Opinion
No. HHD-CV-08-5022815 S
November 2, 2010
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION/PROCEDURAL HISTORY
On September 3, 2008, the plaintiff, Isobel M. Fagan, commenced this action by service of process on the defendant, CoxCom, Inc. The plaintiff's one-count complaint, filed on September 10, 2010, alleges the following facts. On August 8, 2007, the plaintiff was riding a bicycle on Main Street in South Windsor, Connecticut. While the plaintiff was riding, a low-hanging wire, belonging to the defendant, "struck her." The wire hung between a main line on the west side of the street and a house at 82 Main Street. That encounter with the wire caused the plaintiff to fall from her bicycle and suffer injury. The plaintiff alleges that the defendant was negligent in several ways: first, It allowed a dangerous condition to exist; second, it knew or should have known that failure to remove the low hanging cable from the area created a dangerous condition yet it failed to remedy that condition; third, it failed to adequately inspect the area in which the wire was located; fourth, it failed to secure the wire to the utility pole; fifth, it negligently installed the attachment of the wire to the home at 82 Main Street, from which it pulled way; sixth, it failed to block or barricade the area in which the low-hanging wire was located; and seventh, it failed to warn the plaintiff of the dangerous condition resulting from the presence of the low hanging wire in the location where the plaintiff encountered it.
On October 6, 2008, the defendant filed an appearance and an Answer. On October 21, 2009, the defendant filed an initial Motion for Summary Judgment. The Court, Prescott, J., denied that Motion in order to allow the plaintiff additional time for discovery on the issues raised therein.
Thereafter, on June 4, 2010, the defendant filed a second Motion for Summary Judgment, on two grounds, first, that that the defendant owed the plaintiff no duty to care for her safety with respect to the sagging cable, and thus that it cannot be found liable in negligence for the breach of any such duty; and second, that even if the defendant installed the sagging cable or was generally responsible for its maintenance and repair, it had no actual or constructive notice of the sagging wire before the plaintiff struck it and fell, and thus it breached no duty to repair or remove it or to warn her of its presence before her fall. The defendant submitted a memorandum of law in support of this second Motion. On June 11, 2010, the plaintiff objected to the defendant's second Motion for Summary Judgment and filed an opposing memorandum of law. On June 18, 2010, the defendant filed a reply memorandum.
II. ANALYSIS
A. STANDARD OF REVIEW
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. 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 . . . 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.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
"Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). "Summary judgment procedure is especially ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation . . . [T]he conclusion of negligence is necessarily one of fact." (Internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).
B. THE PARTIES' ARGUMENTS
The defendant argues that the plaintiff cannot prove that the defendant breached a duty in this case without using the doctrine of res ipsa loquitur. The defendant argues that res ipsa loquitur does not apply because this type of accident could have occurred without the defendant's negligence, and because the wire's connection to the building was not in the exclusive control of the defendant. Furthermore, the defendant argues that it was not negligent because it did not have actual or constructive notice of the wire's alleged condition. In her memorandum in opposition to the defendant's Motion for Summary Judgment, the plaintiff argues, first, that the doctrine of res ipsa loquitur applies to this case; second, that the so-called "malfunction doctrine" allows the plaintiff to use circumstantial evidence that the defendant negligently installed the cable; third, that the defendant owed a heightened duty of care to the plaintiff because of the defendant's status as a utility company; and fourth, that further discovery is required.
C. CLAIM THAT THE DEFENDANT OWED THE PLAINTIFF NO DUTY OF CARE WITH RESPECT TO THE SAGGING CABLE
The defendant's claim that it owed the plaintiff no duty of care with respect to the sagging cable is based principally upon two related arguments. First, it asserts that there is substantial uncertainty as to how the cable bracket became detached from the wall of the private home on which it had been attached, causing the cable to sag and the plaintiff to fall. Second, it claims that there is also substantial uncertainty as to which cable company or other utility originally attached the bracket to the wall in the place from which it became detached or last attached the cable to that bracket before the fall. These arguments tend to disprove one alternative theory of liability pleaded in the plaintiff's Complaint, to wit: that the defendant cable company negligently attached the cable to the house wall, and thus that its negligence legally caused the bracket to detach, the cable to sag, and the plaintiff to fall.
