Summary
finding material questions of fact as to the factors for the "mere continuation" exception to successor liability
Summary of this case from Collins v. Olin Corp.Opinion
No. CV 01 0453323 S
May 7, 2003
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (#112)
On August 31, 2001, the plaintiff, Dorothy Lynch, filed a one-count amended complaint against the defendant, Infinity Outdoor, Inc. This action arises out of injuries and losses allegedly sustained by the elderly plaintiff when she fell near a roadside vegetable stand on July 17, 1999. The complaint alleges that the defendant, formerly known as Outdoor Systems, Inc. (Outdoor), owned the land upon which the plaintiff fell. The complaint further alleges that the defendant's negligence caused the plaintiff to trip and fall over a boulder and sustain serious injuries while she was patronizing a roadside business known as Jake's Fruits and Vegetable Stand (Jake's), which was operating on the defendant's premises.
On September 12, 2002, the defendant filed a motion for summary judgment on the entire complaint on the grounds that (1) it was not in possession or control of the premises upon which the plaintiff fell and (2) at the time of her fall, the plaintiff was a trespasser, a known trespasser, or a licensee. As required by Practice Book § 11-18, the motion was accompanied by a supporting memorandum of law. In support of its motion, the defendant submits (1) an unsigned, uncertified copy of the amended complaint; (2) the sworn affidavit of Richard Bourne, the director of operations of Viacom Outdoor, Inc. (Viacom), formerly known as Infinity Outdoor, Inc.; (3) the sworn affidavit of George Gross, the vice president of Viacom; (4) an uncertified copy of a portion of the deposition testimony of the plaintiff; and (5) an uncertified copy of a portion of the deposition testimony of Trudy Brill, a witness to the plaintiff's fall.
"[T]he trend in the Superior Courts is to consider certified but not uncertified deposition testimony when ruling on a motion for summary judgment . . . Courts following this trend reason that the court cannot consider . . . uncertified deposition testimony for the purposes of [a] motion for summary judgment because the transcript is not independently admissible as evidence and it fails to comply with the requirements of the Practice Book." (Internal quotation marks omitted.) Pepin v. Ilowitz, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 00 0271466 (December 18, 2002, Wiese, J.). "Similarly, [u]ncertified copies of documents to which no affidavit exists attesting to their authenticity . . . do not constitute proof or documentary evidence . . . The court [may] reach the merits of the parties' arguments, however, on the basis of a lack of objection and in an effort to prevent a ruling which raises form over substance." (Internal quotation marks omitted.) Grant v. Yale University, Superior Court, judicial district of New Haven, Docket No. CV 99 0430454 (March 27, 2003, Licari, J.). Because neither party in the present case has objected to the other's use of uncertified copies of documentary evidence, the court has considered these documents, but nonetheless finds only the sworn affidavits relevant to its ruling on the motion for summary judgment.
On January 16, 2003, the plaintiff filed a memorandum of law in opposition to summary judgment, asserting that (1) the defendant may be held liable for her injuries because they were caused by the defendant's predecessor in interest; (2) the exact location of her fall presents a genuine issue of material fact; and (3) she was a business invitee, known trespasser or known licensee to whom the defendant owed a duty of ordinary care. In support of her opposition, the plaintiff submits (1) an uncertified copy of a portion of Brill's deposition testimony; and (2) an uncertified copy of documents purported to show the defendant's business status according to the Office of the Secretary of State of Connecticut.
"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). "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." (Internal quotation marks omitted.) Mytych v. May Dept. Stores Co., 260 Conn. 152, 164 n. 8, 793 A.2d 1068 (2002). "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.) LaFlamme v. Dallessio, 261 Conn. 247, 250, 802 A.2d 63 (2002). Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995).
A
The first ground upon which the defendant moves for summary judgment is that on July 17, 1999, the date the plaintiff claims to have fallen, the defendant was not in possession or control of the subject premises. In support of its motion on this ground, the defendant submits the affidavit of Richard Bourne, the director of operations of Viacom, which was formerly known under the defendant's name. Bourne attested that on July 17, 1999, it was Outdoor, and not the defendant, that owned, possessed and controlled the subject property. (Defendant's Memorandum of Law in Support of its Motion for Summary Judgment, Exhibit 2, Affidavit of Richard Bourne, August 30, 2002 [Bourne Affidavit], ¶ 4.) The defendant also submits the affidavit of George Gross, the vice president of Viacom, attesting that the defendant did not purchase Outdoor until December 1999. (Defendant's Memorandum, Exhibit 3, Affidavit of George Gross, July 31, 2002, ¶ 5.) The plaintiff counters that according to the Office of the Secretary of State of Connecticut, Outdoor merely changed its name to the defendant's. The plaintiff argues that "the defendant is [therefore] liable in the same manner as the predecessor in interest." (Plaintiff's Memorandum in Opposition to Summary Judgment, p. 4.)
