Opinion
CV166025901S
08-27-2018
Deborah PATTERSON v. EASTERN CONNECTICUT HOUSING OPPORTUNITIES, INC., et al.
UNPUBLISHED OPINION
OPINION
Knox, J.
The present motions for summary judgment arise out of an alleged slip and fall of the plaintiff, Deborah Patterson, on snow and/or ice that had accumulated on an exterior stairway/walkway located at certain residential real property in Norwich (property). In her amended complaint, the plaintiff brings one count of negligence against the defendant Eastern Connecticut Housing Opportunities, Inc. (Eastern), who was allegedly the owner and/or exclusive manager in possession and control of the property (count one); and one count of negligence against the defendant Shane Rokowski, doing business as Shane’s Snow Plowing, who was allegedly contracted by Eastern to perform snow and ice remediation services at the property (count two). Eastern has in turn brought a third-party complaint against Rokowski sounding in common-law indemnification. Now before the court are Eastern and Rokowski’s motions for summary judgment on counts one and two, respectively, of the plaintiff’s amended complaint, and Rokowski’s motion for summary judgment on Eastern’s third-party complaint. For the reasons that follow, all three motions are denied.
"Summary judgment is a method of resolving litigation when 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." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012); see Practice Book § 17-49. "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." (Internal quotation marks omitted.) State Farm Fire & Casualty Co. v. Tully, 322 Conn. 566, 573, 142 A.3d 1079 (2016). In ruling on a motion for summary judgment, the court may consider not only the facts presented by the parties’ affidavits and exhibits, but also the "inferences which could be reasonably and logically drawn from them ..." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381, 260 A.2d 596 (1969). Ultimately, "the court’s role is not to weigh the credibility of the parties, which falls within the province of the finder of fact ... When a court, in ruling on a motion for summary judgment, is confronted with conflicting facts, resolution and interpretation of which would require determinations of credibility, summary judgment is not appropriate." (Citation omitted.) Straw Pond Associates, LLC v. Fitzpatrick, Mariano & Santos, P.C., 167 Conn.App. 691, 710, 145 A.3d 292, cert. denied, 323 Conn. 930, 150 A.3d 231 (2016).
I
Eastern moves for summary judgment on the plaintiff’s claim on the ground that there is no genuine dispute that the plaintiff’s alleged slip and fall took place during an ongoing winter storm and it therefore owed no duty to the plaintiff to remedy the allegedly defective condition. See Kraus v. Newton, 211 Conn. 191, 197-98, 558 A.2d 240 (1989) ("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"); Umsteadt v. G.R. Realty, 123 Conn.App. 73, 82, 1 A.3d 243 (2010) ("absent unusual circumstances, a landowner’s duty to remedy the effects of a storm does not arise until the end of a storm and a reasonable time thereafter" [internal quotation marks omitted] ). The plaintiff counters that there exist genuine issues of fact as to whether the winter storm had already ended by the time of the incident and whether the snow and ice that caused her to fall were the result of a previous snow storm that had occurred a few days before the incident. See Kraus v. Newton, supra, 198 (emphasizing that ongoing storm rule "does not foreclose submission to the jury, on a proper evidentiary foundation, of the factual determinations of whether a storm has ended or whether a plaintiff’s injury has resulted from new ice or old ice when the effects of separate storms begin to converge"). The court agrees with the plaintiff.
As to the question of when the storm in the present case ended, Eastern first points to the affidavit of its expert, Bob Maxon, in which Maxon opines that, at the time of the alleged loss at 6 p.m. on January 3, 2015, in Norwich, there was an ongoing winter storm causing slippery conditions on exposed surfaces. Eastern attempts to support Maxon’s opinion with the deposition testimony of the plaintiff’s daughter, Kelly Patterson. According to Patterson, it was snowing or sleeting shortly before the alleged slip and fall and was snowing when she went to the plaintiff’s aid shortly thereafter. In response, the plaintiff has submitted a transcript of Maxon’s deposition indicating that: (1) there was no reported data for the actual weather in Norwich on the date in question; (2) the data on which Maxon relied for his opinion came from the Groton-New London Airport in Groton, ten to fifteen miles away from Norwich, and the weather in Norwich at a given time can vary from that in Groton; and (3) Maxon could not say with a reasonable degree of certainty that it was snowing at the airport at 6 p.m. and beyond. This deposition testimony creates a genuine issue as to whether there was indeed an ongoing winter storm at the time of the alleged incident. Although Eastern also submitted evidence of Patterson’s direct observations of the weather conditions in Norwich before and after the incident, she does not attest to the weather conditions at the time of the incident. Although a fact finder might reasonably infer from Patterson’s testimony that the same conditions prevailed at the time of the incident, this evidence does not necessarily compel such an inference. See Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003) ("[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 ... [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." [Citations omitted; emphasis altered; internal quotation marks omitted.] )
There is likewise a genuine issue of fact as to whether the snow/ice that the plaintiff allegedly slipped on was the result of a previous storm. Although Maxon averred in his affidavit that there were no snow or ice accumulations from December 23, 2014, up until the date in question, Patterson testified at her deposition that the weather in the week leading up to the incident had been really cold, with snow and sleet off and on. As recognized by the court in Kraus, such a dispute is for the trier of fact to resolve.
