Opinion
No. CV-02-0078510S
June 6, 2003
Memorandum
In this case, the plaintiff Steven Trinkaus ("Trinkaus") seeks to recover for personal injuries he sustained as a result of a skiing accident that occurred on January 27, 2001 at the Mohawk Mountain ski area in Cornwall, Connecticut when a minor child, David Montoni ("Montoni"), who was riding a snowboard, collided with Trinkaus. Montoni was participating in a weekend ski trip sponsored by his Boy Scout troop, #55 of the Housatonic Council of the Boy Scouts of America from Shelton ("the troop or troop #55). The troop's scoutmaster, Robert Atkin ("Atkin"), and two assistant scoutmasters, Michael Keirstead ("Keirstead") and Russell Shimer ("Shimer"), participated in the leadership of the troop's skiing trip. Trinkaus has alleged, among other things, that the troop, acting through Atkin, Keirstead and Shimer, negligently entrusted a dangerous instrumentality, namely the snowboard, to Montoni when its agents knew or should have known he was incapable of handling it and it was foreseeable he would injure someone while riding it. (Count Five, ¶ 23.k) Troop #55 has now moved for sumxnaiy judgment as to count five of the complaint against it on the grounds that Trinkaus is barred by the provisions of Connecticut General Statutes § 29-212 from bringing a claim against it and that it did not owe any duty to Trinkaus.
On April 7, 2003, this court granted motions for summary judgment of the individual defendants Shiner and Keirstead as to counts three and four respectively pursuant to 42 U.S.C. § 14501, et seq., the Volunteer Protection Act and absent objection from the plaintiff. On February 13, 2003, the court (Alander, J.) granted a motion for summary judgment in favor of the defendant Atkin as to count two on the same ground.
"Practice Book . . . § 17-49 provides that summary judgment 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." (Brackets omitted; internal quotation marks omitted.) Miles v. Foley, 253 Conn. 381, 385, 752 A.2d 503 (2000). A "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." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "A defendant's motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact. Perille v. Raybestos-Manhattan-Europe, Inc., CT Page 7388-b 196 Conn. 529, 543, 494 A.2d 555 (1985)." (Internal quotation marks omitted.) Brunswick v. Safeco Ins. Co., 48 Conn. App. 699, 704, 711 A.2d 1202, cert. denied, 247 Conn. 923, 719 A.2d 1168 (1998).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact." D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). "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 . . . Summary judgment should be denied where the affidavits of the moving party do not affirmatively show that there is no genuine issue of fact as to all of the relevant issues of the case." (Citation omitted; internal quotation marks omitted.) Doty v. Shawmut Bank, 58 Conn. App. 427, 430-31, 755 A.2d 219 (2000). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The test is whether a party would be entitled to a directed verdict on the same facts." (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999).
I. General Statutes § 29-212
General Statutes § 29-212 provides that: "Each skier shall assume the risk of and legal responsibility for any injury to his person or property arising out of the hazards inherent in the sport of skiing, unless the injury was proximately caused by the negligent operation of the ski area by the ski area operator, his agents or employees." The statute includes "collisions with any other person by any skier while skiing" among the hazards it identifies as inherent in the sport of skiing. General Statutes § 29-212 (6). Troop #55 reads this statute as barring any claims of negligence against it as a matter of law and has alleged it as a bar in its second special defense. Trinkaus contends that the statute's reach is limited to the context of claims which may be made against ski area operators and that it is inapplicable to the circumstances of this case.
In determining the applicability of § 29-212 to the facts of this case, the court must examine "all relevant evidence bearing on the meaning of the language at issue." State v. Courchesne, 262 Conn. 537, 575, 816 A.2d 562 (2003). In Courchesne, a majority of the Supreme Court specified the following process for determining statutory meaning:
The process of statutory interpretation involves a reasoned search for the intention of the legislature. CT Page 7388-c In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement. and to its relationship to existing legislation and common law principles governing the same general subject matter. Thus, this process requires us to consider all relevant sources of the meaning of the language at issue, without having to cross any threshold or thresholds or ambiguity. (Internal citations omitted; internal quotation marks omitted).
