facts. On February 14, 2007, while in the course of her employment as a police officer for the Hamden police department, she responded to a call at 20 Davis Street in Hamden, a property "owned, possessed, managed and/or maintained" by the defendants. In the process of responding to the call, the plaintiff fell down an icy stairway on the property, resulting in severe and painful injuries for which she seeks monetary damages. The plaintiff alleges that the defendants allowed the stairway to remain in an icy condition despite the fact that they knew, or should have known, of these conditions. She further claims that the defendants failed to warn her of the conditions, and had not installed handrails or sufficient lighting along the stairway.
On June 18, 2009, the defendants filed a motion for summary judgment on the ground that there is no genuine issue of material fact that the plaintiff, as a police officer, is a licensee who is not owed a duty of care by the landowner under the firefighter's rule to keep the premises reasonably safe and, therefore, the defendants are entitled to judgment as a matter of law. The defendants' motion was accompanied by a memorandum of law in support of the motion and an affidavit from Kessler. The plaintiff submitted a memorandum of law in opposition on July 16, 2009. The court heard oral argument on the motion on September 21, 2009.
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.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "[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 proceedings can be warrantably 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 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). "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 . . . 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." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d. 1207 (2006).
The defendants in their memorandum of law in support of the motion for summary judgment argue that under the "firefighter's rule," a police officer responding to a call is considered a licensee for purposes of premises liability. Because owners/tortfeasors only owe licensees the duty to refrain from injuring them willfully or wantonly, "a police officer who is injured in the performance of his/her duties by the negligent act of another may not bring suit against the alleged tortfeasor as a result of that negligence." Accompanying the memorandum is the affidavit of Kessler, who attests that he has personal knowledge regarding the private property located at 20 Davis Street in Hamden and that the stairway on which the plaintiff allegedly fell was not open to the public, nor could the presence of the plaintiff on the property have been anticipated at 10:42 p.m.
"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Practice Book § 17-46. Here, while the affidavit is made on personal knowledge by a person competent to testify, Kessler offers a legal conclusion without specific supporting facts in one of the sworn statements made. "Although an affidavit . . . may be considered in opposition to a motion for summary judgment, conclusory affidavits . . . do not provide a basis on which to deny such motions." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., supra, 259 Conn. 557. Whether the defendants could have anticipated the plaintiff's presence on the property at 10:42 p.m. is a question which must be resolved on the basis of supporting evidence. Without such evidence, the statement in the affivadit is conclusory. The statement regarding whether the stairway was open to the public may be admitted to the extent that it is a fact about which Kessler is competent to testify, but not as a legal conclusion on the point of whether, for purposes of liability, the stairway was so open.
The plaintiff, in her memorandum of law, argues that the defendants misstate the duty of care owed by a landowner to a licensee. Although the plaintiff concedes that as a police officer, she is accorded the status of a licensee when responding to calls, she argues that, under certain factual circumstances, property owners may owe "a heightened duty of care to the licensee." Because material facts relating to the existence of a duty of care remain in dispute, the plaintiff argues, summary judgment must be denied.
This case therefore presents three issues: first, whether the defendants' statement of law on the issue of liability to licensees is valid, in which case the plaintiff's action is barred and summary judgment must be granted; if it is not, what is the proper standard for liability to licensees; and third, whether, under the applicable legal standard, the defendants have shown that there is no genuine issue of material fact and that they are entitled to judgment as a matter of law.
The "firefighter's rule is essentially a rule of premises liability;" Levandoski v. Cone, 267 Conn. 651, 661, 841 A.2d 208 (2004); and establishes that firefighters and police officers who enter premises in the performance of their duties are to be considered licensees rather than invitees. Id., 653. Originally adopted in a case involving an injured firefighter in Roberts v. Rosenblatt, 146 Conn. 110, 148 A.2d 142 (1959), and applied to police officers in Furstein v. Hill, 218 Conn. 610, 590 A.2d 939 (1991), the rule states that "a firefighter or police officer who enters private property in the exercise of his duties occupies the status of a licensee, and, therefore, [is] owed a duty of care that is less than that owed to an ordinary invitee." Levandoski v. Cone, supra, 653-54. The duty of care that is required of landowners to invitees includes "an implied representation of safety . . . [I]t [would be] unreasonable to require landowners to undertake the same standard of care for public officers whose presence the landowners can neither predict nor interdict." (Internal quotation marks omitted.) Levandoski v. Cone, supra, 660.
