Opinion
UWYCV166030147S
07-20-2017
Coreen Rogers v. Comcast of Connecticut et al
UNPUBLISHED OPINION
Filed July 21, 2017
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #137
I. INTRODUCTION
This action was originally filed on March 7, 2016 by writ, summons and complaint. On April 18, 2016 the plaintiff filed an Amended Complaint and thereafter on July 1, 2016 filed a two-count Revised Complaint. The plaintiff, Coreen Rogers named two defendants, Comcast of Connecticut/Georgia/Mass/New Hampshire/New York/North Carolina/Vermont (" Comcast") and A& S Enterprises (" A& S"). In Count One the plaintiff alleges the defendant Comcast is liable under the theory of premises liability. In the Second Count the plaintiff alleges that the defendant A& S is negligent because the business contracted to remove ice and snow and provide general maintenance of the property at 695 Huntington Avenue, Waterbury and it failed to perform its duties related to clearing the ice and snow. The defendant filed a motion for summary judgment on March 17, 2017 arguing that there is no liability because the ongoing storm allows a property owner to await the end of the storm before removing ice and snow. The plaintiff filed a memorandum with supporting exhibits in opposition to the motion dated May 16, 2017 arguing that the doctrine does not apply because this was " old ice." The defendant filed a reply memorandum on June 8, 2017 and the plaintiff filed a sur-reply on June 9, 2017. The parties appeared at short calendar on June 13, 2017.
The defendant filed a motion to strike the sur-reply because the plaintiff failed to first request permission to file the sur-reply pursuant to the Practice Book § 11-10. The plaintiff filed a motion for permission to file the sur-reply the day before argument which the court indicated during argument it would grant. The court entered an order granting the motion for permission.
II. FACTUAL BACKGROUND
The plaintiff is employed by the defendant, " Comcast." On February 18, 2014 she and a co-worker agreed to work at a different facility as dispatchers because there was a warning of snow on that day. She and her co-worker, Mr. Pinto, arrived at the Comcast facility located at 695 Huntington Rd. Waterbury, Connecticut at approximately 8:30 a.m. They parked in the parking lot which served employees as well as members of the public. She followed her co-worker to the only entrance to the building for them to report to work. It was snowing at the time. As she walked from the parking lot to the building she slipped and fell on what she describes as ice in the parking lot. The defendant A& S had a contract with Comcast for the maintenance of the facility including snow removal. The defendant filed this summary judgment arguing there are no genuine issues of fact that the defendants are liable for the fall because of the ongoing storm doctrine and thus summary judgment should be granted. The plaintiff has argued that the doctrine is inapplicable because the fall was the result of " old ice" and thus there is a genuine issue of material fact. The plaintiff has submitted deposition testimony and an affidavit in support of her objection to the motion for summary judgment.
III. DISCUSSION
" Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and 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." " . . . 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." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). " 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.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). " [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." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). Accompanying the motion " the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates, No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). The burden is on the moving party to demonstrate an absence of any triable issue of material fact and " [t]o 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 . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). " When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non-moving party has no obligation to submit documents establishing the existence of such an issue . . ." Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
" [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." (Internal quotation marks omitted.) Sic v. Nunan, 307 Conn. 399, 407, 54 A.3d 553 (2012).
In their memorandum of law in support of their motion for summary judgment, the defendants argue that it is undisputed that a snowstorm was occurring at the time of the plaintiff's alleged slip and fall. Consequently, the defendants contend that pursuant to the ongoing storm doctrine, they did not have a duty to clear the snow and ice until a reasonable time after the storm had ended. In response, the plaintiff argues that while a storm was ongoing at the time of her fall, unusual circumstances exist that created a duty on the part of the defendant to remove the snow or ice.
The Supreme Court has held: " [On 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." Kraus v. Newton, 211 Conn. 191, 197-98, 558 A.2d 240 (1989). See also Leon v. DeJesus, 123 Conn.App. 574, 2 A.3d 956 (2010) (court upheld trial court's determination that ongoing storm doctrine precluded duty on part of defendant, plaintiff's testimony indicated that a storm was ongoing at her departure and conditions were icy).
This rule, however, " does not foreclose submission to the jury, on a proper evidentiary foundation, of the factual [determination] of . . . whether a plaintiff's injury has resulted from new ice or old ice when the effects of separate storms begin to converge." Id., 198.
The plaintiff admits that the plaintiff fell on Comcast's premises during a snowstorm, but seeks to avoid the ongoing storm doctrine by asserting that she fell on old ice underneath the fresh snow. The plaintiff submitted evidence indicating that it was snowing when she left for work; she did not have any problems with slipping when she left her residence and entered her vehicle; that, after the fall, she could see the ice because the snow had been displaced; and that she could not stand up on her own because the ice underneath her was slippery. The plaintiff also submitted evidence that the snow began falling that morning around 6:30 a.m.; was still falling at the subject premises at the time of the injury; and there had been two prior storms at the same location within the previous five days. Specifically, the first storm on February 13-14, 2014, left approximately 12.75 inches of snow on the ground, and the second storm on February 15, 2014, left another 1.25 inches of snow.
See Lessow v. Sherry, 133 Conn. 350, 353-54, 51 A.2d 49 (1947) (weather reports generally admissible as evidence of conditions at or near location, provided sufficient proximity is established).
There is also evidence, however, that the very cold and dry conditions on February 17, 2014, caused some of the prior snow to sublimate, reducing the snow cover to slightly under twenty inches. There is no evidence before this Court, however, which excludes from all reasonable possibility that some of the prior snow melted and formed ice, which remained and was then covered by the new snowfall. Further, although the plaintiff fails to provide a specific description of what she felt with her bare hands--such as sand or a gritty substance, which could indicate the presence of ice was from a prior storm--the foregoing evidence, viewed in the light most favorable to the plaintiff, is a sufficient evidentiary foundation from which a reasonable jury could find that the plaintiff's fall was due to an icy condition that preexisted the snowfall of February 18, 2014. See e.g. Cooks v. O'Brien Properties, Inc., 48 Conn.App. 339, 348, 710 A.2d 788 (1998), see also Berlinger v. Kudej, 120 Conn.App. 432, 991 A.2d 716 (2010) (material issue of fact whether icy accumulation existed on the driveway). " Litigants have a constitutional right to have factual issues resolved by the jury." Mather v. Griffin Hospital, 207 Conn. 125, 138, 540 A.2d 666 (1988), and " the credibility of the witnesses and the weight to be accorded their testimony is a matter for the jury to decide." Dacey v. Connecticut Bar Assn., 170 Conn. 520, 368 A.2d 125 (1976). In addition to the actual feel of the ground when she fell the plaintiff also relayed the warnings given by Mr. Pinto to her as to ice under the snow which caused her to be careful. All of the statements of the plaintiff and the continued weather reports for the time in question provide a genuine issue of material fact as to whether there was ice on the parking lot and if so whether it was " old ice." Therefore, A& S' motion for summary judgment is denied.
Instead of the usual process where snow melts and then the liquid water evaporates, the snow skips the melting stage and goes directly to vapor, thereby reducing the snow cover without melting.