Opinion
CV156061350S
08-03-2017
Kathleen McQueeney v. Stephen Penny
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#120)
Susan A. Peck, Judge
The plaintiff filed the operative one-count amended complaint in this matter on September 22, 2016. The complaint sounds in negligence and alleges the following facts. On or about December 1, 2013, at approximately 8:00 a.m., the plaintiff, Kathleen McQueeney, was walking on a bluestone walkway in front of the premises located at 114 Vernon Street West, Manchester, Connecticut (property). The plaintiff was caused to slip and fall on untreated ice which had accumulated at that location, thereby sustaining serious personal injuries. At the time of the plaintiff's fall, the defendant, Stephen Penny, maintained the location where the plaintiff fell. The plaintiff's fall and resulting injuries were caused by the negligence and carelessness of the defendant. The plaintiff seeks monetary damages.
The defendant's motion for summary judgment and the plaintiff's objection thereto have been fully briefed. In support of his motion, the defendant has submitted excerpts from his deposition testimony. In her opposition, the plaintiff has also submitted portions of the defendant's deposition as well as her own affidavit. The matter was heard at short calendar on May 22, 2017.
" 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 . . . However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012). " 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 a 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 . . . A material fact . . . [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015).
" 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). " [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.
The defendant argues that he is entitled to summary judgment because there is no genuine issue of material fact that he and the plaintiff were co-owners of the property where the plaintiff allegedly fell, and therefore, the defendant owed no duty over and above the duty of the plaintiff as the equal property owner to maintain the premises or warn of or remedy any defect as a matter of law. The plaintiff counters that there is a genuine issue of material fact as to whether the defendant owed the plaintiff a legal duty, as the defendant possessed and controlled, and was solely responsible for the snow and ice maintenance on the premises. The plaintiff further argues that there is a genuine issue of material fact as to whether the defendant assumed a legal duty when he gratuitously undertook sole responsibility for removing snow and ice at the premises.
" 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.) Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 687 n.13, 849 A.2d 813 (2004). " The existence of a duty of care is a prerequisite to a finding of negligence . . . 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." (Citations omitted; internal quotation marks omitted.) Lachowicz v. Rugens, 119 Conn.App. 866, 868, 989 A.2d 651, cert. denied, 297 Conn. 901, 994 A.2d 1287 (2010).
" [T]he test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case." (Internal quotation marks omitted.) Lodge v. Arett Sales Corp., 246 Conn. 563, 572, 717 A.2d 215 (1998).
" Although there is no duty to prevent unforeseeable harm, not all injuries that are foreseeable give rise to a legal duty. Because foreseeability is a necessary component of duty, the absence of foreseeability forecloses the existence of a duty of care . . . The converse is not [true, however]: the conclusion that a particular injury to a particular plaintiff or class of plaintiffs possibly is foreseeable does not, in itself, create a duty of care . . . Thus, foreseeability is not commensurate with duty, and proof of foreseeability does not establish the existence of a duty of care." (Citation omitted; internal quotation marks omitted.) Ryan Transp., Inc. v. M & G Assocs., 266 Conn. 520, 528-29, 832 A.2d 1180 (2003). " [W]hen a duty is not found to exist under the public policy prong of the test, there is no need to perform an analysis under the foreseeability prong." Id., 529.
In Ryan Transportation, the court held that cotenants do not have a legal duty to take affirmative action to protect each other. Ryan Transportation, Inc. v. M& G Associates, supra, 266 Conn. 527-28. The court reasoned that, although in some circumstances a landlord has a duty to take affirmative action to protect its tenants, this duty is limited to areas of the leasehold over which the landlord has exclusive control or to situations in which the landlord has the exclusive ability to prevent the unlawful conduct. Id., 528. Where two people are cotenants, neither tenant has exclusive control over common areas. Id. Thus, the tenants do not have a duty to act affirmatively to protect each other. Id.
In the present case, the plaintiff and the defendant were co-owners of the property where the plaintiff fell. In the defendant's deposition, he testified that they had lived continuously at the property since about May 1985; and that although he admittedly was primarily responsible for salting and sanding the property, the plaintiff had also done so on occasion. The plaintiff argues that the defendant was solely responsible for snow and ice maintenance and removal at the premises, but as the parties were co-owners, both parties could have done so. Both parties had possession and control of the walkway, and both parties were capable of maintaining or removing the snow and ice that had accumulated there. Although the plaintiff attempts to create a legal duty for the defendant because he was primarily responsible for such maintenance, she cites no persuasive case law in support of this proposition. Just as in Ryan Transportation, neither party had exclusive control over any portion of the house. Consequently, as the parties were co-owners of the property, the defendant did not have a legal duty to the plaintiff to perform snow and ice maintenance and removal.
The plaintiff cites to Downey v. Guiza, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-05-4003703-S, (October 5, 2007, Robinson, J.), to show that the defendant had a legal duty. Downey, however, is easily distinguishable. In that case, the defendant was a home contracting company, hired by the homeowner plaintiff. Id. The court held that the defendant could be liable for injuries to the plaintiff caused by a pipe left by the defendant in the plaintiff's home, pursuant to the renovations, because the question of liability looked to who had possession and control at the time. In that case, however, the defendant was hired to perform a job and then is alleged to have done it negligently. In this case, the plaintiff did not hire the defendant to perform the snow and ice maintenance, the defendant did not perform any such job negligently, and he did not have exclusive control or possession over the area. Consequently, Downey is unpersuasive in this case.
The plaintiff further argues that because the defendant gratuitously undertook the service of performing snow and ice maintenance, he had assumed a legal duty to the plaintiff. This argument misunderstands the concept. " One who gratuitously undertakes a service that he has no duty to perform must act with reasonable care in completing the task assumed . . . If one undertakes to perform an act and performs it negligently . . . it makes no difference whether . . . the act was performed gratuitously . . . One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other's reliance upon the undertaking." (Citations omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, supra, 306 Conn. 547. See also Coville v. Liberty Mutual Ins. Co., 57 Conn.App. 275, 282-83, 748 A.2d 875, cert. granted, 253 Conn. 919, 755 A.2d 213 (2000) (appeal withdrawn March 30, 2001) (where defendant driver forced his girlfriend to ride home with him from a bar and refused to let her out of the vehicle, court should have instructed jury regarding defendant's voluntary assumption of custody over his girlfriend, thus imposing additional duties of care). Here, the undisputed fact that the defendant had, in the past, gratuitously undertaken the job of snow and ice removal and maintenance does not create a future legal duty. Rather, on the date of the plaintiff's injury, the evidence reflects that the defendant did not gratuitously undertake any such task. He did not perform any task negligently, resulting in the plaintiff's fall, and he did not undertake a legal duty to do so. In fact, the defendant's deposition testimony reflects that he was not aware of any adverse weather conditions prior to the plaintiff's fall and that he had gotten up shortly before the fall occurred. Accordingly, there is no evidence that the defendant assumed a legal duty to the plaintiff. Thus, he has met his burden of showing that there is no genuine issue of material fact that the plaintiff cannot recover under a claim of negligence.
In Grenier, the court held that a fraternity assumed a duty of care by providing transportation to pledges to attend a mandatory event. Grenier v. Commissioner of Transportation, supra, 306 Conn. 552.
CONCLUSION
For the foregoing reasons, the defendant's motion for summary judgment is hereby granted.