Opinion
UWYCV166029804S
07-03-2017
Suzanne Guerrera v. Geloso Enterprises, LLC
UNPUBLISHED OPINION
Filed July 5, 2017
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #126
Barbara Brazzel-Massaro, J.
BACKGROUND
The plaintiff filed a complaint dated January 5, 2016 in three counts alleging negligence on the part of the defendants, Geloso Enterprises, LLC, Aria Weddings & Banquets, LLC and the Villa Rosa, LLC. All of the defendants are involved in the facility located at 45 Murphy Road, Prospect, Connecticut known as Aria. Thereafter, the plaintiff filed a Revised Complaint on July 20, 2016. The defendant has filed an answer and special defense denying the allegations in the complaint as to the claims of negligence. On January 24, 2017, the defendants filed a motion for summary judgment because the plaintiff's fall on snow and/or ice was during the occurrence of a snow storm and thus pursuant to Connecticut law there was no duty on the part of the establishment to take action to plow or remove. The plaintiff has filed a memorandum in opposition to the motion for summary judgment dated March 24, 2017 to which the defendant filed a reply on May 3, 2017.
II. FACTS
The plaintiff Suzanne Guerrera alleges that she slipped and fell as a result of the negligence of the defendants Geloso Enterprises, LLC, Aria Weddings & Banquet, LLC, and Villa Rosa, LLC. In particular, the plaintiff alleges in her Revised Complaint the following facts. All named defendants possess, control, maintain, or are leaseholders of the banquet hall known as Aria located at 45 Murphy Road, Prospect, Connecticut. On January 6, 2014, the plaintiff was a guest at Aria attending a function. When the plaintiff arrived at the facility there was no snow in the air or on the ground. While leaving Aria and walking to her car in the parking lot she slipped and fell on ice or snow causing her to sustain various injuries. The plaintiff alleges that the defendants were negligent for failing to inspect and maintain the premises, or warn of the dangerous conditions present within the parking lot for the business. The defendants filed an answer on October 17, 2016, admitting ownership of the property but denied or left the plaintiff to her proof as to the remainder of the allegations. The defendants asserted several special defenses, that is, first that the plaintiff was negligent for failing to keep a proper look out or maintain awareness of her surroundings, and second, there was an ongoing storm at the time of the plaintiff's alleged injury and they owed her no duty as a result. The plaintiff filed her reply on October 26, 2016, denying the defendants' special defenses. On January 24, 2017, the defendants moved for summary judgment on the basis that the plaintiff's alleged fall happened during on ongoing snowstorm. Therefore, pursuant to the ongoing storm doctrine the defendants did not owe the plaintiff any duty with regard to the alleged defects on the premises at the time of the plaintiff's injury. In support of their motion the defendants submitted the following evidence: (A) certified excerpts of the plaintiff's deposition dated October 13, 2016; and (B) a copy of the plaintiff's responses to the defendants' interrogatories dated December 6, 2016. The plaintiff filed her objection on March 24, 2017. In support of her objection she submitted the following evidence: (1) a flyer for Monday Night Dinners at Aria; (2) page seventeen of the plaintiff's same deposition; (3) page thirteen of the plaintiff's deposition; (4) page thirty-four of the plaintiff's deposition; (5) the signed and sworn affidavit of the plaintiff; and (6) certified weather reports from Sherilyn J. Graham of the weather conditions on January 6, 2014, at 45 Murphy Road Prospect, Connecticut. The defendants filed a reply on May 3, 2017. The matter was heard at short calendar on May 8, 2017.
