Opinion
No. CV03-0181947-S
May 4, 2004
MEMORANDUM OF DECISION RE MOTION 102 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Procedural History
On November 25, 2003, the plaintiff filed a complaint in two counts, the second count alleging that negligence on the part of F.B. Mattson Company caused the plaintiff to slip and fall.
On February 24, 2004, this defendant filed a motion for summary judgment. The defendant, F.B. Mattson Co., Inc. pursuant to Connecticut Practice Book § 17-44, hereby moves for summary judgment against the plaintiff on the ground that it did not owe a duty to the plaintiff as defendant did not own, control and/or maintain the area where the plaintiff claims to have fallen.
In support of this motion the defendant submits the following.
1. Memorandum of Law in Support of Motion for Summary Judgment.
2. Affidavit of Barbara Mattson (Exhibit A).
On February 27, 2004, the plaintiff filed a Motion for Extension of Time, "of thirty (30) days in which to respond to the Defendant, F.B. Mattson, Co., Inc.'s Motion for Summary Judgment. The plaintiff needs to obtain affidavits and do legal research before responding to the defendant F.B. Mattson Co., Inc.'s Motion."
This extension of time was granted and the motion for summary judgment ultimately was heard on April 12, 2004. Both counsel were present.
The Law CT Page 6831
Summary judgment is appropriate where "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." Barasso v. Rear Still Hill Road, LLC, 81 Conn. App. 798 (2004). Because litigants ordinarily have a constitutional right to have issues of fact decided by the finder of fact, the party moving for summary judgment is held to a strict standard. "[H]e 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." (Internal quotation marks omitted.) Id. at 802-03. A material fact is a fact that will make a difference in the result of the case. "[T]he burden of showing the nonexistence of any material fact is on the party seeking summary judgment . . . It is not enough for the moving party merely to assert the absence of any disputed factual issue; the moving party is required to bring forward . . . evidentiary facts, or substantial evidence outside the pleadings to show the absence of any material dispute. The party opposing summary judgment must present a factual predicate for his argument to raise a genuine issue of fact. Once raised, if it is not conclusively refuted by the moving party, a genuine issue of fact exists, and summary judgment is inappropriate. The court is required to view the facts presented in a motion for summary judgment in the light most favorable to the party opposing the motion. [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Internal quotation marks omitted.) Id. at 804. Kroll v. Sebastian, 58 Conn. App. 262, 265, 753 A.2d 384 (2000).Practice Book § 17-46 provides that an affidavit in support of a motion for summary judgment "shall be made on personal knowledge [and] shall set forth such facts as would be admissible in evidence . . ." "[A]ffidavits filed in connection with a motion for summary judgment must be made on personal knowledge, must set forth facts which would be admissible in evidence, and must show that the affiant is competent to testify to all matters stated in the affidavit . . . Mere statements of legal conclusions or that an issue of fact does exist are not sufficient to raise the issue." (Citations omitted; internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 377, 260 A.2d 596 (1969). When deciding a motion for summary judgment, the court must consider only the factual statements contained in the affidavit. See CT Page 6832 Compass Bank for Savings v. Katz, Superior Court, judicial district of New London at New London, Docket No. 536458 (March 11, 1997, Booth, J.).
Conclusion
This court's review of the record persuades us that the defendant F.B. Mattson's affidavit satisfies this rigorous standard, is factual and complete.
There was no counter affidavit, provided by the plaintiff, to discount or rebut the factual predicate in the Mattson affidavit. The plaintiff has been on notice for nearly sixty days of the pendency of this motion and specifically, as stated in plaintiff's request for an extension of time, the plaintiff was aware the assistance a counter affidavit might provide the court.
Defendant's motion is granted.
ALVORD, J.