Opinion
No. CV-00-0816976 S
July 25, 2003
MEMORANDUM OF DECISION
Before the court is the defendant Windham Mills Development Corporation's (Windham) motion for summary judgment (#146). The court heard oral argument in connection with the motion on June 18, 2003 and July 3, 2003. For the following reasons, the court denies Windham's motion.
I. BACKGROUND
The following facts are alleged in the amended complaint (#142). On July 6, 2000, Deana Watson was playing in the backyard of her home, at a multi-family property, located in Willimantic, Connecticut. Her family rented an apartment unit there from the defendants, Robert and Linda Russo (the Russos), at 219 Pleasant Street.
At oral argument on June 18, 2003, counsel stated that it was undisputed that Deana was twelve years old at the time in question.
While playing, Deana Watson opened and passed through a gate, with her sister Yasmin, and walked along a pathway on Windham's adjoining property, located at 199 Pleasant Street. On the adjoining property was an allegedly artificial condition, "a steep rocky precipice." (See amended complaint, third count, ¶ 15.) While on the adjoining property, Deana Watson fell down the precipice and into the Willimantic River. She sustained fatal injuries.
The allegations of this paragraph 15 are incorporated by reference in each of the amended complaint's counts addressed to Windham.
The several plaintiffs, including Deana's mother, Maria, as Deana's adminisrtratrix, and individually, filed suit against the Russos and Windham. Their claims against Windham are premised on alleged negligence.
II. STANDARD OF REVIEW
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." Practice Book § 17-49. "In deciding on CT Page 8424-i a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . ." Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 550, 791 A.2d 489 (2002). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted and emphasis in original.) Mytech v. May Department Stores Co., 260 Conn. 152, 164 n. 8, 793 A.2d 1068 (2002).
Our Supreme Court has elaborated on this subject by stating, "[w]e emphasize the important point that [a]lthough the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an 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 [in support of a motion for summary judgment]." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., supra, 259 Conn. 550.
"A material fact . . . [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 560, 783 A.2d 993 (2001). "[T]he court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkwski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
"The test is whether a party should be entitled to a directed verdict on the same facts." (Internal quotation marks omitted.) Sherwood v. Danbury Hospital, 252 Conn. 193, 201, 746 A.2d 730 (2000). Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way . . . The movant must show that it is quite clear what the truth is, and that excludes any real doubt as to the existence of a any genuine issue of material fact . . . [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 . . . [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that CT Page 8424-j embodied in the verdict as directed . . . The facts as well as the evidence must be viewed in the light most favorable to the nonmoving party . . . The burden of proof is on the moving party and the standards of summary judgment are strictly and forcefully applied." (Emphasis omitted; internal quotation marks omitted; and citations omitted.) Miller v. United Technologies Corp., 233 Conn. 732, 751-52, 660 A.2d 810 (1995).
III. DISCUSSION
In this matter, it is not disputed that when Deana and her sister Yasmin went onto Windham's property on July 6, 2000, they were trespassing children. Our Supreme Court has "adopted the view of 339 of the Restatement (Second) of Torts that `[a] possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if (a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and (b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and (d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.'" Dzenutis v. Dzenutis, 200 Conn. 290, 304, 512 A.2d 130 (1986).
"[T]he duty to safeguard conditions that are hazardous to children `does not extend to those conditions the existence of which is obvious even to children and the risk of which should be fully realized by them.' 2 Restatement (Second), Torts 339, comment i . . ." Id., 306. Questions of fact may arise as to whether such a risk is "readily discernible." Id.
Comment j to § 339 provides that "[t]here are many dangers, such as those of fire and water, or of falling from a height, which, under ordinary conditions may reasonably be expected to be fully understood and appreciated by any child of an age to be allowed at large. To such conditions the rule stated in this Section ordinarily has no application, in the absence of some other factor creating a special risk that the children will not avoid the danger, such as the fact that the condition is so hidden as not to be readily visible, or a distracting influence which makes it likely that the child will not discover or CT Page 8424-k appreciate it."
