Opinion
No. CV 08 5017159S
June 15, 2011
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT #114
FACTS
On January 17, 2008, the plaintiff, Elizabeth Aquila, in her capacity as Executrix of the estate of George Aquila and in her own capacity, filed wrongful death action against the defendant, Ultimate Fitness, alleging negligence and loss of consortium. The complaint alleges that as a result of the defendant's negligence in failing to equip its facility with an automatic external defibrillator (AED) or warn members of the lack of an AED, the defendant proximately caused the death of the decedent after he suffered a sudden heart attack in the locker room of the defendant's facility.
Elizabeth Aquila will be referred to as the plaintiff and George Aquila will be referred to as the decedent.
The defendant filed a motion for summary judgment on November 20, 2009 on the grounds that it did not have a duty to the decedent to provide an AED or warn members that the facility did not have an AED and that the defendant did not proximately cause injury or death to the decedent. In support of its motion, the defendant submitted the depositions of John Kelly, Anthony Salamanca, Dawn Fucci, the plaintiff and Bennett Streets; the plaintiff's response to interrogatories; and an affidavit and deposition by Matthew D'Amico. The plaintiff filed an objection to the motion on May 26, 2011 and submitted affidavits by Mark Furman and Kyle McInnis. The matter was heard at short calendar on May 31, 2011.
An amended complaint became operative on January 2, 2010. The court will treat the motion for summary judgment as addressing the amended complaint.
DISCUSSION
"Summary judgment is a method of resolving litigation when 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 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.) Sherman v. Ronco, 294 Conn. 548, 554, 985 A.2d 1042 (2010). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact . . . The courts hold the movant to a strict standard . . . 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.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
"Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary matter." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). "Summary judgment is particularly ill-adapted to negligence cases where . . . the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation." (Internal quotation marks omitted.) Busque v. Oakwood Farms Sports Center, Inc., 80 Conn.App. 603, 607, 836 A.2d 463 (2003), cert. denied, 267 Conn. 919, 841 A.2d 1190 (2004).
In its motion for summary judgment, the defendant concedes that the decedent was a business invitee on its premises at the time of the incident, but argues that it owed no duty to have an AED on the premises because it did not breach its duty to provide reasonably safe conditions at its facility, there is no statutory or common-law duty to provide an AED and other jurisdictions have found no duty to maintain an AED under similar facts. The defendant further asserts that it did not proximately cause the decedent's heart attack and that the plaintiff's claims should be dismissed for public policy reasons.
The plaintiff also concedes that the decedent was a business invitee and maintains that it is a question of fact as to whether the defendant satisfied or did not satisfy its duty of care toward the decedent. She asserts that the lack of a statutory requirement has no bearing on the common-law duty to business invitees because nothing can be inferred from legislative inaction, that the Restatement is unhelpful to the defendant's argument in that it highlights reasonableness, which is a question of fact for the fact finder, and that the foreign authority cited by the defendant is distinguishable. Furthermore, the plaintiff argues that the defendant's assertion that it did not cause the decedent's heart attack is irrelevant as the plaintiff maintains that the defendant's negligence was the proximate cause of the decedent's death, not his heart attack.
"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 [breached] that duty in the particular situation at hand . . . If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant." (Internal quotation marks omitted.) Leon v. DeJesus, 123 Conn.App. 574, 576, 2 A.3d 956 (2010).
The parties do not dispute that the decedent was a business invitee at the time of the incident. Thus, as a matter of law, the defendant had "a duty to keep its premises in a reasonably safe condition . . . to reasonably inspect and maintain the premises in order to render them reasonably safe . . . [and to] warn an invitee of dangers that the invitee could not reasonably be expected to discover." (Citations omitted; internal quotation marks omitted.) DiPietro v. Farmington Sports Arena, LLC, 123 Conn.App. 583, 601, 2 A.3d 963, cert. granted, 299 Conn. 920, 10 A.3d 1053 (2010).
Since the defendant had a duty to the decedent, the question becomes whether there is a genuine issue of material fact as to whether the defendant breached the duty. "Typically, [f]or [a] plaintiff to recover for the breach of a duty owed to [him] as [a business] invitee, it [is] incumbent upon [him] to allege and prove that the defendant either had actual notice of the presence of the specific unsafe condition which caused [his injury] or constructive notice of it . . . [T]he notice, whether actual or constructive, must be notice of the very defect which occasioned the injury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it." (Internal quotation marks omitted.) Kelly v. Stop Shop, Inc., 281 Conn. 768, 776, 918 A.2d 249 (2007).
