Summary
stating that a police officer on private property pursuant to the exercise of his duties is treated as a licensee
Summary of this case from Marchand v. SimonsonOpinion
No. CV05-5001341 S
May 24, 2007
MEMORANDUM OF DECISION
FACTS
This premises liability action arises out of injuries sustained by Raphael Segarra, a police officer with the New Haven police department. According to the complaint, on November 8, 2003, while on duty, Segarra, by foot, was walking across a parking lot located at 75-95 Hamilton Street, New Haven, where he subsequently fell due to the dangerous and defective condition of the lot and suffered injuries. Segarra and his employer, the city of New Haven, bring this action against the defendants, Electrical Wholesalers, Inc., Uneda Sales, Inc., Church on the Rock, Inc. (Church), and Philip Bleich (Bleich). On May 5, 2006, Segarra filed a four-count amended complaint alleging negligence on the part of each defendant as the owners and/or ones in control of the premises where he fell. Specifically, he alleges that they were negligent in that they knew or should have known of the defective condition and failed to remedy it, and that they failed to inspect and maintain the parking lot in a reasonably safe condition. On March 24, 2006, New Haven filed a six-count revised intervening complaint pursuant to General Statutes § 31-293. The first three counts repeat Segarra's allegations of negligence on the part of the first three defendants, and the remaining three counts seek reimbursement from those defendants for the workers' compensation and differential pay benefits New Haven has paid and will be obligated to pay to Segarra as a result of his injuries.
On December 21, 2005, the court, Silbert, J., granted New Haven's motion to intervene as a party plaintiff. Bleich became a defendant in this action by way of an apportionment complaint filed by the Church on March 10, 2006.
On August 8, 2006, the Church filed its motion for summary judgment as to the third count of Segarra's amended complaint, arguing that Segarra's negligence claim against it is barred by the firefighter's rule. The Church attached a supporting memorandum of law and a request to admit. On that same date, the Church also filed an identical motion and documents in support of summary judgment as to the third and sixth counts of New Haven's revised intervening complaint. On November 1, 2006, Segarra filed an objection to the Church's motion, together with a memorandum and his affidavit. On November 2, 2006, New Haven filed its objection to the Church's motion. New Haven did not file a memorandum and, instead, it relies entirely on Segarra's objection. On March 5, 2007, the Church filed a reply memorandum with an accompanying supplemental affidavit.
Because the Church's motions are identical, the court will address them as a single motion for summary judgment directed at the third count of Segarra's amended complaint and the claims against the Church in New Haven's revised intervening complaint.
New Haven also points out that the Church is seeking summary judgment as to counts five and six and is not responding to the Church's motion as it relates to count five, as that count is not directed at the Church, but rather to Uneda Sales, Inc. It is, however, apparent that the Church's motion is actually directed to the third and sixth counts, as those are essentially the same and are the only ones directed at the Church.
On September 1, 2006, Bleich filed his motion for summary judgment as to the fourth count of Segarra's amended complaint and the fourth count of New Haven's revised intervening complaint. Bleich did not file a memorandum or any evidence and relies entirely on the Church's motion. Although neither Segarra nor New Haven have filed an objection to Bleich's motion, the court will consider Segarra's objection to the Church's motion as an objection to Bleich's motion, in view of Bleich's reliance on the Church's motion. Finally, a review of the file reveals that, on November 17, 2006, Bleich served a request for admissions on Segarra, to which Segarra replied.
It is also noted that Bleich seeks summary judgment on the fourth count of New Haven's revised intervening complaint, which is not addressed to Bleich, but to Electrical Wholesalers, Inc. In fact, the intervening complaint does not contain any claim against Bleich.
DISCUSSION
Practice Book § 17-49 provides that "judgment sought shall be rendered forthwith if 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." "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[s] 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.) Socha v. Bordeau, 277 Conn. 579, 585-86, 893 A.2d 422 (2006).