"It is a question for the jury to decide if a defendant is maintaining a latently dangerous instrumentality on his premises which is so exposed that he may reasonably anticipate that a child is likely to be hurt by it. It is also for the jury to decide if a defendant knows or has reason to know that children are likely to trespass on that portion of his land where the instrumentality is located . . . Even if there is no evidence that any child had previously trespassed on the site, it remains a jury question whether, based on all of the evidence, the defendants knew or had reason to know that children were likely to trespass on the place where the condition existed." (Citation omitted.) Yeske v. Avon Old Farms School, Inc., 1 Conn. App. 195, 201, 470 A.2d 705 (1984). Questions of fact may also arise as to whether the child discovered the condition which caused his injuries or failed to realize the risk involved. See Dougherty v. Graham, 161 Conn. 248, 252-53, 287 A.2d 382 (1971).
A. Law of the Case
Here, the plaintiffs allege, for example, in paragraph 15 of the third count of their amended complaint, that the "steep rocky precipice" was an artificial condition. In support of its contention that the "steep rocky precipice" was not an artificial condition, and therefore that Restatement § 339 is inapplicable, Windham asserts that a previous decision of this court, dated January 9, 2002 (#121), on its co-defendants' motion to strike (#116), has resolved that question by determining that the condition was a natural one, which is the law of the case. See Windham's memorandum in support of motion for summary judgment ("Windham's Memorandum"), pp. 12-13. For several reasons, the court is unpersuaded.
If a matter previously has been ruled upon by the court interlocutorily, it may be treated as "the law of the case." McCarthy v. McCarthy, 55 Conn. App. 326, 332, 752 A.2d 1093 (1999), cert. denied, 252 Conn. 923, 752 A.2d 1081 (2000). "The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked . . . In essence it expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power . . . A judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge." (Internal quotation marks omitted.) Bowman v. Jack's Auto Sales, 54 Conn. App. 289, 293, 734 A.2d 1036 (1999). The decision to which Windham refers involved this court granting a motion to strike counts directed to Windham's co-defendants, Robert and Linda Russo, in the plaintiff's revised complaint, so the aspect of the law of the case doctrine of having CT Page 8424-l hesitancy to overturn another judge's decision does not present itself.
As noted in this court's decision, at p. 3, on a motion to strike, the court "must take the facts to be those alleged in the complaint . . ." (Internal quotation marks omitted.) There, this court explicitly contrasted the facts alleged in the counts brought against the Russos with those which were alleged against Windham. Against the Russos, no allegation of an artificial condition was made; against Windham, the plaintiffs alleged that the precipice was an artificial condition. See memorandum of decision, dated January 9, 2002, p. 6. The court's decision was not based on the plaintiffs' allegations against Windham.
In addition, on the motion to strike, the court did not consider evidence. Rather, the Russos' motion was addressed to the legal sufficiency of the counts addressed to them. In contrast, on summary judgment, evidence may be presented, including in affidavit form. See Practice Book §§ 17-45 and 17-46.
In opposition to Windham's motion, the plaintiffs have presented the affidavit of Mark W. Bancroft, an attorney, who reviewed the title to the properties known as 199 Pleasant Street and 219 Pleasant Street in Willimantic, Connecticut, which are the properties about which this matter is concerned. According to him, 199 Pleasant Street is a strip of land located between 219 Pleasant Street and the Willimantic River. His affidavit states that an 1860 deed, recorded in the Windham Land Records, describes a grantor's reservation of a right of way to cross a portion of 219 Pleasant Street to its "Stone Quarry on the bank of the river." See Bancroft Affidavit ¶ 7, and copy of warrantee deed provided therewith. Bancroft avers that the stone quarry was located on 199 Pleasant Street. See Bancroft Affidavit, ¶ 8. In his affidavit in support of the motion, Jeffrey L. Vose, Windham's president and chief executive officer, avers that a parcel, owned by Windham, which he describes as an "0.9 acre strip of undeveloped land situated between the Willimantic River and residential properties on Pleasant Street," is the subject of the plaintiffs' complaint against Windham. See Vose Affidavit, ¶ 4. Bancroft and Vose appear to be describing the same strip of land located next to the river. Thus, there is evidence before the court that, at some time in the past, a stone quarry was operated on the subject premises. Such evidence was not before the court in connection with its previous decision on the motion to strike.
