Opinion
No. CV06-5002244S
October 24, 2007
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#109) AND OBJECTION TO MOTION FOR SUMMARY JUDGMENT (#111)
This premises liability action arises out of the injuries that were sustained by a probation officer who fell down a stairway in the defendant's building while he was attempting to visit his probation "client." The plaintiff, Anthony Gambardella, alleges the following facts in the single-count negligence complaint. On June 15, 2004, the plaintiff was inside a commercial premises located at 578 Winchester Avenue, New Haven. The plaintiff fell and was injured while he was descending from the third floor due to the defective conditions of the stairway. According to the plaintiff, the stairway was defective in that the stair treads were worn, some of the treads were covered by torn rubber coverings, the lighting was inadequate and the handrail in the stairway to the third floor apartment was not securely anchored to the wall. The plaintiff further alleges that he was on the premises as a business invitee and that the premises are owned, maintained and controlled by the defendant, Jessie Browning. The plaintiff alleges a negligence claim against the defendant. The defendant filed an answer in which he admits that he owns, maintains and controls the premises. He denies that the incident at issue occurred in a commercial portion of the premises, that the plaintiff was a business invitee and that the stairway was defective.
Although the appropriate title is "probationer"; see title 54, chapter 961, part 3 of the General Statutes; Black's Law Dictionary (6th Ed. 1990), p. 1202; the term "client" will be used.
The parties refer to several addresses. In the complaint, the plaintiff refers to 578 Winchester Avenue. In his memorandum and affidavit, however, the plaintiff refers to 576 Winchester Avenue. In the defendant's memorandum and affidavit, he refers to 578 Winchester Avenue. In his deposition testimony, however, the defendant answered in the affirmative when asked whether he remained in control and possession of the hallways at 580 Winchester Avenue.
On January 22, 2007, the defendant filed a motion for summary judgment, accompanied by a memorandum of law, an affidavit and uncertified deposition testimony. He argues that no genuine issue of fact exists that the plaintiff was on the premises as a licensee, and not an invitee, and that he, therefore, did not owe a duty to the plaintiff in that he did not have knowledge of the alleged defects and did not have either actual or constructive knowledge of the plaintiff's presence on the premises. On May 22, 2007, the plaintiff filed an objection to the motion, with a memorandum of law, an affidavit and a certified copy of portions of deposition testimony. The matter was heard at the short calendar on July 30, 2007. "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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Johnson v. Atkinson, 283 Conn. 243, 253, 926 A.2d 656 (2007).
The Appellate Court recently commented on the use of such evidence in the context of a motion for summary judgment, noting, "[i]n interpreting the rules liberally, the [uncertified] deposition testimony could have been admitted at trial without objection to create an evidentiary foundation for the determination that a genuine issue of material fact exists, particularly where . . . both parties submitted uncertified deposition transcripts. Therefore, a court properly could consider such a submission without objection." (Citations omitted.) Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006). In past instances, this court has considered uncertified depositions admissible evidence, absent an objection by the opposing party. See Sepulveda v. PM E Systems, Inc., Superior Court, judicial district of New Haven, Docket No. CV 01 0455783, n. 3 (January 14, 2005, Thompson, J.).
According to the evidence presented by the parties, the premises apparently consists of a three-story building, the ground floor of which contains a store that is run by the defendant. The second and third floors contain apartments, which, as of the date of the incident, the defendant had leased out to two tenants, Devita Wright, who lived on the second floor, and Gail Saunders, who lived on the third floor. The plaintiff entered the premises to conduct a home visit one of his probation clients, Bryant Mitchell. The plaintiff walked up to the third floor, knocked on the door, and, after he did not receive an answer, was descending the stairs to the second floor when he slipped on a stair that did not contain any treads. At the time, the plaintiff was holding onto the handrail, and, as he fell, one-half of it became unsecured from the wall and fell onto the stairs. The parties dispute whether Mitchell lived on the premises.
The defendant argues that no genuine issues of material fact exist that he owed the plaintiff a duty no greater than that which is owed to a licensee, in that the plaintiff should be accorded the status that applies to firefighters and other similar public officials. Further, the defendant argues that no issues of fact exist on the question of whether he breached that duty in that: the allegedly defective condition of the stair treads was open and obvious to the plaintiff; the defendant did not have knowledge of the allegedly defective handrail, as he did not reside on the premises and did not receive any complaints about it from his tenants; and he did not have actual knowledge of the plaintiff's presence or any reason to expect it because the plaintiff's probation client was not the one who rented the apartment that the plaintiff visited.
