Opinion
FBTCV166058766S
11-20-2017
Lourdes KLOERS v. BRIDEGEPORT WILMOT APARTMENTS, INC., et al.
UNPUBLISHED OPINION
OPINION
Anthony D. Truglia, Jr., J.
This is a winter slip and fall case. The defendant, Bridgeport Wilmot Apartments, Inc., moves for summary judgment on two grounds. First, the defendant argues that the plaintiff, Lourdes Kloers, alleges that she fell on the defendant’s property at a date and time when it can conclusively be shown that there was a continuing snow event. As a result, the defendant had no duty to keep the area free of ice and snow until a reasonable time has passed after the end of the storm. In the absence of such a duty, the defendant argues that it cannot be found liable for the plaintiff’s injuries. Second, the defendant. argues that the plaintiff cannot prove that she fell on ice and snow that might have accumulated prior to the snowfall on the day of the accident, and, therefore, the plaintiff cannot prove that the defendant breached a duty of care to her on the date and time of the accident. Accordingly, the defendant contends, summary judgment should enter in its favor.
Factual and Procedural History
The plaintiff alleges the following facts in count one of her amended complaint (entry # 133). The defendant is the owner of an apartment building located at 610 Wilmot Avenue in Bridgeport. As such, it has a duty " to exercise care to maintain the premises, including the buildings located on the premises, the sidewalks, entrances, exits, parking lot and driveways located on the premises in a reasonably safe condition for members of the public and business invitees." On March 5, 2015, the plaintiff was lawfully on the premises and walking back to her apartment building in the complex after bringing her trash to a garbage bin, which was located on a service road near her building. At approximately 1:30 p.m. on that date, " she was caused to slip and fall on an accumulation of ice, which had been accumulating over a period of at least five days, and sustained a serious injury." The plaintiff alleges that her fall was caused by the carelessness and negligence of the defendant in one or more of nine ways, including (1) permitting " the sidewalks, parking lot, driveways, entrances and exits located on the premises, to gather an accumulation of ice over the course of a period of time, creating an unsafe and dangerous condition for pedestrians, such as the plaintiff"; (2) failing to " apply salt, sand, and/or other abrasive materials to the sidewalks, parking lot, driveways, entrances and exits located on the premises"; and (3) allowing " the access road/driveway pavement [where the plaintiff fell] to become uneven so that snow/ice could not be adequately removed thereby creating an unsafe condition for pedestrians, such as the plaintiff."
The plaintiff’s amended complaint repeatedly identifies the date as " on or about March 5, 2015, " but it is clear from the complaint, as well as the parties’ memoranda in support of and in opposition to the motion for summary judgment, that the injury occurred at approximately 1:30 p.m. on March 5, 2015.
In support of its motion for summary judgment, the defendant submitted, inter alia, excerpts from the plaintiff’s deposition testimony in which she describes the incident, as well as a copy of a weather report setting forth the conditions from March 3, 2015, through March 6, 2015, including detailed hour-by-hour weather conditions prevailing on March 5, 2015, the day of the incident. The defendant argues that the evidence from these two sources, none of which is disputed by the plaintiff, supports its contentions that (1) there was a continuing snow event immediately before the time when the plaintiff claims she was injured; and (2) there is no evidence of an accumulation of ice in the area in the five days before the plaintiff fell, which would have created a defective or dangerous condition on the premises.
In response, the plaintiff argues that the defendant has failed to establish that there is no genuine issue of material fact in the present case that would entitle the defendant to judgment as a matter of law. The plaintiff argues that the defendant has not shown- and cannot show- conclusively that it was not snowing at the time she fell. She submits in opposition to the motion her own deposition testimony adamantly insisting that the snow had stopped when she left her apartment and walked across the service road. Therefore, the plaintiff argues, there is a genuine issue of material fact as to whether there was ongoing winter precipitation at the time of the accident and a question as to whether the ongoing storm defense applies in this case. The plaintiff further argues that she alleges in her complaint that the defect which caused her fall was an accumulation of ice which had built up over a period of at least five days prior to the day she fell. Therefore, the plaintiff contends, there is a genuine issue of material fact as to whether her fall was caused not by freshly fallen snow and newly-formed ice, but by pre-existing icy conditions which the defendant knew of but failed to remedy in a timely fashion.
