Opinion
No. CV 01 0808100
January 3, 2006
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #118
In a two-count complaint alleging negligence and negligent infliction of emotional distress, the plaintiff, Richard K. Gatzki, claims he was injured while delivering mail in the regular course of his duties when he was tripped by a downed power line on property of the defendant, Paul Shafer. The defendant moves for summary judgment on the ground that there is no genuine issue as to any material fact, and that he is entitled to judgment as a matter of law.
Specifically, the defendant argues that the plaintiff, a letter carrier, was a licensee to whom was owed a reduced duty of care which was met under the undisputed facts. Further, the defendant argues that, regardless of the plaintiff's status while on the defendant's property, the downed power line was an open and obvious condition, and the defendant had no duty to correct or warn of the condition to the benefit of the plaintiff.
Although the plaintiff does not expressly argue in opposition to the defendant's motion that he was an invitee while on the defendant's property, he does argue that the duty owed to him by the defendant is equivalent to that owed to an invitee that is, the duty to use reasonable care to inspect the premises and to maintain the premises in a reasonably safe condition and that genuine issues of material fact exist as to whether the defendant's conduct has met that standard of care. The plaintiff also argues that genuine issues of material fact remain as to whether the downed power line was an open and obvious condition.
An initial question presented, thus, is the nature of the duty owed by the defendant to the plaintiff. "In general there is an ascending degree of duty owed by the possessor of land to persons on the land based on their entrant status, i.e., trespasser, licensee or invitee." Morin v. Bell Court Condominium Assn., Inc., 223 Conn. 323, 327, 612 A.2d 1197 (1992). "A `licensee' is a person who is privileged to enter onto land by virtue of the possessor's express or implied consent. The possessor of land owes no duty to a licensee to keep the premises in a safe condition and the licensee must take the premises as he or she finds them. Salaman v. Waterbury, 246 Conn. 298, 304-05, 717 A.2d 161 (1998). An `invitee,' on the other hand, is a person who has been expressly or impliedly invited to go on the premises. A possessor of land owes a duty to an invitee to use reasonable cam to inspect the premises and to maintain the premises in a reasonably safe condition. Kurti v. Becker, 54 Conn.App. 335, 338, 733 A.2d 916 (1999)." Crone v. Abate, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 03 0080966 (January 13, 2005, Stevens, J.).
"Ordinarily, the status of one who sustains injury while upon the property of another is a question of fact . . . Where, however, the facts essential to the determination of the plaintiff's status are not in dispute, a legal question is presented." (Internal quotation marks omitted.) Kolaniak v. Board of Education, 28 Conn.App. 277, 282, 610 A.2d 193 (1992); Roberts v. Rosenblatt, 146 Conn. 110, 112, 148 A.2d 142 (1959). Because the facts relative to the status of the plaintiff while on the defendant's property are not in dispute, the determination of the plaintiff's status is a question of law for this court.
The specific issue of whether a letter carrier is a licensee or an invitee has not been decided directly by any Connecticut appellate authority. Our Supreme Court has noted, however, that "a letter carrier has been generally considered to be a business visitor rather than a mere licensee." Haffey v. Lemieux, 154 Conn. 185, 188, 224 A.2d 551 (1966); see General Statutes § 52-557a (business visitor owed same duty as social invitee). The Haffey court, however, without deciding the issue directly, left undisturbed the trial court's treatment of a letter carrier as a licensee for the purpose of that appeal. Id.; but see 21 ALR.3d 1099, 1101 (1968) ("In most of the few cases which have presented [this] problem, the courts have held or assumed that the postman enjoyed invitee status, rejecting the analogy sometimes advanced between the postman and the policeman or fireman who comes on the premises in the line of duty in emergency situations.")
A visitor's status "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." Kurti v. Becker, 54 Conn.App. 335, 338, 733 A.2d 916, cert. denied, 251 Conn. 909, 739 A.2d 1248 (1999). In the present case, the defendant argues that a letter carrier receives permission for the sole limited purpose of delivering the mail. In this way, the defendant argues that a letter carrier is more akin to a person permitted on the premises, rather than a person invited onto the premises. The distinction between permission and invitation is discussed in Comment b to Restatement (Second) Torts § 532: "An invitation differs from mere permission in this: an invitation is conduct which justifies others in believing that the possessor desires them to enter the land; permission is conduct justifying others in believing that the possessor is willing that they shall enter if they desire to do so." Connecticut law has long recognized that "[a]n invitation is implied where one person goes upon the land of another for their mutual benefit." (Emphasis added.) Guilford v. Yale University, 128 Conn. 449, 452, 23 A.2d 917 (1942); Reardon v. Shimelman, 102 Conn. 383, 386, 128 A. 705 (1925). See also Pomponio v. New York N.H. H.R. Co., 66 Conn. 528, 537, 34 A. 491 (1895) ("Speaking generally, if the privilege of user exists for the common interest or mutual advantage of both parties, it will be held to be a case of invitation; but if it exists for the mere pleasure and benefit of the party exercising the privilege, it will be held to be a case of license.") Thus, while it is true that a letter carrier is "permitted" on a property owner's land, this permission is premised at least in part on the property owner's own benefit, i.e., receiving mail at the owner's property.