The plaintiff counters that he was a business invitee at the time of the incident because he entered the premises pursuant to a business invitation from his client. The plaintiff apparently further contends that, even if he was a licensee, genuine issues of material fact exists as to whether the defendant breached his duty in that the defendant had reason to expect the plaintiff's presence, the defendant created the alleged defects, and the defects were not open and obvious to the plaintiff because the defendant concealed them.
I
The defendant's argument that the plaintiff, as a probation officer visiting a client, should be accorded the status of a licensee pursuant to the firefighter's rule appears to be issue of first impression in Connecticut. The issue must be viewed in the context of the following principles of law that apply to negligence actions in general, and premises liability actions in particular. "[The] [e]ssential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." (Internal quotation marks omitted.) Winn v. Posades, 281 Conn. 50, 56, 913 A.2d 407 (2007). "Negligence is a breach of duty . . . It is important to distinguish between the existence of a duty and the violation of that duty . . . To sustain a cause of action, the court must determine whether the defendant owed a duty to the [plaintiff] . . . and the applicable standard of care . . . The existence of a duty is a question of law." (Citations omitted; internal quotation marks omitted.) Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 171, 544 A.2d 1185 (1988).
"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 . . . A possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe . . . In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover." (Internal quotation marks omitted.) Considine v. Waterbury, 279 Conn. 830, 859, 905 A.2d 70 (2006).
As the Supreme Court recently noted, "[l]andlords with tenants are obligated to use reasonable care to keep . . . approaches [to the premises] reasonable safe . . . This obligation of the landlord extends also to all those who have lawful occasion to visit the tenants for social or business purposes." (Internal quotation marks omitted.) Smith v. Greenwich, 278 Conn. 428, 456, 899 A.2d 563 (2006).
"Invitees fall into certain general categories . . . A business invitee is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land . . . [T]he standard of care owed to a social invitee shall be the same as the standard of care owed to a business invitee. The distinction between one who is an invitee and one who is merely a licensee turns largely on whether the visitor has received an invitation, as opposed to permission, from the possessor of land to enter the land or remain on the land. Although an invitation in itself does not establish the status of an invitee, it is essential to it. Mere permission, as distinguished from invitation, is sufficient to make the visitor a licensee but it does not make him an invitee." (Citations omitted; internal quotation marks omitted.) Corcoran v. Jacovino, 161 Conn. 462, 465-66, 290 A.2d 225 (1971).
As for licensees, "[o]rdinarily, an owner of land owes no duty to a licensee to keep his premises in a safe condition, because the licensee must take the premises as he finds them, including any danger arising out of their condition." Dougherty v. Graham, 161 Conn. 248, 251, 287 A.2d 382 (1971).
"[An] important category of entrants which deserves separate treatment is that of police officers, firefighters, and other public safety employees. Since such persons enter the premises as a matter of right in the performance of their official duties, their entry is privileged, without regard to the consent of the owner or occupant. Thus, courts have had little difficulty in concluding that such entrants are not trespassers. On the other hand, their classification as either licensees or invitees has presented greater difficulty, resulting in considerable confusion among the various jurisdictions." 1 N. Landau E. Martin, Premises Liability Law and Practice (2006) § 1.05[3][c], p. 1-94. "Some courts . . . have persisted in classifying police officers and firefighters as licensees and not invitees . . ." Id., p. 1-95.
Connecticut courts have done so, as our Supreme Court recently articulated: "The common-law `firefighter's rule' provides, in general terms, that a firefighter or police officer who enters private property in the exercise of his duties occupies the status of a licensee and, therefore, is owed a duty of care by the property owner that is less than that owed to an ordinary invitee . . . Thus, under the firefighter's rule, the landowner generally owes the firefighter or police officer injured on his property only the duty not to injure him wilfully or wantonly . . ." (Citation omitted; internal quotation marks omitted.) Levandoski v. Cone, 267 Conn. 651, 653-54, 841 A.2d 208 (2004). Until 1991, this state only applied the firefighter's rule to firefighters. Then, in Furstein v. Hill, 218 Conn. 610, 615-16, 590 A.2d 939 (1991), the court explicitly widened the scope of the rule to include police officers.
