Opinion
No. CV08 5003635-S
September 14, 2009
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #119
I BACKGROUND
By complaint dated May 13, 2008, the plaintiff, Andrea McCormack, alleges negligence on the part of the defendants, Lake Compounce Limited Partnership and Lake Compounce Theme Park, Inc., resulting in injuries from a collision and resulting fall with two amusement park patrons on "slippery cement." The alleged collision and fall occurred on premises that were under the control of the defendants. On September 25, 2008, the defendants filed an answer to the complaint along with two special defenses. On July 21, 2009, the defendants filed a motion for summary judgment and a memorandum of law in support thereof. The matter was heard at short calendar on September 8, 2009.
II 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 deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . 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 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." (Citations omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791-92, 849 A.2d 839 (2004). "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 their memorandum of law in support of their motion for summary judgment, the defendants argue that they are entitled to summary judgment because "the plaintiff cannot satisfy an essential element for a negligence cause of action in that she cannot establish that the defendants owed her a legal duty." More specifically, the defendants contend that no duty existed because "the court would have to conclude that it was foreseeable that during the rainstorm, two unidentified men would ignore posted signs instructing them to walk, and instead run into a crowded area in [short] succession and collide with the plaintiff. The court would have to further conclude that plaintiff['s] injuries could have somehow been prevented by some undefined exercise of due care by Lake Compounce." The defendants thus argue that the specific harm alleged was not foreseeable. Further, the defendants argue that "causation cannot be established as `it cannot be said that failure to do or not to do anything by the defendant was a factor, let alone a substantial factor in the occurrence of this confrontation . . . [Rather] the plaintiff's theory is purely and simply that the (defendant) (was) negligent in failing to effectively deter any and everyone from acting in such a manner.'" Finally, the defendants' argue that public policy concerns militate against the finding that the plaintiff was owed a duty in this premises liability case.
"Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). "Summary judgment procedure is especially 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 . . . [T]he conclusion of negligence is necessarily one of fact . . ." (Citations omitted; internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).
In the present case, the defendants, as the parties moving for summary judgment, have failed to meet their burden of showing the absence of any genuine issue of material facts. The defendants fail to establish that they did not owe the plaintiff a duty that was breached by a failure to exercise the degree of care a reasonable person would have exercised under like circumstances. Despite the defendants' arguments, they have not demonstrated that there is no genuine issue of material fact that it was not foreseeable to them, as owner and operator of the amusement park, that the harm alleged could have occurred on "slippery cement" during a heavy rain. Nor have the defendants established that reasonable precautions could not have been taken to prevent the alleged collision. Further, the defendants have not established that their actions or the inaction of their employees were not a factor contributing to the ham caused to the plaintiff through the collision and fall. Accordingly, there exists a genuine issue of material fact as to the defendants' alleged negligence.
III CONCLUSION
For the above stated reasons, the defendants' motion for summary is denied.