Discussion
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 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).
The purpose of a motion for summary judgment is to dispose of actions lacking a triable issue of material fact. Dorazio v. M .B. Foster Electric Co., 157 Conn. 226, 228, 253 A.2d 22 (1968). When deciding a motion for summary judgment, the trial court views the evidence in the light most favorable to the non-moving party. Rodriguez v. Testa, 296 Conn. 1, 6, 993 A.2d 955 (2010). " The test is whether a party would be entitled to a directed verdict on the same facts." (Internal quotation marks omitted.) Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 781, 595 A.2d 334 (1991). " 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." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006).
" [A] premises liability claim is a negligence cause of action." Diaz v. Manchester Memorial Hospital, 161 Conn.App. 787, 791 n.4, 130 A.3d 868 (2015). " The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." (Internal quotation marks omitted.) Considine v. Waterbury, 279 Conn. 830, 858, 905 A.2d 70 (2006). " [T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 .A.2d 1221 (2003).
" 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 safe ... In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover." (Citations omitted; internal quotation marks omitted.) Sevigny v. Dibble Hollow Condominium Assn., Inc., 76 Conn.App. 306, 320, 819 A.2d 844 (2003). " The relevant principles of premises liability are well established. A business owner owes its invitees a duty to keep its premises in a reasonably safe condition." (Internal quotation marks omitted.) DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116, 49 A.3d 951 (2012).
Furthermore, " [u]nder familiar principles of law, the defendant, as a property owner, is not an insurer of the safety of persons using ... the premises against the possibility of injury by reason of [a defective condition] thereon ... Mere proof of the presence of some [defective condition] does not necessarily show a breach of [a] defendant’s duty ... [T]he burden rests upon the plaintiff ... to offer evidence ... from which the jury could reasonably conclude that the defendant had notice of this condition and failed to take reasonable steps to remedy it after such notice." (Internal quotation marks omitted.) Hellamns v. Yale -New Haven Hospital, Inc., 147 Conn.App. 405, 410-11, 82 A.3d 677 (2013), cert. granted, 311 Conn. 918, 85 A.2d 652 (2014) (appeal withdrawn, May 9, 2014).
A. Ongoing Storm Defense
The defendant relies in part on Kraus v. Newton, 211 Conn. 191, 558 A.2d 240 (1989), which established that " in the absence of unusual circumstances, a property owner, in fulfilling the duty owed to invitees upon his property to exercise reasonable diligence in removing dangerous accumulations of snow and ice, may await the end of a storm and a reasonable time thereafter before removing ice and snow from outside walks and steps." Id., 197-98. The court reasoned that " [t]o require a landlord or other inviter to keep walks and steps clear of dangerous accumulations of ice, sleet or snow or to spread sand or ashes while a storm continues is inexpedient and impractical." Id., 198. In Umsteadt v. G .R. Realty, 123 Conn.App. 73, 1 A.3d 243 (2010), the Appellate Court restated and clarified the holding in Kraus, determining that " the landowner’s duty to remove ice and snow does not arise until after a reasonable period has passed following the conclusion of the storm." Id., 83.
The defendant also cites the holding in Valagic v. Inline Plastics Corp., Superior Court, judicial district of Ansonia-Milford, Docket No. CV-04-4000841-S (April 4, 2006, Stevens, J.), where the court granted summary judgment in favor of a property owner on the grounds that the owner had no duty to abate snow and ice conditions during an ongoing snowstorm. In Valagic, the plaintiff alleged that she fell and injured herself due to snow and ice on an exterior sidewalk adjacent to her employer’s business premises. In that case, however, it was undisputed that snow was falling for the duration of the plaintiff’s walk to work and when slipped and fell.