But see Kaminski v. Fairfield, 216 Conn. 29, 38-39, 578 A.2d 1048 (1990) (implicitly extending rule to police officers).
Our courts have not considered, however, whether the firefighter's rule applies to probation officers when they enter private property in the exercise of their duties. A review of our Supreme Court's consideration of the firefighter's rule in related contexts may be useful in determining whether it should be expanded to cover these public officers.
In Levandoski v. Cone, supra, 267 Conn. 659-61, the court summarized its rationale for including police officers in the rule as follows: "[ Furstein v. Hill, supra,] we gave three reasons for extending the rule to police officers . . . Of the three reasons, the first we characterized as [t]he most compelling argument . . . and the second and third we described as having been adopted by other jurisdictions as rationales for the firefighter's rule . . .
"The first reason was cast in terms of the similarity of the roles of firefighters and police officers, and the reasonable expectations of landowners regarding those two types of public officers . . . We stated: "[F]irefighters and police officers often enter property at unforeseeable times and may enter unusual parts of the premises under emergency circumstances . . . Such public officers enter the land regardless of the owner's consent; indeed, if the conditions for the exercise of their public duty exist, the owner would not be privileged to exclude them . . . Recognizing that only invitees may rely on an implied representation of safety, courts have considered it 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 . . .
"The second reason was essentially a reiteration of the doctrine of assumption of risk. We noted: Several jurisdictions have explained their adoption of the firefighter's rule by recognizing the inherently hazardous nature of the public safety work performed by firefighters and police officers. Some courts have characterized this recognition as a variant of the doctrine of assumption of the risk . . . while others have noted that firefighters and police officers voluntarily choose to enter their professions knowing that they will often confront physically perilous situations created by the negligence of the public they serve . . .
"The third reason rested upon the combination of the avoidance of double taxation upon landowners and the availability of workers' compensation benefits to compensate the injured firefighter or police officer. In this regard, we stated: [P]ermitting firefighters and police officers to recover in tort for occupational injuries caused by the negligence of particular members of the public whom the officer is called upon to aid would impose a double burden on the taxpayers, who already pay such officers to deal with the hazards that may result from the taxpayers' own future acts of negligence. Exposing the negligent taxpayer to liability for having summoned the police would impose upon him multiple burdens for that protection . . ." (Citations omitted; internal quotation marks omitted.)
The second and third reasons outlined above arguably apply to probation officers, as well as to most public employees. Nevertheless, it is noteworthy that the particular risks that firefighters and police officers assume on a regular basis likely exceed the risks assumed by a probation officer in both level and magnitude. Even if the risks are the same in degree, they are different in kind. Compared to the work of a firefighter or police officer, it is probably inaccurate to characterize most of the work performed by a probation officer as inherently dangerous. Furthermore, probation officers are not generally summoned onto properties to deal with emergencies. Rather, they enter properties to visit their clients. Here, the parties did not present any evidence that anyone summoned the plaintiff to the premises. Indeed, in his affidavit and deposition testimony, the defendant denies that he had any knowledge of the plaintiff's presence.
In Levandowski v. Cone, supra, 267 Conn. 651, the court implied that the second and third factors have diminished importance. Specifically, regarding the second factor, the court noted that "to the extent that the firefighter's rule rests on the doctrine of assumption of the risk, it would be inconsistent with the policy of our general tort law . . . expressed in General Statutes § 52-572h[l], pursuant to which the legislature has abolished the doctrine of assumption of the risk in negligence actions." Levandowski v. Cone, supra, 267 Conn. 662-63. As to the third factor, the court noted that in many cases, "permitting the plaintiff to recover for the defendant's negligence will tend to reduce workers' compensation costs by permitting the plaintiff's employer to recoup those benefits." Id., 664. See General Statutes § 31a-293.
The question of whether the first, and "most compelling argument," applies to probation officers is not as straight forward. On the one hand, the duties of adult probation officers, as stated in General Statutes § 54-108, require them to "investigate all cases referred to them for investigation . . . They shall keep informed of . . . [the] conduct and condition [of the persons released under their supervision] and use all suitable methods to aid and encourage [them] and to bring about improvement in [their] conduct and condition, . . ." "Implicit in the foregoing statutory charge is the requirement that probation officers meet with their charges and ask them questions about their adjustment, activities and compliance with the terms of their probation." State v. Ostreicher, Superior Court, judicial district of New London, Docket No. CR95 0225614 (February 27, 2002, Dyer, J.) (31 Conn. L. Rptr. 630, 634.) Indeed, the plaintiff testified in his deposition that his position requires him to conduct home visits, and that he was conducting such a visit when the incident that forms the basis for this action occurred. Thus, probation officers may be required to enter the property of others while performing their duties.