In support of their proposition that a police officer injured on private property while in the course of her duties is barred from bringing suit against the owner for the owner's negligence, the defendants in their memorandum cite the standard articulated in Levandoski: "Thus, under the firefighter's rule, the landowner generally owes the firefighter or police officer only the duty not to injure him willfully or wantonly . . ." (Internal quotation marks omitted.) Levandoski v. Cone, supra, 267 Conn. 654.
Levandoski, however, merely reaffirmed the accepted definition of the firefighter's rule as it had existed since its adoption in Rosenblatt and later broadening in Furstein: that "a firefighter or police officer who enters private property in the exercise of his duties occupies the status of a licensee . . ." Levandoski v. Cone, supra, 653-54, citing Furstein v. Hill, supra, 218 Conn. 615. Under long established precedent by the Connecticut Supreme Court, a property owner's duty to a licensee may rise to a level higher than that of mere avoidance of the willful or wanton infliction of injury, such that failure by the owner to satisfy a duty of reasonable care could give rise to a cause of action by an injured licensee. See Salaman v. Waterbury, supra, 246 Conn. 305; Morin v. Bell Court Condominium Assn., Inc., supra, 223 Conn. 329; Furstein v. Hill, supra, 218 Conn. 624-25, Corcoran v. Jacovino, 161 Conn. 462, 467-68, 290 A.2d 225 (1971); Laube v. Stevenson, 137 Conn. 469, 474, 78 A.2d 693 (1951); Deacy v. McDonnell, 131 Conn. 101, 104, 38 A.2d 181 (1944).
The duty not to injure willfully or wantonly a person on one's property is in fact a duty owed to invitees, licensees and trespassers alike. See Morin v. Bell Court Condominium Assn., Inc., 223 Conn. 323, 328, 612 A.2d 1197 (1992). The distinguishing feature of these premises liability categories is not the willful or wanton provision, which is shared by all, but rather the duty of reasonable care, which differs for each in scope. For licensees, the exceptions to this provision are quite broad, such that the duty to refrain from willfully or wantonly injuring another is typically not even stated when the standard for liability to licensees is set out by courts. See e.g. Salaman v. Waterbury, 246 Conn. 298, 305-06, 717 A.2d 161 (1998). This stands to reason, since in a case where an owner has intentionally injured an individual on her property, it matters not whether the injured party was an invitee, licensee or trespasser. The duty only to refrain from injuring another willfully or wantonly most closely approximates the duty owed to a trespasser, yet an owner may still owe a duty of care to trespassers when the presence of trespassers is to be expected. See Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 558-59, 707 A.2d 15 (1998).
The court's statement in Levandoski is not in direct contradiction to the rule in these cases, as Levandoski states that "the landowner generally owes the firefighter or police officer only the duty not to injure him willfully or wantonly." (Emphasis added; internal quotation marks omitted.) Levandoski v. Cone, supra, 267 Conn. 654. Levandoski, therefore, impliedly recognizes that a landowner's duty may, under certain circumstances, rise above that of the avoidance of infliction of willful or wanton harm. Indeed, the statement in Levandoski relied upon by the defendants is cited to Furstein, the very case that set out the circumstances under which a heightened duty of care to licensees will arise. See Furstein v. Hill, supra, 218 Conn. 616. In Furstein, however, that same statement is used not to describe the current standard of care toward licensees in Connecticut, but rather is drawn from a 1960 Illinois Supreme Court case to show the historical origin of the standard. See id., citing Dini v. Naiditch, 20 Ill. 2d, 406, 413, 170 N.E.2d 881 (1960) ("It was the feudal conception that the landowner was sovereign within his own boundaries that gave birth to the rule that the only duty a landowner owed a licensee was not to wilfully or wantonly injure him . . . However, the history of the law on the subject of landowners and `licensees' shows a tendency to whittle away a rule which no longer conforms to public opinion") (Citation omitted.)