II
Rokowski moves for summary judgment on the plaintiff’s claim on the grounds that: (1) the plaintiff’s claim is barred by the ongoing storm doctrine; (2) the plaintiff’s claim is barred by the statute of limitations; (3) Rokowski owed no duty of care to the plaintiff because his contractual obligations had not been triggered; and (4) the plaintiff cannot establish causation because she is unable to identify the alleged defect that caused her to fall.
The court’s conclusion in part I of this memorandum of decision is dispositive of Rokowski’s ongoing storm argument. As to the issue of timeliness, Rokowski argues that the plaintiff’s claim against him is barred by the two-year statute of limitations prescribed by General Statutes § 52-584 because, although the plaintiff learned of his identity as a possible tortfeasor within two years of the date of the alleged slip and fall on January 3, 2015, she did not bring an action against him until January 9, 2017, when she filed her amended complaint. For this contention Rokowski cites Tarnowsky v. Socci, 271 Conn. 284, 856 A.2d 408 (2004). Tarnowsky, however, supports the opposite conclusion.
In that case, our Supreme Court held that "the two-year statute of limitations set forth in § 52-584 does not begin to run until a plaintiff knows, or reasonably should have known, the identity of the tortfeasor"; (emphasis added) Tarnowsky v. Socci, supra, 271 Conn. 297; and that the issue of "[w]hen the plaintiff ... knew or should have known the defendant’s identity is a question to be determined by the fact finder ..." Id. Consequently, for Rokowski to satisfy his burden at the summary judgment stage, he must show that the plaintiff knew or should have known of his identity more than two years before bringing the present negligence claim against him on January 9, 2017- i.e., that the plaintiff became or should have become aware of Rokowski’s identity before January 9, 2015. Rokowski has made no such showing. He points only to the fact that the plaintiff had notice of his identity, at the latest, by August 29, 2017, when Eastern moved to implead him as a third-party defendant.
As to the existence of a duty of care, Rokowski contends that his liability to the plaintiff is limited to the scope of his contractual obligations and that his obligations under the contract were not triggered until either two inches or more of snow had fallen or additional services were affirmatively requested. According to Rokowski, there is no dispute that the snow from the January 3, 2015 storm had not yet reached a depth of two inches and that Eastern had not requested additional services. Consequently, Rokowski argues that, under the circumstances prevailing at the time of the incident, he had no contractual obligation to remediate the snow/ice accumulations at the property and therefore could not have owed a duty to the plaintiff to undertake such obligations with reasonable care.
Although Rokowski is correct that his duty to the plaintiff is limited to the scope of his obligations under the contract; see Gazo v. Stamford, 255 Conn. 245, 250 n.4, 765 A.2d 505 (2001) (ice and snow removal contractor "may be held liable to the plaintiff only to the extent that (1) his contractual undertaking permits, and (2) his breach of duty to the plaintiff is part and parcel of [the property owner or possessor’s] duty to the plaintiff"); there is a genuine dispute as to whether a previous winter storm had deposited two or more inches of snow before the day in question, thus triggering Rokowski’s contractual duties. Although there is testimony from Maxon indicating that there had been no precipitation in the ten days leading up to the incident, there is contrary testimony from Patterson indicating that it had previously snowed/sleeted and that, on the day of the incident, "there was a couple of inches [of snow] that had been there for at least a couple of days." It is for the trier of fact to resolve this dispute.
Finally, as to the issue of causation, Rokowski asserts that there is no way of knowing whether the plaintiff slipped on ice, tripped on some other type of obstruction, or fell for some other reason unrelated to the weather or the condition of the premises, given that there were no witnesses to the alleged slip and fall and the plaintiff cannot testify on her own behalf because she suffers from dementia and cannot recall the incident. Rokowski argues that there is thus nothing but "conjecture and surmise" to connect the plaintiff’s injuries to any act or omission on the part of Rokowski and that, therefore, the plaintiff cannot establish the essential element of causation.