"Under Connecticut law, a corporation which purchases the assets of another company does not automatically become liable for the debts and liabilities of its predecessor unless there exists one of four established exceptions to this general rule. Specifically, the party seeking to impose liability on the basis of de facto successorship must establish: (1) that the purchase agreement expressly or impliedly so provides; (2) there was a merger or consolidation of the two firms; (3) the purchaser is a `mere continuation' of the seller; or (4) the transaction is entered into fraudulently for the purpose of escaping liability . . . Another recognized exception in Connecticut to the general rule is the `product line' exception, which [dictates that] where the successor corporation may hold itself out as being the same name or product, operation and sale, thereby receiving the benefit of past goodwill, it should likewise bear the burden of past operation." (Citations omitted.) Peglar Associates, Inc. v. Professional Indemnity Underwriters Corp., Superior Court, complex litigation docket at Stamford, Docket No. X05 CV 97 0160824 (June 19, 2002, Rogers, J.) ( 32 Conn.L.Rptr. 359, 363).
In the present case, the defendant's evidentiary submissions do not address any of the five established factors that would subject it to the liabilities of Outdoor. The affidavits of Bourne and Gross merely attest that the defendant did not purchase Outdoor until after the date of the plaintiff's alleged fall. The date of the defendant's acquisition of Outdoor, however, is irrelevant to the issue of successor liability. Although it is the plaintiff's burden to prove one of the factors of successor liability in order ultimately to prevail on this issue, it is the defendant's burden on summary judgment to show that there are no genuine issues of material fact. Even if the attestations of Bourne and Gross were true, there remain significant genuine issues of material fact as to whether any of the five factors of successor liability outlined above exists in the present case.
In its answer to the amended to complaint, moreover, the defendant expressly admits paragraph one of the amended complaint, which alleges that "[a]t all times hereinafter mentioned, the defendant, INFINITY OUTDOOR, INC., previously known as OUTDOOR SYSTEMS, INC., is a foreign corporation authorized to do business in the state of Connecticut . . . and is doing business as `Outdoor Systems Advertising.'" (Emphasis added.) (Complaint, ¶ 1). "An admission in a defendant's answer to an allegation in a complaint is binding as a judicial admission . . . An admission in the pleading dispenses with proof, and is equivalent to proof . . . It is the full equivalent of uncontradicted proof of these facts by credible witnesses . . . and is conclusive on the pleader." (Citations omitted; internal quotation marks omitted.) MacDonald v. Pinto, 62 Conn. App. 317, 321, 771 A.2d 156 (2001). The defendant also, however, expressly denies paragraphs two and three, which also allege, inter alia, that the defendant was "previously known as OUTDOOR SYSTEMS, INC." (Complaint, ¶¶ 2, 3.) The defendant itself has therefore raised a genuine issue of material fact as to its relationship with Outdoor, and has thus failed to meet its burden of showing the absence of a genuine issue of material fact as to successor liability.
B
In the alternative, the defendant argues that it did not owe a duty of care to the plaintiff because she "was injured while upon the State of Connecticut's right of way which abuts the property of [the defendant] . . ." (Defendant's Memorandum, p. 4.) The defendant, however, submits no evidence to buttress this assertion. As previously noted, "[t]he 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 a judgment as a matter of law . . ." (Internal quotation marks omitted.) Mytych v. May Dept. Stores Co., supra, 260 Conn. 164 n. 8. With no evidence to support its claim, the defendant has failed to meet its burden of showing the absence of genuine issues of material fact as to its contention that the plaintiff fell on state property.
C
The defendant next argues that even if the court finds that the plaintiff fell upon its property, and even if successor liability is found to have attached, the defendant is nonetheless entitled to summary judgment "because the defendant owed no duty of care to the plaintiff beyond that owed to a trespasser or licensee . . ." (Defendant's Memorandum, p. 4.)