Additionally, it is noted that in Levandoski, the issue addressed by the court was whether to expand the reach of the firefighter's rule to situations not involving premises liability, which the court declined to do. See Levandoski v. Cone, supra, 267 Conn. 658. Thus, the Supreme Court's description of the duty of care owed to licensees via the firefighter's rule was essentially dictum and not crucial to the outcome of the case, as the rule was not applied to the factual situation at issue. When, as in the present case, the licensee status of the plaintiff is not in dispute, and no willful or wanton conduct is alleged, the court must consider whether the plaintiff may nonetheless sustain a claim under the accepted standard of liability to licensees.
Since the question of whether a particular issue of fact is material is dependent on a determination of the applicable law, it is necessary first to ascertain the proper legal standard to be used in this case. Our Supreme Court has applied two somewhat different standards for liability to licensees and a third, separate standard for liability toward police officers and firefighters that does not mention licensee liability at all. Further, the decisions of the Superior Court have applied as many as four different approaches in the specific context of the firefighter's rule.
In Furstein, a case in which a police officer responding to a call from an alarm company at a private residence was injured when a rotted wooden plank on a backyard deck gave way beneath him, the court held that the police officer was a licensee and applied the liability standard for licensees set out in the Restatement (Second) of Torts, § 342 (1965): "A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if, (a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and (b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and (c) the licensees do not know or have reason to know of the condition and the risk involved. 2 Restatement (Second), Torts (1965) § 342, p. 210." (Internal quotation marks omitted.) Furstein v. Hill, supra, 218 Conn. 624-25.
In other Supreme Court opinions, however, the court has required an additional element that the property owner must also have knowledge, either actual or constructive, of the presence of the licensee to subject the property owner to liability. See Morin v. Bell Court Condominium Assn., Inc., supra, 223 Conn. 323. "In order to establish that [a property owner] had constructive knowledge of [a licensee's] presence on the premises, the [owner] must prove a level of knowledge equivalent to actual knowledge." (Internal quotation marks omitted.) Id., 329. "[W]here . . . the presence of the licensee at the approximate time and place of injury reasonably could, and should, be anticipated by the licensor, this should be regarded as the equivalent of actual knowledge of the licensee's presence at that time and place . . ." (Internal quotation marks omitted.) Id., 330.
This element is present in the most recent Supreme Court cases dealing with licensee liability, and in those predating the issuance of the Restatement (Second) of Torts in 1965. See Salaman v. Waterbury, supra, 246 Conn. 305; Morin v. Bell Court Condominium Assn., Inc., supra, 223 Conn. 329; Corcoran v. Jacovino, supra, 161 Conn. 467-68; Laube v. Stevenson, supra, 137 Conn. 474; Deacy v. McDonnell, supra, 131 Conn. 104. Other cases have omitted it, instead relying solely on the Restatement (Second) of Torts § 342. See Furstein v. Hill, supra, 218 Conn. 624-25; Dougherty v. Graham, 161 Conn. 248, 251, 287 A.2d 382 (1971).
Finally, in Kaminski v. Fairfield, 216 Conn. 29, 578 A.2d 1048 (1990), a case decided one year prior to Furstein, the court substantively applied the firefighter's rule to police officers without directly naming the rule. In Kaminski, a police officer who accompanied mental health workers to a private residence in response to a call for assistance from the parents of a mentally ill man was injured when the man, who had been in an agitated state, struck the officer with an axe. Id., 31-32. The officer claimed that the parents had been negligent in failing to warn him that their son kept axes at the parents' home. Id., 32. The court denied the officer's claim, holding that "[f]undamental concepts of justice prohibit a police officer from complaining of negligence in the creation of the very occasion for his engagement." Id., 38. The court in Kaminski did not mention licensee liability at all, and indeed Kaminski is not cited in Furstein, which was issued the following year.