See also General Statutes § 17a-699(c), which applies to persons who are required to attend alcohol or drug treatment program: as a condition of their probation provides in relevant part: "The court may require that a probation officer have . . . at least one contact per week with the person when such person is not participating in an inpatient program."
Furthermore, General Statutes § 53a-32(a) authorizes "[a]ny probation officer [to] arrest any defendant on probation without a warrant . . . [if] in the judgment of the probation officer . . . [the defendant] violated the conditions of the defendant's probation." Accordingly, probation officers may encounter situations in which they are on someone's property in emergency like circumstances. Moreover, the term "peace officer," as used in the penal code, includes "an adult probation officer"; General Statutes § 53a-3(9); and General Statutes § 53a-167c, which makes it a crime to assault public safety personnel with the intent to prevent them from performing their duties, lists probation officers as such personnel.
On the other hand, it is not apparent that probation officers, unlike firefighters and police officers, "often enter property at unforeseeable times" or "enter unusual parts of the premises under emergency circumstances." (Internal quotation marks omitted.) Levandowski v. Cone, supra, 267 Conn. 659. Further, they do not generally "enter the land regardless of the owner's consent . . ." Id., 660. The plaintiff explained in his deposition testimony that, under normal circumstances, his duties as a probation officer entailed going to the homes of his clients once a month and greeting them at their doors. The terms of a specific client's probation dictate whether the plaintiff needed to take further actions, such as entering into the client's home. The plaintiff stated that, only in "extenuating circumstances," such as when he has received a report that a client possesses a weapon, does his visit require him to do more than simply greet them.
Moreover, contrary to what is contemplated by the firefighter's rule, the plaintiff in this case does not enter premises at unforeseeable times. As the plaintiff attests in his affidavit: "Under routine circumstances visits by a probation officer will be conducted between the hours of nine a.m. and five p.m." Thus, although his home visits may occur at random times during a given month, and without prior notice to the client, the visits do not occur at unforeseeable times.
Furthermore, although the plaintiff's deposition testimony suggests that his clients waive their privilege to refuse him entry, such that he, like firefighters and police officers, is not required to obtain consent before entering a premises in an emergency, this conclusion is tempered by his averment in his affidavit that consent is required: "A probation officer cannot enter the premise of a client if permission to do so is refused." In all, it appears that a probation officer, unlike a firefighter of police officer responding to emergencies under exigent circumstances, may require some form of consent to enter.
Moreover, the Supreme Court has indicated its reluctance to expand the firefighter's rule beyond its present scope in Levandowski v. Cone, supra, 267 Conn. 661, in which it decided that "the rule should not be extended to a non-premises liability case" to bar a police officer from recovering from a tortfeasor in an ordinary negligence case. The court also noted that "[b]ecause the firefighter's rule is an exception to the general rule of tort liability that, as between an innocent party and a negligent party, any loss should be born by the negligent party, the burden of persuasion is on the party who seeks to extend the exception beyond its traditional boundaries." Id., 661.
See also Lodge v. Arnett Sales Corp., 246 Conn. 563, 717 A.2d 215 (1998) (court declined to extend firefighter's rule to plaintiff firefighters who were injured or died in collision caused by negligent maintenance of their vehicle that occurred while they were responding to false alarm transmitted by defendant alarm company).
In addition, while litigants in Connecticut have argued that the firefighter's rule should be expanded in premises liability cases to include other public officials, they have not met their burden of persuading the judges of the Superior Court to do so. See Fortin v. Adams, Supreme Court, judicial district of Waterbury, Docket No. CV 98 00149918 (September 20, 2000, Doherty, 1) (28 Conn. L. Rptr. 160) (declining to extend rule to canine control officer); Estefan v. Rolls, Superior Court, judicial district of Danbury, Docket No. CV 99 0336409 (April 28, 2000, Moraghan, J.) (27 Conn. L. Rptr. 130, 131-32) (declining to extend rule to public airport administrator); Geherty v. Connecticut Yankee Atomic Power Co., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 95 0546860 (April 20, 1998, Teller, J.) (22 Conn. L. Rptr. 128, 132-33) (declining to extend rule to private security guard).