1
"A trespasser is one who enters upon land without the consent of the possessor to do so." Shapiro v. Hillside Village Condominium Ass'n, Superior Court, judicial district of New Haven at Meriden, Docket No. CV00 0274597 (March 7, 2003, Wiese, J.), 34 Conn.L.Rptr. 262. "It is well established that a possessor of land is under no duty to keep his or her land reasonably safe for an adult trespasser, but has the duty only to refrain from causing injury to a trespasser intentionally, or by willful, wanton or reckless conduct." (Internal quotation marks omitted.) Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 558, 707 A.2d 15 (1998). "[A] possessor of land [however] who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area of the land, is subject to liability for bodily harm caused to them by an artificial condition on the land, if (a) the condition (i) is one which the possessor has created or maintains, and (ii) is, to his knowledge, likely to cause death or serious bodily harm to such trespassers, and (iii) is of such a nature that he has reason to believe that such trespassers will not discover it, and (b) the possessor has failed to exercise reasonable care to warn such trespassers of the condition and the risk involved." (Internal quotation marks omitted.) Id., 559-60.
In the present case, the defendant refers to the paragraphs in Bourne's affidavit attesting that the defendant gave its consent to neither Jake's nor the plaintiff to enter the subject premises on July 17, 1999 or any time previous to that date. (Bourne Affidavit, ¶¶ 7-8.) The defendant argues that the plaintiff was therefore a trespasser on its property to whom it owed a severely limited duty of care. The defendant does not submit any evidence, however, to show that the plaintiff did not have the permission of Outdoor to enter the premises. If Outdoor had given Jake's and Jake's customers permission to enter the subject property, then the plaintiff was not a trespasser on the date of her fall. Moreover, "the status of one who sustains injury while upon the property of another is [ordinarily] a question of fact." (Internal quotation marks omitted.) Moonan v. Clark Wellpoint Corp., 159 Conn. 178, 185, 268 A.2d 384 (1970). In submitting no evidence relevant to the relationship between Outdoor and the plaintiff, the defendant has failed to meet its burden of showing the absence of genuine issues of material fact as to the plaintiff's purported status as a trespasser.
2
Alternatively, the defendant claims that the plaintiff was a licensee who was owed a duty that is somewhat greater than that owed to a trespasser but still strictly limited. The plaintiff counters that she was a business invitee who was owed a higher duty of care, or at least within a class of persons to whom the defendant owed a duty of ordinary care. "The distinction between one who is an invitee and one who is merely a licensee turns largely on whether the visitor has received an invitation, as opposed to permission, from the possessor of land, to enter the land or remain on the land. Although an invitation itself does not establish the status of an invitee, it is essential to it. Mere permission, as distinguished from invitation, is sufficient to make the visitor a licensee but it does not make him an invitee." (Internal quotation marks omitted.) Kurti v. Becker, 54 Conn. App. 335, 338, 733 A.2d 916, cert. denied, 251 Conn. 909, 739 A.2d 1248 (1999).
"[T]he owner or occupier of premises owes invitees a nondelegable duty to exercise ordinary care for the safety of such persons." (Internal quotation marks omitted.) Gazo v. Stamford 255 Conn. 245, 257, 765 A.2d 505 (2001). In contrast, "[t]he duty that a landowner owes to a licensee . . . does not ordinarily encompass the responsibility to keep the property in a reasonably safe condition, because the licensee must take the premises as he [or she] finds . . . If the licensor actually or constructively knows of the licensee's presence on the premises, however, the licensor must use reasonable care both to refrain from actively subjecting him [or her] to danger and to warn him [or her] of dangerous conditions which the possessor knows of but which he [or she] cannot reasonably assume that the licensee knows of or by reasonable use of his [or her] faculties would observe." (Internal quotation marks omitted.) Salaman v. Waterbury, 246 Conn. 298, 305, 717 A.2d 161 (1998).
The defendant in the present case claims that it could not have breached the duty owed to a plaintiff licensee because it "did not actively subject the plaintiff to danger," it "did not know of, or have reason to know of, the rock/boulder that the plaintiff allegedly tripped on," and it "reasonably could have assumed that the adult plaintiff would have observed with the use of her faculties the condition of the unpaved and undeveloped area she was crossing." (Defendant's Memorandum, p. 8.) Again, however, the defendant has failed to submit any evidence relevant to the question of whether any of these factors can be imputed to Outdoor, or whether Outdoor had given Jake's or the plaintiff an invitation sufficient to render the plaintiff an invitee on the premises. The defendant has therefore failed to meet its burden of showing the absence of genuine issues of material fact with regard to the plaintiff's purported status as a licensee.
For the foregoing reasons, the defendant's motion for summary judgment is denied.
Licari, J.