III. DISCUSSION
" Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and 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." " . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). 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). " [S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). Accompanying the motion " the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates, No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). The burden is on the moving party to demonstrate an absence of any triable issue of material fact and " [t]o 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 . . . 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.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). " When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non moving party has no obligation to submit documents establishing the existence of such an issue . . ." Ramirez v. Health Net of the Northeast, Inc. 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
" [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 their memorandum of law in support of their motion for summary judgment, the defendants argue that it is undisputed that a snowstorm was occurring at the time of the plaintiff's alleged slip and fall. Consequently, pursuant to the ongoing storm doctrine, the defendants did not have a duty to clear the snow and ice until a reasonable time after the storm had ended. In response, the plaintiff argues that while a storm was ongoing at the time of her fall, unusual circumstances exist that created a duty on the part of the defendant to remove the snow or ice. Specifically, the plaintiff claims that the following facts constitute unusual circumstances: (1) that she was attending an advertised monthly event hosted on the premises; (2) that there was a limited means of egress from the premises; and (3) that there was insufficient lighting in the parking lot. Furthermore, the plaintiff argues that it was clearly foreseeable she would be out walking during the snowstorm. Accordingly, the plaintiff argues that the defendants had a duty to clear the premises of the alleged defects before the storm ended. The defendant counters that a snowstorm was in progress at the time of the plaintiff's fall which, regardless of the plaintiff's representations, obviates any duty they may have owed, and that there is not a sufficient basis in law or fact for the plaintiff's assertions of unusual circumstances.
" A cause of action in negligence is comprised of four elements: Duty, breach of that duty, causation, and actual injury." Ruiz v. Victory Properties, LLC, 315 Conn. 320, 328, 107 A.3d 381 (2015). " 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 . . . If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant." Mirjavadi v. Vakilzadeh, 310 Conn. 176, 191, 74 A.3d 1278 (2013). A property owner generally does not owe a duty of care to clear snow while a snowstorm is ongoing. The Supreme Court has held: " [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). See also Leon v. DeJesus, 123 Conn.App. 574, 2 A.3d 956 (2010) (court upheld trial court's determination that ongoing storm doctrine precluded duty on part of defendant, plaintiff's testimony indicated that a storm was ongoing at her departure and conditions were icy).
Absent unusual circumstances then, Kraus acts as a general bar to liability for a defendant for failing to remove snow during a snow storm. In defining " unusual circumstances, " the Appellate Court has held: " The status of the defendant has never been relevant in determining the duty owed a person injured on the defendant's premises . . . The standard of care . . . is based on the status of the plaintiff not the defendant . Unusual circumstances, therefore, do not include those factors that define the status of the defendant." (Emphasis in original.) Sinert v. Olympia & York Development Co., 38 Conn.App. 844, 849-50, 664 A.2d 791, cert. denied, 235 Conn. 927, 667 A.2d 553 (1995). See Valagic v. Inline Plastics Corp., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 04-4000841-S, (April 4, 2006, Stevens, J.) (no unusual circumstances existed where plaintiff slipped and fell outside place of work). See also Coleman v. Copps Hill Plaza Shopping Associates, Superior Court, judicial district of Danbury, Docket No. CV-96-0326258-S (May 25, 1999, Radcliffe, J.) (24 Conn.L.Rptr. 561, ) (" The fact that the property on which the fall occurred is commercial, rather than residential, is therefore insufficient to overcome the Kraus v. Newton rule, and cannot serve as a basis for denying the defendant's motion for summary judgment. Furthermore, whether the activities during the storm induced the plaintiff to enter the property, alters neither the status of the plaintiff, nor the duty of care owed by the defendant").
The Appellate Court in Cooks v. O'Brien Properties, Inc., 48 Conn.App. 339, 710 A.2d 788 (1998), upheld the trial court's jury instructions as to what constituted " unusual circumstances." Specifically, the Appellate Court held that " the trial court properly instructed the jury to consider the evidence presented with respect to the changeover in precipitation and the availability of alternative means of egress from the defendant's property in determining whether such unusual circumstances existed on the day of the plaintiff's accident so as to impose on the defendant the duty to remove the snow and ice . . ." Id., 346-47.