Id., 577, "The process of [statutory] interpretation [begins] with a searching examination of [the legislative] language, attempting to determine the range of plausible meanings that it may have in the context in which it appears and, if possible, narrowing that range down to those that appear most plausible. Thus, the statutory language is always the starting point of the interpretive inquiry." Id., 564. Section 29-212 provides that a skier assumes the risk of injury arising from hazards inherent in the sport of skiing "unless the injury was proximately caused by the negligent operation of the ski area by the ski area operator, his agents or his employees." Thus, for example, a skier who collides with any other person while skiing could bring suit against the ski area operator if the skier claims that the operator's negligence was a proximate cause of a skier's injury. If, however, there is no evidence of the ski area operator's negligence. § 29-212 does not permit suit against the ski area operator. See, e.g., Schaefer v. Mt. Southington Ski Area, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 340387 (Oct. 22, 1997, Melville, J.) ( 20 Conn.L.Rptr. 363); Rousseau v. Beckley, 1996 WL 813102, Superior Court, Docket No. 465970 (Nov. 27, 1996, Holzberg, J.); Mihail v. Ski Sundown, Inc., Superior Court, judicial district of Litchfield, Docket No. 058967 (June 10, 1993, Susco, J.).
In light of this required process, the court requested counsel to provide the legislative history of General Statutes § 29-212 and any pertinent analysis of the statute or similar statutes. Counsel responded by way of detailed memoranda, with supporting documentation including the entire legislative history, filed on May 5, 2003. The court expresses its gratitude for counsels' submissions.
The statute is silent as to whether its assumption of risk language precludes a suit against any other negligent party whose conduct was a substantial factor in causing the skier's injury. The statute is equally silent as to whether such a suit is permissible. The court must take care not to interpret the statutory silence as the equivalent of a legislative intent to bar an injured skier from bringing an otherwise cognizable CT Page 7388-d cause of action against an allegedly negligent party. In other words, the court cannot conclude simply from the statute's silence that the legislature intended the statute to apply to the facts presented in this case.
The court is aware that in Hopkins v. Obermeyer, Superior Court, judicial district of Tolland, Complex Litigation Docket No. X07CV990076715 (Jan. 9, 2002) ( 31 Conn.L.Rptr. 226), Judge Sferrazza concluded that the absence of any explicit language in § 29-212 restricting its provisions to lawsuits against ski area operators "strongly implies" that the statute has general application and, as a result, granted a motion for summary judgment in a skier vs. skier lawsuit. The court disagrees with this analysis. Furthermore, as the text associated with footnote 4 indicates, the court has concluded that such a reading would be inharmonious with the comparative negligence provisions of § 29-214.
The fact that § 29-212 permits suit against a negligent ski area operator, however, suggests that it cannot be plausibly interpreted as precluding suit against another negligent party. It makes little sense to permit a negligence suit against a ski area operator for injuries caused by a collision with another person in the ski area, but not to permit suit when a skier claims his injury was proximately caused by the conduct of another negligent party. Such an interpretation of the statute could encourage what may be described as "creative litigation" against ski area operators as the only potentially liable party for injuries occurring as result of the hazards inherent in the sport of skiing. Moreover, the concept of comparative negligence, specifically referred to in § 29-214, would be eroded if the statute is read to bar consideration of, as well as apportionment of a third party's negligence in a suit alleging a ski operator's negligence pursuant to § 29-212. Indeed, of the six hazards specified in § 29-212, a collision with another person in the ski area is the most likely circumstance where there could be negligence on the part of someone other than the ski area operator and the injured skier.
General Statutes § 29-214 provides, in pertinent part, that in civil actions against an operator by a skier, "the law of comparative negligence shall apply."
The specified hazards are: "(1) Variations in the terrain of the trail or slope which is marked in accordance with subdivision (3) of section 29-211 or variations in surface or subsurface snow or ice conditions . . .; (2) bare spots which do not require the closing of the trail or slope; (3) conspicuously marked lift towers; (4) trees or other objects not within the confines of the trail or slope; (5) boarding a passenger tramway without prior knowledge of proper loading and unloading procedures or without reading instructions concerning loading and unloading posted at the base of such passenger tramway or without asking for such instructions; and (6) collisions with any other person by any skier while skiing."