The court is satisfied that there is no genuine issue of fact as to whether the plaintiff fell during an ongoing snowstorm. The evidence submitted by the defendant in support of its motion establishes that the time of the plaintiff’s fall was either just after snow stopped or during a brief lull in an ongoing snow event. The defendant submits two weather reports for the Bridgeport area for March 5, 2015. The first, reporting from Sikorsky Airport, shows light rain from 1:00 a.m. to 7:00 a.m., when temperatures were above freezing. Then, light snow from 7:00 a.m. to noon, with temperatures just below freezing, at 31 degrees Fahrenheit, and a twenty-four-hour accumulation of .56 inches of snow. Next, moderate snow continuing from 1:00 a.m. with temperatures well below freezing, at 22 degrees Fahrenheit, followed by overcast skies from 2:00 p.m. to 7:00 p.m., with below freezing temperatures. The defendant’s second weather history for the Bridgeport area indicates light rain reported from 12:05 a.m. to 3:19 a.m. followed by light snow from 3:52 a.m. to 7:13 a.m., with below freezing temperatures. This was followed by alternate periods of moderate and light snow from 7:28 a.m. through 1:44 p.m. From 1:52 p.m. to 3:52 p.m., the skies were overcast and a light snow was again reported. The time line submitted by defendant establishes that freezing precipitation either continued all through the day that the plaintiff fell, or had just stopped when she left her apartment; accordingly, the defendant had no duty to abate slippery or icy conditions or to warn invitees such as the plaintiff of those conditions until a reasonable time after the storm ended. The court is also satisfied that there were no unusual circumstances imposing a special obligation on the part of the defendant to make extraordinary efforts at snow removal in connection with this particular snow event. Based upon the evidence submitted by the defendant, it would not be possible, as a matter of law, for the plaintiff to prove at trial that the defendant breached its duty of care as a property owner to alleviate dangerously slippery snow and icy conditions.
In the present case, because the defendant has carried its burden to establish its defense under the ongoing storm doctrine, the burden then shifts to the plaintiff to show, notwithstanding the defendant’s proof, that a genuine issue of fact does exist for the trier of fact to determine. See, Mott v. Wal -Mart Stores East, LP, 139 Conn.App. 618, 626, 57 A.3d 391 (2013) (" On a motion by [the] defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint ... It necessarily follows that it is only [o]nce [the] defendant’s burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial"). The plaintiff has not carried her burden to demonstrate the existence of a material fact in dispute relating to the defendant’s duty to abate potentially dangerous ice and snow conditions during an ongoing snow event. " [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 [an issue of] material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]." (Internal quotation marks omitted.) Miller v. United Technologies Corp., 233 Conn. 732, 745, 660 A.2d 810 (1995). There is simply no evidence, other than the plaintiff’s equivocal testimony, that contradicts the defendant’s evidence that the plaintiff fell during an ongoing snow event. " It is frequently stated in Connecticut’s case law that, pursuant to Practice Book § § 17-45 and 17-46, a party opposing a summary judgment motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ... [T]ypically [d]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred." Rafalko v. University of New Haven, 129 Conn.App. 44, 49, 19 A.3d 215 (2011). Without more, the plaintiff’s deposition testimony disputing the defendant’s evidence of an ongoing storm at the time of (or immediately prior to) her fall is insufficient to refute that evidence and does not create an issue of material fact.
B. Prior Accumulations of Ice and Snow
The court is also satisfied that the plaintiff would be unable to prove at trial that she fell due to an accumulation of ice and snow from prior snow falls that the defendant had a duty to remove or otherwise make safe, but failed to do so. A trial court decision, Jurgilewicz v. Sita, Superior Court, judicial district of New Haven, Docket No. CV-13-6036859-S (November 26, 2014, Wilson, J.), is instructive. In Jurgilewicz, the court denied summary judgment because the defendants did not submit any evidence to contradict the plaintiff’s allegation that the plaintiff fell due to ice that formed in the days and weeks prior to his fall. In contrast, in the present case, the weather report submitted in support of the defendant’s motion for summary judgment indicates that " any ice under the snow would have been in the process of forming between 5:52 [a.m.] and the time of incident simultaneous with the temperatures falling ..." The defendant has submitted evidence demonstrating that, apart from the plaintiff’s bare allegations, there is nothing to indicate that the plaintiff fell due to a prior accumulation of ice.