"The essential element of causation has two components. The first component, causation in fact, requires [the court] to determine whether the injury would have occurred but for the defendant’s conduct ... The second component, proximate causation, requires [the court] to determine whether the defendant’s conduct is a substantial factor in bringing about the plaintiff’s injuries ... This causal connection must be based upon more than conjecture and surmise." (Citations omitted; internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 833, 116 A.3d 1195 (2015). "Although the issue of causation generally is a question reserved for the trier of fact ... the issue becomes one of law when the mind of a fair and reasonable person could reach only one conclusion, and summary judgment may be granted based on a failure to establish causation." (Internal quotation marks omitted.) Abrahams v. Young & Rubicam, Inc., 240 Conn. 300, 307, 692 A.2d 709 (1997); see Stuart v. Freiberg, supra, 823 ("[i]f a plaintiff is unable to present sufficient evidence in support of an essential element of his cause of action at trial, he cannot prevail as a matter of law").
As Rokowski points out, there is no direct evidence linking the condition of the premises to the plaintiff’s alleged injury. Were there no other evidence from which causation could reasonably be inferred, then the plaintiff would indeed be unable to establish an essential element of her negligence claim, and Rokowski would be entitled to summary judgment. See Oglesby v. Teikyo Post University, Superior Court, judicial district of New Haven, Docket No. CV-00-0445518-S (September 30, 2002, Robinson, J.) (granting defendant’s motion for summary judgment on plaintiff’s premises liability claim where plaintiff had testified that she did not know what had caused her to fall on pathway on defendant’s premises and "[n]o facts [had] been presented which would support an inference that the cause of the plaintiff’s fall was a defective condition of the pathway"). In the present case, however, such circumstantial evidence exists. In her deposition, Patterson testified that: (1) the plaintiff was found lying on three steps leading up to a platform where the door to Eastern’s property was located; (2) upon coming to the plaintiff’s aid, the plaintiff told Patterson that she had slipped trying to get up to the door; (3) the three steps on which the plaintiff was found had two to three inches of snow off to the sides of the steps and a layer of ice in the middle and "were pretty slick"; and (4) the plaintiff had no issues with walking or her gait prior to the alleged slip and fall. A trier of fact could reasonably infer from this circumstantial evidence that the plaintiff fell while ascending an outdoor staircase on Eastern’s property and that she had been caused to fall by a slippery accumulation of snow and/or ice on the staircase. As such, Rokowski cannot establish lack of causation as a matter of law.
III
Rokowski also moves for summary judgment on Eastern’s common-law indemnification claim. "[A plaintiff] seeking indemnification must establish that: (1) the third party against whom indemnification is sought was negligent; (2) the third party’s active negligence, rather than the [plaintiff’s] own passive negligence, was the direct, immediate cause of the accident and the resulting harm; (3) the third party was in control of the situation to the exclusion of the [plaintiff] seeking reimbursement; and (4) the [plaintiff] did not know of the third party’s negligence, had no reason to anticipate it, and reasonably could rely on the third party not to be negligent." (Internal quotation marks omitted.) Chicago Title Ins. Co. v. Accurate Title Searches, Inc., 173 Conn.App. 463, 482 n.12, 164 A.3d 682 (2017). Although Rokowski purports to challenge all four elements of Eastern’s indemnification claim, in substance, he argues only that he was not negligent and that he did not have exclusive control of the property.
In support of his contention that he was not negligent, Rokowski reiterates the arguments he makes in support of his motion for summary judgment on the plaintiff’s negligence claim- i.e., that he had no contractual duty to perform any snow/ice remediation at the property, that he had no duty of care because there was an ongoing winter storm, and that the plaintiff cannot establish the element of causation. For the same reasons stated in section II of this memorandum of decision, these arguments lack merit.
As to the element of exclusive control, Rokowski asserts that Eastern fails to even allege this element in its third-party complaint. Although "[t]he 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"; (internal quotation marks omitted) Ferri v. Powell-Ferri, 317 Conn. 223, 236, 116 A.3d 297 (2015); Eastern has alleged the necessary element of control. Eastern alleges in paragraph 8 of its third-party complaint that Rokowski "had exclusive control over the snow and ice removal and treatment on the subject property." See Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 706, 694 A.2d 788 (1997) ("[i]t is plausible to define exclusive control over ‘the situation’ as exclusive control over the dangerous condition that gives rise to the accident"). Moreover, "the absence or presence of exclusive control is a question of fact"; id., 704; and, thus, like the issue of causation, it ordinarily cannot be properly resolved on a motion for summary judgment unless the evidence is such that the fact finder could only reasonably reach one conclusion. Rokowski, however, does not even purport to have made such a showing.
The elements of common-law indemnification aside, Rokowski also argues that, because the plaintiff does not have a viable claim against Eastern, Eastern, in turn, can have no claim for indemnification against him. This argument likewise fails. As the court concluded in parts I and II of this memorandum of decision, summary judgment in favor of the defendants on the plaintiff’s claims is not warranted.
CONCLUSION
For the foregoing reasons, the defendants’ motions for summary judgment are denied.