These differing standards have resulted in a multiplicity of approaches taken by the decisions of the Superior Court toward licensee liability in the context of the firefighter's rule. In some instances, the trial courts have followed Furstein's test exactly, omitting the element of knowledge of the licensee. See, e.g., Conlin v. Robinson, Superior Court, judicial district of Fairfield, Docket No. CV 96 0329812 (June 16, 1998, Nadeau, J.) (denying property owner's motion for summary judgment against police officer who slipped on the owner's icy driveway due to material issue as to whether the dangerous condition was known to the owners, without mentioning the element of knowledge of the officer's presence); Turner v. Michalec, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 95 0145414 (April 24, 1997, D'Andrea, J.) (denying property owner's motion for summary judgment against police officer injured on his property due to material issue as to whether the dangerous condition was known to the owners, also without mention of the element of knowledge of the officer).
Other decisions have included this element. See, e.g., Ward v. Martin, Superior Court, judicial district of Waterbury, Docket No. CV 01 0164494 (December 5, 2003, Alvord, J.) (granting defendant property owner's motion for summary judgment against police officer injured in fall due to lack of evidence showing owner's knowledge of the officer's presence, but not mentioning element of knowledge of the dangerous condition); Apuzzo v. Fecke, Superior Court, judicial district of New Haven, Docket No. CV 91 0312921 (May 15, 1996, Corradino, J.) ( 16 Conn. L. Rptr. 575) (denying property owner's motion for summary judgment against police officer injured on his property due to material issue as to whether owner had constructive knowledge of officer's presence, and also noting the element of knowledge of the dangerous condition).
Still other decisions of the Superior Court after the issuance of Levandoski, have adopted the position of the defendants in the present case that a firefighter or police officer is altogether barred from bringing a claim in negligence against the owner of the property on which she was injured. See, e.g., Little v. Plant Integration Assn., Superior Court, complex litigation docket at Waterbury, Docket No. X10 CV 05 4010156 (May 21, 2008, Scholl, J.) ( 45 Conn. L. Rptr. 617) (barring a claim brought by a firefighter injured when forced to jump out of a window of a burning building without conducting any analysis of licensee liability); Segarra v. Electrical Wholesalers, Inc., Superior Court, judicial district of New Haven, Docket No. CV 05 5001341 (May 24, 2007, Holden, J.) (asserting that the firefighter's rule bars police officers from bringing claims in negligence against owners of the property on which they were injured, and citing in support the statement, adopted from Levandoski, that the owner owes the licensee "only a duty to refrain from injuring [him] intentionally, or by willful, wanton or reckless conduct") (internal quotation marks omitted).
Finally, one case has further refined the rule. In Burt v. Valley Fire Chief's Training, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03 0194162 (May 14, 2004, Hiller, J.) ( 37 Conn. L. Rptr. 53), a firefighter injured during a training drill while on public property brought a claim in negligence against the fire department which countered that the firefighter's action was barred by the firefighter's rule. The firefighter then argued that the rule was not applicable as the injury occurred on public, not private, property. The court found that not only was the rule inapplicable to injuries sustained on public property, but that the firefighter was "invited onto the property as part of a training exercise and not entering at some unforeseeable time under emergency circumstances. The firefighter's rule is thus not applicable to these circumstances . . ." (Emphasis added.) Id., 54. This decision suggests an additional element, above and beyond the traditional standard for licensee liability, that, when the stated rationale for the firefighter's rule is not applicable to the facts alleged in the case, licensee status will not be presumed for police officers and firefighters.
