Opinion
HHDCV166073087S
11-17-2017
Richard PICONE v. CARRIAGE PARK ASSOCIATION, INC. et al.
UNPUBLISHED OPINION
OPINION
ROBERT B. SHAPIRO, JUDGE
On September 11, 2017 and on October 30, 2017, the court heard oral argument concerning the defendants’ motions for summary judgment. After consideration, for the reasons stated below, the motions are granted.
I
Background
In the three-count complaint, the plaintiff alleges that on December 9, 2014, he was the owner of a unit in Carriage Park Condominiums (Condominiums), located at 31 High Street in East Hartford, Connecticut. He alleges that he suffered personal injuries after slipping and falling on ice on the steps located in front of Unit 7304. The three defendants are: Carriage Park Association, Inc. (Association) and Westford Real Estate Management, LLC (Westford), who are alleged to have been in possession and control of the Condomiums and/or responsible for maintenance and care of snow and ice removal; and Bill’s Landscaping, LLC (Bill’s), which is alleged to have contracted for the removal of snow at the Condominiums.
The plaintiff alleges that his fall was caused by the negligence of the defendants, in or more of several ways, including allowing a dangerous condition to exist for an unreasonable amount of time; they knew or should have known that the failure to remove the. ice and/or put down sand and/or salt on the steps created and/or allowed a dangerous condition, yet failed to take adequate measures to remedy or remove the ice condition; failed to take preventative measures to ensure that ice and snow did not accumulate on the steps; failed to adequately inspect the area where the ice was located to discover the existence of the dangerous condition; failed to block off or barricade the area in which the ice was located, to prevent people from walking in that area; and failed to warn the plaintiff of the dangerous condition. See complaint, all counts, ¶ 4.
In their motions, the defendants assert, citing Kraus v. Newton, 211 Conn. 191, 558 A.2d 240 (1989), that the incident in question occurred during an ongoing winter storm and, as a result, they had no duty to the plaintiff, and are entitled to judgment as a matter of law. In addition, Bill’s asserts that its contract only required it to remove snow and ice upon completion of a storm.
In response, the plaintiff contends that summary judgment is inappropriate due to the existence of genuine issues of material fact. He argues that Kraus v. Newton, supra, is limited to the issue of removal of accumulation of precipitation and does not address failure to take preventative measures to avoid the development of a dangerous condition, or failure to warn of the existence of a dangerous condition, or to take measures to block off or barricade an area where a dangerous condition develops. In addition, as to Bill’s, he asserts that Bill’s contract required it to undertake weather-related maintenance and that genuine issues of material exist concerning Bill’s performance of its duties. Additional references to the factual background are set forth below.
II
Standard of Review
" 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 ... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013).
III
Discussion
A
Ongoing Storm
" The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury ... Contained within the first element, duty, there are two distinct considerations First, it is necessary to determine the existence of a duty, and [second], if one is found, it is necessary to evaluate the scope of that duty ... The issue of whether a duty exists is a question of law ... [T]here can be no actionable negligence ... unless there exists a cognizable duty of care ..." (Citation omitted; internal quotation marks omitted.) McDermott v. State, 316 Conn. 601, 609, 113 A.3d 419 (2015).
The plaintiff was an invitee and, as such, was owed the following duties: 1) the duty to use reasonable care to inspect and maintain the premises and to make the premises reasonably safe; 2) the duty to warn or guard the visitor from being injured by reason of any defects that the invitee could not reasonably be expected to discover; and 3) the duty to conduct activities on the premises in such a way so as not to injure the visitor. See Fleming v. Garnett, 231 Conn. 77, 83-84, 646 A.2d 1308 (1994); Warren v. Stancliff, 157 Conn. 216, 218, 251 A.2d 74 (1968). A plaintiff must prove that the defendant had notice that is, knew or should have known of the unsafe condition long enough before the plaintiff’s injury to have taken steps to correct the condition or to take other suitable precautions. If the condition is one that was created by the defendant, then that constitutes actual notice. See Zaremski v. Three Lakes Park, Inc., 177 Conn. 603, 607, 419 A.2d 339 (1979). In the absence of proof that the defendant created the condition, the plaintiff must prove that the defendant had constructive notice. That means that the defendant using reasonable care should have known of the unsafe condition in time to have taken steps to correct the condition or take other suitable precautions. See Warren v. Stancliff, supra, 157 Conn. 218-19; Cruz v. Drezek, 175 Conn. 230, 234-35, 397 A.2d 1335 (1978). The notice to the defendant must be of the specific defect or unsafe condition that the plaintiff claims caused the injury, and not merely of conditions naturally productive of the defect, even though subsequently in fact producing it. See Kelly v. Stop & Shop, Inc., 281 Conn. 768, 776, 918 A.2d 249 (2007); Cruz v. Drezek, supra, 175 Conn. 234-35.