Indeed, the present case is similar to Dancy v. Waterbury Housing Authority, Superior Court, judicial district of Waterbury, Docket No. CV-15-6027154-S (January 12, 2016, Shapiro, J.) . In Dancy, the trial court granted summary judgment to the defendant after determining that the plaintiff would not be able to meet her burden at trial because there was no evidence that she fell on ice that had accumulated in the days before she fell. The trial court ruled that " [the plaintiff’s] statement that she believes she fell on old ice is unsupported by personal knowledge, such as prior observation of the presence of ice at the place where she fell. The plaintiff’s circumstantial evidence argument, that weather temperatures below freezing could have allowed for old ice to form at the location where she claims she slipped also is based on speculation. The jury would have to engage in impermissible speculation in order to make a factual finding that there was old ice at the location, which remained there after the defendant’s snow removal work ..." Id. In contrast, the Appellate Court in Berlinger v. Kudej, 120 Conn.App. 432, 991 A.2d 716 (2010), reversed a trial court’s entry of summary judgment in favor of a landowner. In Berlinger, the plaintiff had submitted an affidavit in which he testified that " he had observed isolated patches of ice on the driveway on the Friday prior to" the date of his fall. Id., 435. This was sufficient evidence to create a genuine issue of material fact as to " whether the driveway contained an icy accumulation prior to the morning of [the plaintiff’s fall]." Id., 436.
In the present case, the plaintiff submitted no evidence that would create an issue as to an accumulation of ice from a prior storm. The plaintiff testified at her deposition that she did not leave her apartment the day before she fell and that she did not know how long the ice that she slipped on had been there. Moreover, it is clear from her deposition testimony that she did not view the site where she fell in the days prior to the incident. Although the defendant’s weather report does indicate that snow fell on both days prior to the day of the incident, the " [m]ere proof of the presence of some snow or ice or both does not necessarily show a breach of [a] defendant’s duty." (Internal quotation marks omitted.) Riccio v. Harbour Village Condominium Assn., Inc., 281 Conn. 160, 164, 914 A.2d 529 (2007). Rather, a plaintiff is required to demonstrate that the defendant " had actual or constructive notice of the specific defect that caused the plaintiff’s injuries." Id. In the court’s opinion, the jury would have to resort to speculation and conjecture in the present case to conclude that, on the day and time of the incident, the plaintiff’s fall was caused by an accumulation of ice and snow that was not related to, and formed prior to, precipitation from the ongoing storm on the day the plaintiff alleges she fell.
The new allegation added by the plaintiff in her amended complaint- that the roadway was in such an uneven state that adequate snow and ice removal would not be possible- still requires proof of a pre-existing accumulation of ice in order to qualify as the defect that caused the plaintiff’s fall. In the absence of such proof, the fact that the roadway may have been in disrepair does not create an issue of fact as to the presence of a pre-existing accumulation of ice.
" To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts in accordance with Practice Book ... § § 17-45 and 17-46 ... which contradict those stated in the movant’s affidavits and documents and show that there is a genuine issue for trial. If he does not so respond, summary judgment shall be entered against him ... [A] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." (Citation omitted; internal quotation marks omitted.) Doty v. Shawmut Bank, 58 Conn.App. 427, 430, 755 A.2d 219 (2000). Even when viewed in the light most favorable to the plaintiff, as the court must when considering the defendant’s motion for summary judgment, a trier of fact could not find that there was an accumulation of pre-existing ice and snow in the area where the plaintiff fell without resorting to conjecture and speculation. The defendant’s evidence establishes that it would be entitled to a directed verdict at trial. Summary judgment should, therefore, be granted in its favor.
Conclusion
For the reasons set forth above, the defendant’s motion for summary judgment is granted.