Moreover, a statute's words cannot be divorced from its context. Section 29-212 is part of a series of related statutes enacted as Public Act 79-629. See General Statutes §§ 29-201, 29-211 through 29-214. These statutes specify the respective duties of ski area operators regarding the maintenance of ski areas and of skiers regarding the use of ski areas. The focus of the legislative language is on the relationship between ski areas and the skiers who use them. With the exception of § 29-212 (6) and § 29-213 (6), the statute contains no reference to the relationship between skiers and others using the ski areas nor does that relationship appear to have been the focus of the legislative language.
General Statutes § 29-212 (6) defines "collisions with any other person by any skier while skiing" as one of the "hazards inherent in the sport of skiing."
General Statutes § 29-213 (6) prohibits a skier from "depart[ingl from the scene of a skiing accident when involved in the accident without leaving personal identification, including name and address, or before notifying the proper authorities and obtaining assistance when such skier knows that any other skier involved in the accident is in need of medical or other assistance.
Not only does the context of the statutory language suggest that the purpose of the legislation at issue was to focus on the relationship between ski areas and the skiers using those areas, but the extensive legislative history of Public Act 79-629 reinforces that conclusion. The public act was the result of several legislative proposals responding to a liability insurance crisis in Connecticut's then relatively nascent recreational skiing industry. It was felt that the operators' problems in obtaining insurance could be averted if the legislature clarified that a ski area operator's duty to a skier was principally to CT Page 7388-e get the skier safely up the hill and that the skier primarily bore the risk of getting safely down the hill. The goal of the proposed legislation was to protect the ski area operators from liability for injuries that were not proximately caused by their negligent operation of the ski area, thus making liability insurance coverage more affordable.
The testimony of Richard Williams, a vice-president of a company that was the designated manager of the National Ski Areas Association Insurance Plan, at a February 22, 1979 hearing before the Public Safety Committee, cogently summarized the state of affairs:
You have heard much today about the fact that the CT Page 7388-i liability insurance market place is greatly constricted for all ski area operators, that is in fact true. To the best of our knowledge there is only one licensed insurance carrier willing to provide coverage in Connecticut . . .
The Connecticut ski area operators have seen an increase in insurance premiums of somewhere between 300% and 500% since 1972. In our opinion the proposed model legislation . . . is a fair piece of legislation in that it does a number of things and one is from an insurance standpoint it established clearly . . . certain responsibilities of the ski area operator. We support that.
It defines or makes an effort to define some risks which are inherent to and necessary to ones [sic] participation in the sport of skiing, i.e., rocks, bare spots and trees. It calls upon the ski area operator to advise the skiers or prospective skiers of those risks prior to their participation. It then asks the skier to accept those risks.
We feel that what has happened in those jurisdictions where this type of legislation has been enacted is there has been a definite leveling of insurance premiums . . . We think that those states that have this type of legislation will enjoy a better position in the insurance market place than those states who do not.
Conn. Joint Standing Committee Hearings, Public Safety, 1979 Sess., pp. 458-59.
Senator Post, a co-sponsor of the legislation, testified as follows at the February 22, 1979 hearing:
A very real problem has developed in Connecticut. It requires some review of existing Connecticut law and fundamentally there is a concern at the ski areas; believe that they have a responsibility to make sure that their customers, the skiers, are carefully, safely carried to the top of the hill. but they are very concerned about potential of case law in other states that might impose on them a responsibility to CT Page 7388-j get the same skiers safely down the hill, and they are here today to explain that problem and to seek your help and get the laws changed as they are being changed in other states, so that Connecticut would also, as in other states, recognize the problem and make sure that the responsibilities are correctly alined [sic] between the owners and operators to get people to the top and the skiers to get themselves down.
Conn. Joint Standing Committee Hearings, Public Safety, 1979 Sess., pp. 436-37.
The file copy is directed at a problem that ski area operators have, arising out of the famous Sunday case at Mt. Stratton, Vermont, in which a beginner skier who was seriously injured recovered a substantial award of over a million dollars as a result of his injuries. So, what happened was that a fear went up on the part of ski operators and it became realistic when it came time to renew their insurance.
"So the file copy is reflective of that particular anxiety. What the amendment does . . . [is] attempt to try to deal fairly from both sides of the perspective, namely from the skiers' side as well as from the ski operator, but balance it or weighted slightly in favor of the ski operator, to deal with his problem with respect to getting his insurance renewed." 22 H.R.Proc., Pt. 36, 1979 Sess., p. 12683, Remarks of Rep. Berman.