As previously discussed, this court has rejected the argument, advanced by the defendants, that the firefighter's rule serves as an outright bar to all claims in negligence brought by firefighters and police officers injured on private property in the course of their duties. This argument cannot be sustained, as the defendants in their motion for summary judgment have misinterpreted the standard of care owed to licensees. The question remains as to which of the remaining approaches the court should apply.
In the present case, however, it is not necessary to decide whether to apply the standard in Morin, which looks to the property owner's knowledge of the licensee and of the dangerous condition, or in Furstein, which looks only to the owner's knowledge of the condition, as the same result is reached under both tests of liability to licensees. There is no dispute among the parties that the plaintiff was on the defendants' property in the course of her duties as a police officer, but these facts alone are insufficient to entitle the defendants to judgment as a matter of law under the firefighter's rule. With regard to the standard of care toward licensees set out in Morin, the defendants do not present any evidence to show that they were not aware, either actually or constructively, of the presence of the plaintiff on the night in question. The attestation of Kessler in his affidavit that the presence of the plaintiff could not have been anticipated at the time at which she arrived is a conclusory statement which cannot furnish the court with the needed factual basis from which to derive an inference as to the defendants' knowledge, either actual or constructive, of the presence of the plaintiff. Furthermore, under the tests in both Morin and Furstein, the defendants provide no evidence as to whether they knew, or had reason to know, of the dangerous condition on the property. An additional material fact exists as to whether the plaintiff knew, or had reason to know, of the dangerous condition. Although the defendants in their answer and special defenses argue that the plaintiff "knew or should have known" of the danger, this conclusory statement is not accompanied by any evidence. Because the defendants have failed to provide evidence on any issues of material fact, the defendants have failed to carry their burden as the moving party. Accordingly, the defendants' motion for summary judgment is denied.
Kaminski, which held that a police officer is barred from bringing an action for negligence related to the reason for which the officer was called onto the property; see Kaminski v. Fairfield, supra, 216 Conn. 38; is not applicable to the present case. There is no indication here that the icy condition that allegedly caused the fall of the plaintiff was related to her reason for being on the defendants' property. There is also no indication that the rationale for the firefighter's rule does not apply here, as in Burt v. Valley Fire Chief's Training, supra, 37 Conn. L. Rptr. 53, since the parties agree that the plaintiff was on private property in the course of her official duties at a late hour. Nonetheless, the factual allegations submitted to this court omit the reason the officer was summoned, and do not mention who or what was the source of the call that brought the officer onto the property.
There is one other pertinent standard of law, apart from the firefighter's rule. In Kraus v. Newton, 211 Conn. 191, 558 A.2d 240 (1989), our Supreme Court held that "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." Id., 198. Although the present case involves an issue of liability to licensees, rather than invitees, the same rule will apply to an injured licensee, as the duty of care owed to a licensee is less than that owed to an invitee. In their answer and special defenses, the defendants allege that at the time of the incident, "there was an ongoing winter event occurring." This statement is not accompanied by any evidence that might assist the court in determining the nonexistence of a genuine issue of material fact. The defendants' affidavit contains no mention of the weather conditions on the night of February 14, 2007, and the issue is not briefed in the defendants' memorandum in support of their motion for summary judgment. While the court might reasonably suppose that the ice alleged to have been on the stairway by the plaintiff was the result of a winter weather event the defendants provide no evidentiary basis for determining whether a storm was ongoing at the time of the plaintiff's arrival or shortly before, nor is there any evidence as to whether the ice was the result of the same storm. See Briley v. Dolce/AEW Investments No. 1, LLC, Superior Court, judicial district of Waterbury, Docket No. CV 06 5001820 (November 2, 2007, Roche, J.) (finding genuine issue of material fact as to whether the ice on which the plaintiff, an individual slipped, had been deposited by storm from some days earlier, even though it was undisputed that a storm was ongoing at the time of plaintiff's fall). The lack of evidence on this issue would also compel denying the defendants' motion for summary judgment.