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Cowes v. Fusco Harbour Asso.

Connecticut Superior Court Judicial District of New Haven at New Haven
Oct 19, 2005
2005 Ct. Sup. 13351 (Conn. Super. Ct. 2005)

Opinion

No. CV03-0473470

October 19, 2005


MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT #122 AND #123


The plaintiff brings this action alleging that he was injured on January 5, 2001 when he was caused to fall due to an accumulation of snow and ice at 555 Long Wharf Drive, New Haven, Connecticut.

The plaintiff initially sued Fusco Harbour Associates, L.L.C. (hereinafter Fusco) as the alleged owner of the property on which he claims to have fallen. Fusco filed an apportionment complaint against Tru-Green Land Care, L.L.C. (hereinafter Tru-Green) seeking an apportionment of liability based upon a claim that Tru-Green had contracted with Fusco to perform snow and ice removal at the property where the plaintiff alleges to have fallen.

The plaintiff has filed an amended complaint asserting a direct claim against Tru-Green. The plaintiff, in his amended complaint alleges negligence on the part of both Fusco and Tru-Green in allowing a dangerous condition, specifically snow and ice, to accumulate on the property causing the plaintiff's fall.

The Chubb Corporation as employer of the plaintiff has filed an intervening complaint seeking reimbursement for workers' compensation benefits which it has paid to him.

Both defendants have now moved for summary judgment based upon the holding of the Connecticut Supreme Court in Kraus v. Newton, 211 Conn. 191 (1989).

The defendant, Tru-Green, in support of its motion has CT Page 13351-ez filed a copy of the plaintiff's deposition from which both the plaintiff and Tru-Green quote in their briefs.

Tru-Green, in its brief states that it "attaches hereto a copy of plaintiff's deposition transcript." However, no such transcript was in the court's file. The court therefore requested that Tru-Green provide a copy of that transcript to supplement the record, which was done.

Practice Book § 17-49 "provides that summary judgment shall be rendered forthwith if the pleading, 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 . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791-92 (2004).

In Kraus v. Newton, the Supreme Court stated at pp. 197-98:

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 invitee 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 the plaintiff's injury has resulted from new ice or old ice when the effects of separate storms begin to converge.

The plaintiff in this case fell on a covered walkway leading from the building at 555 Long Wharf Drive to a parking garage. The plaintiff, in his deposition stated CT Page 13351-ea that when he went to work in the morning he noticed no dangerous or defective condition in the area where he eventually fell.

The plaintiff further testified during his deposition that when he left the building later in the day to return to the parking garage it was snowing pretty heavily and had been snowing all day.

Finally the plaintiff testified at his deposition that he was not saying that there was ice under the area where he fell but that it was the accumulation of snow which was falling at the time.

Based upon the plaintiff's own testimony at his deposition, he fell on snow which was from a storm which was still in progress at the time of his fall. That testimony brings this case squarely into the holding of Kraus v. Newton.

The plaintiff and the intervening plaintiff argues however, that the facts of the case bring it within the exception for unusual circumstances thus making the holding of Kraus inapplicable.

The intervening plaintiff argues that the unusual circumstances are that this walkway is the most practical means of ingress to and egress from the building and that the fall took place in a covered area.

The plaintiff argues that the unusual circumstances consist of the fact that the area which the plaintiff fell was protected by an overhang, the office building is large with thousands of tenants, it was a work day, the accident happened at the end of the work day, no measures were taken to safeguard the area.

However, none of these factors amount to "unusual circumstances" within the meaning of Kraus. See Sinert v. Olympia York Development Co., 38 Conn.App. 844 (1995).

In Sinert, the court charged that the jury could consider ". . . the location of the premises, the use of the premises, the day of the week and the time of day." CT Page 13351-eb

The court held that this instruction was improper because it took into consideration the status of the defendants as owners and maintainers of a commercial building in determining the duty owed to a plaintiff. The court further held that the status as the owner of commercial property does not impose a different or higher standard of care than that imposed on owners of private or residential property. Sinert v. Olympia Yale Development Co, supra at p. 849.

In his brief the plaintiff quotes the following language from Sinert:

The defendant's next claim that the trial court improperly failed to render judgment for the defendants because the only evidence presented was that a storm was in progress at the time of the fall and, under Connecticut law, there is no duty to remedy the effects of a storm until a reasonable time after the storm ends. We do not agree.

A reading of Sinert, however, reveals that it was the factual content of that statement with which the court disagreed rather than the statement of the law contained therein. In Sinert the court stated that there were factual issues to be resolved as to whether there were two separate storms or the second was a continuation of the first. Sinert is thus distinguishable from the case at hand.

It is therefore the opinion of the court that the undisputed facts of this case bring it within the holding of Kraus v. Newton. Therefore the motion of both defendants, Fusco and Tru-Green are granted and summary judgment may enter in favor of the defendants on the complaint and the intervening complaint.


Summaries of

Cowes v. Fusco Harbour Asso.

Connecticut Superior Court Judicial District of New Haven at New Haven
Oct 19, 2005
2005 Ct. Sup. 13351 (Conn. Super. Ct. 2005)
Case details for

Cowes v. Fusco Harbour Asso.

Case Details

Full title:RICHARD COWES v. FUSCO HARBOUR ASSOCIATION

Court:Connecticut Superior Court Judicial District of New Haven at New Haven

Date published: Oct 19, 2005

Citations

2005 Ct. Sup. 13351 (Conn. Super. Ct. 2005)
40 CLR 140

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