Research of caselaw in other jurisdictions reveals scant authority in support of expanding the scope the firefighter's rule to include probation officers in premise liability actions. A search of other jurisdictions yields but one case in which the court applied the firefighter's rule to a probation officer. In Hamilton v. Martinelli Associates, 110 Cal.App. 4th 1012, 2 Cal. Rptr. 3d 168 (2003), the plaintiff, a probation corrections officer, was injured while she was participating in a training exercise that was conducted on the defendant's tactical course. She brought an action for negligence and intentional tort against the company that conducted the course and one of its instructors. The California Court of Appeals held that the trial court properly granted the defendants' motion for summary judgment in that the doctrine of primary assumption of the risk barred both of the plaintiff's claims because she was hired to confront the very risks that caused her injuries. Id., 1024. The court also held, on alternative grounds, that the trial court correctly determined that the firefighter's rule barred her negligence claim. Id., 1026.
See, e.g., Lockhart v. Coastal Coal Co., LLC, United States District Court, Docket No. 2:02CV00095 (W.D.Va. August 8, 2003), in which the court concluded that the firefighter's rule, as recognized in Virginia, should not be extended to bar an action by a federal mine inspector against a mine operator, where the court explained: "After an exhaustive search, I can find few jurisdictions which have applied the fireman's rule to bar claims brought by anyone other than firefighters or police officers. See Hamilton v. Martinelli Associates Justice Consultants, Inc., [ 110 Cal.App. 4th 1012,] 2 Cal. Rptr. 3d 168, 177 [2003]) (fireman's rule barred suit by probation corrections officer against training course business); Oceanside v. Superior Court, [ 81 Cal.App.4th 269, 196 Cal. Rptr. 2d 621, 631 [2000] (fireman's rule extends to publically employed lifeguards); but see Heck v. Robey, 659 N.E.2d 489, 505 (Ind. 1995) (refusing to extend fireman's rule to cover paramedics), abrogated on other grounds, Control Techniques, Inc. v. Johnson, 762 N.E.2d 104 (Ind. 2002); Kiernan v. Miller, [ 259 N.J.Super. 320, 326,] 612 A.2d 1344, 1348 [1992], (fireman's rule did not apply to first aid worker who was injured while rendering medical assistance to injured person); Krause v. U.S. Trucking Co., 787 S.W.2d 708, 713 (Mo. 1990) (fireman's rule does not apply to ambulance attendant who responded to emergency scene) . . .
"In Whiting v. Central Trux Parts, Inc., 984 F.Sup. 1096 (E.D.Mich. 1997), the . . . Court . . . held that the fireman's rule barred recovery by a customs inspector who was injured by a falling truck hood whole inspecting a truck entering the country. In Whiting, the court found that a customs inspector should be considered a `public safety officer' covered by the rule. [ Id., 1106]. In reaching this finding, the court stated: `As a policy matter, Mr. Whiting's job is not distinguishable enough from that of a police officer to warrant the non-application of the rule. There is, to be sure, a certain amount of risk in becoming a Customs Inspector — but that risk is inextricably bound to the Inspector's everyday job. Indeed, one of the aspects for which the public pays Customs Inspectors is putting themselves at risk, if necessary, to enforce federal law.' [ Id., 1106] . . ."
"On the other hand, I have found several cases in which the courts have refused to apply the fireman's rule to bar suit by inspectors injured in the performance of their duties. In Sam v. Wesley, 647 N.E.2d 382 (Ind.Ct.App. 1995), the Court refused to extend the rule to bar suit by a building inspector who was injured while performing an inspection. The court reasoned: `We do not believe that a building inspector is a professional public safety officer in the nature of a fire fighter, police officer or paramedic. Building inspectors do not receive special training from the State to confront emergency situations, as do the other safety professions included in the fireman's rule. Further, a building inspector's job does not expose one to particular, specific, emergency risks as do the jobs listed above. A building inspector is not called upon to rescue an individual caught in a building which is not up to code. Instead, an inspector is employed to confirm that constructors are complying with the building code. There is some risk inherent in performing these duties; however, many kinds of public employees confront danger inherent in their jobs . . . If we did not distinguish fire fighters and police officers from other public employees, then no public employees would be able to recover for injuries sustained as a result of those dangers . . .' [ Id., 385]; see also, Gray v. Russell, 853 S.W.2d 928, 930-31 (Mo. 1993) (fireman's rule did not bar suit by police officer injured while conducting routine building inspection) . . .