In interpreting the ruling of Cooks judges of the Superior Court have generally held that either of these factors, changeover in precipitation and alternative means of egress, alone are not sufficient to create unusual circumstances, and that an alternative means of egress only becomes relevant if the storm had effectively ended. " It is clear . . . that whether there is an alternative means of entrance and egress alone cannot be an unusual circumstance under the ruling in Kraus . If the snow storm is continuous, the duty to clear the snow, regardless of the number of entrances and exits, has not arisen. If the snow had stopped, not just lightened up then the issue of whether there was an alternative means of ingress and egress might become relevant as to whether the defendants would have a reasonable time after the snow stopped to get rid of the snow or clear the area." Cafarelli v. First National Supermarkets, Inc., 46 Conn.Supp. 179, 187, 741 A.2d 1010 (1999) . See also Uhelsky v. One Research Drive Associates, Inc., Superior Court, judicial district of Ansonia-Milford, Docket No. CV-01-0075247-S (December 2, 2002, Lager, J.) (33 Conn.L.Rptr. 549, ) (court held that no duty arose from defendant where plaintiff fell in parking lot in place of employment during ongoing storm; means of egress irrelevant if storm is currently ongoing); Fryer v. Farmington Square, LLC, Superior Court, judicial district of Hartford, Docket No. CV-01-08044593-S (September 30, 2002, Rittenband, JTR) (33 Conn.L.Rptr. 250, ) (when plaintiff was leaving during ongoing storm alternative means of egress did not matter; presence of black ice during storm was not unusual circumstance).
In the present case, it is undisputed by the parties that there was an ongoing storm at the time of the plaintiff's fall. In the plaintiff's uncontested deposition, the plaintiff states that she was attending an advertised monthly event, a Monday night dinner at Aria. She arrived at the premises at around 5:45 p.m., and there was no precipitation at the time. Later, when the plaintiff was leaving with several family members between 9 and 9:30 p.m., it was snowing and there was around an inch of accumulation on the ground. Subsequently, while walking to her car she slipped, fell and injured herself.
The plaintiff's deposition establishes that the premises were clear at the time of her arrival, and that it was snowing at the time of her alleged injury. Consequently, the defendants did not owe the plaintiff a duty to clear the premises while the storm was ongoing. See Leon v. DeJesus, supra, 123 Conn.App. 574. Under the rule of Kraus, the defendants could wait until the storm had ended and a reasonable time thereafter to remove the snow and ice. Kraus v. Newton, supra, 211 Conn. 197-98. Despite the plaintiff's contention, there are no unusual circumstances present that would operate to furnish a duty to act sooner on the part of the defendants.
The plaintiff argued at short calendar that unusual circumstances exist due to the fact that the plaintiff was attending an advertised monthly event at the Aria. She argues that as the event had a scheduled end time, and the attendees may have been leaving en masse, as opposed to sporadically, unusual circumstances exist that created a duty on the part of the defendant to clear the premises of ice and snow prior to the storm ending. This argument is unavailing. Courts are generally not to consider the defendant's status as a commercial property owner in determining whether unusual circumstances exist. Rather, the duty owed is determined on the status of the entrant. See Sinert v. Olympia & York Development Co., supra, 38 Conn.App. 849-50. The plaintiff was not owed a higher duty of care during a snowstorm merely because she was attending an event hosted on the premises. To hold otherwise would inappropriately place a higher duty of care on the defendant based on their status as a commercial property owner. See Coleman v. Copps Hill Plaza Shopping Associates, supra, Docket No. CV-96-0326258-S . Furthermore, despite the plaintiff's representations there is no indication in the record of when this event was scheduled to end, if the plaintiff was leaving with her family before it ended, or if all attendees were leaving at the same time. Nor is there any indication that the plaintiff was ordered or directed to leave at a specific time by the defendants. Consequently, the fact that an advertised event was hosted on the premises does not constitute an unusual circumstance.