Nonetheless, the legislative history contains numerous references to "assumption of risk" and the statute uses that term as well. The question, then, is whether the legislature intended to enact a broad assumption of risk provision relating to any occurrence connected with the sport of skiing or whether it intended simply to permit a ski area operator to assert assumption of risk as a defense in an action brought against it, notwithstanding the abolition of the defense some six years earlier in connection with tort reform. General Statutes § 52-572h (1). The latter interpretation is more consistent with the context of the legislative discussion and the purpose of the legislative enactment, that is, to define both the responsibilities and liabilities of skiers and ski area operators with respect to each other and to limit the liability exposure of ski area operators. Moreover, the latter interpretation is consistent with the common law of assumption of risk because the defense was held applicable "only to a risk arising out of the defendant's negligence." Warner v. Limatainem, 153 Conn. 163, 165, 215 A.2d 406 (1965). Thus, § 29-212 can be plausibly understood to mean that the defense of assumption of risk is available to a ski area operator in a case brought against it by an injured skier alleging negligent operation of the ski area notwithstanding the provisions of § 52-572h (1), but it is a less plausible reading to view the statute as an absolute bar to a suit against any negligent party. Consequently, this court is not persuaded to interpret § 29-212 in the manner suggested by the troop as barring Trinkaus's claim against it as a matter of law and will not grant summary judgment on this ground.
The following are some examples of comment on the subject:
This bill puts us back in exactly the same position that we were prior to the Sunday case and prior to the abolition of the assumption of risk.
Conn. Joint Standing Committee Hearings, Public Safety, 1979 Sess., p. 446, testimony of Jack McGrail.
Now the requests that are being made here today would try to as it was pointed out clarify the assumption of the risk doctrine with respect to this kind of activity.
Conn. Joint Standing Committee Hearings, Public Safety. 1979 Sess., p. 455, testimony of Senator DeNardis.
I think we have to realize that anybody who sets down CT Page 7388-k a snowy mountain on two pieces of fiberglass at a high rate of speed has to assume some responsibility for that kind of action, and I think this law makes it clear what his or her responsibility is in that kind of situation, but it does not absolve the operator for certain defects that exist . . .
22 S.Proc., Pt. 15, 1979 Sess., p. 4885, Remarks of Senator DeNardis.
This conclusion is supported by the following question and the response from Rep. Onorato during the House debate on the bill:
Rep. Smoley (17th): Would you please describe how the amendment will change the existing law with regard to liability of ski owner operators?
Rep. Onorato (97th): Basically in our state we have the law of negligence prevails. When a skier goes on a ski trip or is coming down the mountain, and is injured for one reason or another, there must be some kind of fault or some kind of negligence on the part of the operator, and to some degree, under the comparative negligence section, a lesser degree of fault or no fault, on the part of the skier. This law . . . So basically what this amendment does, this amendment states that there are certain inherent risks to skiing . . . these are part of the risks one takes when one takes to the mounts . . . and what this bill in fact would do would be set out and say that if a person was injured as the result . . . then the operator would not be liable. It does not say that the operator would not be liable if the operator showed any kind of negligence.
22 H.R.Proc., Pt. 36, 1979 Sess., pp. 12666-67, Remarks of Rep. Onorato.
Indeed, in enacting § 29-212 the legislature was aware that Vermont, a sister state, had enacted a blanket assumption of risk statute. In his remarks in support of the bill, Rep. Onorato stated as follows: "Now this is new legislation in the state of Connecticut, Mr. Speaker. There is a — in our neighboring state of Vermont, they have a ski law which states basically that every aspect of skiing is an inherent risk or danger, and therefore no matter what the injury or no matter what the cause, there can be no recovery. Now, of course, this CT Page 7388-l excludes a great deal that happens on the ski slope, particularly in the area of negligence. That's why the need for this bill" 22 H.R.Proc., Pt. 36, 1979 Sess., p. 12665, Remarks of Rep. Onorato.