The defendant supports these arguments by the deposition testimony of Mr. Robert M. Kelley, an AT T repairman who came upon the scene and repaired the sagging cable even though his own company was not responsible for its maintenance or repair. Mr. Kelley testified that there was nothing wrong with the cable itself when he found it sagging at the scene, but that the first attachment holding the cable to the wall had somehow fallen been pulled off the wall. What he could not explain, however, was exactly how the bracket had become detached from the wall, for the bracket could not be found. Mr. Kelley therefore could not determine if the bracket had fallen off due to the presence of rotten wood at the site of the first attachment, or if it had been pulled off the wall by the force of the wind, the pull of the cable ensnared by a passing vehicle, or some other cause. In addition, Mr. Kelley noted that the loss of the bracket made it impossible to determine if the bracket had been installed by the defendant, by another cable company or even by another unrelated utility.
The plaintiff responds to these arguments by invoking the doctrine of re ipsa loquitur, under which it contends that the bracket could not have become detached from the wall without negligence in its installation and/or its maintenance, and thus the defendant is liable to her because at all times relevant to this case it was in control of the situation to the exclusion of all others. The defendant flatly rejects this contention on the basis that, even if it attached the bracket to the wall, which is unproved and unprovable, it has never been in complete control of the site of its attachment to the private home at 82 Main Street because the homeowner and others residing at the premises have at all times had access and controlled access by others to the site of the failed installation.
The Court agrees with the defendant that this is not a case in which the doctrine of res ipsa loquuitur is applicable because the plaintiff has no basis for establishing the defendant's exclusive control over the site of the bracket's attachment and of the cable's installation. On that basis, in the absence of countervailing facts tending to establish that the defendant installed the bracket in the position where it failed and that it exercised exclusive control over the bracket after its installation, the Court concludes that the defendant has met its burden of proving that it is entitled to judgment as a matter of law on the plaintiff's claim of negligence by defective installation and her related claim of res ipsa loquitur.
D. CLAIM OF LACK OF ACTUAL OR CONSTRUCTIVE NOTICE
In support of its argument, as the entity responsible for maintaining and repairing the cable as part of its cable system, that it did not have notice of the cable's dangerous condition at the time of the plaintiff's fall, the defendant submits the affidavit of Brenda David, an employee of the defendant. In that affidavit, Ms. David avers that, according to the defendant's records, the cable's sagging condition was never reported to it, and in fact that "[t]he first notice of this alleged condition to CoxCom, Inc., was the service of the [p]laintiff's [c]omplaint." The defendant has therefore made an initial showing that there is no issue of fact with respect to the defendant's actual knowledge of the cable's alleged condition. In response, the plaintiff does not submit any counter affidavits or other evidence to suggest an issue of fact as to the defendant's actual notice of the cable's alleged condition. Therefore, the defendant has also met its burden of demonstrating that there is no genuine issue of material fact as to whether it had actual knowledge of the cable's alleged condition prior to the accident.
David swears in her affidavit that she is an employee of CoxCom, but does not indicate her particular position there. She does, however, swear that she has "become familiar with the procedures for and documents produced when a sagging cable is reported to CoxCom, Inc." The plaintiff does not challenge David's personal knowledge or credibility.
Since there is no genuine issue of material fact with respect to actual notice, "[t]he controlling question [becomes] that of constructive notice: whether the condition had existed for such a length of time that the [defendant's] employees should, in the exercise of due care, have discovered it in time to have remedied it." (Internal quotation marks omitted.) Kelly v. Stop Shop, Inc., 281 Conn. 768, 777, 918 A.2d 249 (2007). "What constitutes a reasonable length of time is largely a question of fact to be determined in light of the particular circumstances of a case." Id.
There is no bright-line rule for determining that a dangerous condition must exist before a person with responsibility for maintaining the safety of the place or thing in question can be found to have constructive notice of it, because "[t]o a considerable degree each case must be decided on its own circumstances." Id. In White v. E. F. Construction Co., 151 Conn. 110, 113, 193 A.2d 716 (1963), for example, our Supreme Court ruled that a defendant could not be charged with constructive notice of rainwater collecting on a floor near an open doorway where "[t]he evidence reveal[ed] no more than that the condition which caused the plaintiff to fall had been present for about two minutes before the time she entered the building." Conversely, in Kurti v. Becker, 54 Conn.App. 335, 339, 733 A.2d 916, cert. denied, 251 Conn. 909, 739 A.2d 1248 (1999), the Appellate Court ruled that a homeowner could be charged with constructive notice of the ice on his driveway where the temperature outside had fallen below freezing three hours before the plaintiff slipped on the ice. See also Considine v. Waterbury, 279 Conn. 830, 873, 905 A.2d 70 (2006) (presence of "nontoughened" glass in an entryway for twenty-two years sufficient to confer constructive notice); Kirby v. Zlotnick, 160 Conn. 341, 345, 278 A.2d 822 (1971) (porch railing in defective condition for two weeks sufficient to confer constructive notice); Leonard v. G W Management, Inc., Superior Court, Judicial District of Waterbury, Docket No. CV 05 5000179 (April 7, 2008, Upson, J.) (ice in parking lot for two hours after a snowstorm sufficient to confer constructive notice). Cf. Fabrizio v. Stop Shop Supermarket Co., Superior Court, Judicial District of Danbury, Docket No. CV 96 0324723 (December 18, 1998, Stodolink, J.) (foreign substance on supermarket floor for thirty minutes insufficient to confer constructive notice).