The plaintiff also argues that unusual circumstances exist due to the limited means of egress from the Premises. She cites Cooks v. O'Brien Properties, Inc., supra, 48 Conn.App. 339, and argues that the availability of only one exit is an unusual circumstance that created a duty of care on the part of the defendants. The plaintiff further avers in her affidavit that she was directed by the defendant to leave through the only exit available to the public. The court in Cooks, however, held that the jury could consider both the changeover in precipitation and the availability of alternative means of egress. Id. 346-47. Neither of these factors alone is sufficient. See Cafarelli v. First National Supermarkets, Inc., supra, 46 Conn.Supp. 187. See also Uhelsky v. One Research Drive Associates, Inc., supra, Docket No. CV-01-0075247-S. Here, it is uncontested that it was snowing at the time of the plaintiff's fall. Therefore, whether alternative means of egress from the premises existed is irrelevant.
Additionally, the plaintiff argues unusual circumstances exist as there was inadequate lighting on the premises making it difficult to see the snow, and cites the case of Lubus v. Bridgewater Common, Superior Court, judicial district of Litchfield, Docket No. CV-99-0077750-S (December 7, 1999, Frazzini, J.) (26 Conn.L.Rptr. 87, ). In Lubus, the court found that unusual circumstances may have existed where insufficient lighting made it difficult to see black ice on which the plaintiff was alleged to have fallen. In so holding, the court's main concern seemed to be whether an act or omission of the defendant had made it more difficult for the black ice to be detected. In the present case, the plaintiff stated in her deposition that she could see the accumulated snow on the ground. Furthermore, the plaintiff indicates in her deposition that she was aware of the icy conditions, and prior to her fall told the family members she was walking with to be careful. The mere presence of black ice is not sufficient to create an unusual circumstance. See Fryer v. Farmington Square, LLC, supra, Docket No. CV-01-0804593-S . Consequently, insufficient lighting is not an unusual circumstance.
Lastly, the plaintiff argues unusual circumstances exist on the basis that it was foreseeable that the plaintiff would be on the defendants' premises during the snowstorm, and cites the case of Hickok v. Dubray, Superior Court, judicial district of Litchfield, Docket No. CV-09-6001069-S (February 28, 2011, Pickard, J.) (51 Conn.L.Rptr. 461, ). In Hickok, the court held that unusual circumstances may have existed when the plaintiff, a double shift employee, was required to move her car during a snowstorm by her employer. The court determined that the defendant, a snow removal company employed by the plaintiff's employer, knew or should have known double shift employees were required to move their cars during the storm. The court reasoned in light of this, that it was clearly foreseeable that the plaintiff would be out during the snow storm and that the jury had to determine if unusual circumstances existed that created a duty on the part of the defendant to remove snow from the premises prior to the storm ending. In the present case, the plaintiff argues that it was foreseeable that the plaintiff would be leaving the premises during a snow storm, particularly in light of the weather reports she has submitted. This argument, however, has little support in the record as submitted. The weather reports provided by the plaintiff indicate that scattered rain showers and isolated snowstorms were forecasted for the afternoon with partly cloudy weather in the evening. Isolated snow showers were expected overnight which would cause locally icy conditions. Contrary to the plaintiff's representations, it was hardly clearly foreseeable that it would be snowing that evening. If anything, the defendants would mostly expect cloudy weather with a chance of isolated showers. Furthermore, a key part of the court's determination in Hickok, rested on the fact that the plaintiff was required to move her car during the snowstorm by her employer. There has been no evidence produced that indicates the plaintiff was compelled or forced to leave the premises while it was snowing. Therefore, no unusual circumstances exist here. Accordingly, there are no genuine issues of material fact in dispute. There was an ongoing storm at the time of the plaintiff's alleged injury, and no unusual circumstances exist that would create a duty on the part of the defendant to clear the premises prior to the end of the storm. Thus, the summary judgment regarding the ongoing storm is granted.
IV. CONCLUSION
Based upon the above, the defendants' motion for summary judgment is granted.