The Vermont statute, enacted in 1977, provides that: "Notwithstanding the provisions of § 1036 of this title, a person who takes part in any sport accepts as a matter of law the dangers that inhere therein insofar as they are obvious and necessary." 12 V.S.A. § 1037. Section 1036 of the same title is the Vermont comparative negligence statute. If the legislature wished to foreclose the ability of an injured skier to bring suit against any party, it could have easily adopted a similar provision. However, such proposed legislation would have been unlikely to garner the type of support that skiers and consumer groups gave to Public Act 79-629. See, e.g., Conn. Joint Standing Committee Hearings, Public Safety, 1979 Sess., pp. 442-43 (supported by United States Ski Association, Connecticut Ski Council); 22 S.Proc., Pt. 15, 1979 Sess., p. 4778 (supported by Trial Lawyer's Association); Id. p. 4883 (supported by Connecticut Ski Council).
Moreover, even ii the statute is read to provide an assumption of risk defense to negligent parties other than the ski area operator, such a defense is inherently fact-bound. "Assumption of risk becomes a question of law when the only logical and reasonable conclusion to be drawn from the evidence is that the injured party, with knowledge and appreciation of the risk, voluntarily encounters it . . . Ordinarily, the defenses of . . . assumption of risk present questions of fact or of mixed law and fact, for the jury." Greene v. DiFazio, 148 Conn. 419, 425, 171 A.2d 411 (1961). In order to prevail on an assumption of risk defense, the defendant must prove "that the plaintiff comprehended or ought as a reasonable person to have comprehended the nature and extent of the peril to which [he] was exposed and that [he] thereafter continued to expose [himself) to it of [his] own volition . . . Many considerations enter into a proper appraisal of a person's conduct to determine whether it indicates that he has assumed the risk. The question is ordinarily one of fact." (Internal citations omitted.) Pall v. Pall, 137 Conn. 347, 349, 77 A.2d 345 (1950). The defense operates "in a rather strictly limited field." Freedman v. Hurwitz, 116 Conn. 283, 287, 164 A. 647 (1933). It can only be applied to "a risk arising out of the defendant's negligence." Warner v. Limatainem, supra, 153 Conn. 165. It requires "a voluntary exposure to danger, and can only be applied in cases where the person may reasonably elect whether or not he shall expose himself to it." (Internal quotation marks omitted; internal citations omitted.) Freedman v. Hurwitz, supra, 116 Conn. 288. Further, a plaintiff "is entitled to assume that another will exercise proper care until he perceives or ought reasonably to perceive that that other is not doing so, and he does not CT Page 7388-m assume the risk that another will by some sudden negligent act or omission subject him to danger." Id., 288. Since the troop's defense is that any action against it is barred as a matter of law by the provisions of § 29-212, it understandably did not present an evidential basis outside the pleadings to establish the absence of a disputed issue of material fact as to whether Trinkaus assumed the risk of the troop's alleged negligence with regard to Montoni's use of the snowboard.
II. Duty
Troop #55 also maintains, as an alternative ground in support of its motion for summary judgment, that it did not owe any duty to Trinkaus as a matter of law. Trinkaus contends that the troop did owe him a duty because, through the actions of Shimer, Atkin and Keirstead, it was acting in loco parentis and therefore any duty the common law might impose on Montoni's parents under the same circumstances applies vicariously to the troop.
"Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of CT Page 7388-f action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual. Although the determination of whether a duty exists is ordinarily a question of law . . . under some circumstances, the question involves elements of both fact and law." (Internal quotation marks omitted; internal citations omitted.) LaFlamme v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63 (2002). This case presents circumstances in which the existence of a duty involves a mixed question of law and fact.
In arguing against any duty as a matter of law, the troop relies on Restatement (Second) of Torts, § 315 which provides that generally there is no duty "to control the conduct of a third person so as to prevent injury to another," unless certain exceptions apply. Restatement (Second) of Torts, § 315 comment c. Among the exceptions which the Restatement recognizes is a limited duty on the part of a parent to control the conduct of a minor child. Id., § 316. Connecticut has not formally adopted § 316, but it also recognizes a limited parental duty to third persons. The general rule under the common law of this state is that a parent is not liable for the torts of a minor child unless the parent either makes a dangerous instrumentality available to the child which the child is incapable of handling or the parent fails to control a child's known dangerous propensities. See generally Wright Fitzgerald, Connecticut Law of Torts, § 77 (2d Ed. 1968); LaBonte v. Federal Mutual Ins. Co., 159 Conn. 252, 256, 268 A.2d 663 (1970); Geter v. Amrani, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 293856 (June 1, 1993, Lager, J.); Jarboe v. Edwards, 26 Conn. Sup. 350, 354-55, 223 A.2d 401 (Superior Court 1966); Lutteman v. Martin, 20 Conn. Sup. 371, 373, 135 A.2d 600 (Ct. Common Pleas 1957).