The ongoing storm doctrine was explained by the Supreme Court in Kraus v. Newton, supra, 211 Conn. 197-98: " [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. Our decision, however, 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." (Footnote omitted.)
In his deposition testimony (plaintiff’s Exhibit C and Association’s and Westford’s Exhibit B), page 22, the plaintiff stated that, on the day of the alleged fall, he awoke at approximately 8:00 a.m. and that his fall occurred at approximately 8:40 a.m., when the weather at the time was freezing rain. At page 42, the plaintiff testified that he realized that the precipitation that was falling was freezing rain " [u]pon my exit outside of the condominium and onto the stairs." The weather record presented by the defendants (Exhibit A), also reflects that freezing rain was occurring at the time and that areas of icing continued into midday. The plaintiff testified that he saw no " pretreatment" of the stairs or landing. See plaintiff’s Exhibit C, p. 45.
Plaintiff’s evidence included the deposition testimony of Katharine Sandalls, another resident, who also testified that the weather was ongoing freezing rain at the time of the alleged incident. See plaintiff’s Exhibit A (Sandalls deposition), p. 9. She stated that there had been a forecast of precipitation that would start at maybe three or four o’clock in the morning. See Sandalls deposition, p. 10. She also stated that the staircase is not really protected from the elements. See Sandalls deposition, p. 12. On the morning of the incident she did not observe any sand or salt on the stairs. See Sandalls deposition, p. 15.
A neighbor, Jay Brothers, testified that he also did not see any sand or salt on the stairs and described the conditions as a " flash freeze." See plaintiff’s Exhibit B (Brothers’ deposition), p. 12.
It is undisputed that the alleged incident occurred during an ongoing freezing rain storm. Connecticut case law makes clear that in actions where personal injury has occurred during an ongoing storm, traditional negligence principles must be considered alongside the principles enunciated in Kraus v. Newton, supra, 211 Conn. 191. In Umsteadt v. G .R. Realty, 123 Conn.App. 73, 1 A.3d 243 (2010), the defendants appealed from the judgment of the trial court denying their motion to set aside the jury verdict in favor of the plaintiff. See id., 74. The defendants claimed, inter alia, that the trial court failed to charge the jury in accordance with the ongoing storm doctrine pursuant to Kraus. See id. The defendants contended that failure to instruct the jury as to the principles enunciated in Kraus prejudiced them, and " deprived them of the opportunity to have the jury consider whether their duty to the plaintiff was suspended at the time of [the plaintiff’s] fall due to the continuing storm." (Internal quotation marks omitted.) Id., 78.
In response, the plaintiff countered that the charge " properly presented the principles enunciated in Kraus, " (internal quotation marks omitted.) id., as the court charged the jury on premises liability, negligence, actual and constructive notice; and, that such notice must be of the specific defect alleged by the plaintiff.
Relevant to the court’s consideration was the fact that, during the trial, there was conflicting testimony as to whether or not there was an ongoing storm in progress at the time of the plaintiff’s fall leading the Appellate Court to conclude that the jury was required to make the crucial factual determination as to whether the storm had actually ended. See id., 82. " The failure to give the requested Kraus charge despite the weather evidence that had been submitted deprived the defendants of the opportunity to have the jury make a determination of whether a winter storm was ongoing at the time of the plaintiff’s fall or whether a reasonable time had passed since the storm ceased such that the duty to clear any unsafe ice or snow from their sidewalk was operative." Id.