Under the circumstances, the court's prior determination, for the purposes of the Russos' motion to strike, that the "alleged dangerous condition is a natural condition," memorandum of decision, p. 7, is not the law of the case for the purposes of Windham's motion. CT Page 8424-m
B. Hidden or Open and Obvious Condition
A quarry operation may create a landscape consisting of steep cliffs, which may amount to a hazardous condition. See Jaguar Land Developers, Inc. v. New Haven Savings Bank, Superior Court, judicial district of New Haven, Docket No. CV 95-372821 (June 29, 1995, DeMayo, J.T.R.). A quarry operation may substantially alter the natural characteristics of a site, particularly by blasting. See Dwyer v. Foxon Trap Rock Co., 2 Conn. Sup. 66, 67 (Sup.Ct. New Haven County 1935). Whether the plaintiffs can prove that the condition which existed on the site here was an artificial one resulting from a quarry operation remains to be seen. Windham's presentation has not clearly shown that the condition was a natural one.
Instead, Windham contends, in response to the plaintiffs' evidentiary presentation in opposition to Windham's motion, that it is immaterial whether or not the condition was manmade, since it has taken on natural characteristics. In support of its contention that § 339 of the Restatement does not apply here, Windham asserts, in its Reply Memorandum, at p. 10, "[w]here a manmade condition of land has taken on natural characteristics or duplicates nature, § 339 does not apply unless a hidden condition thereof exists which presents a latent hazard." As noted above, the third requirement of § 339 provides, "(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it."
In its Reply Memorandum, p. 14, Windham asserts that the plaintiffs have never "alleged the existence of any condition that served to conceal either of these open and obvious dangerous conditions [water and falling] from the attention of Deana." In the amended complaint, third count, ¶ 15d, the plaintiffs allege that Windham was negligent, in that it "knew or should have known that children would not discover the condition or realize the risk involved in intermeddling with it or coming into contact with the area made dangerous by it."
Contrary to Windham's contentions, the record before the court does not make it clear whether the condition was hidden from Deana or not at the time in question. See Comment j to Restatement § 339, quoted above. Rather, Windham has not met its burden to show that it is "quite clear" that no material fact is in issue. "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 . . . Because the [deposition testimony presented by] the defendant . . . fail[s] to show that there are no genuine issues of fact, the factual issues alleged and contested in the pleadings remain resolved." Witt v. St. Vincent's Medical Center, 252 Conn. 363, 377, 746 A.2d 753 (2000).
In support of its contention that there is no evidence of a hidden condition, Windham relies heavily on the deposition testimony of Dean's sister, Yasmin. The record does not establish her age, except that she CT Page 8424-n was a child. According to the plaintiffs, she was about nine or ten years old at the time of the July 6, 2000 accident. She was the only witness to the accident. Her deposition was taken on February 1, 2002, a little over one and a half years after the accident occurred, when, according to the plaintiffs, Yasmin was about ten or eleven years old. Understandably, in view of the circumstances involved, her testimony is not a model of clarity.
Although it does not appear to be the subject of dispute, the record before the court is unclear as to Yasmin's age. According to the plaintiffs' memorandum in opposition, p. 13, Yasmin's date of birth is June 17, 1991. While Windham does not dispute this, the court does not take this assertion in a memorandum of law to be evidence of her age. See State v. Velasco, 253 Conn. 210, 240, 751 A.2d 800 (2000); People's Bank v. Perkins, 22 Conn. App. 260, 263-64, 576 A.2d 1313, cert. denied, 216 Conn. 813, 580 A.2d 58 (1990). However, the plaintiffs assert that she was 10 years old on the date of the accident, July 6, 2000. If June 17, 1991 is her correct date of birth, she was nine years old at the time CT Page 8424-t of the accident.
