Opinion
CV126012017.
11-06-2012
Dimi KERAMIDAS v. Antigoni NICOLAOU.
UNPUBLISHED OPINION
FACTS
This action arises out of an alleged fall at 35 Dow Street in New London, which caused Dimi Keramidas, the plaintiff, to suffer personal injuries. According to the complaint, the plaintiff was assisting her mother, Antigoni Nicolaou, the defendant, up her driveway on January 29, 2010. During that process, the plaintiff alleges, the defendant was not lifting her feet properly, and, as a result, the defendant tripped and fell. The plaintiff alleges that she was injured while attempting to prevent the defendant's fall.
On March 14, 2012, the plaintiff filed a two-count revised complaint sounding in negligence. Count one alleges that the defendant was negligent for failing to properly lift her feet, for failing to listen to instructions, for failing to pay attention to where she was walking, for losing her footing and for failing to warn the plaintiff that she was unstable and going to fall. Count two asserts a premises liability claim.
The defendant filed a motion for summary judgment as to count one on June 22, 2012, on the ground that there are no genuine issues of material fact. In her memorandum of law in support, the defendant argues that summary judgment is proper because she owed the plaintiff no duty of care. The plaintiff filed an objection and memorandum in opposition on July 7, 2012. The matter was heard at short calendar on July 23, 2012.
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.) Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010). " 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." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).
" [T]he use of a motion for summary judgment instead of a motion to strike [to challenge the legal sufficiency of a complaint] may be unfair to the nonmoving party because [t]he granting of a defendant's motion for summary judgment puts the plaintiff out of court ... [while the] granting of a motion to strike allows the plaintiff to replead his or her case. (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005). Accordingly, " the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading." Id.; accord Wilton Meadows Ltd. Partnership v. Coratolo, 299 Conn. at 819, 832, 14 A.3d 982 (2011).
" 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). However, " [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 ... We have stated that the test for the existence of a legal duty of care 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 ... The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy." (Internal quotation marks omitted.) Neuhaus v. DeCholnoky, 280 Conn. 190, 217-18, 905 A.2d 1135 (2006).
In the present case, the defendant argues that to find a duty would be to impose liability on a defendant simply for tripping and falling and for failing to warn a person rendering assistance of an impending fall. The plaintiff argues that, " [c]learly, it was foreseeable that the [d]efendant could fall and pull her daughter down with her if she did not walk with reasonable care." However, the plaintiff also argues that, " [r]ather than let her mother fall, [the plaintiff] tried to save her mother, which caused [the plaintiff] to fall and severely injure herself."
The defendant has not offered any evidence to establish a genuine issue of material fact with regard to whether the plaintiff's injuries allegedly received in a responsive attempt to prevent her mother from falling were a reasonably foreseeable consequence of the defendant's failure to warn or avoid tripping. A court is however " not required to address the first prong as to foreseeability if [it determines], based on the public policy prong, that no duty of care existed." Neuhaus v. DeCholnoky, supra, 280 Conn. at 218, 905 A.2d 1135. The existence of a duty therefore depends on public policy considerations.
" A simple conclusion that the harm to the plaintiff was foreseeable ... cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed ... A further inquiry must be made, for we recognize that duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection ... While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree ... The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results." (Internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 633, 749 A.2d 630 (2000).
" [I]t is well established that Connecticut courts will not impose a duty of care on [a defendant] if doing so would be inconsistent with public policy." Monk v. Temple George Associates, LLC, 273 Conn. 108, 116, 869 A.2d 179 (2005). The courts recognize " four factors to be considered in determining the extent of a legal duty as a matter of public policy: (1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions." Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 480, 823 A.2d 1202 (2003).
Addressing the first factor, the plaintiff argues that to impose a duty would be consistent with the expectations of a person who is injured while assisting in this situation, while the defendant argues that imposing a duty would discourage a person in need of assistance from seeking aid. First, assuming that the activity in question is assisting the ambulation of an elderly or infirm person, the participants' expectations do not support the imposition of a duty. An elderly or infirm person in this situation would expect that they could seek aid in light of their mobility limitations and thereby guard against the risk of uncontrollable tumbles, deficiencies in balance, or environmental conditions. Moreover, such a person might reasonably assume that one who offers assistance considers himself or herself physically able to do so. In addition, implicit in the offer to aid a person with mobility limitations is the recognition that they might have difficulty maintaining sufficient balance on their own. These difficulties might normally result in trips and falls which may lead them to injure themselves or those supporting them. These risks, however, come with the territory.