"Based on my review of these cases, I am persuaded that the fireman's rule in Virginia should not be expanded to bar claims brought by any public employees other than police officers or firefighters. I agree with the reasoning . . . that any extension of the fireman's rule beyond fire and police officers would . . . contradict the rule's rationale. I also agree with the concern that any such extension would invite the wholesale abolition of traditional tort actions by public employees who suffer injuries as a result of hazards inherent in their employment . . .
"Furthermore, based on recent Virginia precedent limiting the application of this rule, I am persuaded that Virginia courts would not expand this rule to bar this plaintiff's claim.
"Finally, I also am persuaded that the fireman's rule violates a fundamental tenet of our jurisprudence . . . the right of redress for those injured as a result of the wrongdoing of others . . . Thus, I believe it should be narrowly construed. This view of narrow construction has been applied by many, if not most, of the courts which have adopted the rule." (Citations omitted; internal quotation marks omitted.) Lockhart v. Coastal Coal Co., LLC, supra, Docket No. 2:02CV00095.
Hamilton is not instructive for several reasons. First, in California, the firefighter's rule is not limited to premises liability actions against firefighters and police officers, but rather applies broadly to limit "the duty of care that members of the public would otherwise owe to firefighters, police officers, other peace officers, and other public safety officers." Indeed, the court did not discuss the issue of whether a probation officer should be included in the rule, but simply stated that she was employed in a "peace officer position." As previously discussed, our Supreme Court has declined to expand the rule beyond its present scope. See Levandowski v. Cone, supra, 267 Conn. 661.
Second, California's recognition of the firefighter's rule rests principally on the basis of an assumption of the risk theory, whereas Connecticut adopts the rule principally on the basis of protecting the reasonable expectations of landowners, which is a different legal concept. As previously noted, our Supreme Court deems the reasonable expectation rationale the "most compelling" rationale in support of the rule and considers the assumption of the risk rationale as secondary. Levandoski v. Cone, supra, 267 Conn. 659 Furstein v. Hill, supra, 218 Conn. 616. The assumption of the risk rationale is even less compelling because Connecticut has abolished the defense of assumption of the risk for all negligence cases. See General Statutes § 52-572h(l).
General Statutes § 52-572h(l) provides: "The legal doctrines of last clear chance and assumption of risk in actions to which this section is applicable are abolished."
Third, the plaintiff in Hamilton was employed as a "corrections officer in a youth detention center. Plaintiff's employment duties included supervising and counseling children between the ages of [ten] and [eighteen], including violent offenders. She was required to wear a uniform and carry pepper spray. As a further condition of her employment, she was required to complete a [unarmed defensive tactics] training course and pass a proficiency test." Hamilton v. Martinelli Associates, supra, 110 Cal.App.4th 1017. This indicates that her employment responsibilities are, as are those of firefighters and police officers, likely to require her to act at unforeseen times and under emergency conditions.
For these reasons, the court declines to extend the firefighter's rule to include probation officers, and the defendant's motion for summary judgment cannot be granted on the ground that the rule bars the plaintiff's action.
II
Even if the court were to determine that the plaintiff should be treated as a licensee on the defendant's premises, the court must determine whether there are any genuine issues of material fact with respect whether the defendant breached his duty of care to the plaintiff. According to the defendant, he did not, because he did not have any knowledge of the defects that allegedly caused the plaintiff's injuries or actual or constructive knowledge that the plaintiff was on the premises. The plaintiff counters that the defendant did breach his duty because he had actual knowledge of at least one the defects in that he created it, and neither defect was open and obvious, such that the plaintiff should have been aware of it. The plaintiff also contends that the defendant knew that the plaintiff would be making visits to the premises.
"The duty that a landowner 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 . . . We have nevertheless recognized that under certain circumstances a heightened duty to the licensee can arise. The Restatement (Second) of Torts, § 342, describes the duties owed to a licensee as follows: `A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if, (a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and (b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and (c) the licensees do not know or have reason to know of the condition and the risk involved' 2 Restatement (Second), Torts (1965) § 342, p. 210." (Citation omitted.) Furstein v. Hill, supra, 218 Conn. 624-25.