Windham relies on that testimony to establish what it contends are undisputed facts. See Windham's Memorandum, p. 4, ¶ 11. While Yasmin testified that the precipice consisted of trees and rocks, her testimony does not make it clear that the precipice was open and obvious (as contended by Windham), and not hidden from view when she and her sister encountered it. Rather, in her testimony, she stated that she encountered it for the first time on the day of the incident, after passing though a gate which she had never gone though before. Yasmin Watson Dep., p. 14, 1. 13-15; p. 15, 1. 5-19. The Watson family had moved into 219 Pleasant Street at the end of June 2000 or the beginning of July 2000, shortly before the accident. See Maria Watson Dep., p. 36-37.
The steepness of the grade is described in the affidavit of Robert W. Hellstrom, a licensed surveyor, which was provided with the plaintiffs' opposition to the motion. According to him, for every 10 feet of horizontal distance there is a corresponding 15-foot vertical drop. See Hellstrom Affidavit, ¶ 7.
When Yasmin was asked if she knew what was "back there," she stated, "No, I went back there to see what was back there." Yasmin Watson Dep., p. 16, 1. 8-11. She stated that she did not know that the river was there and could not hear it. Yasmin Watson Dep., p. 16, 1. 15-20. Photographs presented to the court at the June 18, 2003 oral argument, and in Windham's motion papers, do not make ft clear what could be seen once a person passed through the gate. See, for example, plaintiffs' exhibit 4.
In contrast, Yasmin stated she had seen some part of the area in question from another vantage point, a footbridge. Yasmin Watson Dep., p. 33, 1. 18-p. 34, 1. 11. When asked again if she had ever been to the area where the gate was before she and Deana went down "the embankment," she stated, "I don't know." Yasmin Watson Dep., p. 34, 1. 12-17. She testified that she was "confused." Yasmin Watson Dep., p. 34, 1. 22-24.
Her testimony also evidences other confusion. While she said she had not gone "in those woods" before, she said that she did not know whether she had ever seen anybody "down there" before. Yasmin Watson Dep., p. 25, 1. 23-25-p. 26, 1. 1-2; p. 23, 1. 19-21. CT Page 8424-o
When she was asked whether she and Deana were trying to walk down the slope, she responded, "We were going like — I guess. I don't know." Yasmin Watson Dep., p. 21, 1. 10-13. At some point, when they were "mostly" at the bottom, Jasmine was holding on to a tree while Deana held onto Jasmine's hand, when Deana slipped and fell. Yasmin Watson Dep., pp. 21-23, 28. However, when asked whether they had gone down "some fair distance," she responded, "I don't know." Yasmin Watson Dep., p. 32, 1. 3-5.
While Yasmin stated that, after they had gone through the gate, they turned behind a shed, it is not clear how far they went and what could be seen from the point where their descent began. See Yasmin Watson Dep., p. 17, 1. 17-25 p. 18, 1. 1-14. Yasmia was asked whether, after turning sideways next to the shed, "then did you have to go down the hill?" Her response was, "I don't remember that." See Yasmin Watson Dep., p. 31, 1. 11-20. Yasmin also testified that she did not know if she and her sister "were somewhere behind the shed." Yasmin Watson Dep., p. 19, 1. 24-p. 20, 1. 1. Other testimony refers to a photograph which had been marked as an exhibit at her mother's deposition, but it is not clear to the court to which photograph this part of Yasmin's testimony referred. See Yasmin Watson Dep., p. 19-20.
Although the children's mother testified that she told them not to go past a fence in the area near a swimming pool, her referenced testimony, see Windham's Reply Memorandum, p. 14, does not indicate that she warned them about the conditions which existed beyond it. See Maria Watson Dep., p. 28-29. Yasmin's testimony does not make clear whether any warning occurred before or after Deana fell. See Yasmin Watson Dep., p. 11, 1. 8-19.
Windham's references to other individuals' deposition testimony in support of its contention about the claimed "open and obvious" condition do not remove this question from the realm of material issues of fact. See Windham's Memorandum, p. 4, ¶ 11.