"If the plaintiff, however, alleges an affirmative act of negligence, [that is], that the defendant's conduct created the unsafe condition, proof of notice is not necessary . . . That is because when a defendant itself has created a hazardous condition, it safely may be inferred that it had knowledge thereof . . . When, however, the plaintiff does not allege either that the defendant's conduct created the unsafe condition or that the defendant had actual notice of the condition, [the court has] stated that [t]he controlling question [becomes] that of constructive notice: whether the condition had existed for such a length of time that the [defendant's] employees should, in the exercise of due care, have discovered it in time to have remedied it . . . What constitutes a reasonable length of time is largely a question of fact to be determined in the light of the particular circumstances of a case." (Citation omitted; internal quotation marks omitted.) Id., 777.
The defendant argues that there is no genuine issue of material fact that it satisfied its duty to the decedent and that the failure to own an AED is not encompassed in the duty owed. It submitted the depositions of Kelly, Salamanca, Fucci, and Streets as well as the affidavit and deposition of D'Amico to show that they acted reasonably in light of the circumstances. The depositions show that Streets, a former employee of the defendant, in a consultation with the decedent and the plaintiff, ensured that the decedent had obtained medical clearance before beginning an exercise routine after being informed that the decedent had a heart condition. On the day of the incident, Salamanca, a former employee of the defendant, and Streets followed the directions of Kelly, a member of the defendant's facility and the medical doctor who first discovered the decedent, by calling 911 and beginning chest compressions when instructed to do so. D'Amico, the former owner of the defendant, also called 911. When Fucci, a paramedic, arrived on the scene, she was prevented from intubating the decedent due to a large amount of gum that was in his airway. The affidavit of D'Amico states that the defendant had never advertised or represented that it possessed an AED nor had there been any previous episodes of sudden cardiac arrest prior to the decedent's incident.
The plaintiff asserts that there is a genuine issue of material fact as to whether the defendant's failure to provide an AED or warn the decedent of the lack thereof was a breach of the duty. She submitted affidavits by two expert witnesses. Furman, a doctor trained and experienced in medicine and cardiology, offered the opinion, based on his review of the documents in the case, that an AED, more probable than not, would have identified a shock-able cardiac rhythm and that the failure of the defendant to have one significantly increased the decedent's risk of morbidity and mortality. McInnis, an expert in areas that include emergency preparedness in health and fitness clubs, stated that the failure of the defendant to have an AED on their premises was a deviation of the standard of care applicable to private health and fitness clubs, that the occurrence of adverse cardiac events is entirely foreseeable given that those with known and unknown cardiac conditions use such facilities for the purpose of vigorous physical activity and that the failure to have an AED and staff trained in its use was a substantial factor in causing the decedent's death.
Notwithstanding the foreign authority cited by the defendant as well as § 314A of the Restatement (Second) Torts, the court concludes that, based on the documents submitted by the parties, there is a genuine issue of material fact as to whether the defendant breached the duty of care to a business invitee for its failure to own an AED and have staff trained in its use. Specifically, there are questions of fact as to whether the defendant knew or should have known that an AED was a piece of equipment that should have been on the premises and whether the defendant's failure to own an AED was the proximate cause of the decedent's death. The defendant's argument as to a lack of statutory duty is unavailing as the plaintiff brings this suit under a common-law duty. Therefore, the defendant's motion is denied.
The court notes that the defendant's argument with regard to § 314A is unpersuasive because § 314A turns on reasonableness, a question of fact that cannot be determined on a motion for summary judgment. Moreover, the defendant's foreign authority is distinguishable. The issue in Salte v. YMCA of Metropolitan Chicago Foundation, 351 Ill.App.3d 524, 814 N.E.2d 610, rehearing denied (2004), cert. denied, 213 Ill.2d 575, 829 N.E.2d 794, 293 Ill.Dec. 869 (2005), was decided on a motion to dismiss and was based on analysis of whether a duty existed, not whether there was a breach of the duty. In Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 812 A.2d 1218 (2002), the court's finding that the defendants had no duty relied on its analysis of statutes, not the common law. The court in Rutnik v. Colonie Center Court Club, Inc., 249 App.Div.2d 873, 672 N.Y.S.2d 451, cert. denied, 92 N.Y.2d 808, 700 N.E.2d 1229, 678 N.Y.S.2d 593 (1998), in reversing the trial court's denial of a motion for summary judgment, found that there was no duty due to the assumption of risk doctrine that still exists in New York. The issue in Lundy v. Adamar of New Jersey, Inc., 34 F.3d 1173 (3rd Cir. 1994), was whether the defendant's duty extended to the provision of an intubation tube, not an AED.