Section 316 provides: "A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent (a) knows or has reason to know that he had the ability to control his child, and (b) knows or should know of the necessity and opportunity for exercising such control." Restatement (Second) ofTorts. § 316 (1963-64).
This court has previously concluded in this case that the allegations contained in count four, paragraphs 23 f, g and k were legally sufficient to state a claim against Keirstead based on the first exception, that is, making a dangerous instrumentality available to a child which the child is incapable of handling. See "Ruling on Defendant Keirstead's Amended Motion to Strike," Trinkaus v. Mohawk Mountain Ski Area, Superior Court, judicial district of Ansonia-Milford, Docket No. 078510 (Jan. 30, 2003, Lager, J.) ( 34 Conn.L.Rptr. 27). Trinkaus has made identical allegations in count five vicariously against the troop based on the conduct of Keirstead, Atkin and Shimer. Implicit in the court's earlier decision was a recognition, as a matter of law, that a party acting in lieu of a parent and with the duty to control the conduct of a child could bear the same duty to a third person as the parent of a minor child although no greater duty. LaBonte v. Federal Mutual Ins. Co., supra, 159 Conn. 256. The court, however, was not asked to address whether CT Page 7388-g Keirstead was acting in lieu of Montoni's parents, as the parties conceded the point.
The court is reluctant to use the term "in loco parentis" to describe the relationship that it believes gives rise to a limited duty on the part of persons acting in lieu of parents who have a duty to control the conduct of a child. The term is defined as "[a]cting as a temporary guardian of a child." Black's Law Dictionary (7th edition, 1999). Those acting in loco parentis not only have the duty to control the conduct of the child but also have the authority to discipline the child and "compel obedience." Watson v. Gradzik, 34 Conn. Sup. 7, 8-9. 373 A.2d 191 (Superior Court, 1977). See Andreozzi v. Rubano, 145 Conn. 280, 282, 141 A.2d 639 (1958) (teacher stands in loco parentis to pupil, must maintain discipline and may use reasonable means to obtain compliance with orders).
Here, the troop has not conceded that its agents were acting in any capacity that would impose the duty of a parent upon them and vicariously upon it. The nature of the relationship between the troop and Montoni on the date in question is a material fact because it is provides the underpinning for the imposition of a duty on the troop. The troop has not presented any evidential foundation from which the court can conclude that this issue of fact is undisputed. Although the troop maintains that Trinkaus has not met his burden of establishing a disputed question of fact with respect to duty, the initial burden was upon the troop to demonstrate the absence of a disputed factual issue. H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 559, 783 A.2d 993 (2001); Doty v. Shawmut Bank, supra, 58 Conn. App. 430-31, 755 A.2d 219 (2000). Furthermore, assuming there was a relationship between the troop and Montoni that could impose a duty on the troop to avoid making a dangerous instrumentality available to Montoni, this court has previously concluded that whether a snowboard is a dangerous instrumentality is a question of fact. "Ruling on Defendant Keirstead's Amended Motion to Strike," Trinkaus v. Mohawk Mountain Ski Area, supra. Again, the troop has not met its initial burden of demonstrating that this factual issue is undisputed. Since the troop has failed to meet its initial burden, the motion for summary judgment must be denied on the alternate ground.
The court has examined the troop's submissions on the issue of duty with great care and has not found any requisite factual submissions, Practice Book § 17-45, that bear on this issue. The omission is understandable since the troop's argument was premised almost completely on the applicability of the Restatement (Second) of Torts, § 315 et seq., see Memorandum of Law in Support of Motion for Summary Judgment dated March 13, 2003, pp. 13-16, as well as on an inapplicable claim regarding "law of the case." See id., pp. 16-18; Reply to Plaintiff's Objection to Motion for Summary Judgment dated April 3, 2003, pp. 2-5.
III. Conclusion
For the reasons stated above, the troop's motion for summary judgment is denied.