"`It is only when the witnesses are present and subject to cross-examination that their credibility and the weight to be given their testimony can be appraised.' Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962). [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." (Internal quotation marks omitted.) Tryon v. Town of North Branford, 58 Conn. App. 702, 717, 755 A.2d 317 (2000). In addition, review of such testimony in a printed record does not afford the court CT Page 8424-p the opportunity to consider whether Yasmin's youth bears on the weight to which her testimony is entitled, since such weight depends on an assessment of the individual witness in question. See State v. Angell, 237 Conn. 321, 330-31, 677 A.2d 912 (1996) (within court's discretion whether or not to instruct jury as to child credibility); see also Smith v. 109 Foster Street, L.L.C., Superior Court, judicial district of Tolland at Rockville, Docket No. 00-0072817 (June 5, 2002, Scholl, J.) (unclear deposition testimony of child witness presented in support of motion for summary judgment).
In view of her admitted confusion and the gaps and inconsistencies described above, the weight to be given to Yasmin's testimony is questionable. Her testimony is not sufficiently clear to rely upon it in this summary judgment context.
The case law cited on this point by Windham in its Reply Memorandum, pp. 9-10, does not dispel this issue. In McDermott v. Kazmarek, 2 Wash.App. 643, 469 P.2d 191 (1970), a seven year old fell from a cliff to his death. "The quarry operation left an exposed, rocky cliff approximately 40 feet high . . . The presence of the cliff is apparent from all directions." Id., 2 Wash.App. 644-45. There, the court did not apply § 339; rather it interpreted Washington's attractive nuisance doctrine, the first element of which is "the instrumentality or condition must be dangerous in itself that is, it must be an agency which is likely to, or probably will, result in injury to those attracted by, and coming in contact with, it." (Internal quotation marks omitted.) Id., 2 Wash.App. 651.
While the court noted that the terrain in question, although the result of a quarry operation, "does not differ in any significant way from countless natural formations throughout Western Washington," id., 2 Wash. App. 653, it found that the first element could not be satisfied, stating, "Nor is it probable that a boy playing near an exposed cliff will fall to his death." (Emphasis in original.) Id. In contrast, the facts at issue here involve whether the "precipice" was exposed or was hidden.
Likewise unavailing is Windham's reliance on Howard v. Atlantic Coast Line Railroad Co., 231 F.2d 592 (5th Cir. 1956). There, a five-year-old, who was accompanying two of his older siblings, drowned in a former railroad pit or well. "After they passed under the trestle and came out on the west side of the tracks, they observed several other boys swimming in a pit or well, about thirty feet from the trestle in an adjacent vacant lot owned by the railroad. The well, formerly utilized to furnish water for steam locomotives, was twenty feet long and twenty feet wide, CT Page 8424-q and nine feet seven inches deep. The lot was marshy, and overgrown with bushes and weeds, but the latter had been beaten down sufficiently by constant intrusions to make a path leading to the well. John, the youngest, asked his oldest brother if he could swim in the well. While the older boy found a long stick and was about to test the depth of the well with it, John took off his clothes and stood close by. In measuring the depth of the well with the stick, the older boy accidentally struck John with his elbow, and caused him to fall into the well." Id., 593.
The Howard court noted Florida's general rule "that the owner of an artificial body of water is not guilty of actionable negligence for drownings therein unless it is so constructed as to constitute a trap or unless there is some unusual element of danger lurking about it not existent in ponds generally." Id., 593-94. The court explained its reasoning concerning the precipitous nature of the drop to the water. "The question remains, nonetheless, whether the precipitous character of the well's sides is a hidden danger or a danger not present in ponds generally. It can hardly be argued that steep banks are not found in natural bodies of water, nor that even greater dangers, such as holes wherein a wading child might fall, do not threaten young children who swim in them. Nor can we sustain the view that there is anything hidden about a straight sided poo1. Thus, although the Florida courts have not ruled on the question, it has been held that a straight decline into a cemented excavation, filled with water, is obvious and patent . . . Similarly, it has been held that a straight decline into water is not a hidden danger where the body of water itself is in no way concealed." (Internal quotation marks omitted and citation omitted.) Id., 594. At issue here is whether the condition was concealed.