All three motions for summary judgment are premised on the defendants' assertions that the plaintiffs' negligence claims against them are barred by the firefighter's rule. "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." (Internal quotation marks omitted.) CT Page 7626 LePage v. Horne, 262 Conn. 116, 123, 809 A.2d 505 (2002). "In general, there is an ascending degree of duty owed by the possessor of land to persons on the land based on their entrant status, i.e., trespasser, licensee or invitee." Morin v. Bell Court Condominium Assn., Inc., 223 Conn. 323, 327, 612 A.2d 1197 (1992).
Pursuant to the firefighter's rule, "[w]e treat as licensees police officers who are on private property in the exercise of their duties." Morin v. Bell Court Condominium Assn., Inc., supra, 223 Conn. 328. "The duty that a . . . [possessor of land] 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 finds them . . . In general . . . with respect to active operations that the occupier engages in . . . there is an obligation to exercise reasonable care for the protection of a licensee." (Internal quotation marks omitted.) Id., 327. As to passive conditions on the property, "there is a duty to refrain from injuring a licensee intentionally, or by willful, wanton or reckless conduct." (Internal quotation marks omitted.) Id., 328. Accordingly, under the firefighter's rule, a police officer who is injured by defective conditions on private property during the performance of his official duties is considered a licensee to whom the property owner owes only "a duty to refrain from injuring [him] intentionally, or by willful, wanton or reckless conduct." (Internal quotation marks omitted.) Id., 328. The application of this rule would preclude the plaintiffs from bringing their negligence claims against the Church and Bleich.
Among the rationales for the firefighter's rule is that "firefighters and police officers must be held to assume the risks that are to be expected in encountering the hazards and risks of their job . . . Such risks properly include an ordinary act of negligence that an officer may encounter at the scene of the incident." (Internal quotation marks omitted.) Furstein v. Hill, 218 Conn. 610, 618, 590 A.2d 939 (1991). The most compelling rationale for the rule's continuing validity is to protect the reasonable expectations of the landowner. Levandoski v. Cone, 267 Conn. 651, 662, 841 A.2d 208 (2004). "Recognizing that only invitees may rely on an implied representation of safety . . . it [is] unreasonable to require landowners to undertake the same standard of care for public officers whose presence the landowners can neither predict nor interdict. There would be an obvious hardship in holding otherwise, because landowners would then be under compulsion to keep all parts of their premises in a condition perhaps uncalled for by the normal use to which the premises are devoted." (Internal quotation marks omitted.) Morin v. Bell Court Condominium Assn., Inc., supra, 223 Conn. 329.
The plaintiffs do not dispute that their claims are governed by the rule. Instead, they maintain that issues of fact exist as to whether an exception to the rule applies to this case.
"[T]here is an exception to the general rule that licensees are not afforded the implied representation of safety given to invitees when . . . the premises [are] open to the public. The exception provides that [t]he liability of a possessor of land to a public officer or employee who enters the land in the performance of his public duty, and suffers harm because of a condition of a part of the land held open to the public, is the same as the liability to an invitee." (Internal quotation marks omitted.) Morin v. Bell Court Condominium Assn., Inc., supra, 223 Conn. 334. "A possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe." Id., 327. Should the exception apply, the plaintiff's claims against the Church and Bleich would not be precluded by the firefighter's rule.
In Morin v. Bell Court Condominium Assn., Inc., supra, 223 Conn. 323, the Supreme Court acknowledged that "[a]lthough there is a paucity of case law on this specific issue [of this exception to the firefighter's rule], we approve of the result reached in Flowers v. Rock Creek Terrace, 308 Md. 432, 437-38, 520 A.2d 361 (1987), which specifically rejected a plaintiff firefighter's argument that he should be considered an implied invitee because he was injured in an area open to the public . . ." Id., 334-35. The court in Morin explained that in order to consider an area of the premises open to the public as a matter of law, "there [must] generally [be] some sort of public function or traditional business purpose being served." Id., 335. Thus, the mere fact that an area of private property is not closed to the public does not establish that it is "open to the public" as a matter of law. Id. According to the court, an example of "public function" is when an officer is injured on a "public sidewalk that the defendant was statutorily obligated to keep in good repair for the benefit of all members of the public." Id., 335 n. 3. The court's example of "traditional public purpose" is when an officer injured in "a department store during business hours." Id., 335 n. 4.