The Appellate Court reversed the trial court’s judgment and remanded for a new trial; see id., 83; reasoning that the charge instructing the jury only as to the law of negligence was insufficient and that the defendants were entitled to have the jury charged as to both actual and constructive notice, as well as the principles enunciated in Kraus. See id., 82-83. " These instructions ... are not sufficient to state the principle holding of Kraus that, absent unusual circumstances, a landowner is allowed to await the end of a winter storm, and a reasonable time thereafter, before removing ice and snow deposited by that storm. In other words ... the landowner’s duty to remove ice and snow does not arise until after a reasonable period has passed following the conclusion of the storm ... This principle is not covered adequately in a charge explaining premises liability or notice ... It is not the same as instructing the jury that it must determine whether the defendants had actual or constructive notice of the specific defect in question in time to remedy it or take other precautions." (Citations omitted.) Id., 82-83. See Leon v. DeJesus, 123 Conn.App. 574, 576, 577-78, 2 A.3d 956, 957 (2010) (citing ongoing storm doctrine and affirming summary judgment where plaintiff argued that defendant failed to warn the plaintiff, as a business invitee on the premises, of dangerous condition).
Thus, Umsteadt and Leon underscore the critical interplay between traditional negligence principles and the ongoing storm doctrine enunciated in Kraus. In Connecticut, the application of the principles articulated in Kraus operates to permit the property owner to await the end of a storm and a reasonable time thereafter in fulfilling the duty to remove snow and ice from the premises. When construing traditional negligence principles alongside the rule of Kraus, it becomes clear that conditions which the ongoing storm has created are not considered a specific defect, as the ongoing storm doctrine operates to temporarily suspend the duty to perform snow and ice removal. Whether or not the defendant may be held liable for injury in said conditions would be contingent upon other considerations, for example: whether unusual circumstances existed while the storm was ongoing thereby preventing the rule of Kraus from temporarily superceding traditional negligence law; whether there was pre-existing ice on the premises constituting a specific defect which the property owner has a duty to remedy; whether the property owner negligently undertook snow removal, thereby creating a specific defect requiring remedy; or, whether the property owner failed to remove the accumulation after awaiting a reasonable period time after the storm ceased. In the presence of these additional facts, the ongoing storm doctrine would not operate to protect the property owner.
In contrast, in this case, it is undisputed that there was an ongoing storm at the time of the plaintiff’s fall. The evidence submitted by the parties does not demonstrate that unusual circumstances existed at the time of the storm; that a specific defect in the form of pre-existing ice caused the plaintiff’s fall; or that a party in possession and control created a specific defect by negligently undertaking snow and ice removal, or by failing to remove the snow and ice within a reasonable period time after the storm ceased. Therefore, in view of the ongoing storm, and the absence of evidence of old ice, the defendants have met their burden to show that, at the time of the incident, while a storm was ongoing, they did not have a duty to take preventative measures or to clear the stairs of ice.
B
Winter Services Agreement
Bill’s Winter Services Agreement (Bill’s Exhibit D) provides for snow removal services. At page 4, under Work Specifications For Snow Removal Services, it provides that Bill’s snow plowing obligation commenced " when accumulations reach or exceed a depth of (1) inch or more. During on-going storms, the Contractor will make snow plowing passes on roadways every two to three hours and/or every 2-3″ of snowfall."
As to Bill’s, the plaintiff cites page 3 which provides that Bill’s " will exercise its best judgment based upon weather forecasts and existing conditions at the time"; and page 4, which states that Bill’s " is authorized under this agreement to apply salt at his sole discretion and determination that a need existed." The reference to salt appears under the heading " Work Specifications For Snow Removal Services, " making it clear that it pertains to services to be provided after, not before or in the midst of a storm. Similarly, the reference to weather forecasts and the use of Bill’s best judgment does not establish a contractual obligation to pretreat the area.
CONCLUSION
The defendants have met their burdens to show the absence of any genuine issue as to the material facts and that they are entitled to judgment as a matter of law. Accordingly, the motions for summary judgment are granted.