Similarly unpersuasive is Windham's reference to Ostroski v. Mount Prospect Shoprite, Inc., 94 N.J. Super. 374, 228 A.2d 545, cert. denied, 49 N.J. 369, 230 A.2d 400 (1967), where a child was injured while sledding down a snow-covered short slope to a street below. While concluding that the slope was not artificial in nature, that decision did not address hidden conditions. Another decision cited by Windham, Pitts v. Fred Weber Contractor, Inc., 466 S.W.2d 124 (Mo.App. 1971), which involved a child's fall from a cliff, also did not concern a hidden condition. There, a nine-year-old walked along the top of the slope within one foot of its edge before falling. See id., 128.
Likewise, the facts in Bruhn v. L.B. Smith, Inc., 1993 WL 764630, *5-*6, 20 Pa.D. C. 4th 430, 439-40 (Pa.Com.Pl. 1993), on which Windham also relies, are distinguishable.
There, the court granted summary judgment for the defendant after CT Page 8424-r finding that "[t]here is thus no factual dispute that section 339(c) of the Restatement (Second) of Torts is not satisfied." Id., *6, 440. The evidence there depicted "the rocky terrain of an open slope," id., *5, 439, as opposed to a condition which was "not apparent." Id. Also, the injured fourteen-year-old child testified that he understood the risk involved in climbing at the quarry where the incident occurred. See id., *6, 440. As discussed, here there is a question of fact as to whether the condition was open or hidden.
C. Other Aspects of Restatement § 339
Windham also argues that no one has ever seen or known of anyone traversing the "steep rocky precipice" and, therefore, the first requirement of § 339 cannot be met. See Windham's Reply Memorandum, p. 19-20. The affidavit of Jeffrey L. Vose of Windham, paragraph 4, notes that Windham's property is situated between residential properties and the river. As stated above, whether "the defendant . . . knew or had reason to know that children were likely to trespass on the place where the condition existed" presents a question of fact. Yeske v. Avon Old Farms School Inc., supra, 1 Conn. App. 201.
Likewise, that Windham claims that it exercised "no control or manipulation" of the precipice, Windham's Reply Memorandum, p. 20, and therefore that the plaintiffs cannot satisfy the second element of § 339, is not dispositive. Comment d to § 339 provides, "[i]t is not necessary that the particular structure or other artificial condition shall have been created by the possessor, or that he shall have done anything active to maintain it." Similarly not dispositive is Windham's claim that it did hot maintain it. See Windham's Memorandum, p. 20-21; Reply Memorandum, p. 25.
Finally, in both of its memoranda, Windham argues that the plaintiffs cannot prove the fourth element of § 339, that the burden of eliminating the danger was slight compared to the risk to children. See Windham's Memorandum, p. 21; Reply Memorandum, p. 25. Windham asserts that, to prevent the type of incident that occurred, it would have had to eliminate the precipice; therefore, it claims that the plaintiffs cannot satisfy prong (d) of § 339, which, as stated above, provides, "the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved." Comment p to Restatement § 339 states, "In most instances the burden of improving land in a state of nature in order to make it safe for trespassing children would be disproportionately heavy (see Clause (d)), and for that reason alone there would be no liability." CT Page 8424-s
Windham's argument about its burden is unsupported by evidence. For example, there is no reference to any facts relating to such a burden in the Vose affidavit. The argument of counsel is not a substitute for such evidence. See State v. Velasco, 253 Conn. 210, 240, 751 A.2d 800 (2000); People's Bank v. Perkins, 22 Conn. App. 260, 263-64, 576 A.2d 1313, cert. denied, 216 Conn. 813, 580 A.2d 58 (1990). Its argument that "[t]here is simply no way to reasonably eliminate the risk," Reply Memorandum, p. 26, and therefore that the plaintiffs fail as to prong (e) of the § 339 test, is similarly unsupported.
CONCLUSION
For the foregoing reasons, Windham's motion for summary judgment is denied.
BY THE COURT
ROBERT B. SHAPIRO JUDGE OF THE SUPERIOR COURT