In the present case, the following is evidence before the court: the Church's request for admissions to which Segarra did not respond; Segarra's responses to Bleich's request to admit; an affidavit from Leslie L. Foster, the Church's pastor; and Segarra's affidavit. Each of the documents will be considered as to each motion.
As to the Church's request for admissions, it is well established that a party's "failure to respond timely to a request for admissions means that the matters sought to be answered were conclusively admitted." (Internal quotation marks omitted.) East Haven Builders Supply, Inc. v. Fanton, 80 Conn.App. 734, 744, 837 A.2d 866 (2004). Practice Book § 13-24(a) provides in relevant part: "Any matter admitted . . . is conclusively established unless the judicial authority on motion permits withdrawal or amendment of the admission." In its request, the Church asks that Segarra admit that "[t]he plaintiff's claimed fall occurred on November 8, 2003 at approximately 12:30 a.m . . . during a foot pursuit . . . of one or more individuals who were breaking into vehicles parked in the parking lot located at 75-95 Hamilton Street . . ." Under the rules governing requests to admit, Segarra's failure to respond is an admission of the fact that, in performing his official duties, he sustained injuries on a privately-owned parking lot.
Significantly, the document does not include a request regarding whether that parking lot was open to the public at the time that Segarra sustained his injuries. Thus, Segarra's failure to respond establishes only that the firefighter's rule applies; it does not establish whether the "open to the public" exception applies. However, there is a supplemental affidavit attached to the Church's reply memorandum in which Leslie L. Foster, the Church's pastor, attests in relevant part: "On or prior to November 8, 2003, Church on the Rock did not hold services, Church activities or other events after 10 p.m. . . . On or prior to November 8, 2003, Church on the Rock was not open to the public after 10 p.m. . . . Church on the Rock, Inc. was not open for business or open to the public at 12:30 a.m. on November 8, 2003." The affidavit thus provides some evidence that the parking lot was not open to the public, in that Segarra's fall occurred at nighttime when no one was present to visit the Church.
The burden now shifts onto the plaintiffs to submit documents establishing the existence of a genuine issue of material fact as to this issue. In Segarra's affidavit, he attests in relevant part: "The parking lot was . . . an open parking lot, with no fences or barriers to prevent myself and other members of the general public from traveling upon and through . . . In addition, the parking upon which I fell was used at the time for parking for patrons of Vandom Night Club." That the parking lot was "an open parking lot" does not, under Morin, establish that it was "open to the public." Additionally, the lack of "fences or barriers" only reiterates that the parking lot was open and, as such, remains insufficient under Morin. Segarra's testimony that the parking lot was being used by the patrons of a business provides some evidence that it was open to serve "some sort of public function or traditional business purpose . . ." Morin v. Bell Court Condominium Assn., Inc., supra, 223 Conn. 335.
Unlike the Church's request to admit, Bleich's own request for admission directly requests pertinent information regarding whether the parking lot was open to the public at the time of the incident, asking that Segarra admit that "[a]t the time of the incident . . . the parking lot in which it occurred was not open to the public." In response, Segarra denies this assertion, further clarifying that "the parking lot was open to parking for patrons of restaurants in the area." Segarra also denies that he "is not aware of any evidence . . . which would support the contention that the parking lot . . . was held open to the public at the time of this incident." Segarra likewise denies that "the parking lot . . . was not being held open for public use at the time of this incident." Segarra admits, however, that "[t]he parking lot . . . was not operated by parking attendants or other personnel at the time of the incident" and that "the businesses located on the property of 75-95 Hamilton Street . . . were not in operation and were not open to the public."
In their totality, Segarra's responses suggest that the parking lot was open to the public, but was held open either by or for other nearby businesses. Regardless of the identity of the person or business entity involved in either holding the parking lot open or occupying it at the time of the incident, Segarra has presented sufficient evidence that, viewed in the light most favorable to the plaintiffs, demonstrates the existence of a disputed issue of material fact, namely whether the parking lot was open to the public in the manner described by the court in Morin.
CONCLUSION
Accordingly, the defendants have failed to sustain their burden of demonstrating the nonexistence of a genuine issue of material fact. The defendants' three motions for summary judgment are denied.