Moreover, our Supreme Court has noted that "[t]he most compelling argument for [finding police officers licensees] is the recognition that firefighters and police officers often enter property at unforeseeable times and may enter unusual parts of the premises under emergency circumstances . . . [and] it [is] unreasonable to require landowners to undertake the same standard of care for public officers whose presence the landowners can neither predict nor interdict." (Citations omitted; emphasis added.) Furstein v. Hill, 218 Conn. 610, 616-17, 590 A.2d 939 (1991). Unlike firefighters or police officers, letter carriers enter land regularly and in a predictable manner, and their doing so can be "interdicted" — the landowner can choose other modes to receive mail delivery. Therefore, the policy justifications that allow reducing the duty of care to firefighters and officers do not apply to letter carriers.
Accordingly, the plaintiff, as a letter carrier delivering the defendant's mail, was an invitee for purposes of determining the defendant's duty of care in the present case. The defendant had "a duty . . . to reasonably inspect and maintain the premises in order to render them reasonably safe." (Citations omitted.) Morin v. Bell Court Condominium Assn., Inc., supra, 223 Conn. 327 (1992). While the defendant avers in his affidavit filed in support of his motion that he lacked knowledge of the downed power line until he was informed that the plaintiff had come in contact with it, that averment does not dispose of genuine issues of material fact as to whether, the defendant "reasonably inspect[ed] and maintain[ed] the premises in order to render [it] reasonably safe." Id. Therefore, the motion for summary judgment on the ground that the plaintiff was a licensee and was owed a reduced duty of care is denied.
The defendant further argues that regardless of the plaintiff's status, the downed power line was an open and obvious condition, thereby excusing the defendant of any duty to warn of the condition. The defendant correctly contends that "[w]arning an invitee against dangers which are either known to him or are so obvious to him that he may be expected to discover them is unnecessary." (Internal quotation marks omitted.) Kraus v. Newton, 14 Conn.App. 561, 568-69, 542 A.2d 1163 (1988), aff'd, 211 Conn. 191, 558 A.2d 240 (1989); Warren v. Stancliff, supra, 157 Conn. 216, 220, 251 A.2d 74 (1968) ("The possessor of land has no duty to warn an invitee of a dangerous condition when the invitee has actual knowledge of the condition."). The issue, however, of open and obvious should be reserved for the trier of fact when there is "room for reasonable disagreement as to whether the plaintiff was or should have been aware of the . . . condition just before his [injury]." (Emphasis added.) Warren v. Stancliff, supra, 157 Conn. 220-21; Fleming v. Garnett, 231 Conn. 77, 84, 646 A.2d 1308 (1994).
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. See, e.g., Jevarjian v. Smith, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 03 0404269 (August 10, 2004, Wolven, J.) (hanging vine that gives way after purposely bracing and pulling on it open and obvious condition); Legasse v. Amabile, Superior Court, judicial district of Waterbury, Docket No. CV 990151784 (May 30, 2004, Doherty, J.) (steep grass slope often used by the plaintiff carrying groceries open and obvious condition); Pacelle v. Taft School Corp., Superior Court, judicial district of New Haven, Docket No. CV 97 0406686 (April 26, 2000, Thompson, J.) (wet grass on slight decline open and obvious condition).
While the defendant's affidavit speaks to the defendant's awareness (or lack thereof) of the downed power line, the affidavit fails to shed light on the precise conditions on the defendant's premises at the time of the plaintiff's injury and leaves "room for reasonable disagreement as to whether the plaintiff was or should have been aware of the . . . condition just before his [injury];" Warren v. Stancliff, supra, 157 Conn. 220-21.
The defendant's motion for summary judgment on the ground that the downed power line was an open and obvious condition is denied.
CONCLUSION
The defendant's motion for summary judgment is denied because genuine issues of material fact remain as to whether the defendant reasonably inspected and maintained the premises in order to render it reasonably safe for the plaintiff, an invitee, and as to whether the downed power line was an open and obvious condition at the time of the plaintiff's injuries.