The second factor, encouraging participation in the activity, also weighs against imposing a duty. The plaintiff argues that acknowledging a duty would encourage people to assist one another, without elaborating further. " [O]ur state has a firm public policy recognizing that the elderly have particular needs which should be met." United Church of Christ v. West Hartford, 9 Conn.App. 448, 464, 519 A.2d 1217 (1987), aff'd, 206 Conn. 711, 539 A.2d 573 (1988). " [T]he social need of governmental and charitable caring for the aged, as well as the importance and necessity for such a benevolent public policy, have become widely recognized and accepted ... The elderly, even those who are not completely incapacitated physically, suffer from loneliness, and from mental and physical infirmities which tend to increase as they grow older and their children leave the family home ..." Id., at 463, 519 A.2d 1217. Imposing liability on elderly or infirm persons for injuries resulting to caretakers from falls would discourage them from seeking the necessary assistance of others in contravention of our policy in favor of caring for their needs.
The third factor, avoidance of increased litigation, further weighs against imposing a duty. The defendant argues that imposing a duty would " not support the public policy goal of avoidance of increased litigation." The plaintiff disagrees, arguing that because parental immunity does not apply to adults, and liability in negligence for causing falls is already recognized under Connecticut law, litigation will not increase. Imposing a duty under these circumstances, and permitting plaintiffs to recover for injuries resulting from voluntarily assisting elderly or infirm persons, would increase litigation simply by providing those injured while assisting with a new cause of action.
With regard to the fourth factor, although neither party cites to cases from other jurisdictions in support of their arguments, the court finds that decisions of other jurisdictions also weigh against the imposition of a duty on the defendant. In Chirlow v. Gilotra, 52 So.3d 138, 139 (La.App.2010), for example, the Louisiana court of appeal considered a case where a disabled patient grabbed the arm of his caretaker, causing the plaintiff to injure her back, leg and foot. Id., at 139. Finding that summary judgment was appropriate, the court concluded that the patient owed the caretaker no duty " to guard against the particular risk that gave rise to the alleged injuries." Id., at 140. Similarly, courts in California, Florida and New York have found no duty to exist in other situations where caretakers were injured by their patients. See generally Herrle v. Estate of Marshall, 45 Cal.App.4th 1761, 53 Cal.Rptr.2d 713, review denied, 1996 Cal. LEXIS 5147, 1996 WL 289960 (1996); Mujica v. Turner, 582 So.2d 24 (Fla.Dist.Ct.App.), review denied, 592 So.2d 681 (1991); Berberian v. Lynn, 179 N.J. 290, 845 A.2d 122 (2004). Although the above courts discuss the existence of a contractual relationship between the caretaker and patient, the presence of some training, or the fact of institutionalization, the undercurrent remains the same— a disinclination for the imposition of liability in favor of those who would voluntarily assume an effort to render aid to elderly or infirm people seeking necessary assistance. Accordingly, this factor also weighs against the imposition of a duty.
Additionally, the plaintiff relies on Ruiz v. Victory Properties, LLC, 135 Conn.App. 119, 43 A.3d 186, cert. granted, 305 Conn. 922, 47 A.3d 882 (2012), in support of her argument that a duty should exist on these facts. This reliance, however, is misplaced. In Ruiz, the Appellate Court reversed the trial court's finding that the defendant owed the plaintiff no duty. The defendant in Ruiz was the owner and landlord of an apartment building with prior notice that the backyard was strewn with trash, rocks, and broken concrete pieces. One day, a ten-year-old child carried a large rock from the backyard and threw it out of a third-story window, injuring the plaintiff, Ruiz. Contrary to the plaintiff's assertion in the present case, the Ruiz court did not find the injury to Ruiz was reasonably foreseeable but rather that the " case [was] close enough to the margin of reasonable foreseeability that it would be inappropriate to foreclose the foreseeability inquiry as a matter of law." Id., at 127. As a result, the court proceeded to, and decided the case on, the public policy prong.
The imposition of a duty was appropriate, the court wrote, because a tenant can reasonably " expect a landlord to maintain the common areas of its properties and keep them free of dangerous debris, " and because " it is unreasonable for a landlord to expect that it can continue to conduct its business, while ignoring its obligation to maintain common areas and address tenant safety concerns." Id., at 129. Further, " it is desirable to promote the maintenance of common areas in properties ... so that children can socialize and play in safe environments" without burdening parents with the responsibility of heightened vigilance. Id., at 130. The imposition of a duty would not lead to an unnecessary increase in litigation because it would provide an incentive to landowners to act responsibly. Id. The court concluded " that imposing a duty of care on the defendant under the circumstances of the ... case [was] not inconsistent with public policy." Id., at 129.
CONCLUSION
Having applied the four factors delineated above, and finding that public policy weighs against the imposition of a duty in the present case, the court's conclusions in Ruiz are not controlling. For the foregoing reasons, the defendant's motion for summary judgment is granted as to count one.