To meet its initial burden of establishing that there is no genuine issue of material fact, the defendant cites the plaintiff's deposition testimony, wherein she testifies that the cable in question was not sagging fifteen minutes before the accident. That admission by the plaintiff is sufficient for the defendant to meet its initial burden of demonstrating that there is no genuine issue of material fact as to how long the cable was sagging across the roadway. In her opposition to the defendant's motion for summary judgment, the plaintiff fails to submit any contrary evidence. The plaintiff does not submit any affidavits, or cite any other admissible evidence that would contradict her assertion in her deposition that the wire was not sagging fifteen minutes before the alleged accident. The defendant has, therefore, met its burden of establishing that there is no genuine issue of material fact that the cable was sagging for no more than fifteen minutes when the plaintiff ran into it and fell to the ground.
In her deposition, the plaintiff testified that when she and her husband rode past the scene of the accident fifteen minutes before it occurred, "[n]o wire was down. When we started, we headed down to the dead-end. We came up to the end of the street. That way we were passing it no wire was down. When I turned around and headed back, that's when the wire had fallen, and that was, like, fifteen minutes later."
While there is no genuine issue of material fact as to the maximum length of time the wire could have been in its sagging condition when the plaintiff ran into it and fell, there remain two open questions on the issue of constructive notice. The first is for what portion of that fifteen-minute period was the wire actually sagging downward in the position where the plaintiff encountered it, and the second is whether that dangerous condition, in light of the nature of the risk it presented to the public and the opportunity and responsibility of the defendant to find and repair it or warn the public of it, "had existed for such a length of time that the [defendant's] employees should, in the exercise of due care, have discovered it in time to have remedied it." (Internal quotation marks omitted.) Kelly v. Stop Shop, Inc., 281 Conn. 777.
In answer to the first such open question — how long was the wire down before the plaintiff ran into it — the Court has been presented with no non-speculative basis for determining when exactly, in the fifteen-minute period after the plaintiff first rode by the location where she fell until she returned to that location, the cable first sagged down into the position where she struck it and was injured. Therefore, because it is the defendant, on a motion for summary judgment, who bears the burden of proving the absence of any genuine issue of material fact if it is to prevail on its motion, the Court must presume, for these purposes, that the dangerous condition existed for the full fifteen minutes before the plaintiffs fell and was injured.
At trial, of course, the parties' roles will be reversed, and it will be the plaintiff who must prove how much of that fifteen-minute period the wire was actually sagging between the time that she first rode under it and the time she ran into it and fell.
As for the second open question — whether that fifteen-minute period was of sufficient duration to put the defendant on constructive notice of the dangerous condition in time to remedy or warn of it — this case is certainly closer to the two-minute period deemed insufficient to give constructive notice in White than to the three-hour period deemed sufficient for that purpose in Kurti. As a matter of law, however, the Court cannot rule on whether the defendant is charged with constructive notice in this case. Whether the defendant's employees should, in the exercise of due care, have discovered or remedied the condition before it caused the plaintiff's fall is a question of fact whose resolution depends upon the consideration of many factors which have not been addressed on this Motion. They include the nature of the condition, the extent of danger associated therewith and the potential of the defendant, through its employees and others, to look for and learn of the presence of such dangerous conditions. The defendant has not submitted any evidence tending to demonstrate the absence of a genuine issue of material fact on this issue. Therefore, since there remains, on this record, a genuine issue of material fact as to whether the defendant had constructive notice of the dangerous condition that caused the plaintiff's fall, the Court must deny its Motion for Summary Judgment with respect to that portion of the plaintiff's claim.
IT IS SO ORDERED this 2nd day of November 2010.