This duty does not arise, however, "unless [the plaintiff's] presence on the premises became known to the defendant. The knowledge must have been actual or the equivalent to actual knowledge. The duty which a licensor owes to a licensee on the licensor's premises does not arise where there is no actual knowledge on the part of the licensor of the licensee's presence or where there are no circumstances from which such knowledge could be imputed to the licensor." Cocoran v. Jacovino, supra, 161 Conn. 468. In the present case, the defendant attested in his affidavit that he was not aware that the plaintiff was on the premises, and the plaintiff does not present any evidence to the contrary. Therefore, it is undisputed that the defendant did not have actual knowledge that the plaintiff was on the premises.
The question of whether knowledge of the plaintiff's presence can be imputed to the defendant depends on whether "it can be established that the licensor could reasonably anticipate the licensee's presence at the time and place in question." Id. Here, the defendant averred in his affidavit that he leased the apartments on the second and third floors to Wright and Saunders respectively, that he was not aware that anyone else lived on the third floor with Saunders and that he did not know the plaintiff's client, Bryant Mitchell. On the other hand, the plaintiff attested in his affidavit that Mitchell was a tenant at the premises, which suggests that the defendant did know Mitchell. Neither party provided the court with any additional evidence on the material issues of whether Mitchell resided on the premises, whether the defendant knew Mitchell and, if so, whether the defendant knew that Mitchell was on probation. Accordingly, questions of fact exist as to the material issue of whether the circumstances are such that the defendant could be said to have had constructive knowledge of the plaintiff's presence on the premises.
Therefore, the court must consider whether the circumstances were such that the defendant had a heightened duty to the plaintiff, as referred to above. Regarding the first element, i.e., the defendant's knowledge of the defective condition, in his affidavit, the defendant attests that, prior to the date of the incident, he "had not received any complaints about the condition of the handrail along the stairway between the second and third floors" and that, on the date of the incident, he "had no knowledge of any potential danger posed by the handrail in issue." He did, however, testify in his deposition that he was the one who installed the handrail on the stairway to the third floor and, to the best of his knowledge, he is the only one who had ever made repairs to it. This provides some evidence that the defendant may have created the condition that caused the handrail to become unsecured from the wall. As the courts have noted, "the licensor must use reasonable care both to refrain from actively subjecting [the licensee] to danger and to warn him of dangerous conditions . . ." (Internal quotation marks omitted.) Morin v. Bell Court Condominium Ass'n., Inc., 223 Conn. 323, 329, 612 A.2d 1197 (1992).
In discussing the related duty of a landowner to a business invitee, the Supreme Court has recognized that "[i]f the plaintiff . . . alleges an affirmative act of negligence, [that is], that the defendant's conduct created the unsafe condition, proof [that the defendant had] 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." (Internal quotation marks omitted.) Kelly v. Stop Shop, Inc., 281 Conn. 768, 777, 918 A.2d 249 (2007). It is reasonable to assume that the same should be applied to the licensee/licensor relationship.
In addition, the handrail is only one of several defects that the plaintiff alleges caused him to fall, including the torn rubber coverings on the stairs and inadequate lighting. Neither party has submitted any evidence regarding whether the defendant was aware of either of these defects. In his deposition testimony, the defendant stated that while he did not go up to the third floor on a regular basis, he did go up to the second floor about once a week, and that when he did so, he would look up the stairway to the third floor. This suggests that the defendant may have been aware of the defects.
Furthermore, the evidence does not establish that no issues of fact exist as to whether the alleged defects were open and obvious to the plaintiff. "In those cases finding a condition open and obvious as a matter of law, the plaintiff was shown to have a general familiarity with the condition or knowledge of the condition an appreciable amount of time prior to the accident." Gatzki v. Shafer, Superior Court, judicial district of Hartford, Docket No. CV 01 0808100 (January 3, 2006, Tanzer, J.) (40 Conn. L. Rptr. 521, 523). The defendant's evidence sheds no light on either the extent of the plaintiff's familiarity with the premises in general, or the condition of the stairway in particular. Indeed, the plaintiff testified that, as far as he could recall, he had never been on the defendant's premises prior to the date of the incident at issue.
Accordingly, the defendant has not sustained his burden of demonstrating the lack of a genuine issue of material fact as to whether he breached the duty that he owed to the plaintiff as a licensee of his premises. Therefore, the court cannot grant the defendant's motion for summary judgment on this ground.
For the foregoing reasons, the defendant's Motion For Summary Judgment is denied.